exv4w33



 





Exhibit 4.33




THIRTEENTH SUPPLEMENTAL INDENTURE

(7 3/8% Senior Notes due 2016)




     Thirteenth Supplemental Indenture (this “Supplemental Indenture”), dated as of November 10,
2006, among the entities listed on Schedule I attached hereto (the “Guaranteeing
Subsidiaries”), each being a subsidiary of Peabody Energy Corporation (or its permitted successor),
a Delaware corporation (the “Company”), the Company, the other Subsidiary Guarantors (as defined in
the Indenture referred to herein) and U.S. Bank National Association, as Trustee under the
Indenture referred to below (the “Trustee”).



W I T N E S S E T H




     WHEREAS, the Company has heretofore executed and delivered to the Trustee the Tenth
Supplemental Indenture dated as of October 12, 2006 to the Indenture dated as of March 19, 2004,
(the “Base Indenture,” and, together with the Tenth Supplemental Indenture, the “Indenture”)
providing for the issuance of an unlimited amount of 7 3/8% Senior Notes due 2016 (the “Notes”);



     WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Subsidiaries
shall execute and deliver to the Trustee a supplemental Indenture pursuant to which the
Guaranteeing Subsidiaries shall unconditionally guarantee all of the Company’s Obligations under
the Notes and the Indenture on the terms and conditions set forth herein (the “Subsidiary
Guarantee”); and



     WHEREAS, pursuant to Section 9.01 of the Base Indenture, the Trustee is authorized to execute
and deliver this Supplemental Indenture.



     NOW THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Guaranteeing Subsidiaries and the
Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes
as follows:



     1. Capitalized Terms. Capitalized terms used herein without definition shall have the
meanings assigned to them in the Indenture.



     2. Agreement to Guarantee. Each of the Guaranteeing Subsidiaries hereby agrees as
follows:




	 	(a)	 	Along with all Subsidiary Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of the
Company hereunder or thereunder, that:






	 	(i)	 	the principal of and interest on the Notes will be promptly paid in
full when due, whether at maturity, by acceleration, redemption or otherwise,
and interest on the overdue principal of and interest on the Notes, if any, if
lawful, and all other obligations of the Company to the Holders or the Trustee
hereunder or thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and




 









 






	 	(ii)	 	in case of any extension of time of payment or renewal of any
Notes or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Subsidiary Guarantors shall be jointly and severally
obligated to pay the same immediately.






	 	(b)	 	The obligations hereunder shall be unconditional, irrespective of the
validity, regularity or enforceability of the Notes or the Indenture, the absence of
any action to enforce the same, any waiver or consent by any Holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment against the
Company, any action to enforce the same or any other circumstance which might
otherwise constitute a legal or equitable discharge or defense of a Subsidiary
Guarantor.
	 
	 	(c)	 	The following is hereby waived: diligence presentment, demand of payment,
filing of claims with a court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, protest, notice and all
demands whatsoever.
	 
	 	(d)	 	This Subsidiary Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture.
	 
	 	(e)	 	If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Subsidiary Guarantors, or any custodian, Trustee,
liquidator or other similar official acting in relation to either the Company or the
Subsidiary Guarantors, any amount paid by either to the Trustee or such Holder, this
Subsidiary Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
	 
	 	(f)	 	The Guaranteeing Subsidiaries shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed hereby
until payment in full of all obligations guaranteed hereby.
	 
	 	(g)	 	As between the Subsidiary Guarantors, on the one hand, and the Holders and
the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby
may be accelerated as provided in Article 6 of the Tenth Supplemental Indenture for
the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of such
obligations as provided in Article 6 of the Tenth Supplemental Indenture, such
obligations (whether or not due and payable) shall forthwith become due and payable by
the Subsidiary Guarantors for the purpose of this Subsidiary Guarantee.
	 
	 	(h)	 	The Subsidiary Guarantors shall have the right to seek contribution from
any non-paying Subsidiary Guarantor so long as the exercise of such right does not
impair the rights of the Holders under the Subsidiary Guarantee.
	 
	 	(i)	 	Pursuant to Section 9.04 of the Tenth Supplemental Indenture, after giving
effect to any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and after
giving effect to any collections from, rights to receive contribution from or payments
made by or on behalf of any other Subsidiary Guarantor in respect of the obligations
of such other Subsidiary Guarantor under Article 9 of the Tenth Supplemental Indenture




2









 






	 	 	 	shall result in the obligations of such Subsidiary Guarantor under its Subsidiary
Guarantee not constituting a fraudulent transfer or conveyance.





     3. Execution and Delivery. Each of the Guaranteeing Subsidiaries agrees that the
Subsidiary Guarantees shall remain in full force and effect notwithstanding any failure to endorse
on each Note a notation of such Subsidiary Guarantee.



     4. Guaranteeing Subsidiary May Consolidate, Etc. on Certain Terms.




	 	(a)	 	The Guaranteeing Subsidiaries may not consolidate with or merge with or
into (whether or not such Subsidiary Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Subsidiary Guarantor
unless:






	 	(i)	 	subject to Section 9.04 of the Tenth Supplemental Indenture, the
Person formed by or surviving any such consolidation or merger (if other than
a Subsidiary Guarantor or the Company) unconditionally assumes all the
obligations of such Subsidiary Guarantor, pursuant to a supplemental Indenture
in form and substance reasonably satisfactory to the Trustee, under the Notes,
the Indenture and the Subsidiary Guarantee on the terms set forth herein or
therein; and
	 
	 	(ii)	 	immediately after giving effect to such transaction, no Default or
Event of Default exists.






	(b)	 	In case of any such consolidation, merger, sale or conveyance and upon the
assumption by the successor corporation, by supplemental Indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the Subsidiary
Guarantee endorsed upon the Notes and the due and punctual performance of all of the
covenants and conditions of the Indenture to be performed by the Subsidiary Guarantor,
such successor corporation shall succeed to and be substituted for the Subsidiary
Guarantor with the same effect as if it had been named herein as a Subsidiary
Guarantor. Such successor corporation thereupon may cause to be signed any or all of
the Subsidiary Guarantees to be endorsed upon all of the Notes issuable hereunder
which theretofore shall not have been signed by the Company and delivered to the
Trustee. All the Subsidiary Guarantees so issued shall in all respects have the same
legal rank and benefit under the Indenture as the Subsidiary Guarantees theretofore
and thereafter issued in accordance with the terms of the Indenture as though all of
such Subsidiary Guarantees had been issued at the date of the execution hereof.






	 	(c)	 	Except as set forth in Articles 4 and 5 of the Tenth Supplemental
Indenture, and notwithstanding clauses (a) and (b) above, nothing contained in the
Indenture or in any of the Notes shall prevent any consolidation or merger of a
Subsidiary Guarantor with or into the Company or another Subsidiary Guarantor, or
shall prevent any sale or conveyance of the property of a Subsidiary Guarantor as an
entirety or substantially as an entirety to the Company or another Subsidiary
Guarantor.





     5. Releases.




	 	(a)	 	In the event of (i) the release or discharge of the Guarantee of the Credit
Agreement by a Subsidiary Guarantor, except a discharge or release by or as a result
of payment under such Guarantee or (ii) a sale or other disposition by way of such a
merger,




3









 






	 	 	 	consolidation or otherwise, of all of the capital stock of any Subsidiary
Guarantor, then such Subsidiary Guarantor (in the event of a sale or other
disposition of all of the capital stock of such Subsidiary Guarantor) will be
released and relieved of any obligations under its Subsidiary Guarantee.






	 	(b)	 	Any Subsidiary Guarantor not released from its obligations under its
Subsidiary Guarantee shall remain liable for the full amount of principal of and
interest on the Notes and for the other obligations of any Subsidiary Guarantor under
the Indenture as provided in Article 9 of the Tenth Supplemental Indenture.





     6. No Recourse Against Others. No past, present or future director, officer,
employee, incorporator, stockholder or agent of the Guaranteeing Subsidiaries, as such, shall have
any liability for any obligations of the Company or any Guaranteeing Subsidiaries under the Notes,
any Subsidiary Guarantees, the Indenture or this Supplemental Indenture or for any claim based on,
in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by
accepting a Note waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the Commission that such a waiver is
against public policy.



     7. NEW YORK LAW TO GOVERN. THE LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE
USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE.



     8. Counterparts. The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together represent the same
agreement.



     9. Effect of Headings. The Section headings herein are for convenience only and
shall not affect the construction hereof.



     10. The Trustee. The Trustee shall not be responsible in any manner whatsoever for
or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of
the recitals contained herein, all of which recitals are made solely by the Guaranteeing
Subsidiaries and the Company.



[Signature pages follow]




4









 








     IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed and attested, all as of the date first above written.



Dated: November 10, 2006




	 	 	 	 	 	 	 
	 	 	Appalachian Basin Oil & Gas, LLC	 	 
	 	 	Illinois Basin Oil & Gas, LLC	 	 
	 	 	Rockies Natural Gas, LLC	 	 
	 	 	Wyoming Natural Gas, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Walter L. Hawkins, Jr.
 

	 	 
	 	 	Name: Walter L. Hawkins, Jr.	 	 
	 	 	Title: Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 

	 	Peabody Energy Corporation	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Walter L. Hawkins, Jr.
 

	 	 
	 	 	Name: Walter L. Hawkins, Jr.	 	 
	 	 	Title: Vice President & Treasurer	 	 
	 
	 	 	 	 	 	 
	 	 	Affinity Mining Company	 	 
	 	 	American Land Development, LLC	 	 
	 	 	American Land Holdings of Illinois, LLC	 	 
	 	 	American Land Holdings of Indiana, LLC	 	 
	 	 	American Land Holdings of Kentucky, LLC	 	 
	 	 	Appalachia Mine Services, LLC	 	 
	 	 	Arclar Company, LLC	 	 
	 	 	Arid Operations Inc.	 	 
	 	 	Beaver Dam Coal Company	 	 
	 	 	Big Ridge, Inc.	 	 
	 	 	Big Sky Coal Company	 	 
	 	 	Black Beauty Coal Company, LLC	 	 
	 	 	Black Beauty Equipment Company, LLC	 	 
	 	 	Black Beauty Holding Company, LLC	 	 
	 	 	Black Beauty Resources, LLC	 	 
	 	 	Black Hills Mining Company, LLC	 	 
	 	 	Black Stallion Coal Company, LLC	 	 
	 	 	Black Walnut Coal Company	 	 
	 	 	Bluegrass Mine Services, LLC	 	 
	 	 	BTU Empire Corporation	 	 
	 	 	BTU Western Resources, Inc.	 	 
	 	 	Caballo Coal Company	 	 
	 	 	Central States Coal Reserves of Illinois, LLC	 	 
	 	 	Central States Coal Reserves of Indiana, LLC	 	 
	 	 	Central States Coal
Reserves of Kentucky, 
     LLC	 	 
	 	 	Charles Coal Company, LLC	 	 
	 	 	Cleaton Coal Company	 	 
	 	 	Coal Properties, LLC	 	 
	 	 	Coal Reserve Holding
Limited Liability 
     Company No. 1	 	 






5









 






Coal Reserve Holding Limited Liability Company No. 2

COALSALES, LLC

COALSALES II, LLC

COALTRADE International, LLC

COALTRADE, LLC

Colony Bay Coal Company

Colorado Coal Resources, LLC

Colorado Yampa Coal Company

Cook Mountain Coal Company, LLC

Cottonwood Land Company

Coulterville Coal Company, LLC

Cyprus Creek Land Company

Cyprus Creek Land Resources, LLC

Dixon Mining Company, LLC

Dodge Hill Holding JV, LLC

Dodge Hill Mining Company, LLC

Dodge Hill of Kentucky, LLC

Dyson Creek Coal Company, LLC

EACC Camps, Inc.

Eastern Associated Coal, LLC

Eastern Coal Company, LLC

Eastern Coal Holding Company, Inc.

Eastern Royalty Corp.

Falcon Coal Company, LLC

Fort Energy, LLC

Gallo Finance Company

Gold Fields Chile, LLC

Gold Fields Mining, LLC

Gold Fields Ortiz, LLC

Grand Eagle Mining, Inc.

Hayden Gulch Terminal, Inc.

Highland Mining Company, LLC

Highwall Mining Services Company

Hillside Mining Company

HMC Mining, LLC

Independence Material Handling, LLC

Indian Hill Company

Interior Holdings, LLC

James River Coal Terminal, LLC

Jarrell’s Branch Coal Company

Juniper Coal Company

Kayenta Mobile Home Park, Inc.

Logan Fork Coal Company

Martinka Coal Company, LLC

Midco Supply and Equipment Corporation

Midwest Coal Acquisition Corp.

Midwest Coal Reserves of Illinois, LLC

Midwest Coal Reserves of Indiana, LLC

Midwest Coal Resources, LLC

Mountain View Coal Company, LLC

Mustang Energy Company, L.L.C.

New Mexico Coal Resources, LLC

North Page Coal Corp.




6









 





Ohio County Coal Company

Patriot Coal Company, L.P.

Patriot Midwest Holdings, LLC

PDC Partnership Holdings, LLC

Peabody America, Inc.

Peabody Archveyor, L.L.C.

Peabody Cardinal Gasification, LLC

Peabody Coal Company, LLC

Peabody Development Company, LLC

Peabody Electricity, LLC

Peabody Energy Generation Holding Company

Peabody Energy Investments, Inc.

Peabody Energy Solutions, Inc.

Peabody Holding Company, LLC

Peabody Investments Corp.

Peabody Natural Gas, LLC

Peabody Natural Resources Company

Peabody PowerTree Investments, LLC

Peabody Recreational Lands, L.L.C.

Peabody Southwestern Coal Company

Peabody Terminals, LLC

Peabody Venezuela Coal Corp.

Peabody Venture Fund, LLC

Peabody-Waterside Development, L.L.C.

Peabody Western Coal Company

PEC Equipment Company, LLC

Pine Ridge Coal Company, LLC

Point Pleasant Dock Company, LLC

Pond Creek Land Resources, LLC

Pond River Land Company

Porcupine Production, LLC

Porcupine Transportation, LLC

Powder River Coal, LLC

Powder River Resources, LLC

Prairie State Generating Company, LLC

Randolph Land Holding Company, LLC

Rivers Edge Mining, Inc.

Riverview Terminal Company

School Creek Coal Company, LLC

School Creek Coal Resources, LLC

Seneca Coal Company

Sentry Mining, LLC

Shoshone Coal Corporation

Snowberry Land Company

Star Lake Energy Company, L.L.C.

Sterling Smokeless Coal Company, LLC

Sugar Camp Properties, LLC

Thoroughbred, L.L.C.

Thoroughbred Generating Company, LLC

Thoroughbred Mining Company, L.L.C.

Twentymile Coal Company

Union County Coal Company, LLC

West Roundup Resources, Inc.




7









 





	 	 	 	 	 	 	 
	 	 	Yankeetown Dock, LLC	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Walter L. Hawkins, Jr.
 

	 	 
	 	 	Name: Walter L. Hawkins, Jr.	 	 
	 	 	Title: Vice President & Treasurer	 	 






8









 






	 	 	 	 	 
	 	U.S. Bank National Association as Trustee

 	 
	 	By:  	/s/ Philip G. Kane, Jr.
 	 
	 	 	Name:  	Philip G. Kane, Jr. 	 
	 	 	Title:  	Vice President 	 
	 








9









 











SCHEDULE I




NEW GUARANTEEING SUBSIDIARIES




Appalachian Basin Oil & Gas, LLC, a Delaware limited liability company

Illinois Basin Oil & Gas, LLC, a Delaware limited liability company

Rockies Natural Gas, LLC, a Delaware limited liability company

Wyoming Natural Gas, LLC, a Delaware limited liability company





10