exhibit41.htm


    
       

      
         


        
          Exhibit
4.1

          


        

      

    


    FOURTH
SUPPLEMENTAL INDENTURE

    


    


    FOURTH 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 West
Virginia 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 (the “Base
Indenture”), dated as of May 29, 2003, as supplemented by that Second
Supplemental Indenture (the “Second Supplemental Indenture”), dated April 7,
2004, and that Third Supplemental Indenture (the “Third Supplemental
Indenture”), dated July 20, 2009, each by and among the Issuer, the Guarantors
(defined therein) and the Trustee (the Base Indenture together with the Second
Supplemental Indenture and the Third Supplemental Indenture, as amended and
supplemented, the “Indenture”), providing for the issuance of the 2.25%
Convertible Senior Notes due 2024 in the principal amount of up to One Hundred
Seventy-Five Million and 00/100 Dollars ($175,000,000).

    


    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
2.05 of the Second Supplemental Indenture, the New Subsidiary desires to become
a Guarantor under the Indenture.

    


    WHEREAS, Section 2.05 of the
Second Supplemental 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 May 29, 2003, as supplemented by that Second Supplemental Indenture (the
“Second Supplemental Indenture”), dated April 7, 2004, and that Third
Supplemental Indenture (the “Third Supplemental Indenture”), dated July 20,
2009, each by and among Massey Energy Company, as issuer, the Guarantors (as
defined therein) and Wilmington Trust Company, as Trustee (the Base Indenture,
the Second Supplemental Indenture and the Third Supplemental Indenture, 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, and interest and Liquidated Damages, if
any, with respect to the Convertible Senior Notes, 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 Liquidated Damages, and the due and
punctual performance of all other obligations (including amounts due the Trustee
under Section 607 of the Base Indenture) of the Corporation or any Guarantor to
the Holders or the Trustee, all in accordance with the terms set forth in
Article Two of the Second Supplemental Indenture, and (b) in case of any
extension of time of payment or renewal of any Convertible Senior Notes 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 of Convertible Senior Notes and to the Trustee pursuant to this Note
Guarantee and the Indenture are expressly set forth in Article Two of the Second
Supplemental 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