EXHIBIT 4.1
EIGHTH SUPPLEMENTAL INDENTURE
This Eighth Supplemental Indenture
(“ Supplemental Indenture ”) is dated as of
April 14, 2008 and is by and among Alpha Natural Resources,
LLC, a Delaware limited liability company, and Alpha Natural
Resources Capital Corp., a Delaware corporation (together, the
“ Issuers ”), the guarantors named herein (the
“ Guarantors ”) and Wells Fargo Bank, National
Association, as trustee (the “ Trustee ”).
WHEREAS, the Issuers have heretofore
executed and delivered to the Trustee the Indenture dated as of
May 18, 2004 (as supplemented by the First Supplemental
Indenture dated as of February 1, 2005, the Second
Supplemental Indenture dated as of March 30, 2005, the Third
Supplemental Indenture dated as of October 26, 2005, the
Fourth Supplemental Indenture dated as of January 3, 2006, the
Fifth Supplemental Indenture dated as of May 1, 2006, the
Sixth Supplemental Indenture dated as of January 10, 2007 and
the Seventh Supplemental Indenture dated as of July 12, 2007,
the “ Indenture ”) with respect to the 10%
Senior Notes due 2012 issued under the Indenture (the “
Affected Securities ”); and
WHEREAS, the Issuers have solicited
the consent of the Holders of the Affected Securities to certain
amendments to the Indenture pursuant to that certain Offer to
Purchase and Consent Solicitation Statement for the Affected
Securities dated April 1, 2008 (the “ Offer to
Purchase ”); and
WHEREAS, the Issuers have received
written consents of the Holders of not less than a majority in
aggregate principal amount of the outstanding Affected Securities
to the amendments to the Indenture set forth in this Supplemental
Indenture; and
WHEREAS, all other things necessary
in order to execute and deliver this Supplemental Indenture and
effect the amendments set forth herein have been obtained;
NOW, THEREFORE, in order to amend the
terms of the Indenture with respect to the outstanding Affected
Securities, in consideration of the premises, it is mutually agreed
by the Issuers, the Guarantors and the Trustee, for the equal and
ratable benefit of all Holders of the Affected Securities, as
follows:
ARTICLE ONE
DEFINITIONS
Section 1.1 Capitalized
Terms . Capitalized terms used herein without definition shall
have the meanings assigned to them in the Indenture.
Section 1.2 Definition .
When used herein, “Tender Offer Completion Event” shall
mean such time as each of the following events shall have occurred:
the Issuers shall have (a) accepted for payment all Affected
Securities validly tendered and not validly withdrawn in accordance
with the terms and conditions set forth in the Offer to Purchase
and the related Letter of Transmittal and Consent dated
April 1, 2008 and (b) paid to the depositary (as
specified in the Offer to Purchase) a sum sufficient to satisfy the
Issuers’ obligation to pay to each Holder of the Affected
Securities that has tendered its Affected Securities pursuant to
the tender offer the total consideration, or to the extent
applicable, the total consideration less the applicable consent
payment, for any Affected Securities accepted pursuant to the
tender offer.
ARTICLE TWO
AMENDMENTS TO INDENTURE
Section 2.1 Deleted
Definitions . Upon the occurrence of the Tender Offer
Completion Event, Section 1.01 of the Indenture shall, without
further action by any party hereto, be amended by deleting the
definition of each term that is used in the Indenture only in the
Sections or Subsections thereof that are deleted or revised (if
such terms are no longer used in the Indenture as a result of such
revisions) pursuant to Section 2.2 hereof.
Section 2.2 Amended
Provisions . Upon the occurrence of the Tender Offer Completion
Event, the text of each of the following Sections or Subsections of
the Indenture shall, without further action by any party hereto, be
amended as follows:
(a) Offer to Purchase by
Application of Excess Proceeds. The text of Section 3.09
(other than the Section numbering and caption) shall be deleted in
its entirety and replaced with the words “[Intentionally
Omitted]”.
(b) Maintenance of Office or
Agency . The text of Section 4.02 (other than the Section
numbering and caption) shall be deleted in its entirety and
replaced with the words “[Intentionally
Omitted]”.
(c) Reports .
Section 4.03 of the Indenture shall be amended to state, in
its entirety, the following:
“Section 4.03.
Reports .
The Issuers and the Guarantors shall
comply with Section 314(a) of the TIA. For so long as any
Notes remain outstanding, if at any time the Issuers are no longer
subject to the periodic reporting requirements of the Exchange Act,
the Issuers and the Guarantors will furnish to the Holders and to
securities analysts and prospective investors, upon their request,
the information required to be delivered pursuant to
Rule 144A(d)(4) under the Securities Act.”
(d) Compliance
Certificates . Section 4.04 of the Indenture shall be
amended to state, in its entirety, the following:
“Section 4.04.
Compliance Certificate.
The Issuers and the Guarantors shall
deliver to the Trustee, within 90 days after the end of each
fiscal year, an Officers’ Certificate in accordance with
Section 314(a)(4) of the TIA.”
(e) Taxes . The text of
Section 4.05 (other than the Section numbering and caption)
shall be deleted in its entirety and replaced with the words
“[Intentionally Omitted]”.
(f) Stay, Extension and
Usury Laws . The text of Section 4.06 (other than the
Section numbering and caption) shall be deleted in its entirety and
replaced with the words “[Intentionally
Omitted]”.
(g) Restricted Payments
. The text of Section 4.07 (other than the Section numbering
and caption) shall be deleted in its entirety and replaced with the
words “[Intentionally Omitted]”.
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(h) Dividend and Other
Payment Restrictions Affecting Subsidiaries . The text of
Section 4.08 (other than the Section numbering and caption)
shall be deleted in its entirety and replaced with the words
“[Intentionally Omitted]”.
(i) Incurrence of
Indebtedness and Issuance of Preferred Equity . The text of
Section 4.09 (other than the Section numbering and caption) shall
be deleted in its entirety and replaced with the words
“[Intentionally Omitted]”.
(j) Asset Sales . The
text of Section 4.10 (other than the Section numbering and
caption) shall be deleted in its entirety and replaced with the
words “[Intentionally Omitted]”.
(k) Transactions with
Affiliates . The text of Section 4.11 (other than the
Section numbering and caption) shall be deleted in its entirety and
replaced with the words “[Intentionally
Omitted]”.
(l) Liens . The text of
Section 4.12 (other than the Section numbering and caption)
shall be deleted in its entirety and replaced with the words
“[Intentionally Omitted]”.
(m) Business Activities
. The text of Section 4.13 (other than the Section numbering
and caption) shall be deleted in its entirety and replaced with the
words “[Intentionally Omitted]”.
(n) Corporate Existence
. The text of Section 4.14 (other than the Section numbering
and caption) shall be deleted in its entirety and replaced with the
words “[Intentionally Omitted]”.
(o) Offer to Repurchase Upon
Change of Control . The text of Section 4.15 (other than
the Section numbering and caption) shall be deleted in its entirety
and replaced with the words “[Intentionally
Omitted]”.
(p) Limitation on Sale
Leaseback Transactions . The text of Section 4.16 (other
than the Section numbering and
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