SECOND SUPPLEMENTAL INDENTURE
EXHIBIT
4.4
SECOND SUPPLEMENTAL INDENTURE,
dated as of July 20, 2009 (the “Supplemental Indenture”), among Xxxxxx Energy
Company, a Delaware corporation, as issuer (the “Issuer”), the Guarantors (as
defined in the Indenture (defined below)), West Kentucky Energy Company, a
Kentucky corporation (the “New Subsidiary”), and Wilmington Trust Company, as
trustee (the “Trustee”).
W
I T N E S S E T H
WHEREAS, the Issuer, the
Guarantors and the Trustee executed that certain Senior Indenture (the “Base
Indenture”), dated as of August 12, 2008, as supplemented by that First
Supplemental Indenture, dated the same date, each by and among the Issuer, the
Guarantors (defined therein) and the Trustee (together with the Base Indenture
and as amended and supplemented, the “Indenture”), providing for the issuance of
the 3.25% Convertible Senior Notes due 2015 in the principal amount of up to Six
Hundred Ninety Million and 00/100 Dollars ($690,000,000).
WHEREAS, the New Subsidiary
was incorporated in the State of Kentucky on June 5, 2009.
WHEREAS, Xxxxxx Coal Company,
Inc., an indirect wholly-owned subsidiary of the Issuer, on June 30, 2009
capitalized, and became the sole parent of, the New Subsidiary.
WHEREAS, the New Subsidiary
desires to incur Indebtedness and to guarantee the Indebtedness of the Issuer
and/or its wholly-owned subsidiaries, to the extent permitted by the
Indenture.
WHEREAS, pursuant to Section
1504 of the Base Indenture, the New Subsidiary desires to become a Guarantor
under the Indenture.
WHEREAS, Section 1504 of the
Base Indenture provides that supplemental indentures may be executed and
delivered by the Issuer, the Guarantors and the Trustee for the purpose of
amending or supplementing the Indenture so that a Subsidiary may become a party
to the Indenture and issue a Note Guarantee, as attached hereto as Exhibit
A.
WHEREAS, all other acts and
proceedings necessary have been done to make this Supplemental Indenture, when
executed and delivered by the Issuer, the Guarantors and the Trustee, the legal,
valid and binding agreement of the Issuer and the Guarantors in accordance with
its terms.
NOW THEREFORE, for good and
valuable consideration, the sufficiency and receipt of which are hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
Section 1. Confirmation of the
Indenture; Definitions. Except as supplemented hereby, the
Indenture is hereby confirmed and reaffirmed in all
particulars. Anything in the Indenture or herein to the contrary
notwithstanding, all recitals, definitions and provisions contained in this
Supplemental Indenture shall take precedence over the recitals, definitions and
provisions of the
Indenture
to the
extent of any conflict between the two. Unless otherwise defined
herein, terms defined in the Indenture and used herein shall have the meaning
given them in the Indenture.
Section
2. (a) The New Subsidiary hereby executes this Agreement
as a supplemental indenture to the Indenture for the purpose of issuing a Note
Guarantee, as set forth in Exhibit A, and agrees to be subject to all of the
terms, conditions, waivers and covenants applicable to a Subsidiary and
Guarantor under the Indenture. Upon its execution hereof, the New
Subsidiary hereby acknowledges that it shall be a Guarantor for all purposes as
defined as set forth in the Indenture, effective as of the date
hereof.
(b) None
of the shareholders, trustees or officers of the New Subsidiary shall be
personally liable for the New Subsidiary’s obligations as a Guarantor arising
under the Indenture.
Section 3. Conditions to Effectivess of
Supplemental Indenture and to Operation of Amendments Made
Hereby. This Supplemental Indenture shall become effective
immediately upon its execution by the Trustee, the Issuer and the
Guarantors.
Section 4. Counterparts. This
Supplemental Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
Section 5. Severability. In
case any provision in this Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be effected or impaired thereby.
Section 6. Governing
Law. This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.
Section 7. Trustee. The
Trustee makes no representation as the validity or sufficiency of this
Supplemental Indenture.
[Signature
page follows.]
IN WITNESS WHEREOF, the
parties hereto have caused this Supplemental Indenture to be duly executed, all
as of the date first above written.
|
|
XXXXXX
ENERGY COMPANY
|
| By: /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Vice President and Secretary | |
| WEST KENTUCKY ENERGY COMPANY | |
| By: /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Secretary |
| GUARANTORS: | |
|
|
A.T.
XXXXXX COAL COMPANY, INC.
|
|
|
ALEX
ENERGY, INC.
|
|
|
ARACOMA
COAL COMPANY, INC.
|
|
|
BANDMILL
COAL CORPORATION
|
|
|
BANDYTOWN
COAL COMPANY
|
|
|
BARNABUS
LAND COMPANY
|
|
|
BELFRY
COAL CORPORATION
|
|
|
BEN
CREEK COAL COMPANY
|
|
|
BIG
BEAR MINING COMPANY
|
|
|
BIG
XXXXX VENTURE CAPITAL CORP.
|
|
|
BLACK
KING MINE DEVELOPMENT CO.
|
|
|
BLUE
RIDGE VENTURE CAPITAL CORP.
|
|
|
XXXXX
EAST DEVELOPMENT CO.
|
|
|
XXXXX
ENERGY COMPANY
|
|
|
XXXXX
WEST DEVELOPMENT CO.
|
|
|
CENTRAL
PENN ENERGY COMPANY, INC.
|
|
|
CENTRAL
WEST VIRGINIA ENERGY COMPANY
|
|
|
CERES
LAND COMPANY
|
|
|
CLEAR
FORK COAL COMPANY
|
|
|
CRYSTAL
FUELS COMPANY
|
|
|
DEHUE
COAL COMPANY
|
|
|
DELBARTON
MINING COMPANY
|
|
|
DEMETER
LAND COMPANY
|
|
|
XXXXXXX
POCAHONTAS COAL CORPORATION
|
|
|
DRIH
CORPORATION
|
|
|
DUCHESS
COAL COMPANY
|
|
|
XXXXXX
FORK COAL COMPANY
|
|
|
EAGLE
ENERGY, INC.
|
|
|
ELK
RUN COAL COMPANY, INC.
|
|
|
FEATS
VENTURE CAPITAL CORP.
|
|
|
GOALS
COAL COMPANY
|
|
|
GREEN
VALLEY COAL COMPANY
|
|
|
GREYEAGLE
COAL COMPANY
|
|
|
XXXXX
FARMS, INC.
|
|
|
XXXXX
LAND COMPANY, LLC
|
|
|
(by
ALEX ENERGY, INC., its Manager)
|
|
|
HAZY
RIDGE COAL COMPANY
|
|
|
HIGHLAND
MINING COMPANY
|
|
|
XXXXXXX
CREEK COAL COMPANY
|
|
|
INDEPENDENCE
COAL COMPANY, INC.
|
|
|
JACKS
BRANCH COAL COMPANY
|
|
|
JOBONER
COAL COMPANY
|
|
|
KANAWHA
ENERGY COMPANY
|
|
|
XXXX
CREEK COAL CORPORATION
|
|
|
LAUREN
LAND COMPANY
|
|
|
LAXARE,
INC.
|
|
|
XXXXX
COUNTY MINE SERVICES, INC.
|
|
|
LONG
FORK COAL COMPANY
|
|
|
XXXX
XXXXXX COAL COMPANY, INC.
|
|
|
MAJESTIC
MINING, INC.
|
|
|
MARFORK
COAL COMPANY, INC.
|
|
|
XXXXXX
COUNTY COAL CORPORATION
|
|
|
XXXXXX
COAL SALES COMPANY, INC.
|
|
|
XXXXXX
GAS & OIL COMPANY
|
|
|
XXXXXX
TECHNOLOGY INVESTMENTS, INC.
|
|
|
NEW
MARKET LAND COMPANY
|
|
|
NEW
RIDGE MINING COMPANY
|
|
|
NEW
RIVER ENERGY CORPORATION
|
|
|
NICCO
CORPORATION
|
|
|
XXXXXXXX
ENERGY COMPANY
|
|
|
OMAR
MINING COMPANY
|
|
|
PEERLESS
EAGLE COAL CO.
|
|
|
PERFORMANCE
COAL COMPANY
|
|
|
XXXXX
XXXX MINING COMPANY
|
|
|
PILGRIM
MINING COMPANY, INC.
|
|
|
POWER
MOUNTAIN COAL COMPANY
|
|
|
RAVEN
RESOURCES, INC.
|
|
|
XXXX
SALES & PROCESSING CO.
|
|
|
ROAD
FORK DEVELOPMENT COMPANY, INC.
|
|
|
XXXXXXXX-XXXXXXXX
COAL COMPANY
|
|
|
RUM
CREEK COAL SALES, INC.
|
|
|
XXXXXXX
FORK COAL COMPANY
|
|
|
SC
COAL CORPORATION
|
|
|
SCARLET
DEVELOPMENT COMPANY
|
|
|
XXXXXXX-POCAHONTAS
COAL CORPORATION
|
|
|
XXXXXXX-POCAHONTAS
MINING COMPANY
|
|
|
(by:
XXXXXXX-POCAHONTAS COAL CORPORATION, its
partner
|
|
|
by:
OMAR MINING COMPANY, its partner)
|
|
|
SHENANDOAH
CAPITAL MANAGEMENT CORP.
|
|
|
XXXXXX
COAL COMPANY, INC.
|
|
|
SPARTAN
MINING COMPANY
|
|
|
ST.
ALBAN’S CAPITAL
|
|
|
MANAGEMENT
CORP.
|
|
|
XXXXXXX
COAL COMPANY
|
|
|
STONE
MINING COMPANY
|
|
|
SUPPORT
MINING COMPANY
|
|
|
SYCAMORE
FUELS, INC.
|
|
|
T.C.H.
COAL CO.
|
|
|
TALON
LOADOUT COMPANY
|
|
|
TENNESSEE
CONSOLIDATED COAL COMPANY
|
|
|
TENNESSEE
ENERGY CORP.
|
|
|
THUNDER
MINING COMPANY
|
|
|
TOWN
CREEK COAL COMPANY
|
|
|
TRACE
CREEK COAL COMPANY
|
|
|
TUCSON
LIMITED LIABILITY COMPANY,
|
|
|
(by:
ALEX ENERGY, INC., its Manager)
|
|
|
VANTAGE
MINING COMPANY
|
|
|
WHITE
BUCK COAL COMPANY
|
|
|
XXXXXXXX
MOUNTAIN COAL COMPANY
|
|
|
WYOMAC
COAL COMPANY, INC.
|
|
|
By: /s/ Xxxxxxx X.
Xxxxxxx
|
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Secretary | |
| XXXXXX COAL SERVICES, INC. | |
| By: /s/ Xxxxxxx X. Xxxxxxx | |
| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Assistant Secretary |
| WILMINGTON TRUST COMPANY, as Trustee | |
|
|
By: /s/ Xxxxxxx X. Xxxxx,
Xx.
|
|
|
Name:
Xxxxxxx X. Xxxxx, Xx.
|
|
|
Title:
Assistant Vice President
|
EXHIBIT
A
NOTE
GUARANTEE
The undersigned (the “Guarantor”)
hereby jointly and severally unconditionally guarantees, on a senior unsecured
basis, to the extent set forth in the Indenture (the “Base Indenture”), dated as
of August 12, 2008, as supplemented by that First Supplemental Indenture, dated
the same date, each by and among Xxxxxx Energy Company, as issuer, the
Guarantors (as defined therein) and Wilmington Trust Company, as Trustee
(together with the Base Indenture and as amended, restated or supplemented from
time to time, the “Indenture”), and subject to the provisions of the Indenture,
(a) the due and punctual payment of the principal of, and premium, if any,
interest and additional interest, if any, with respect to the Securities, when
and as the same shall become due and payable, whether at maturity, by
acceleration or otherwise, the due and punctual payment of interest on overdue
principal of, and premium and, to the extent permitted by law, interest or
additional interest, if any, and the due and punctual performance of all other
obligations of the Company or any Guarantor to the Holders or the Trustee under
this Indenture and the Securities (including amounts due the Trustee under
Section 607 of the Indenture), all in accordance with the terms set forth in
Article Fifteen of the Base Indenture, and (b) in case of any extension of time
of payment or renewal of any Securities or any of such other obligations, that
the same shall 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.
The obligations of the Guarantors to
the Holders and to the Trustee pursuant to this Note Guarantee and the Indenture
are expressly set forth in Article Fifteen of the Base Indenture and reference
is hereby made to the Indenture for the precise terms and limitations of this
Note Guarantee.
Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Indenture.
[Signature
Page Follows]
IN WITNESS WHEREOF, the Guarantor has
caused this Note Guarantee to be signed by a duly authorized
officer.
| WEST KENTUCKY ENERGY COMPANY | |
|
|
By: ________________________________
|
|
|
Name:
Xxxxxxx X. Xxxxxxx
|
|
|
Title:
Secretary
|
Dated: July
20, 2009
