THIRD SUPPLEMENTAL INDENTURE
EXHIBIT
4.1
THIRD 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 Indenture (the “Base
Indenture”), dated as of May 29, 2003, as supplemented by that Second
Supplemental Indenture (the “Second Supplemental Indenture”), dated April 7,
2004, each by and among the Issuer, the Guarantors (defined therein) and the
Trustee (the Base Indenture together with the Second Supplemental Indenture, as
amended and supplemented, the “Indenture”), providing for the issuance of the
2.25% Convertible Senior Notes due 2024 in the principal amount of up to One
Hundred Seventy-Five Million and 00/100 Dollars ($175,000,000).
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
2.05 of the Second Supplemental Indenture, the New Subsidiary desires to become
a Guarantor under the Indenture.
WHEREAS, Section 2.05 of the
Second Supplemental 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.
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XXXXXX
ENERGY COMPANY
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By: /s/ Xxxxxxx X.
Xxxxxxx
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Name: Xxxxxxx
X. Xxxxxxx
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| Title: Vice President and Secretary |
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WEST
KENTUCKY ENERGY COMPANY
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By: /s/ Xxxxxxx X.
Xxxxxxx
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| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Secretary |
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GUARANTORS:
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A.T.
XXXXXX COAL COMPANY, INC.
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ALEX
ENERGY, INC.
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ARACOMA
COAL COMPANY, INC.
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BANDMILL
COAL CORPORATION
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BANDYTOWN
COAL COMPANY
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BARNABUS
LAND COMPANY
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BELFRY
COAL CORPORATION
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BEN
CREEK COAL COMPANY
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BIG
BEAR MINING COMPANY
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BIG
XXXXX VENTURE CAPITAL CORP.
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BLACK
KING MINE DEVELOPMENT CO.
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BLUE
RIDGE VENTURE CAPITAL CORP.
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XXXXX
EAST DEVELOPMENT CO.
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XXXXX
ENERGY COMPANY
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XXXXX
WEST DEVELOPMENT CO.
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CENTRAL
PENN ENERGY COMPANY, INC.
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CENTRAL
WEST VIRGINIA ENERGY COMPANY
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CERES
LAND COMPANY
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CLEAR
FORK COAL COMPANY
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CRYSTAL
FUELS COMPANY
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DEHUE
COAL COMPANY
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DELBARTON
MINING COMPANY
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DEMETER
LAND COMPANY
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XXXXXXX
POCAHONTAS COAL CORPORATION
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DRIH
CORPORATION
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DUCHESS
COAL COMPANY
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XXXXXX
FORK COAL COMPANY
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EAGLE
ENERGY, INC.
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ELK
RUN COAL COMPANY, INC.
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FEATS
VENTURE CAPITAL CORP.
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GOALS
COAL COMPANY
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GREEN
VALLEY COAL COMPANY
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GREYEAGLE
COAL COMPANY
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XXXXX
FARMS, INC.
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XXXXX
LAND COMPANY, LLC
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(by ALEX ENERGY, INC., its
Manager)
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HAZY
RIDGE COAL COMPANY
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HIGHLAND
MINING COMPANY
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XXXXXXX
CREEK COAL COMPANY
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INDEPENDENCE
COAL COMPANY, INC.
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JACKS
BRANCH COAL COMPANY
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JOBONER
COAL COMPANY
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KANAWHA
ENERGY COMPANY
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XXXX
CREEK COAL CORPORATION
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LAUREN
LAND COMPANY
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LAXARE,
INC.
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XXXXX
COUNTY MINE SERVICES, INC.
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LONG
FORK COAL COMPANY
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XXXX
XXXXXX COAL COMPANY, INC.
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MAJESTIC
MINING, INC.
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MARFORK
COAL COMPANY, INC.
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XXXXXX
COUNTY COAL CORPORATION
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XXXXXX
COAL SALES COMPANY, INC.
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XXXXXX
GAS & OIL COMPANY
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XXXXXX
TECHNOLOGY INVESTMENTS, INC.
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NEW
MARKET LAND COMPANY
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NEW
RIDGE MINING COMPANY
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NEW
RIVER ENERGY CORPORATION
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NICCO
CORPORATION
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XXXXXXXX
ENERGY COMPANY
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OMAR
MINING COMPANY
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PEERLESS
EAGLE COAL CO.
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PERFORMANCE
COAL COMPANY
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XXXXX
XXXX MINING COMPANY
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PILGRIM
MINING COMPANY, INC.
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POWER
MOUNTAIN COAL COMPANY
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RAVEN
RESOURCES, INC.
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XXXX
SALES & PROCESSING CO.
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ROAD
FORK DEVELOPMENT COMPANY, INC.
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XXXXXXXX-XXXXXXXX
COAL COMPANY
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RUM
CREEK COAL SALES, INC.
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XXXXXXX
FORK COAL COMPANY
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SC
COAL CORPORATION
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SCARLET
DEVELOPMENT COMPANY
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XXXXXXX-POCAHONTAS
COAL CORPORATION
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XXXXXXX-POCAHONTAS
MINING COMPANY
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| (by: XXXXXXX-POCAHONTAS COAL CORPORATION, its partner | |
| by: OMAR MINING COMPANY, its partner) |
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SHENANDOAH
CAPITAL MANAGEMENT CORP.
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XXXXXX
COAL COMPANY, INC.
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SPARTAN
MINING COMPANY
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ST.
ALBAN’S CAPITAL MANAGEMENT CORP.
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XXXXXXX
COAL COMPANY
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STONE
MINING COMPANY
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SUPPORT
MINING COMPANY
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SYCAMORE
FUELS, INC.
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T.C.H.
COAL CO.
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TALON
LOADOUT COMPANY
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TENNESSEE
CONSOLIDATED COAL COMPANY
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TENNESSEE
ENERGY CORP.
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THUNDER
MINING COMPANY
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TOWN
CREEK COAL COMPANY
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TRACE
CREEK COAL COMPANY
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TUCSON
LIMITED LIABILITY COMPANY,
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(by: ALEX ENERGY, INC., its
Manager)
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VANTAGE
MINING COMPANY
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WHITE
BUCK COAL COMPANY
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XXXXXXXX
MOUNTAIN COAL COMPANY
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WYOMAC
COAL COMPANY, INC.
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By: /s/ Xxxxxxx X.
Xxxxxxx
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| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Secretary |
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XXXXXX
COAL SERVICES, INC.
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By: /s/ Xxxxxxx X.
Xxxxxxx
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| Name: Xxxxxxx X. Xxxxxxx | |
| Title: Assistant Secretary |
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WILMINGTON TRUST
COMPANY, as Trustee
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By: /s/ Xxxxxxx X. Xxxxx,
Xx.
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Name:
Xxxxxxx X. Xxxxx, Xx.
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Title:
Assistant Vice President
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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 May 29, 2003, as supplemented by that Second Supplemental Indenture (the
“Second Supplemental Indenture”), dated April 7, 2004, each by and among Xxxxxx
Energy Company, as issuer, the Guarantors (as defined therein) and Wilmington
Trust Company, as Trustee (the Base Indenture and the Second Supplemental
Indenture, 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, and interest and
Liquidated Damages, if any, with respect to the Convertible Senior Notes, 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
Liquidated Damages, and the due and punctual performance of all other
obligations (including amounts due the Trustee under Section 607 of the Base
Indenture) of the Corporation or any Guarantor to the Holders or the Trustee,
all in accordance with the terms set forth in Article Two of the Second
Supplemental Indenture, and (b) in case of any extension of time of payment or
renewal of any Convertible Senior Notes 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 of Convertible Senior Notes and to the Trustee pursuant to this Note
Guarantee and the Indenture are expressly set forth in Article Two of the Second
Supplemental 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
