SUPPLEMENTAL INDENTURE NO. 3
This SUPPLEMENTAL INDENTURE NO. 3 (this Supplemental Indenture), dated as of August 24, 2011, is by and among CONSOL ENERGY INC., a Delaware corporation (the Company), certain of the Companys subsidiaries signatory hereto (each, a Subsidiary Guarantor and, collectively, the Subsidiary Guarantors) and THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as trustee under the indenture referred to below (the Trustee).
WHEREAS, the Company, the Trustee and the Subsidiary Guarantors have executed an Indenture dated as of April 1, 2010, as amended (the Indenture), between the Company, the Subsidiary Guarantors listed on Schedule I thereto and the Trustee, providing for the issuance of 8.250% Senior Notes due April 1, 2020 (the Securities);
WHEREAS, the Company desires to execute and deliver this Supplemental Indenture to clarify in clause (iii) of the definition of Asset Disposition that ordinary course of business transactions include, for the avoidance of doubt, transfers to facilitate the exploration, development and production of oil and gas properties through joint operating agreements and similar arrangements which are customary in the industry (the Proposed Amendment);
WHEREAS, the Board of Directors of the Company has determined that it is in the best interest of the Company to make the Proposed Amendment;
WHEREAS, Section 9.02 of the Indenture provides that the Company, the Subsidiary Guarantors and the Trustee may amend the Indenture with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Securities (the Required Consent);
WHEREAS, the Company has obtained the Required Consent pursuant to the Consent Solicitation Statement, dated August 18th, 2011 (as amended, supplemented or otherwise modified from time to time, the Consent Solicitation Statement) to the Proposed Amendment upon the terms and subject to the conditions set forth therein; and
WHEREAS, pursuant to Section 9.02 of the Indenture, having received the Required Consent, the Company, the Subsidiary Guarantors and the Trustee are 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 Company, the Subsidiary Guarantors and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Securities as follows:
1. Definitions. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Effective Date; Operative Date. This Supplemental Indenture shall become effective upon the execution and delivery hereof by the Company, the Subsidiary Guarantors and the Trustee. The terms hereof shall become operative on the date (the Operative Date) the Company has paid the Consent Payment (as defined in the Consent Solicitation Statement) in accordance with and as contemplated by the Consent Solicitation Statement. This Supplemental Indenture will be void if not operative by September 30, 2011.
3. Amendment to Section 1.01 (Definitions). As of the Operative Date, Section 1.01 (Definitions) is hereby amended by inserting the following language at the end of clause (iii) of the first sentence of the definition of Asset Disposition: , which ordinary course of business includes, for the avoidance of doubt, transfers to facilitate the exploration, development and production of oil and gas properties through operating agreements and similar arrangements which are customary in the industry.
4. Ratification of Indenture; Supplemental Indentures Part of Indenture. Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
5. Conflict with Trust Indenture Act. If any provision of this Supplemental Indenture limits, qualifies or conflicts with any provision of the TIA that is required under the TIA to be part of and govern any provision of this Supplemental Indenture, the provision of the TIA shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the provision of the TIA shall be deemed to apply to the Indenture as so modified or to be excluded by this Supplemental Indenture, as the case may be.
6. Successors. All agreements of the Company in this Supplemental Indenture shall bind its successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successors. All agreements of each Subsidiary Guarantor in this Supplemental Indenture shall bind its successors.
7. Governing Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.
9. 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.
10. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture No .3 to be duly executed as of the date first above written.
|CONSOL ENERGY INC.|
|Name: Stephen W. Johnson|
|Title: Senior Vice President and General Counsel|
|The Guarantors identified on Schedule I hereto, as Guarantors|
|Name: Stephen W. Johnson|
|as Authorized Signatory for each of the Guarantors listed on Schedule I hereto|
|THE BANK OF NOVA SCOTIA TRUST COMPANY OF NEW YORK, as Trustee,|
|Name: Warren A. Goshine|
|Title: Vice President|
AMVEST Coal & Rail, L.L.C.
AMVEST Coal Sales, Inc.
AMVEST Gas Resources, Inc.
AMVEST Mineral Services, Inc.
AMVEST Minerals Company, L.L.C.
AMVEST Oil & Gas, Inc.
Braxton-Clay Land & Mineral, Inc.
Cardinal States Gathering Company
Central Ohio Coal Company
CNX Gas Company LLC
CNX Gas Corporation
CNX Land Resources Inc.
CNX Marine Terminals Inc.
Coalfield Pipeline Company
Conrhein Coal Company (by Consolidation Coal Company and MTB Inc., its partners)
CONSOL Energy Holdings LLC VI
CONSOL Energy Sales Company
CONSOL Financial Inc.
CONSOL of Canada Inc.
CONSOL of Central Pennsylvania LLC
CONSOL of Kentucky Inc.
CONSOL of Ohio LLC
CNX Water Assets LLC (f/k/a CONSOL of WV LLC)
CONSOL of Wyoming LLC
Consol Pennsylvania Coal Company LLC
Consolidation Coal Company
Eighty-Four Mining Company
Fola Coal Company, L.L.C.
Glamorgan Coal Company, L.L.C.
Helvetia Coal Company
Island Creek Coal Company
Keystone Coal Mining Corporation
Knox Energy, LLC
Laurel Run Mining Company
Little Eagle Coal Company, L.L.C.
McElroy Coal Company
Mon River Towing, Inc.
Nicholas-Clay Land & Mineral, Inc.
Peters Creek Mineral Services, Inc.
Reserve Coal Properties Company
Rochester & Pittsburgh Coal Company
Southern Ohio Coal Company
TEAGLE Company, L.L.C.
Terra Firma Company
Terry Eagle Coal Company, L.L.C.
Terry Eagle Limited Partnership (by TEAGLE Company, L.L.C. and TECPART Corporation, its general partners)
Twin Rivers Towing Company
Vaughan Railroad Company
Windsor Coal Company
Wolfpen Knob Development Company