EX-10.3: THIRD SUPPLEMENTAL INDENTURE

EX-10.3 6 y14038exv10w3.txt EX-10.3: THIRD SUPPLEMENTAL INDENTURE 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), Wells 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; Buchanan Energy Company, LLC, a Virginia limited liability company; Nicewonder 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 BUCHANAN ENERGY COMPANY, LLC NICEWONDER CONTRACTING, INC. POWERS SHOP, LLC TWIN STAR MINING, INC. WHITE FLAME ENERGY, INC. By: /s/ Vaughn R. Groves ------------------------------------ Name: Vaughn R. Groves Title: Vice President CO-ISSUERS: ALPHA NATURAL RESOURCES, LLC ALPHA NATURAL RESOURCES CAPITAL CORP. By: /s/ Vaughn R. Groves ------------------------------------ Name: Vaughn R. Groves Title: Vice President PARENT GUARANTORS: ALPHA NR HOLDING, INC. ANR HOLDINGS, LLC By: /s/ Vaughn R. Groves ------------------------------------ Name: Vaughn R. Groves Title: Vice President EXISTING GUARANTORS: ALPHA LAND AND RESERVES, LLC By: /s/ Vaughn R. Groves ------------------------------------ Name: Vaughn R. Groves 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. BROOKS RUN MINING COMPANY, LLC DICKENSON-RUSSELL COAL COMPANY, LLC ENTERPRISE MINING COMPANY, LLC ESPERANZA COAL CO., LLC GTTC LLC HERNDON PROCESSING COMPANY, LLC KEPLER PROCESSING COMPANY, LLC KINGWOOD MINING COMPANY, LLC LITWAR PROCESSING COMPANY, LLC MAXXIM REBUILD CO., LLC MAXXIM SHARED SERVICES, LLC MAXXUM CARBON RESOURCES, LLC MCDOWELL-WYOMING COAL COMPANY, LLC NATCOAL LLC PARAMONT COAL COMPANY VIRGINIA, LLC RIVERSIDE ENERGY COMPANY, LLC SOLOMONS MINING COMPANY By: /s/ Vaughn R. Groves ------------------------------------ Name: Vaughn R. Groves Title: Vice President TRUSTEE: WELLS FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE By: /s/ Joseph P. O'Donnell ------------------------------------ Authorized Signatory