EXHIBIT 4.3
FIRST SUPPLEMENTAL
INDENTURE
FIRST
SUPPLEMENTAL INDENTURE ,
dated as of July 20, 2009 (the “Supplemental
Indenture”), among Massey Energy Company, a Delaware
corporation, as issuer (the “Issuer”), the Guarantors
(as defined in the Indenture (defined below)), West Kentucky Energy
Company, a Kentucky corporation (the “New Subsidiary”),
and Wilmington Trust Company, as trustee (the
“Trustee”).
W I T N E S S E T
H
WHEREAS , the Issuer, the Guarantors and the Trustee
executed that certain Indenture, dated as of December 21, 2005, by
and among the Issuer, the Guarantors (defined therein) and the
Trustee (the “Indenture”), providing for the issuance
of the 6.875% Senior Notes due 2013 in the principal amount of up
to Seven Hundred Sixty Million and 00/100 Dollars
($760,000,000).
WHEREAS , the New Subsidiary was incorporated in the
State of Kentucky on June 5, 2009.
WHEREAS , Sidney Coal Company, Inc., an indirect
wholly-owned subsidiary of the Issuer, on June 30, 2009
capitalized, and became the sole parent of, the New
Subsidiary.
WHEREAS, the New Subsidiary desires to incur Indebtedness
and to guarantee the Indebtedness of the Issuer and/or its
wholly-owned subsidiaries, to the extent permitted by the
Indenture.
WHEREAS, pursuant to Section 10.04 of the Indenture, the
New Subsidiary desires to become a Guarantor under the
Indenture.
WHEREAS , Section 10.04 of the Indenture provides that
supplemental indentures may be executed and delivered by the
Issuer, the Guarantors and the Trustee for the purpose of amending
or supplementing the Indenture so that a Restricted Subsidiary may
become a party to the Indenture and issue a Note Guarantee, as
attached hereto as Exhibit A.
WHEREAS , all other acts and proceedings necessary have
been done to make this Supplemental Indenture, when executed and
delivered by the Issuer, the Guarantors and the Trustee, the legal,
valid and binding agreement of the Issuer and the Guarantors in
accordance with its terms.
NOW
THEREFORE , for good and
valuable consideration, the sufficiency and receipt of which are
hereby acknowledged, the parties, intending to be legally bound,
agree as follows:
Section
1. Confirmation of the Indenture; Definitions
. Except as supplemented hereby, the Indenture is hereby
confirmed and reaffirmed in all particulars. Anything in
the Indenture or herein to the contrary notwithstanding, all
recitals, definitions and provisions contained in this Supplemental
Indenture shall take precedence over the recitals, definitions and
provisions of the Indenture to the extent of any conflict between
the two. Unless otherwise defined herein, terms defined
in the Indenture and used herein shall have the meaning given them
in the Indenture.
Section
2. (a) The New Subsidiary hereby executes
this Agreement as a supplemental indenture to the Indenture for the
purpose of issuing a Note Guarantee, as set forth in Exhibit A, and
agrees to be subject to all of the terms, conditions, waivers and
covenants applicable to a Guarantor under the
Indenture. Upon its execution hereof, the New Subsidiary
hereby acknowledges that it shall be a Guarantor for all purposes
set forth in the Indenture, effective as of the date
hereof.
(b) None
of the shareholders, trustees or officers of the New Subsidiary
shall be personally liable for the New Subsidiary’s
obligations as a Guarantor arising under the Indenture.
Section
3. Conditions to Effectivess of Supplemental
Indenture and to Operation of Amendments Made Hereby
. This Supplemental Indenture shall become effective
immediately upon its execution by the Trustee, the Issuer and the
Guarantors.
Section
4. Counterparts . This Supplemental
Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.