Exhibit 10.3
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
October 26, 2005, among Alpha Natural Resources, LLC (or its permitted
successor), a Delaware limited liability company (the "Company"), Alpha Natural
Resources Capital Corp. ("Alpha Capital" and, together with the Company, the
"Issuers"), ANR Holdings, LLC, a Delaware limited liability company ("ANR
Holdings"), Alpha NR Holding, Inc., a Delaware corporation ("Alpha NR Holding"
and, together with ANR Holdings, the "Parent Guarantors"), the other existing
Guarantors (as defined in the Indenture referred to herein), Xxxxx Fargo Bank,
National Association, as trustee under the Indenture referred to below (the
"Trustee"), and each of the following wholly owned subsidiaries of the Company
(which are referred to herein collectively as the "Guaranteeing Subsidiaries"
and each individually as a "Guaranteeing Subsidiary"): Callaway Natural
Resources, Inc., a Delaware corporation; Mate Creek Energy, LLC, a Delaware
limited liability company; Premium Energy, LLC, a Delaware limited liability
company; Virginia Energy Company, LLC, a Delaware limited liability company;
Xxxxxxxx Energy Company, LLC, a Virginia limited liability company; Xxxxxxxxxx
Contracting, Inc., a West Virginia corporation; Powers Shop, LLC, a Virginia
limited liability company; Twin Star Mining, Inc., a West Virginia corporation;
and White Flame Energy, Inc., a West Virginia corporation.
WITNESSETH
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee
an indenture, dated as of May 18, 2004 (as supplemented by the First
Supplemental Indenture thereto, dated as of February 1, 2005, and the Second
Supplemental Indenture thereto, dated as of March 30, 2005, the "Indenture"),
providing for the issuance of 10% Senior Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances each of
the Guaranteeing Subsidiaries shall execute and deliver to the Trustee a
supplemental indenture pursuant to which each Guaranteeing Subsidiary shall
unconditionally guarantee all of the Issuers' Obligations under the Notes and
the Indenture on the terms and conditions set forth herein (the "Note
Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each of the
Guaranteeing Subsidiaries and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees to
provide an unconditional Guarantee on the terms and subject to the conditions
set forth in the Note Guarantee and in the Indenture including but not limited
to Article 10 thereof.
4. NO RECOURSE AGAINST OTHERS. No past, present or future director,
manager, officer, employee, incorporator, member, stockholder or agent of any
Guaranteeing Subsidiary, as such, shall have any liability for any obligations
of the Issuers or any Guaranteeing Subsidiary under the Notes, any Note
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 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.
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.
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.
7. EFFECT OF HEADINGS. The Section headings herein are for convenience only
and shall not affect the construction hereof.
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 Guaranteeing Subsidiaries and the Issuers.
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.
GUARANTEEING SUBSIDIARIES:
CALLAWAY NATURAL RESOURCES, INC.
MATE CREEK ENERGY, LLC
PREMIUM ENERGY, LLC
VIRGINIA ENERGY COMPANY, LLC
XXXXXXXX ENERGY COMPANY, LLC
XXXXXXXXXX CONTRACTING, INC.
POWERS SHOP, LLC
TWIN STAR MINING, INC.
WHITE FLAME ENERGY, INC.
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
PARENT GUARANTORS:
ALPHA NR HOLDING, INC.
ANR HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
EXISTING 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
GTTC 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
NATCOAL 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
------------------------------------
Authorized Signatory
