Exhibit 4.3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
February 1, 2005, among Black Dog Coal Corp., a Virginia corporation (the
"Guaranteeing Subsidiary") and a wholly owned indirect subsidiary of Alpha
Natural Resources, LLC (or its permitted successor), a Delaware limited
liability company (the "Company"), the Company, Alpha Natural Resources Capital
Corp. ("Alpha Capital" and, together with the Company, the "Issuers"), the other
Guarantors (as defined in the Indenture referred to herein) and Wells Fargo
Bank, National Association, as trustee under the Indenture referred to below
(the "Trustee").
W I T N E S S E T H
WHEREAS, the Issuers have heretofore executed and delivered to the Trustee
an indenture (the "Indenture"), dated as of May 18, 2004 providing for the
issuance of 10% Senior Notes due 2012 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the 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, the
Guaranteeing Subsidiary 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. The 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 the
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.
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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 Subsidiary and the Issuers.
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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.
Dated: February 1, 2005
GUARANTEEING SUBSIDIARY:
BLACK DOG COAL CORP.
By: /s/ Robert C. Gordon
------------------------------------
Name: Robert C. Gordon
Title: President
CO-ISSUERS:
ALPHA NATURAL RESOURCES, LLC
ALPHA NATURAL RESOURCES CAPITAL CORP.
By: /s/ Vaughn R. Groves
------------------------------------
Name: Vaughn R. Groves
Title: Vice President
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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.
BROOKS RUN MINING COMPANY, LLC
DICKENSON-RUSSELL COAL COMPANY, LLC
ENTERPRISE MINING COMPANY, LLC
ESPERANZA COAL CO., LLC
GALLUP TRANSPORTATION AND
TRANSLOADING COMPANY, 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
NATIONAL KING COAL 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
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