exhibit44.htm


    Exhibit
4.4

     

    THIRD
SUPPLEMENTAL INDENTURE

    


    


    THIRD SUPPLEMENTAL INDENTURE,
dated as of August 28, 2009 (the “Supplemental Indenture”), among Massey Energy
Company, a Delaware corporation, as issuer (the “Issuer”), the Guarantors (as
defined in the Indenture (defined below)), Foglesong 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, and that Second Supplemental
Indenture, dated as of July 20, 2009, 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 West Virginia on July 29, 2009.

    


    WHEREAS, Elk Run Coal Company,
Inc., an indirect wholly-owned subsidiary of the Issuer, on August 28, 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 Supplemental Indenture shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be effected or impaired thereby.

    


    Section 6.  Governing
Law.  This Supplemental Indenture shall be governed by and
construed in accordance with the laws of the State of New York.

    


    Section 7.  Trustee.  The
Trustee makes no representation as the validity or sufficiency of this
Supplemental Indenture.

    


    


    


    


    [Signature
page follows.]

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the
parties hereto have caused this Supplemental Indenture to be duly executed, all
as of the date first above written.

    


     

    
       

      
        	
                 MASSEY ENERGY COMPANY

                 

              
	
                 By: 
      /s/  Richard R.
      Grinnan

              
	 Name: 
      Richard R. Grinnan
	 Title: 
      Vice President and Secretary
	 
	 
	 FOGLESONG ENERGY COMPANY
	 
	 By: 
      /s/  Richard R.
      Grinnan
	 Name: 
      Richard R. Grinnan
	 Title: 
      Secretary
	 


      

       

    

     

     

     

     

    
      
         


      

      
         


        
          

        

      

      
         


      

    


    GUARANTORS:

     
 

    A.T.
MASSEY COAL COMPANY, INC.

    ALEX
ENERGY, INC.

    ARACOMA
COAL COMPANY, INC.

    BANDMILL
COAL CORPORATION

    BANDYTOWN
COAL COMPANY

    BARNABUS
LAND COMPANY

    BELFRY
COAL CORPORATION

    BEN
CREEK COAL COMPANY

    BIG
BEAR MINING COMPANY

    BIG
SANDY VENTURE CAPITAL CORP.

    BLACK
KING MINE DEVELOPMENT CO.

    BLUE
RIDGE VENTURE CAPITAL CORP.

    BOONE
EAST DEVELOPMENT CO.

    BOONE
ENERGY COMPANY

    BOONE
WEST DEVELOPMENT CO.

    CENTRAL
PENN ENERGY COMPANY, INC.

    CENTRAL
WEST VIRGINIA ENERGY COMPANY

    CERES
LAND COMPANY

    CLEAR
FORK COAL COMPANY

    CRYSTAL
FUELS COMPANY

    DEHUE
COAL COMPANY

    DELBARTON
MINING COMPANY

    DEMETER
LAND COMPANY

    DOUGLAS
POCAHONTAS COAL CORPORATION

    DRIH
CORPORATION

    DUCHESS
COAL COMPANY

    DUNCAN
FORK COAL COMPANY

    EAGLE
ENERGY, INC.

    ELK
RUN COAL COMPANY, INC.

    FEATS
VENTURE CAPITAL CORP.

    GOALS
COAL COMPANY

    GREEN
VALLEY COAL COMPANY

    GREYEAGLE
COAL COMPANY

    HADEN
FARMS, INC.

    HANNA
LAND COMPANY, LLC

    (by
ALEX ENERGY, INC., its Manager)

    HAZY
RIDGE COAL COMPANY

    HIGHLAND
MINING COMPANY

    HOPKINS
CREEK COAL COMPANY

    INDEPENDENCE
COAL COMPANY, INC.

    JACKS
BRANCH COAL COMPANY

    JOBONER
COAL COMPANY

    KANAWHA
ENERGY COMPANY

    KNOX
CREEK COAL CORPORATION

    LAUREN
LAND COMPANY

    LAXARE,
INC.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    LOGAN
COUNTY MINE SERVICES, INC.

    LONG
FORK COAL COMPANY

    LYNN
BRANCH COAL COMPANY, INC.

    MAJESTIC
MINING, INC.

    MARFORK
COAL COMPANY, INC.

    MARTIN
COUNTY COAL CORPORATION

    MASSEY
COAL SALES COMPANY, INC.

    MASSEY
GAS & OIL COMPANY

    MASSEY
TECHNOLOGY INVESTMENTS, INC.

    NEW
MARKET LAND COMPANY

    NEW
RIDGE MINING COMPANY

    NEW
RIVER ENERGY CORPORATION

    NICCO
CORPORATION

    NICHOLAS
ENERGY COMPANY

    OMAR
MINING COMPANY

    PEERLESS
EAGLE COAL CO.

    PERFORMANCE
COAL COMPANY

    PETER
CAVE MINING COMPANY

    PILGRIM
MINING COMPANY, INC.

    POWER
MOUNTAIN COAL COMPANY

    RAVEN
RESOURCES, INC.

    RAWL
SALES & PROCESSING CO.

    ROAD
FORK DEVELOPMENT

    COMPANY,
INC.

    ROBINSON-PHILLIPS
COAL COMPANY

    RUM
CREEK COAL SALES, INC.

    RUSSELL
FORK COAL COMPANY

    SC
COAL CORPORATION

    SCARLET
DEVELOPMENT COMPANY

    SHANNON-POCAHONTAS
COAL CORPORATION

    SHANNON-POCAHONTAS
MINING COMPANY

    (by:
SHANNON-POCAHONTAS COAL

    CORPORATION,
its partner

    by:
OMAR MINING COMPANY, its partner)

    SHENANDOAH
CAPITAL MANAGEMENT CORP.

    SIDNEY
COAL COMPANY, INC.

    SPARTAN
MINING COMPANY

    ST.
ALBAN’S CAPITAL

    MANAGEMENT
CORP.

    STIRRAT
COAL COMPANY

    STONE
MINING COMPANY

    SUPPORT
MINING COMPANY

    SYCAMORE
FUELS, INC.

    T.C.H.
COAL CO.

    TALON
LOADOUT COMPANY

    TENNESSEE
CONSOLIDATED COAL COMPANY

    TENNESSEE
ENERGY CORP.

    THUNDER
MINING COMPANY

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    TOWN
CREEK COAL COMPANY

    TRACE
CREEK COAL COMPANY

    TUCSON
LIMITED LIABILITY COMPANY,

    (by:
ALEX ENERGY, INC., its Manager)

    VANTAGE
MINING COMPANY

    WHITE
BUCK COAL COMPANY

    WEST
KENTUCKY ENERGY COMPANY

    WILLIAMS
MOUNTAIN COAL COMPANY

    WYOMAC
COAL COMPANY, INC.

    


    


    By: /s/ Richard R.
Grinnan____                                                      

         Name:  Richard
R. Grinnan

         Title:  Secretary

    


    


    MASSEY
COAL SERVICES, INC.

    


    


    By: /s/ Richard R.
Grinnan____                                                      

         Name:  Richard
R. Grinnan

         Title:  Assistant
Secretary

    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    WILMINGTON TRUST
COMPANY,

    as
Trustee

    


    


    By:  /s/ Michael G. Oller,
Jr._______

           Name:
Michael G. Oller, Jr.

           Title:
Assistant Vice President

    


    


    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    EXHIBIT
A

    


    NOTE
GUARANTEE

    


    The undersigned (the “Guarantor”)
hereby jointly and severally unconditionally guarantees, on a senior unsecured
basis, to the extent set forth in the Indenture (the “Base Indenture”), dated as
of August 12, 2008, as supplemented by that First Supplemental Indenture, dated
the same date, and Second Supplemental Indenture, dated as of July 20, 2009,
each by and among Massey Energy Company, as issuer, the Guarantors (as defined
therein) and Wilmington Trust Company, as Trustee (together with the Base
Indenture and as amended, restated or supplemented from time to time, the
“Indenture”), and subject to the provisions of the Indenture, (a) the due and
punctual payment of the principal of, and premium, if any, interest and
additional interest, if any, with respect to the Securities, when and as the
same shall become due and payable, whether at maturity, by acceleration or
otherwise, the due and punctual payment of interest on overdue principal of, and
premium and, to the extent permitted by law, interest or additional interest, if
any, and the due and punctual performance of all other obligations of the
Company or any Guarantor to the Holders or the Trustee under this Indenture and
the Securities (including amounts due the Trustee under Section 607 of the
Indenture), all in accordance with the terms set forth in Article Fifteen of the
Base Indenture, and (b) in case of any extension of time of payment or renewal
of any Securities or any of such other obligations, that the same shall be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at Stated Maturity, by acceleration or
otherwise.

    


    The obligations of the Guarantors to
the Holders and to the Trustee pursuant to this Note Guarantee and the Indenture
are expressly set forth in Article Fifteen of the Base Indenture and reference
is hereby made to the Indenture for the precise terms and limitations of this
Note Guarantee.

    


    Capitalized terms not otherwise defined
herein shall have the meanings set forth in the Indenture.

    


    


    


    [Signature
Page Follows]

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


    IN WITNESS WHEREOF, the Guarantor has
caused this Note Guarantee to be signed by a duly authorized
officer.

    


    


    FOGLESONG ENERGY COMPANY

    


    


    


    By:  __________________________________

           Name:  Richard
R. Grinnan

           Title:  Secretary

    


    


    


    
      	 
      


    

    Dated:  August
28, 2009