EXHIBIT 10.12


 


SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated
as of September 6, 2005, among  Foundation Mining, LP, a Delaware limited
partnership (the “New Guarantor”), a subsidiary of
Foundation Coal Corporation, a Delaware corporation (“Holdings”),
Foundation PA Coal Company, LLC, a Delaware limited liability company (fka
Foundation PA Coal Company, a Delaware corporation) (the “Company”)
and The Bank of New York, a New York banking corporation, as trustee under the
Indenture referred to below (the “Trustee”).


 


W
I T N E S S E T H


 


WHEREAS,
the Company and the existing Guarantors have heretofore executed and delivered
to the Trustee an indenture (as amended, supplemented or otherwise modified,
the “Indenture”), dated as of July 30,
2004 providing for the issuance of 7 1⁄4% Senior Notes due 2014 (the “Notes”);


 


WHEREAS,
Section 4.17 of the Indenture provides that under certain circumstances
the New Guarantor shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the New Guarantor shall unconditionally guarantee
all of the Company’s  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, the Company and
the existing Guarantors are 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, the New Guarantor,
the


 





















 


Company and the Trustee
mutually covenant and agree for the equal and ratable benefit of the Holders of
the Notes as follows:


 


1.             DEFINED TERMS.  Defined terms used herein without definition
shall have the meanings assigned to them in the Indenture.


 


2.             AGREEMENT TO GUARANTEE.  The New Guarantor hereby agrees, jointly and
severally with all existing Guarantors (if any), to provide an unconditional
Guarantee on the terms and subject to the conditions set forth in Article 10
of the Indenture and to be bound by all other applicable provisions of the
Indenture and the Notes and to perform all of the obligations and agreements of
a Guarantor under the Indenture.


 


3.             NO RECOURSE AGAINST OTHERS.  No past, present or future director, manager,
officer, employee, incorporator, stockholder or member of Holdings, any parent
entity of Holdings or any Subsidiary, as such, will have any liability for any
obligations of the Company or the Guarantors under the Notes, this Indenture,
the Note Guarantees or for any claim based on, in respect of, or by reason of,
such obligations or their creation.  Each
Holder of 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.  The waiver may not be effective to waive
liabilities under the federal securities laws.


 


4.             NOTICES.  All notices or other communications to the
New Guarantor shall be given as provided in Section 12.02 of the
Indenture.


 


5.             RATIFICATION OF INDENTURE; SUPPLEMENTAL
INDENTURES PART OF INDENTURE. 
Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect. 
This Supplemental Indenture shall form a part of the Indenture for all
purposes,


 


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and every holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.


 


6.             GOVERNING LAW.  THIS INDENTURE, THE NOTES AND THE NOTE
GUARANTEES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


7.             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.


 


8.             EFFECT OF HEADINGS.  The Section headings herein are for
convenience only and shall not affect the construction hereof.


 


9.             TRUSTEE MAKES NO REPRESENTATION.  The Trustee makes no representation as to the
validity or sufficiency of this Supplemental Indenture.  The statements and recitals herein are deemed
to be those of the New Guarantor and the Company and not of the Trustee.


 


[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.


 


Dated:  September 6, 2005


 


	
   

  	
  FOUNDATION MINING, LP

  
	
   

  	
  By:

  	
  Pennsylvania Services
  Corporation,

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank J. Wood

  	
   

  
	
   

  	
  Name:

  	
  Frank J. Wood

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FOUNDATION PA COAL COMPANY, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ James L.
  Anderson, Jr.

  	
   

  
	
   

  	
  Name:

  	
  James L. Anderson, Jr.

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE BANK OF NEW YORK

  
	
   

  	
  as Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dorothy Miller

  	
   

  
	
   

  	
  Name:

  	
  Dorothy Miller

  
	
   

  	
  Title:

  	
  Authorized Signatory

  
							



 


 


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