EXHIBIT 4.4
SECOND SUPPLEMENTAL
INDENTURE
SECOND
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 Senior Indenture (the “Base
Indenture”), dated as of August 12, 2008, as supplemented by
that First Supplemental Indenture, dated the same date, each by and
among the Issuer, the Guarantors (defined therein) and the Trustee
(together with the Base Indenture and as amended and supplemented,
the “Indenture”), providing for the issuance of the
3.25% Convertible Senior Notes due 2015 in the principal amount of
up to Six Hundred Ninety Million and 00/100 Dollars
($690,000,000).
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 1504 of the Base Indenture,
the New Subsidiary desires to become a Guarantor under the
Indenture.
WHEREAS , Section 1504 of the Base 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 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 Subsidiary and Guarantor under the
Indenture. Upon its execution hereof, the New Subsidiary
hereby acknowledges that it shall be a Guarantor for all purposes
as defined as 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.
Section
5. Severability . In case any
provision in this