Exhibit 4.4
EXECUTION VERSION
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
March 30, 2005, among ANR Holdings, LLC, a Delaware limited liability company
("ANR Holdings"), Alpha NR Holding, Inc., a Delaware corporation ("Alpha NR
Holding"), and Alpha NR Ventures, Inc., a Delaware corporation ("Alpha NR
Ventures" and, together with ANR Holdings and Alpha NR Holding, the "Parent
Guarantors"), Alpha Natural Resources, LLC, a Delaware limited liability company
(the "Company"), Alpha Natural Resources Capital Corp., a Delaware corporation
("Alpha Capital" and, together with the Company, the "Issuers"), the Guarantors
(as defined in the Indenture referred to herein) and Xxxxx Fargo 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 Issuers have heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of May 18, 2004 providing for the
issuance of 10% Senior Notes due 2012 (the "Notes");
WHEREAS, in order to simplify the financial reporting requirements of the
Company pursuant to the Securities Exchange Act of 1934, as amended, and take
advantage of Rule 3-10 under Regulation S-X of the Rules and Regulations of the
Securities and Exchange Commission, each of the Parent Guarantors desires to
fully and unconditionally, jointly and severally, guarantee all of the Issuer's
Obligations under the Notes and the Indenture on the terms and conditions set
forth herein (the "Parent Guarantee"); and
WHEREAS, pursuant to Section 9.01(4) of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture without the
consent of any Holder of Notes;
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parent
Guarantors and the Trustee mutually covenant and agree for the equal and ratable
benefit of the Holders of the Notes as follows:
Section 1. CAPITALIZED TERMS. Capitalized terms used herein without
definition shall have the meanings assigned to them in the Indenture.
Section 2. AGREEMENT TO GUARANTEE.
(a) Subject to the provisions of this Supplemental Indenture, each of
the Parent Guarantors hereby, jointly and severally, unconditionally guarantees
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, this Supplemental Indenture, the Notes or the
obligations of the Issuers thereunder, that:
(1) the principal of, premium and Additional Interest, if any, 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 Issuers to the Holders or the Trustee under the
Indenture and the Notes will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
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(2) 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 Parent Guarantors (together with the
Guarantors) will be jointly and severally obligated to pay the same immediately.
Each Parent Guarantor agrees that this is a guarantee of payment and not a
guarantee of collection.
(b) The Parent Guarantors hereby agree that their obligations hereunder
are 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 Issuers, any action
to enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor. Each Parent Guarantor
hereby waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Issuers, any right to
require a proceeding first against the Issuers, protest, notice and all demands
whatsoever and covenant that their Parent Guarantee will not be discharged
except by complete performance of the obligations contained in the Notes and the
Indenture or pursuant to the provisions of Section 4.
(c) If any Holder or the Trustee is required by any court or otherwise
to return to the Issuers, the Parent Guarantors, the Guarantors or any
custodian, trustee, liquidator or other similar official acting in relation to
any of the Issuers, the Parent Guarantors or the Guarantors, any amount paid by
any of them to the Trustee or such Holder, the Parent Guarantee, to the extent
theretofore discharged, will be reinstated in full force and effect.
(d) Each Parent Guarantor agrees that it will 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.
Each Parent Guarantor further agrees that, as between the Parent Guarantors and
the Guarantors, on the one hand, and the Holders and the Trustee, on the other
hand, (1) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article 6 of the Indenture for the purposes of the Parent
Guarantee, notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed thereby, and (2) in
the event of any declaration of acceleration of such obligations as provided in
Article 6 of the Indenture, such obligations (whether or not due and payable)
will forthwith become due and payable by the Parent Guarantors for the purpose
of the Parent Guarantee and the Guarantors for purposes of the Note Guarantee.
The Parent Guarantors will have the right to seek contribution from any
non-paying Guarantor or Parent Guarantor so long as the exercise of such right
does not impair the rights of the Holders under the Note Guarantee or the Parent
Guarantee, as applicable.
Section 3. LIMITATION ON LIABILITY OF PARENT GUARANTORS.
Each Parent Guarantor, and by its acceptance of the Parent Guarantees,
each Holder, hereby confirms that it is the intention of all such parties that
the Parent Guarantee of such Parent Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or
state law to the extent applicable to any Parent Guarantee. To effectuate the
foregoing intention, the Trustee, the Holders, the Parent Guarantors and the
Guarantors hereby irrevocably agree that the obligations of such Parent
Guarantor will be limited to the maximum amount that will, after giving effect
to such maximum amount and all other contingent and fixed liabilities of such
Parent Guarantor that are relevant under such laws, and after giving effect to
any collections from, rights to receive contribution from or payments made by or
on behalf of any other Parent Guarantor or any Guarantor in respect of the
obligations of such Parent Guarantor under this Supplemental Indenture, result
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in the obligations of such Parent Guarantor under its Parent Guarantee not
constituting a fraudulent transfer or conveyance.
Section 4. RELEASE OF PARENT GUARANTEE. The Parent Guarantee of a
Parent Guarantor shall be released, and the obligations of such Parent Guarantor
under the Parent Guarantee, the Indenture and this Supplemental Indenture shall
be discharged, upon the occurrence of any of the following events:
(a) the sale or other disposition of all of the assets of any Parent
Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all of the Capital Stock of any Parent Guarantor, in each case to
a Person that is not (either before or after giving effect to such transactions)
the Company, another Parent Guarantor or a Guarantor;
(b) Legal Defeasance in accordance with Article 8 of the Indenture or
satisfaction and discharge of the Indenture in accordance with Article 11 of the
Indenture;
(c) release of such Parent Guarantor's guarantee under the Credit
Agreement; or
(d) upon thirty days prior written notice (the "Release Notice") to the
Trustee that such Parent Guarantor is no longer able or willing to provide the
Parent Guarantee; provided, however, that the Parent Guarantee of a Parent
Guarantor shall not be released pursuant to this clause (d) if a demand for
payment pursuant to the terms of such Parent Guarantee and this Supplemental
Indenture was made by the Holders of Notes or the Trustee on their behalf prior
to the delivery of the Release Notice to the Trustee, and such demand has not
been satisfied or waived.
Section 5. NO RECOURSE AGAINST OTHERS. No past, present or future
director, manager, officer, employee, incorporator, member, stockholder or agent
of any Parent Guarantor, as such, shall have any liability for any obligations
of the Issuers or any Guarantor or Parent Guarantor under the Notes, any Note
Guarantees or Parent 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 and the related
Guarantee and Parent Guarantee 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 SEC that such a waiver is against public policy.
Section 5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW
YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT
GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
Section 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.
Section 7. EFFECT OF HEADINGS. The Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 8. 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 Parent Guarantors and the Issuers.
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Section 9. NOT SUBJECT TO INDENTURE COVENANTS. The Parent Guarantors
are not and, their execution of the Parent Guarantee and this Supplemental
Indenture shall not cause them to become, "Guarantors" under the Indenture, and
the Parent Guarantors shall not be subject to the covenants contained in the
Indenture, including without limitation the restrictive covenants contained in
Articles 4 and 5 of the Indenture.
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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.
PARENT GUARANTORS:
ALPHA NR HOLDING, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ALPHA NR VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
ANR HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
CO-ISSUERS:
ALPHA NATURAL RESOURCES, LLC
ALPHA NATURAL RESOURCES CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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GUARANTORS:
ALPHA LAND AND RESERVES, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ALPHA COAL SALES CO., LLC
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
XXXXXXXXX-XXXXXXX COAL COMPANY, LLC
ENTERPRISE MINING COMPANY, LLC
XXXXXXXXX COAL CO., LLC
GALLUP TRANSPORTATION
AND TRANSLOADING COMPANY, 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
NATIONAL KING COAL LLC
PARAMONT COAL COMPANY VIRGINIA, LLC
RIVERSIDE ENERGY COMPANY, LLC
SOLOMONS MINING COMPANY
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
TRUSTEE:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ Xxxxxx X. X'Xxxxxxx
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Authorized Signatory
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