THIRD SUPPLEMENTAL INDENTURE
Exhibit 4.8
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of August 1, 2009 (this “Supplemental
Indenture”), by and among FOUNDATION PA COAL COMPANY, LLC, a Delaware limited liability company
(the “Company”), the Parent (as defined below), each Domestic Subsidiary of the Parent
identified on Annex A hereto (each, a “New Subsidiary” and together with the
Parent, the “New Guarantors” and each, a “New Guarantor”), and THE BANK OF NEW YORK
MELLON (formerly known as The Bank of New York), as trustee (the “Trustee”), under the
Indenture dated as of July 30, 2004 (as supplemented by the Supplemental Indenture dated as of
September 6, 2005 and the Supplemental Indenture dated as of October 5, 2007, the
“Indenture”), between the Company, the Guarantors and the Trustee.
WITNESSETH
WHEREAS, the Company and the existing guarantors have heretofore executed and delivered to the
Trustee the Indenture providing for the issuance of 7 1/4% Senior Notes due August 1, 2014 (the
“Notes”);
WHEREAS, ALPHA NATURAL RESOURCES, INC., a Delaware corporation (“Alpha”), and
FOUNDATION COAL HOLDINGS, INC., a Delaware corporation (“Foundation”) and an indirect
parent of the Company, entered into an Agreement and Plan of Merger dated as of May 11, 2009 (the
“Merger Agreement”), providing for the merger of Alpha with and into Foundation (the
“Parent Merger”), with Foundation as the surviving corporation (such surviving corporation,
renamed Alpha Natural Resources, Inc., the “Parent”);
WHEREAS, after the effectiveness of the Parent Merger, FOUNDATION COAL CORPORATION, a Delaware
corporation (“Holdings”), and its direct parent company, FC 2 CORP., a Delaware
corporation, each intend to merge with and into the Parent, with the Parent as the surviving
corporation (the “Roll-up Mergers”);
WHEREAS, Section 4.17 of the Indenture provides that under certain circumstances each New
Guarantor shall execute and deliver to the Trustee a supplemental indenture pursuant to which each
New Guarantor shall unconditionally guarantee all of the Company’s Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the “Note Guarantee”);
WHEREAS, Section 5.01 of the Indenture provides that upon the consolidation or merger of
Holdings with or into another Person where such other Person is the surviving entity, the Person
surviving such consolidation or merger shall assume all the obligations of Holdings under the Notes
and the Indenture pursuant to agreements reasonably satisfactory to the Trustee;
WHEREAS, Alpha American Coal Company, LLC (formerly known as Foundation American Coal Company,
LLC) signed the Indenture as of July 30, 2004, but was inadvertently omitted from the definition of
“Guarantors” under Section 1.01 of the Indenture;
WHEREAS, all things necessary have been done to make this Supplemental Indenture, when
executed and delivered by the Company and the New Guarantors, the legal,
valid and binding
agreement of the Company and the New Guarantors, according to its terms; and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee, the Company and the existing
Guarantors 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 Parent, the New
Guarantors, the existing Guarantors and the Trustee agree as follows:
ARTICLE I
DEFINITIONS
DEFINITIONS
Section 1.1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have
the meanings assigned to them in the Indenture.
ARTICLE II
CORRECTION
CORRECTION
Section 2.1. DEFINITION OF “GUARANTORS”. The list of Guarantors in paragraph (2) of the
definition of “Guarantors” in Section 1.01 of the Indenture is hereby corrected pursuant to Section
9.01(1) of the Indenture by adding the name of “Alpha American Coal Company, LLC.”
ARTICLE III
AMENDMENTS TO INDENTURE
AMENDMENTS TO INDENTURE
Section 3.1. AGREEMENT TO GUARANTEE. Each New Guarantor hereby agrees, jointly and severally
with all existing Guarantors (if any), to provide an unconditional Guarantee on the terms and
subject to the conditions set forth in Article 10 of the Indenture and to be bound by all other
applicable provisions of the Notes and the Indenture and to perform all of the obligations and
agreements of a Guarantor under the Indenture.
Section 3.2. ASSUMPTION OF OBLIGATIONS. Parent hereby agrees, upon the effectiveness of the
Roll-up Mergers, to assume all the obligations of Holdings under the Notes and the Indenture.
Section 3.3. NOTICES. All notices or other communications to the Company and/or any
Guarantor shall be delivered to the following address:
Alpha Natural Resources
Xxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of General Counsel
Xxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attention: Office of General Counsel
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With a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx Xxxxx, Esq.
All notices or other communications to the Company and/or any Guarantor shall otherwise be given as
provided in Section 12.02 of the Indenture.
ARTICLE IV
MISCELLANEOUS
MISCELLANEOUS
Section 4.1. NO RECOURSE AGAINST OTHERS. No past, present or future director, manager,
officer, employee, incorporator, stockholder or member of the Parent, Holdings, any parent entity
of the Parent or any Subsidiary of the Parent, as such, will have any liability for any obligations
of the Company or the Guarantors under the Notes, this Indenture, the Note Guarantees or for any
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of
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. The waiver may not be effective to waive
liabilities under the federal securities laws.
Section 4.2. EXECUTION AS SUPPLEMENTAL INDENTURE. This Supplemental Indenture is executed and
shall be construed as an indenture supplemental to the Indenture and, as provided in the Indenture,
this Supplemental Indenture forms a part thereof.
Section 4.3. RATIFICATION AND INCORPORATION OF INDENTURE. As supplemented hereby, the
Indenture is in all respects ratified and confirmed, and the Indenture and this Supplemental
Indenture shall be read, taken and construed as one and the same instrument.
Section 4.4. GOVERNING LAW. THIS INDENTURE, THE NOTES AND THE NOTE GUARANTEES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 4.5. SEPARABILITY. In case any one or more of the provisions contained in this
Supplemental Indenture shall for any reason be held to be invalid, illegal or unenforceable in any
respect, then, to the extent permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Supplemental Indenture, but this Supplemental
Indenture shall be construed as if such invalid or illegal or unenforceable provision had never
been contained herein.
Section 4.6. 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.
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Section 4.7. EFFECT OF HEADINGS. The Section headings herein are for convenience only and
shall not affect the construction hereof.
Section 4.8. TRUSTEE MAKES NO REPRESENTATION. The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture. The recitals and statements herein are
deemed to be those of the Company and the New Guarantors and not of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed, all as of the date first above written.
FOUNDATION PA COAL COMPANY, LLC |
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By: | /s/ Xxxxx X. Xxxx | |||
Name: | Xxxxx X. Xxxx | |||
Title: | Chief Financial Officer | |||
[Signature Page to Supplemental Indenture to Senior Notes Indenture]
ALPHA NATURAL RESOURCES, INC. |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Executive Vice President, General Counsel and Corporate Secretary | |||
[Signature Page to Supplemental Indenture to Senior Notes Indenture]
ALPHA NATURAL RESOURCES, LLC ALPHA NATURAL RESOURCES CAPITAL CORP. ALPHA NATURAL RESOURCES SERVICES, LLC, as New Guarantors |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Executive Vice President, General Counsel and Assistant Secretary | |||
ALPHA LAND AND RESERVES, LLC, as New Guarantor |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | President, Manager and Assistant Secretary | |||
AMFIRE WV, L.P., as New Guarantor |
||||
By: | AMFIRE Holdings, Inc., | |||
as General Partner | ||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Vice President and Assistant Secretary |
[Signature Page to Supplemental Indenture to Senior Notes Indenture]
ALPHA COAL SALES CO., LLC ALPHA TERMINAL COMPANY, LLC AMFIRE, LLC AMFIRE HOLDINGS, INC. AMFIRE MINING COMPANY, LLC BLACK DOG COAL CORP. XXXXXX RUN MINING COMPANY, LLC XXXXXXXX ENERGY COMPANY, LLC CALLAWAY LAND AND RESERVES, LLC COBRA NATURAL RESOURCES, LLC CORAL ENERGY SERVICES, LLC XXXXXXXXX-XXXXXXX COAL COMPANY, LLC XXXXXXXXX-XXXXXXX LAND AND RESERVES, LLC ENTERPRISE LAND AND RESERVES, INC. ENTERPRISE MINING COMPANY, LLC XXXXXXXXX COAL CO., LLC XXXXXXX PROCESSING COMPANY, LLC XXXXXX PROCESSING COMPANY, LLC KINGWOOD MINING COMPANY, LLC LITWAR PROCESSING COMPANY, LLC MAXXIM REBUILD CO., LLC MAXXIM SHARED SERVICES, LLC MAXXUM CARBON RESOURCES, LLC XXXXXXXX-WYOMING COAL COMPANY LLC XXXXXXXXXX CONTRACTING, INC. PALLADIAN HOLDINGS, LLC PALLADIAN LIME, LLC PARAMONT COAL COMPANY VIRGINIA, LLC PREMIUM ENERGY, LLC RIVERSIDE ENERGY COMPANY, LLC SOLOMONS MINING COMPANY TWIN STAR MINING, INC. VIRGINIA ENERGY COMPANY, LLC WHITE FLAME ENERGY, INC., as New Guarantors |
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By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Vice President and Assistant Secretary |
[Signature Page to Supplemental Indenture to Senior Notes Indenture]
THE BANK OF NEW YORK MELLON, as Trustee |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Vice President |
[Signature Page to Supplemental Indenture to Senior Notes Indenture]
Annex A
NEW SUBSIDIARIES
ALPHA COAL SALES CO., LLC
ALPHA LAND AND RESERVES, LLC
ALPHA NATURAL RESOURCES, LLC
ALPHA NATURAL RESOURCES CAPITAL CORP.
ALPHA NATURAL RESOURCES SERVICES, LLC
ALPHA TERMINAL COMPANY, LLC
AMFIRE, LLC
AMFIRE HOLDINGS, INC.
AMFIRE MINING COMPANY, LLC
AMFIRE WV, L.P.
BLACK DOG COAL CORP.
XXXXXX RUN MINING COMPANY, LLC
XXXXXXXX ENERGY COMPANY, LLC
CALLAWAY LAND AND RESERVES, LLC
COBRA NATURAL RESOURCES, LLC
CORAL ENERGY SERVICES, LLC
XXXXXXXXX-XXXXXXX COAL COMPANY, LLC
XXXXXXXXX-XXXXXXX LAND AND RESERVES, LLC
ENTERPRISE LAND AND RESERVES, INC.
ENTERPRISE MINING COMPANY, LLC
XXXXXXXXX COAL CO., LLC
XXXXXXX PROCESSING COMPANY, LLC
XXXXXX PROCESSING COMPANY, LLC
KINGWOOD MINING COMPANY, LLC
LITWAR PROCESSING COMPANY, LLC
MAXXIM REBUILD CO., LLC
MAXXIM SHARED SERVICES, LLC
MAXXUM CARBON RESOURCES, LLC
XXXXXXXX-WYOMING COAL COMPANY, LLC
XXXXXXXXXX CONTRACTING, INC.
PALLADIAN HOLDINGS, LLC
PALLADIAN LIME, LLC
PARAMONT COAL COMPANY VIRGINIA, LLC
PREMIUM ENERGY, LLC
RIVERSIDE ENERGY COMPANY, LLC
SOLOMONS MINING COMPANY
TWIN STAR MINING, INC.
VIRGINIA ENERGY COMPANY, LLC
WHITE FLAME ENERGY, INC.
ALPHA LAND AND RESERVES, LLC
ALPHA NATURAL RESOURCES, LLC
ALPHA NATURAL RESOURCES CAPITAL CORP.
ALPHA NATURAL RESOURCES SERVICES, LLC
ALPHA TERMINAL COMPANY, LLC
AMFIRE, LLC
AMFIRE HOLDINGS, INC.
AMFIRE MINING COMPANY, LLC
AMFIRE WV, L.P.
BLACK DOG COAL CORP.
XXXXXX RUN MINING COMPANY, LLC
XXXXXXXX ENERGY COMPANY, LLC
CALLAWAY LAND AND RESERVES, LLC
COBRA NATURAL RESOURCES, LLC
CORAL ENERGY SERVICES, LLC
XXXXXXXXX-XXXXXXX COAL COMPANY, LLC
XXXXXXXXX-XXXXXXX LAND AND RESERVES, LLC
ENTERPRISE LAND AND RESERVES, INC.
ENTERPRISE MINING COMPANY, LLC
XXXXXXXXX COAL CO., LLC
XXXXXXX PROCESSING COMPANY, LLC
XXXXXX PROCESSING COMPANY, LLC
KINGWOOD MINING COMPANY, LLC
LITWAR PROCESSING COMPANY, LLC
MAXXIM REBUILD CO., LLC
MAXXIM SHARED SERVICES, LLC
MAXXUM CARBON RESOURCES, LLC
XXXXXXXX-WYOMING COAL COMPANY, LLC
XXXXXXXXXX CONTRACTING, INC.
PALLADIAN HOLDINGS, LLC
PALLADIAN LIME, LLC
PARAMONT COAL COMPANY VIRGINIA, LLC
PREMIUM ENERGY, LLC
RIVERSIDE ENERGY COMPANY, LLC
SOLOMONS MINING COMPANY
TWIN STAR MINING, INC.
VIRGINIA ENERGY COMPANY, LLC
WHITE FLAME ENERGY, INC.