Exhibit 4.1
FIRST SUPPLEMENTAL
INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE
, dated as of the 19
th day of August, 2008, between MASSEY ENERGY
COMPANY , a Delaware corporation (the “Company”),
the guarantors party hereto (the “Guarantors”) and
WILMINGTON TRUST COMPANY , as trustee (the
“Trustee”), amends and supplements that certain
Indenture, dated as of November 10, 2003, by and among the
Company, the Guarantors and the Trustee (the
“Indenture”). Capitalized terms used but not
defined herein shall have the meanings ascribed to such terms in
the Indenture.
RECITALS OF THE
COMPANY
WHEREAS , the Company desires to enter into this First
Supplemental Indenture to eliminate substantially all of the
restrictive covenants in the Indenture and to eliminate certain
definitions, cross references and related provisions made
irrelevant as a result of the deletion of such restrictive
covenants;
WHEREAS , pursuant to Section 8.02 of the Indenture, the
Company has obtained the consent of the Holders of at least a
majority in aggregate principal amount of the Company’s
outstanding 6.625% Senior Notes due 2010 (the “Notes”),
the only outstanding Notes issued under the Indenture;
WHEREAS , the Company has provided a written request,
accompanied by a Board resolution authorizing the execution of this
First Supplemental Indenture, to the Trustee requesting that the
Trustee join the Company and the Guarantors in the execution of
this First Supplemental Indenture;
WHEREAS , the Company and the Guarantors have delivered
to the Trustee in accordance with Section 8.06 of the Indenture, an
Officer’s Certificate and an Opinion of Counsel stating that
this First Supplemental Indenture is permitted under the Indenture
and is a legal, valid and binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in
accordance with its terms; and
WHEREAS , all things necessary on the part of the
Company and the Guarantors to make this First Supplemental
Indenture a valid, binding and legal agreement of the Company and
the Guarantors, enforceable in accordance with its terms, have been
done.
For valuable consideration, the receipt of which
is hereby acknowledged, it is mutually covenanted and agreed, for
the equal and ratable benefit of all Holders of the Notes, as
follows:
SECTION 1. Amendments
to Table of Contents.
The Table of Contents of the Indenture is
amended by deleting the titles to Sections 4.02 through and
including 4.12, Section 4.14 and Sections 4.18 through and
including 4.20, and inserting, in each case, in lieu thereof the
phrase “[intentionally omitted]”.
SECTION 2. Deletion
of Provisions in the Indenture .
The following provisions of the Indenture are
hereby deleted in their entirety and replaced, in each case, with
the phrase “[intentionally omitted]”:
Section 4.02 Reports
to Holders
Section 4.03 Waiver
of Stay, Extension or Usury Laws
Section 4.04 Compliance
Certificate
Section 4.05 Taxes
Section 4.06 Limitations
on Additional Indebtedness
Section 4.07 Limitations
on Restricted Payments
Section 4.08 Limitations
on Liens
Section 4.09 Limitations
on Transactions with Affiliates
Section 4.10 Limitation
on Asset Sales
Section 4.11
