Attached files
| file | filename |
|---|---|
| EX-4.2 - SUPPLEMENTAL INDENTURE (6.625% NOTES) - MASSEY ENERGY CO | exhibit42.htm |
| EX-4.4 - SUPPLEMENTAL INDENTURE (3.25% NOTES) - MASSEY ENERGY CO | exhibit44.htm |
| EX-4.1 - SUPPLEMENTAL INDENTURE (2.25% NOTES) - MASSEY ENERGY CO | exhibit41.htm |
| EX-31.1 - SECTION 302 CEO CERTIFICATION - MASSEY ENERGY CO | exhibit311.htm |
| EX-32.2 - SECTION 906 CFO CERTIFICATION - MASSEY ENERGY CO | exhibit322.htm |
| EX-32.1 - SECTION 906 CEO CERTIFICATION - MASSEY ENERGY CO | exhibit321.htm |
| EX-31.2 - SECTION 302 CFO CERTIFICATION - MASSEY ENERGY CO | exhibit312.htm |
| 10-Q - FORM 10-Q - MASSEY ENERGY CO | form09300910q.htm |
Exhibit
4.3
SECOND
SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE,
dated as of August 28, 2009 (the “Supplemental Indenture”), among Massey Energy
Company, a Delaware corporation, as issuer (the “Issuer”), the Guarantors (as
defined in the Indenture (defined below)), Foglesong Energy Company, a West
Virginia 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, dated as of December
21, 2005, by and among the Issuer, the Guarantors (defined therein) and the
Trustee, as supplemented by that First Supplemental Indenture, dated as of July
20, 2009 (together with the Base Indenture and as amended and supplemented, the
“Indenture”) (the “Indenture”), providing for the issuance of the 6.875% Senior
Notes due 2013 in the principal amount of up to Seven Hundred Sixty Million and
00/100 Dollars ($760,000,000).
WHEREAS, the New Subsidiary
was incorporated in the State of West Virginia on July 29, 2009.
WHEREAS, Elk Run Coal Company,
Inc., an indirect wholly-owned subsidiary of the Issuer, on August 28, 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
10.04 of the Indenture, the New Subsidiary desires to become a Guarantor under
the Indenture.
WHEREAS, Section 10.04 of the
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 Restricted 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 Guarantor under the
Indenture. Upon its execution hereof, the New Subsidiary hereby
acknowledges that it shall be a Guarantor for all purposes 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.
MASSEY
ENERGY COMPANY
By:/s/ Richard R.
Grinnan
Name: Richard
R. Grinnan
Title: Vice President and Secretary
FOGLESONG
ENERGY COMPANY
By:/s/ Richard R.
Grinnan
Name: Richard
R. Grinnan
Title: Secretary
GUARANTORS:
A.T.
MASSEY 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
SANDY VENTURE CAPITAL CORP.
BLACK
KING MINE DEVELOPMENT CO.
BLUE
RIDGE VENTURE CAPITAL CORP.
BOONE
EAST DEVELOPMENT CO.
BOONE
ENERGY COMPANY
BOONE
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
DOUGLAS
POCAHONTAS COAL CORPORATION
DRIH
CORPORATION
DUCHESS
COAL COMPANY
DUNCAN
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
HADEN
FARMS, INC.
HANNA
LAND COMPANY, LLC
(by
ALEX ENERGY, INC., its Manager)
HAZY
RIDGE COAL COMPANY
HIGHLAND
MINING COMPANY
HOPKINS
CREEK COAL COMPANY
INDEPENDENCE
COAL COMPANY, INC.
JACKS
BRANCH COAL COMPANY
JOBONER
COAL COMPANY
KANAWHA
ENERGY COMPANY
KNOX
CREEK COAL CORPORATION
LAUREN
LAND COMPANY
LAXARE,
INC.
LOGAN
COUNTY MINE SERVICES, INC.
LONG
FORK COAL COMPANY
LYNN
BRANCH COAL COMPANY, INC.
MAJESTIC
MINING, INC.
MARFORK
COAL COMPANY, INC.
MARTIN
COUNTY COAL CORPORATION
MASSEY
COAL SALES COMPANY, INC.
MASSEY
GAS & OIL COMPANY
MASSEY
TECHNOLOGY INVESTMENTS, INC.
NEW
MARKET LAND COMPANY
NEW
RIDGE MINING COMPANY
NEW
RIVER ENERGY CORPORATION
NICCO
CORPORATION
NICHOLAS
ENERGY COMPANY
OMAR
MINING COMPANY
PEERLESS
EAGLE COAL CO.
PERFORMANCE
COAL COMPANY
PETER
CAVE MINING COMPANY
PILGRIM
MINING COMPANY, INC.
POWER
MOUNTAIN COAL COMPANY
RAVEN
RESOURCES, INC.
RAWL
SALES & PROCESSING CO.
ROAD
FORK DEVELOPMENT
COMPANY,
INC.
ROBINSON-PHILLIPS
COAL COMPANY
RUM
CREEK COAL SALES, INC.
RUSSELL
FORK COAL COMPANY
SC
COAL CORPORATION
SCARLET
DEVELOPMENT COMPANY
SHANNON-POCAHONTAS
COAL CORPORATION
SHANNON-POCAHONTAS
MINING COMPANY
(by:
SHANNON-POCAHONTAS COAL
CORPORATION,
its partner
by:
OMAR MINING COMPANY, its partner)
SHENANDOAH
CAPITAL MANAGEMENT CORP.
SIDNEY
COAL COMPANY, INC.
SPARTAN
MINING COMPANY
ST.
ALBAN’S CAPITAL MANAGEMENT CORP.
STIRRAT
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
WEST
KENTUCKY ENERGY COMPANY
WHITE
BUCK COAL COMPANY
WILLIAMS
MOUNTAIN COAL COMPANY
WYOMAC
COAL COMPANY, INC.
By:/s/ Richard R.
Grinnan
Name: Richard
R. Grinnan
Title: Secretary
MASSEY
COAL SERVICES, INC.
By:/s/ Richard R.
Grinnan
Name: Richard
R. Grinnan
Title: Assistant
Secretary
WILMINGTON TRUST
COMPANY,
as
Trustee
By: /s/ Michael G. Oller,
Jr._______
Name:
Michael G. Oller, Jr.
Title:
Assistant Vice President
EXHIBIT
A
NOTE
GUARANTEE
The undersigned (the “Guarantor”)
hereby jointly and severally unconditionally guarantees, to the extent set forth
in the Indenture, dated as of December 21, 2005, by and among Massey Energy
Company, as issuer, the Guarantors (as defined therein) and Wilmington Trust
Company, as Trustee (as amended, restated or supplemented from time to time, the
“Indenture”), as supplemented by the First Supplemental Indenture, dated as of
July 20, 2009 (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, and interest on the 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, and the due and punctual performance of all
other obligations of the Issuer to the Holders or the Trustee, all in accordance
with the terms set forth in Article Ten of the Indenture, and (b) in case of any
extension of time of payment or renewal of any 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 and to the Trustee pursuant to this Note Guarantee and the Indenture
are expressly set forth in Article Ten of the 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.
FOGLESONG ENERGY COMPANY
By: __________________________________
Name: Richard
R. Grinnan
Title: Secretary
Dated: August
28, 2009