FIRST SUPPLEMENTAL INDENTURE
Exhibit
4.1
THIS FIRST SUPPLEMENTAL
INDENTURE, dated as of the 19th day of
August, 2008, between XXXXXX
ENERGY COMPANY, a Delaware corporation (the “Company”), the guarantors
party hereto (the “Guarantors”) and WILMINGTON TRUST COMPANY, as
trustee (the “Trustee”), amends and supplements that certain Indenture, dated as
of November 10, 2003, by and among the Company, the Guarantors and the
Trustee (the “Indenture”). Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the
Indenture.
RECITALS
OF THE COMPANY
WHEREAS, the Company desires
to enter into this First Supplemental Indenture to eliminate substantially all
of the restrictive covenants in the Indenture and to eliminate certain
definitions, cross references and related provisions made irrelevant as a result
of the deletion of such restrictive covenants;
WHEREAS, pursuant to Section
8.02 of the Indenture, the Company has obtained the consent of the Holders of at
least a majority in aggregate principal amount of the Company’s outstanding
6.625% Senior Notes due 2010 (the “Notes”), the only outstanding Notes issued
under the Indenture;
WHEREAS, the Company has
provided a written request, accompanied by a Board resolution authorizing the
execution of this First Supplemental Indenture, to the Trustee requesting that
the Trustee join the Company and the Guarantors in the execution of this First
Supplemental Indenture;
WHEREAS, the Company and the
Guarantors have delivered to the Trustee in accordance with Section 8.06 of the
Indenture, an Officer’s Certificate and an Opinion of Counsel stating that this
First Supplemental Indenture is permitted under the Indenture and is a legal,
valid and binding obligation of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its terms;
and
WHEREAS, all things necessary
on the part of the Company and the Guarantors to make this First Supplemental
Indenture a valid, binding and legal agreement of the Company and the
Guarantors, enforceable in accordance with its terms, have been
done.
For
valuable consideration, the receipt of which is hereby acknowledged, it is
mutually covenanted and agreed, for the equal and ratable benefit of all Holders
of the Notes, as follows:
SECTION
1. Amendments to Table of
Contents.
The Table
of Contents of the Indenture is amended by deleting the titles to Sections 4.02
through and including 4.12, Section 4.14 and Sections 4.18 through and including
4.20, and inserting, in each case, in lieu thereof the phrase “[intentionally
omitted]”.
SECTION
2. Deletion of Provisions in
the Indenture.
The
following provisions of the Indenture are hereby deleted in their entirety and
replaced, in each case, with the phrase “[intentionally omitted]”:
Section
4.02 Reports
to Holders
Section
4.03 Waiver
of Stay, Extension or Usury Laws
Section
4.04 Compliance
Certificate
Section
4.05 Taxes
Section
4.06 Limitations
on Additional Indebtedness
Section
4.07 Limitations
on Restricted Payments
Section
4.08 Limitations
on Liens
Section
4.09 Limitations
on Transactions with Affiliates
Section
4.10 Limitation
on Asset Sales
Section
4.11
Limitation
on the Issuance or Sale of Equity Interests of Restricted
Subsidiaries
Section
4.12 Limitations
on Dividend and Other Restrictions Affecting Restricted
Subsidiaries
Section
4.14
Legal Existence
Section
4.18
Limitations
on Layering Indebtedness
Section
4.19 Limitations
on Designation of Unrestricted Subsidiaries
Section
4.20 Limitations
on Sale and Leaseback Transactions
SECTION 3 Related Definitions and
References.
All definitions and references thereto
used exclusively in, and all references to, the deleted sections of the
Indenture set forth in Section 2 above are also deleted in their entirety in the
Indenture and the Notes.
SECTION
4 Ratification.
Except as
expressly supplemented hereby, all of the provisions of the Indenture are hereby
ratified and confirmed as in full force and effect.
2
SECTION
5 Governing
Law.
This
First Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York, as applied to contracts made and
performed within the State of New York.
SECTION
6. Counterparts.
This
instrument may be executed in one or more counterparts, each of which so
executed shall be deemed to be an original, but all of which shall together
constitute but one and the same instrument.
SECTION
7. Conflict with Trust
Indenture Act
If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that may not be so limited,
qualified or conflicted with, such provision of such Act shall
control. If any provision of this First Supplemental Indenture
modifies or excludes any provision of the Trust Indenture Act that may be so
modified or excluded, the provision of such Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this First Supplemental Indenture,
as the case may be.
3
IN WITNESS WHEREOF, the
parties hereto have executed and delivered this First Supplemental Indenture as
of the day and year first above written.
XXXXXX
ENERGY COMPANY
By: /s/ Xxxx X.
Xxxxxxx
Xxxx X. Xxxxxxx
Vice President and
Chief Financial Officer
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
ENERGYCOMPANY
CERES LAND COMPANY
CLEAR FORK COAL COMPANY
CRYSTAL FUELS COMPANY
DEHUE COAL COMPANY
DELBARTON MINING COMPANY
DEMETER LAND COMPANY
XXXXXXX POCAHONTAS
COALCORPORATION
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
4
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
COALCORPORATION
XXXXXXX-POCAHONTAS
MININGCOMPANY
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.
5
XXXXXXX COAL COMPANY
STONE MINING COMPANY
SUPPORT MINING COMPANY
SYCAMORE FUELS, INC.
T.C.H. COAL CO.
TALON LOADOUT COMPANY
TENNESSEE CONSOLIDATED
COALCOMPANY
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
Xxxxxxx X. Xxxxxxx
Secretary
XXXXXX COAL SERVICES,
INC.
By: /s/ M. Xxxxx
Xxxxxx
M. Xxxxx Xxxxxx
Secretary
WILMINGTON
TRUST COMPANY, AS TRUSTEE
By: /s/ Xxxxxxx X.
Xxxxx
Name: Xxxxxxx
X. Xxxxx
Title: Assistant
Vice President
