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EXHIBIT 10.1
SUPPLEMENT NO. 2
TO THE
GUARANTEE AND COLLATERAL
AGREEMENT
SUPPLEMENT NO. 2 dated as
of October 5, 2007 (this “ Supplement ”),
to the Guarantee and Collateral Agreement dated as of July 30,
2004 (the “ Guarantee and Collateral Agreement
”), among FC 2 CORP., a Delaware corporation (“
Holdings ”), FOUNDATION COAL CORPORATION, a Delaware
Corporation (“ Acquisition Corp .”), S2
ACQUISITION CORP., a Delaware Corporation (which, on the Closing
Date, shall be merged with and into, Foundation PA Coal Company,
the “Borrower”), each Domestic Subsidiary of Borrower
identified herein (each, a “ Subsidiary Party ”)
and CITICORP NORTH AMERICA, INC. (“ CNAI ”), as
collateral agent (in such capacity, the “ Collateral
Agent ”) for the Secured Parties.
A. Reference is made to the
Amended and Restated Credit Agreement dated as of July 7, 2006
(as amended, supplemented, waived or otherwise modified from time
to time, the “ Credit Agreement ”), Among
Foundation Coal Corporation (“Holdings”) as the Parent
Guarantors, Foundation PA Coal Company, LLC as Borrower, the
Subsidiary Guarantors (including the Limited Liability Company),
the Lenders party thereto from time to time, the Issuing Banks
party thereto from time to time, Citicorp North America Inc., as
Administrative Agent for the Lenders, Bank of America, N.A.,
LaSalle Bank National Association, PNC Bank, National Association,
and the Royal Bank of Scotland PLC, each as Co-Documentation
Agents, and Citigroup Global Markets Inc. as sole Syndication Agent
and sole Lead Arranger.
B. Capitalized terms used
herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Credit Agreement and the Guarantee
and Collateral Agreement referred to therein.
C. The Guarantors have
entered into the Guarantee and Collateral Agreement in order to
induce the Lenders to make Loans and each Issuing Bank to issue
Letters of Credit. Section 7.15 of the Guarantee and
Collateral Agreement provides that additional Subsidiaries may
become Subsidiary Parties under the Guarantee and Collateral
Agreement by execution and delivery of an instrument in the form of
this Supplement. The undersigned Subsidiary (the “ New
Subsidiary ”) is executing this Supplement in accordance
with the requirements of the Credit Agreement to become a
Subsidiary Party under the Guarantee and Collateral Agreement in
order to induce the Lenders to make additional Loans and each
Issuing Bank to issue additional Letters of Credit and as
consideration for Loans previously made and Letters of Credit
previously issued.
Accordingly, the Collateral
Agent and the New Subsidiary agree as follows:
SECTION 1. In accordance with
Section 7.15 of the Guarantee and Collateral Agreement, the
New Subsidiary by its signature below becomes a
Subsidiary
Party and a Guarantor under the
Guarantee and Collateral Agreement with the same force and effect
as if originally named therein as a Subsidiary Party and a
Guarantor, and the New Subsidiary hereby (a) agrees to all the
terms and provisions of the Guarantee and Collateral Agreement
applicable to it as a Subsidiary Party and Guarantor thereunder and
(b)&
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