THIRDSUPPLEMENTAL 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 West Virginia corporation (the “New Subsidiary”), and Wilmington Trust Company, as trustee (the “Trustee”).

WHEREAS, the Issuer, the Guarantors and the Trustee executed that certain Indenture, (the “Base Indenture”), dated as of November 10, 2003, by and among the Issuer, the Guarantors (defined therein) and the Trustee, as supplemented by that First Supplemental Indenture, dated as of August 19, 2008, and that Second Supplemental Indenture, dated as of July 20, 2009 (together with the Base Indenture and as amended and supplemented, the “Indenture”), providing for the issuance of the 6.625% Senior Notes due 2010 in the principal amount of up to Three Hundred Sixty Million and 00/100 Dollars ($360,000,000).

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 10.04 of the Base Indenture, the New Subsidiary desires to become a Guarantor under the Indenture.

WHEREAS, Section 10.04 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 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.

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.

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

By:/s/ Richard R. Grinnan                                                      

Name:  Richard R. Grinnan

Title:  Vice President and Secretary

By:/s/ Richard R. Grinnan                                                      

Name:  Richard R. Grinnan

Title:  Secretary

GUARANTORS:

 

 

 

 

By:/s/ Richard R. Grinnan                                                      

     Name:  Richard R. Grinnan

     Title:  Secretary

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

The undersigned (the “Guarantor”) hereby jointly and severally unconditionally guarantees, to the extent set forth in the Indenture (the “Base Indenture”), dated as of November 10, 2003, by and among Massey Energy Company, as issuer, the Guarantors (as defined therein) and Wilmington Trust Company, as Trustee, as supplemented by the First Supplemental Indenture, dated as of August 22, 2008, and the Second Supplemental Indenture, dated as of July 20, 2009 (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, and interest on the 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, and the due and punctual performance of all other obligations of the Issuer to the Holders or the Trustee, all in accordance with the terms set forth in Article Ten of the Base Indenture, and (b) in case of any extension of time of payment or renewal of any 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 and to the Trustee pursuant to this Note Guarantee and the Indenture are expressly set forth in Article Ten 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.

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

Dated:  August 28, 2009