EXHIBIT 4.6
SUPPLEMENTAL INDENTURE NO.
1
SUPPLEMENTAL INDENTURE NO. 1, dated
as of July 31, 2009 (this “ Supplemental
Indenture ”), by and among the Company (as defined below)
and UNION BANK, N.A. (formerly known as UNION BANK OF CALIFORNIA,
N.A.), as trustee (the “ Trustee ”), under the
Subordinated Indenture dated as of April 7, 2008 (the “
Base Indenture ”), between ALPHA NATURAL RESOURCES,
INC., a Delaware corporation (“ Alpha ”), and
the Trustee.
WITNESSETH
WHEREAS, Alpha has heretofore
executed and delivered to the Trustee the Base
Indenture;
WHEREAS, Alpha and FOUNDATION COAL
HOLDINGS, INC., a Delaware corporation (“ Foundation
”), entered into an Agreement and Plan of Merger dated as of
May 11, 2009 (the “ Merger Agreement ”),
providing for the merger of Alpha with and into Foundation (the
“ Merger ”), with Foundation as the surviving
corporation (such surviving corporation, renamed Alpha Natural
Resources, Inc., the “ Company ”);
WHEREAS, the Merger complies with
the provisions of Section 10.01 of the Base
Indenture;
WHEREAS, the Company proposes in and
by this Supplemental Indenture to supplement and amend the Base
Indenture in certain respects;
WHEREAS, Section 9.01 of the
Base Indenture permits the Company and the Trustee to amend the
Base Indenture without prior notice to or consent of any Holder for
the purpose of evidencing the assumption by a successor of Alpha of
the covenants and obligations of Alpha thereunder; and
WHEREAS, the Company has requested
that the Trustee execute and deliver this Supplemental Indenture
and the execution and delivery of this Supplemental Indenture has
been duly authorized in all respects.
NOW THEREFORE, the Company and the
Trustee hereby agree that the following Sections of this
Supplemental Indenture supplement the Base Indenture:
ARTICLE I
DEFINITIONS
Section 1.1. CAPITALIZED TERMS.
Capitalized terms used herein without definition shall have the
meanings assigned to them in the Base Indenture.
ARTICLE II
ASSUMPTION
Section 2.1. ASSUMPTION OF
OBLIGATIONS. The Company, as the surviving entity in the Merger,
expressly assumes the performance or observance of every covenant
of the Base Indenture on the part of Alpha to be performed or
observed.
ARTICLE III
MISCELLANEOUS
Section 3.1. NO RECOURSE
AGAINST OTHERS. No past, present or future director, manager,
officer, employee, incorporator, stockholder or member of the
Company, any parent entity of the Company or any Subsidiary of the
Company, as such, will have any liability for any obligations of
the Company under this Supplemental Ind
