SECOND SUPPLEMENTAL INDENTURE
EXHIBIT 4.8
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 Effectiveness 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.]
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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.
| 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 | |
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| 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 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 | ||
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| 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 | ||
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| 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 | |
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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 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]
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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
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