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Exhibit 10.3
AGREEMENT OF LEASE dated January 1, 1988, between XXXXXXXX COMPANY, a West
Virginia corporation (hereinafter called "Lessor"), and PRIMEACRE LAND
CORPORATION, a Delaware corporation (hereinafter called "Lessee").
1. PREMISES
1.1 In consideration of the rents, royalties, and other sums to be paid
by Lessee to Lessor and subject to the covenants and agreements hereinafter
contained and to be kept, performed, and observed on the part of Lessee, Lessor
hereby leases to Lessee all of the mineable and merchantable coal (as defined
in Section 3), to the extent that it is owned by Lessor, in, upon, and under the
following-described tract of land, situate partly in Xxxxx County, West
Virginia, and partly in Lincoln County, West Virginia:
The tract of land that was conveyed to Lessor by Xxxxxxxxx X. Xxxxxx,
Trustee, by deed dated August 15, 1958, and recorded in the Office of the
Clerk of the County Commission of said Xxxxx County in Deed Book No. 93, at
page 390, and in the Office of the Clerk of the County Commission of said
Lincoln County in Deed Book No. 153, at page 396.
EXCEPT, HOWEVER, those lands, if any, that have been conveyed by
Lessor to others in connection with boundary line compromises.
TOGETHER WITH those lands, if any, in either of said counties that
have been conveyed to Lessor by others in connection with boundary line
compromises.
TOGETHER, ALSO, WITH the mining rights described below in Section 2.
EXCEPTING AND RESERVING, HOWEVER, to Lessor, its successors and
assigns, the right to recover timber from the surface of the Premises to
the extent that Lessor, in the absence of this Agreement of Lease, would
have such right, but subject to the provisions of Section 13.4.
EXCEPTING AND RESERVING, MOREOVER, to Lessor, its successors and
assigns, all oil and gas and other minerals
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(except the above-described coal and such fireclay or other minerals as are
normally removed with said coal) lying or being or found within or
underlying the above-described premises, including methane and other gases
in the coal hereby leased (it being understood, however, that Lessee may
discharge to the atmosphere or use in its operations, but may not sell,
such methane and other gases), together with the right to drill and bore
for and sink shafts for the purpose of testing, exploring for and removing
oil, gas and such other minerals; provided, however, that any such
drilling, boring or sinking of shafts shall be done at such point or points
and in such manner as will not substantially interfere with or injure the
properties or operations of Lessee.
SUBJECT, HOWEVER, to the terms of an Agreement between Xxxxxxxx Company and
Xxxxxx X. Xxxxx, Trustee, Philadelphia Warehouse Company, and United Fuel Gas
Company, dated May 1, 1913, and recorded in said Office of the Clerk of the
County Commission of said Xxxxx County in Oil and Gas Record Book No. 3, at page
158, and in said Office of the Clerk of the County Commission of said Lincoln
County in Oil and Gas Record Book No. 4, at page 173.
1.2 It is the purpose of the Lessor and the Lessee to bring under this
Agreement of Lease all coal, with the appurtenances thereto, that is owned by
Lessor and located within said Xxxxx County or said Lincoln County (the lands
within which coal is located being, to the extent that they are owned by the
Lessor, hereinafter called the "Premises").
2. MINING RIGHTS
2.1 With respect to any part of the Premise where Lessor owns the surface,
Lessor grants to Lessee, for the purpose of mining, removing, gathering,
storing, preparing for market,
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transporting and shipping the coal, the right and privilege to exercise and use
such mining rights, auxiliary privileges and easements as may be deemed
necessary or convenient by Lessee for the purposes hereof.
2.2 Without limiting the generality of the foregoing grant of rights, said
grant includes, in so far as Lessor has the right to grant such rights, the
right to mine (by any method or process, including deep mining, strip mining,
mountain-top removal and auger and punch mining) and take and remove all of said
coal; the right to use so much of the surface of the Premises as Lessee may
desire for the erection, maintenance and operation of mining structures,
buildings, power lines, tracks, tramways and equipment, for depositing refuse,
slurry, bone, slate and other substances resulting from mining and for drainage,
ventilation, haulage and other purposes in connection with the mining and
removal of such coal and of coal from adjacent and neighboring lands; the right
to haul through and under the Premises coal from neighboring and adjacent lands;
and the right to use in connection with the mining operations of Lessee in, on
and under the Premises and adjacent and neighboring lands sand, rock, water and
other substances found on, in or under the Premises; all without liability for
injury or damage that may result to the overlying strata or the surface land or
to buildings or structures that may now or hereafter be erected thereon or
therein or to springs, xxxxx or water courses in, on or under the Premises or to
anything therein or thereon and
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without being required in the mining and removal of coal, sand or rock,
including pillars, from the Premises or from other lands to provide vertical,
subjacent or lateral support to any strata overlying the coal within the
Premises or to the surface of the Premises or to anything therein or thereon,
subject, however, as hereinafter set forth.
2.3 With respect to any part of the Premises where Lessor does not own the
surface, Lessor grants to Lessee the same mining rights, privileges and
easements as Lessor possesses or has the right to utilize, subject, however, as
hereinafter set forth, it being understood that those mining rights, privileges
and easements may not be uniform throughout the Premises.
3. MINEABLE AND MERCHANTABLE COAL
3.1 The term "mineable and merchantable" shall refer to coal which, when
reached in the conduct of Lessee's operations hereunder, could be mined by the
use of machinery and methods which, at that time, are modern, practical, and
efficient and could be sold at a reasonable profit on the market then
prevailing. The term "mineable and merchantable" shall be given reasonable and
practicable consideration to the end that as much coal shall be recovered as is
reasonable and practicable without imposing an unreasonable burden upon Lessee
where unfavorable natural conditions or market conditions are encountered.
4. WARRANTIES
4.1. Lessor warrants specially title to the Premises and to the rights,
privileges and easements hereby leased.
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4.2 If the title of Lessor to any of the coal that is herein described as
being leased shall be defeated by the holder of an outstanding superior title
and as a consequence any mineable and merchantable coal is lost to Lessee by
virtue of a final adjudication by the court of last resort in the State of West
Virginia or by any court of last resort of the United States of America, then
Lessee shall pay no Tonnage Royalty (as defined in Section 7) to Lessor for coal
with respect Lessor's title is defeated and the Minimum Quarterly Royalty (as
defined in Section 6) shall be reduced in the same proportion as the acreage of
coal contained within the Premises is reduced by virtue of such defeat of title;
and if Tonnage Royalty shall theretofore have been paid in respect of such coal,
then Lessor shall refund to Lessee the amount of thereof, with interest from the
date of such final adjudication.
4.3 For six (6) months after any such final adjudication, Lessor shall be
entitled to purchase the coal so lost. If Lessor does not purchase the same
within said period of six (6) months, Lessee may purchase it. If such coal is
purchased by Lessor during the term hereof and is so located as to be mineable
and merchantable, taking into account the then status of Lessee's mining, it
shall thereupon become part of the Premises, and Lessee shall repay to Lessor
any of the above amounts therefore refunded by Lessor to Lessee with respect to
such coal and shall adjust the Minimum Quarterly Royalty accordingly.
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4.4 All actions against Lessor affecting title to the Premises and all
actions against Lessee affecting such title, if Lessor is duly notified thereof
by Lessee, shall be defended by Lessor at its own expense, but Lessee may on its
own account and at its own expense have associate counsel in any such
litigation.
5. TERM
5.1 The term hereof shall commence upon the date hereof and shall terminate
on December 31, 20O7, subject to extension as provided in Section 5.2 and to
earlier termination as provided in Section 5.3 and in Section 20.1 and subject
to the continuation of certain rights and obligations as provided in Section
23.1.
5.2 If Lessee has kept and performed all the covenants of this Lease,
Lessee may extend the term hereof for as many additional periods of twenty (20)
years each as Lessee may find necessary or desirable for the purposes of mining
all of the merchantable and mineable coal within the Premises, the term as so
extended being subject in each instance to the provisions of Section 5.3 and
Section 20.1 concerning earlier termination and subject to the continuation of
certain rights and obligations as provided in Section 23.1.
5.3 The term hereof shall terminate, except for the continuation of certain
rights and obligations as provided in Section 23.1, upon the removal of all of
the mineable and merchantable coal from the Premises.
6. PREPAID ROYALTY AND MINIMUM QUARTERLY ROYALTY
6.1 Lessor acknowledges receipt from Lessee, under the provisions of a
former lease of the coal within the Premises, of
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prepaid but unrecovered royalties in the amount of Three Hundred Seventy-three
Thousand Five Hundred Dollars ($373,500), which amount shall be regarded for the
purposes of recoupment hereunder as unrecovered Minimum Quarterly Royalty.
6.2 Lessee shall pay to Lessor with respect to each calendar quarter during
the term hereof the following minimum royalty (the "Minimum Quarterly Royalty"),
the obligation to pay which shall be in lieu of any obligation, express or
implied, to mine with due diligence:
With respect to quarters in Minimum Quarterly Royalty
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Calendar years 1988 through 1990 $25,000
Calendar years 1991 and 1992 $31,250
Calendar years 1993 and 1994 $37,500
Calendar years 1995 and 1996 $43,750
Calendar years 1997 through 2007 $50,000
Thereafter See Section 6.5
subject, however, to reduction as provided in Section 4.2 if Lessor's title to
all or any part of the Premises is defeated.
6.3 The Minimum Quarterly Royalty shall be paid on the 25th day of the
first month following the calendar quarter with respect to which it is payable.
6.4 If the Minimum Quarterly Royalty is to be reduced during the course of
a calendar year by virtue of failure of Lessor's title, as provided in Section
4.2, so that there would be defined, in the absence of this provision, two (2)
or more distinct amounts of Minimum Quarterly Royalty with respect to such
calendar quarter, the Minimum Quarterly Royalty with respect to
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such calendar quarter shall be the weighted average of each of the individual
amounts, the weights assigned being proportional to the number of days that each
such decrease is in effect during such calendar quarter.
6.5 The Minimum Quarterly Royalty during each twenty(20) year extension of
the term hereof shall be determined as follows:
6.5.1 At any time when Lessee has the right to extend the term of
this lease and shall be willing to do so if a satisfactory Minimum
Quarterly Royalty can be determined, Lessee shall give Lessor notice of
that fact no later than nine (9) months prior to the expiration of said
term. Thereupon, Lessor and Lessee shall attempt to negotiate the amount or
amounts of Minimum Quarterly Royalty to be paid during said term, as
extended, if Lessee exercises said right. If they do not reach agreement
prior to six (6) months before the expiration of said term, Lessee may,
within the immediately succeeding two (2) weeks submit the determination of
the Minimum Quarterly Royalty to be paid during said period to arbitration
as provided in Section 24. The arbitrators shall be instructed to submit
their decision no later than one (1) month before the expiration of said
term.
6.5.2 The Minimum Quarterly Royalty as determined by agreement or by
arbitration shall be consistent with minimum royalties in effect at the
time in then recent coal leases
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of coal lands of comparable size and location and containing coal of
comparable quantity and quality in Xxxxx County, West Virginia, and Lincoln
County, West Virginia.
6.5.3 Lessee may exercise its option to extend the term hereof on the
terms so determined as to Minimum Quarterly Royalty no later than the date
of expiration of the then term, failing which exercise said option shall
lapse.
7. TONNAGE ROYALTY
7.1 Lessee shall pay to Lessor for each ton (2,000 pounds) of coal mined
and removed from the Premises a tonnage royalty (the "Tonnage Royalty") equal to
the following:
7.1.1 if such coal is mined and removed by a sublessee of Lessee, the
greater of (i) three per cent (3%) of the gross selling price of such coal,
as defined in Section 7.2 or Section 7.3 or (b) one-half (1/2) of the
tonnage royalty thereon payable by such sublessee to Lessee; or
7.1.2 otherwise three and one-half (3 1/2) per cent of the gross
selling price of such coal, as defined in Section 7.2 or Section 7.3.
7.2 For the purpose of calculating Tonnage Royalty upon coal sold to
parties not affiliated in any way with Lessee or, in the instance of a sublease,
upon coal sold to parties not affiliated in any way with the sublessee, the
gross selling price of coal shall be:
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7.2.1 if such coal is shipped by rail car, either raw or after
preparation, the price actually charged the ultimate purchaser f.o.b. rail
car;
7.2.2 if such coal is shipped f.o.b. barge after preparation, the
price actually charged the ultimate purchaser f.o.b. barge, without any
deduction except the cost of transportation to the barge after preparation;
7.2.3 if such coal sold f.o.b. barge on a raw basis, the price
actually charged the purchaser without any deduction other than
transportation costs in excess of the transportation costs that would have
been incurred if such coal had been sold f.o.b. rail car; and
7.2.4 if such coal is shipped by truck, the price actually charged the
purchaser without any deduction except the cost of transportation.
In no event shall there be any deduction for selling costs, selling commissions,
advertising, credit losses, hauling or tippling, or consumer sales taxes or
severance taxes imposed or for discounts or allowances actually allowed to
arm's-length wholesalers, middlemen, or purchasers.
7.3 For the purpose of computing Tonnage Royalty upon coal sold by Lessee
to any party affiliated in any way with Lessee or, in the instance of a
sublessee, upon coal sold to any party affiliated in any way with sublessee, the
gross selling price of coal shall be the average of the fair market values
obtainable for coals of comparable quality mined in the Xxxxx County, West
Virginia, and Lincoln County, West Virginia, area and sold in
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similar markets, such fair market values to be established between
representatives of Lessor and Lessee effective each January 1 and July 1 during
the term hereof for the ensuing six (6) calendar months.
7.4 If Lessor and Lessee fail to agree upon the gross selling price, the
gross selling price of coal shall be established on the basis of the definition
of Section 7.2 or Section 7.3, as may be appropriate, by an independent third
party, knowledgeable about coal markets, to be selected by the parties. The fees
for the services of said third party shall be borne equally by Lessor and
Lessee. If Lessor and Lessee fail to agree on the third party to be selected, or
if either Lessor or Lessee is unwilling to accept any gross selling price
established by such third party, the matter shall be submitted to arbitration as
provided in Section 24.
8. ROYALTY UPON THE SALE OF BY-PRODUCTS
8.1 Lessee shall pay Lessor a sum equal to ten per cent (10%) of the
amounts charged for the sale during the term hereof of any slate, refuse or like
by-products obtained from the Premises and resulting from the production or
cleaning of coal, whether prior to the date hereof or during the term hereof.
8.2 Such royalty shall be accounted for and paid for as provided in
Section 10.
9. WHEELAGE
9.1 Lessee shall pay Lessor wheelage of one-fourth of one per cent (1/4%)
of the gross selling price of coal mined from
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lands other than the Premises and stored or processed on and shipped from the
Premises.
9.2 Such wheelage shall be accounted for and paid for as provided in
Section 10, the quantity being determined as provided in Section 11.
10. STATEMENTS AND PAYMENTS
10.1 On or before the 25th day of each calendar month, Lessee shall submit
to Lessor, in duplicate, a statement showing the tonnage of coal mined and
removed during the preceding calendar month, the gross selling price of such
coal, the Tonnage Royalty thereon, a reference to the method by which said
tonnage has been computed, as agreed upon pursuant to the provisions of Section
11, the quantity of coal on which wheelage is payable and a reference to the
method by which said quantity has been computed, the gross selling price of such
coal, the wheelage thereon, any sum payable as royalty on the sale of
by-products and all other information required for the computation of Tonnage
Royalty pursuant to the provisions of Section 7, the computation of royalty on
the sale of by-products pursuant to the provisions of Section 8 and for the
computation of wheelage payable pursuant to the provisions of Section 9
(including, if appropriate, a statement that no Tonnage Royalty or royalty on
the sale by by-products or wheelage is payable). Lessee shall submit such
monthly statement whether or not any payment is due.
10.2 To the extent that the sum of the Tonnage Royalty, the royalty upon
the sale of by-products and the wheelage to be paid
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pursuant to said statement exceeds the Minimum Quarterly Royalty applicable to
said quarter, Lessee may apply against such excess any prepaid but unrecovered
Minimum Quarterly Royalty (including, as provided in Section 6.1 the unrecovered
prepaid royalties therein specified). Lessee shall accompany such statement with
payment of all amounts due in accordance with such statement.
10.3 To the extent that the sum of the Tonnage Royalty, the royalty upon
the sale of by-products and the wheelage payable as provided in Section 9 is
with respect to any calendar quarter less than the Minimum Quarterly Royalty for
such calendar quarter, Lessee shall accompany said statement with payment of the
difference, which difference shall be recoupable as provided in Section 10.2.
11. DETERMINATION OF QUANTITY
11.1 The quantity of coal mined and removed hereunder shall be determined
as follows:
11.1.1 the quantity of coal mined from the Premises and shipped by
rail without being commingled with other coal shall be determined by
railroad weights;
11.1.2 the quantity of coal mined from the Premises and shipped by
other means or sold locally or used on the premises, which shall in no
event be commingled with other coal, shall be determined by standardized
weigh scales to be provided by Lessee and in accordance with the scale
books and accounts of Lessee or according to any further procedure that may
be proposed by Lessee and accepted by Lessor for the correct ascertainment
and report of such quantity.
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11.1.3 the quantity of coal commingled with coal from other premises
shall be determined by prorating the total weight of such coal, determined
as provided in Section 11.1.2, between the various lessors or owners
according to the tonnage mined from the premises of each during the
relevant period or periods, which tonnage shall be based on mine car
weights or on weightometers if belt conveyors are used or by engineers'
measurements and computations made by usual, customary, modern and accurate
methods or by any other scientifically reliable and accurante appliance or
method.
11.2 The quantity of coal used in the preparation of coal for market shall
not be taken into account in computing the quantity of coal for the purpose of
calculating the Tonnage Royalty.
12. RECORDS AND INSPECTION OF RECORDS
12.1 Lessee shall keep true and accurate accounts of all coal mined and
removed by it hereunder in such manner as to segregate the quantities of coal
mined and removed hereunder from the quantities of coal mined and removed from
other lands of Lessee.
12.2 Lessee shall permit Lessor to inspect its records relating to coal
mined and removed hereunder; and Lessor may inspect, audit, and copy such books
and records of Lessee as may be necessary or desirable to determine the accuracy
of the
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coal mined and removed hereunder. All such inspections shall be conducted during
Lessee's normal business hours and in such manner as not to interfere
unreasonably with the mining operations or business operations of Lessee.
12.3 Lessor shall have the right to obtain from any railroad or trucking
company by which coal mined hereunder shall be shipped, and from any person who
weighs coal mined hereunder, manifests and other information as to the quantity
of coal mined hereunder and to obtain from any purchaser of coal mined hereunder
information concerning the quantity of such coal purchased and the price or
prices paid therefore at such time or times as Lessor may desire such
information; and this provision shall constitute full authority to such
railroad, trucking company, person, or purchaser to give such information to
Lessor.
13. OPERATIONS
13.1 Lessee shall commence and thereafter carry on its mining operations
hereunder in a careful, skillful, and workmanlike manner in accordance with good
mining practices and the laws and regulations of the United States of America
and the State of West Virginia and their political subdivisions having
jurisdiction over such operations and in such manner as, subject to the other
provisions hereof, will permit the recovery of as much mineable and merchantable
coal as is practicable and with due regard to the future of the Premises as a
coal property.
13.2 Lessor and Lessee hereby waive any requirement for the maintenance of
barrier pillars between the Premises and any other mines of Lessee, including
any barrier pillars required by statute.
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13.3 In the event that Lessee shall encounter faults, rolls, or any other
adverse condition which, in its judgment, prohibits it from mining and removing
coal in accordance with the terms hereof, Lessee shall, before abandoning the
area or areas involved, give notice in writing to Lessor; and Lessor shall have
the right, if exercised within fourteen (14) days after receipt of such notice,
to inspect the area or areas involved to determine in its opinion whether or not
the coal therein should be mined and removed in accordance with the terms and
provisions hereof. Should the parties disagree on this point, the question
shall, at the option of Lessor, either (i) be submitted to a mining engineer
selected and agreed upon by Lessor and Lessee, in which event the decision of
such engineer, which shall be rendered in writing within twenty (20) days after
submission to him, shall be binding on the parties hereto; or (ii) be submitted
to arbitration pursuant to Section 24; provided, however, that if the decision
of such engineer or arbitrators is that the coal in such area or areas should be
mined and removed, Lessee may at its sole election determine whether to return
to said area or areas to mine and remove the coal therein or rather to pay
Tonnage Royalty in respect of said coal.
13.4 Lessee shall give Lessor reasonable notice and opportunity to recover
timber to which Lessor is entitled in advance of strip or auger mining, failing
which removal Lessee
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may recover, remove, use or destroy such timber without liability therefor to
Lessor.
13.5 If at any time Lessee shall not conduct its operations as provided
herein, as a result of which coal that otherwise would be minable and
merchantable is not mined or is otherwise lost, Lessee shall pay to Lessor, at
the time it would otherwise have been payable, the full royalty that would
otherwise be due thereon, based on the estimated tonnage of minable and
merchantable coal that remains unmined or is otherwise lost. Any dispute
between the parties as to the liability of Lessee under the provisions of this
paragraph shall be submitted to arbitration as provided in Section 24.
13.6 Lessee shall use all reasonable precautions necessary or prudent to
avoid damage to or destruction of the Premises or any part thereof by fire and
will comply with all applicable laws and regulations of the State of West
Virginia concerning fire and fire safety.
14. SURVEYS AND MAPS
14.1 Lessee shall cause a survey of the mine workings to be made promptly,
as the work proceeds, by a competent mining engineer and shall keep an accurate,
complete, and current map of the Premises and mine workings on a scale of one
hundred (100) feet to the inch in conformity in all respects with the
requirements of the pertinent laws of the United States of America and the State
of West Virginia. Said map shall show all property lines, surface improvements,
and areas of active,
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projected, and completed mining and shall at all times be accessible to Lessor
and its agents and representatives for inspection. Accurate measurements at
diverse places of the thickness of the seam of coal, as the same is mined, as
well as the location of faults, clay veins and rolls shall be shown on the mine
maps. Lessee shall furnish a true, complete, and correct copy of such map to
Lessor, in duplicate, without demand therefor, within thirty (30) days after the
first day of January and July of each year.
14.2 Lessee shall also keep an accurate and complete map of the Premises
and mine workings on a scale of five hundred (500) feet to the inch showing, in
addition to the abovementioned information, the projection of the mine
development, and Lessee shall furnish a true, complete, and correct copy of the
same to Lessor, without demand therefor, within thirty (30) days after the first
day of January and July of each year.
14.3 All maps, or copies thereof, together with the surveys, notebooks,
and calculations, or copies thereof, as well as all engineering records and data
and drilling exploration data, relative to the Premises and mine workings, or
copies thereof, shall be accessible to Lessor, its agents and representatives,
for inspection and copying and shall be delivered to and become the property of
Lessor upon the termination of Lessee's leasehold hereunder.
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15. INSPECTION
15.1 Lessor and its agents, engineers and other persons acting on its
behalf may enter the mines or works of Lessee at all reasonable times and at the
sole risk of Lessor in order to inspect, to examine, to select samples of coal,
to survey or measure the seam or any part thereof, and to ascertain the
condition of the mines, the methods practiced, and the amount of coal mined and
removed and to carry out any other activity pertinent to the administration of
this Agreement of Lease. While on the Premises, neither Lessor nor any such
agent or representative shall be regarded as an employee of Lessee. Lessor
shall give Lessee due notice of its intention to make such entrances in order to
afford an opportunity for Lessee's engineer or agent to accompany the
representative of Lessor. Neither Lessor's right to inspect Lessee's records
and mines nor the exercise of that right shall be construed as a direction by
Lessor or an approval by Lessor of any activity or omission of or by Lessee.
16. COMPLIANCE WITH LAWS AND REGULATIONS
16.1 Lessee shall conduct all activities hereunder in compliance with such
laws and regulations of the United States of America and the State of West
Virginia and their political subdivisions having jurisdiction over such
activities as may be in effect from time to time. Lessee shall comply with all
valid rules, regulations, and orders of any regulatory body having jurisdiction
in mining matters and shall secure all permits and other authorizations required
by any competent governmental authority; provided, nevertheless, that in dealing
with any rule,
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order, citation, prohibition, or directive, actions to be taken by Lessee to
achieve compliance by Lessee shall be in the sole discretion of Lessee and the
existence of such rule, order, citation, prohibition or directive or a failure
to comply therewith shall not be deemed to be a default under the terms of this
Agreement of Lease unless and until such failure to comply or failure to correct
any situation constituting a failure to comply shall materially affect the value
of the Premises as a coal property, materially diminish Lessor's estate in the
Premises, or constitute a failure to comply with a final unappealed or
unappealable order of any court or governmental body empowered to issue said
order; provided, moreover, that Lessee shall indemnify Lessor and hold it
harmless from any penalties, fines, costs, and expenses, including legal fees,
court costs, and expenses paid or incurred by Lessor as a result of Lessee's
actions or failures to act under this Section 16.
17. TAXES AND OTHER ASSESSMENTS
17.1 Lessee shall pay all taxes, levies, fees, assessments, and other
charges imposed by the United States of America or the State of West Virginia or
any political subdivision thereof or municipal corporation therein upon the
entire estate of Lessor in the lands of which the Premises are a part (except
those taxes which are separately assessed to Lessor on its oil and gas) or upon
the leasehold estate hereby created, upon coal mined and produced therefrom and
upon operations of Lessee in the Premises, so that Lessor shall be entirely
relieved from such charges.
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Lessee shall also pay all taxes, levies, fees, assessments, and other charges
imposed by the United States of America or the State of West Virginia or any
political subdivision thereof or any municipal corporation therein, upon Lessee
or upon any real estate, plant, equipment, or improvements of Lessee on the
Premises. If any payment on account of any or all of the above shall be made in
the first instance by Lessor, Lessee shall reimburse the amount thereof to
Lessor within thirty (30) days after presentation of an invoice therefor. It is
not intended that Lessee shall pay or be required to pay any income, profits,
excise, occupational, or privilege tax levied upon or measured by the royalty
income of Lessor hereunder.
18. BLACK LUNG AND INDEMNIFICATION
18.1 As between Lessor and Lessee in relation to any third party, Lessee
shall be the operator of the Premises and shall be considered the responsible
operator with respect to any claim for benefits filed by any of its employees or
former employees or members of the families of either under the Black Lung
Benefits Act of 1972, the Black Lung Benefits Reform Act of 1977, the Black Lung
Benefits Revenue Acts of 1977 and 1981, and the Black Lung Benefits Amendments
of 1981, as they may hereafter be amended, and all rules and regulations adopted
pursuant thereto (the "Act"). Lessee shall secure and shall require any other
person who operates, controls, or supervises a coal mine or performs services or
construction at any time on the Premises or who otherwise may be liable for the
payment of black lung
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benefits to secure the payment of such benefits to its employees under the Act
in accordance with applicable laws and regulations and shall provide Lessor, at
least annually and more often upon request, with appropriate certification that
each of them has provided security for the payment of such benefits. Lessee
shall notify Lessor immediately in writing of any change or alteration in the
status of that security. Without limiting the generality of this Section 18,
Lessee agrees to indemnify and hold Lessor harmless from any liability it may
have for the payment of such benefits because of a person's employment with
Lessee or others on the Premises. Lessor is not and will not be considered an
"operator" or a "responsible operator" within the meaning of the Act with
respect to Lessee's employees or the employees of others.
18.2 Lessee alone shall be responsible for any injury to any person or
property of others caused by it in the course of its operations hereunder or in
the exercise of any of the rights granted hereunder and for any mining that
Lessee may perform outside of the borders of the Premises and shall indemnify
Lessor and save Lessor harmless from and against any and all suits, actions,
costs, loss or damages and Lessor's reasonable attorney's fees resulting
therefrom; provided, however, that Lessee does not assume by this provision
responsibility for any damage or injury for which, but for this paragraph, there
would be no legal responsibility or liability on the part of Lessee.
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19. CONDEMNATION
19.1 Should the Premises or any part thereof be taken pursuant to eminent
domain proceedings or be declared by any governmental body or agency to be
unsuitable for mining, Lessee shall be entitled to claim all damages thereto and
therefor, except that Lessor shall be entitled to all royalties due upon tonnage
mined up to the date of taking or declaration, and Lessor shall be further
entitled to claim as damages the royalties on all coal that would have been
mined from the Premises by Lessee during the unexpired term of this Agreement of
Lease and any extensions thereof had the property not been taken or declared
unsuitable for mining.
20. DEFAULT PROVISIONS
20.1 If (i) Lessee shall fail or default in the payment of any sum
required to be paid by it hereunder when and as the same shall become due and
payable and any such default shall continue for a period of thirty (30) days
after written demand by Lessor for such payment, (ii) Lessee shall fail or
default in the performance of any one (1) or more of the following covenants or
conditions: to prosecute its operations in accordance with the terms hereof; to
secure all required permits, licenses, and identification numbers and pay all
fees in connection therewith and fulfill all obligations in relations thereto;
to permit Lessor access to the Premises; to provide Lessor any consent, waivers
or other documentation that may be requested by Lessor or third parties and
required by this Agreement of Lease; to keep
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accurate records, maps, surveys, and statements respecting all aspects of its
operations hereunder; to provide any statements required hereunder; to permit
Lessor to examine and survey Lessee's operations and to examine its books,
accounts, statements, and maps and plans to the extent provided herein; to use
recognized modern mining methods and practices or to expend reasonable and
necessary funds for proper health and safety measures and apply proper effort to
development, reclamation, drainage, and pollution control; to become and remain
a subscriber to the Workers' Compensation Fund of West Virginia or otherwise
provide workers' compensation coverage for its employees and maintain insurance
for, or otherwise guarantee the payment of, Federal Black Lung benefits for its
employees in accordance with applicable laws; to pay all taxes, fees, levies,
assessments and other charges imposed or assessed against it as provided herein;
to indemnify Lessor as provided hereunder; to comply with the restrictions on
assignment and the creation of liens and encumbrances contained herein; to
forward all notices and documents as provided for hereunder; or to perform any
other covenant or condition herein contained to be performed by it not then in
the process of arbitration and such default shall continue for a period of
thirty (30) days (except for any default not susceptible of being cured within
such thirty- (30-) day period, in which event the time permitted to cure such
default shall be extended for so long as shall be reasonably necessary to cure
the same, provided that Lessee commences promptly and
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proceeds diligently to cure such default) after written demand by Lessor for the
performance thereof (or as to matters that formed the subject of arbitration,
for a period of thirty (30) days after written demand by Lessor for compliance
with the decision of the arbitrators) or (iii) Lessee shall file a petition in
bankruptcy, make an assignment for the benefit of its creditors, consent to the
appointment of a receiver, be adjudicated a bankrupt, file a petition for
reorganization, have a receiver appointed, or have an order entered against it
for reorganization, then Lessor, at its option, may:
(a) declare a forfeiture of the leasehold of Lessee hereunder and of all
the right, title, and interest of Lessee in and to the Premises;
(b) re-enter and take possession of the Premises, including all
improvements and personal property theretofore placed by Lessee in or upon
the Premises, to the complete exclusion of Lessee and if Lessee shall
refuse to give such possession to Lessor, proceed to obtain such possession
in any manner permitted under the laws of the State of West Virginia; and
(c) proceed to collect all indebtedness of Lessee to Lessor in any manner
permitted under the laws of the State of West Virginia.
21. REMEDIES
21.1 All of the remedies granted to Lessor herein shall be deemed to be
cumulative. No exercise of any remedy shall be considered an election by Lessor
of remedies or as a waiver of
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any other remedy specified in Section 20. Moreover, the specification of
remedies in Section 20 shall not be deemed to exclude Lessor from any other
legal or equitable remedy or remedies that it may have. No failure on the part
of Lessor to enforce any of its rights hereunder for any period or periods shall
operate as an estoppel or as a waiver against Lessor or prevent Lessor at any
subsequent time from electing to exercise all or any of such rights in respect
of a default or otherwise. Any provision hereof which is enforceable only to a
limited extent may be enforced to such extent with the same effect as if such
provision had expressly provided in the alternative for the enforcement thereof
to the extent to which such provision may be enforceable.
21.2 In addition to all other remedies, a lien is hereby reserved and
imposed upon the leasehold estate of Lessee hereunder, all sums due Lessor from
Lessee hereunder and all property of Lessee present upon the lands of Lessor
hereunder to secure the payment of any and all sums due to Lessor from Lessee
hereunder.
22. OPTION TO PURCHASE; REMOVAL OF PROPERTY
22.1 Upon the termination of the term hereof, Lessor may purchase at fair
market value any or all of Lessee's machinery, equipment and improvements then
upon the Premises. Said right must be exercised by Lessor, if at all, within
four (4) months following the termination of said term. If Lessor and Lessee
fail to agree upon the fair market value of any such machinery,
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equipment or improvements that Lessor may be interested in buying, such fair
market value shall be determined by arbitration in accordance with the
provisions of Section 24.
22.2 If not in default hereunder at the time of termination of the term
hereof, Lessee may for a reasonable time after such termination remove from the
Premises all of its machinery, equipment and improvements and other property,
except that which Lessor has elected to purchase.
23. RECLAMATION AND REHABILITATION
23.1 Lessee shall be solely responsible for the reclamation and
rehabilitation, at Lessee's sole expense, of any portions of the Premises mined
hereunder and water treatment, if such water treatment is required by any laws
or regulations of the State of West Virginia or the United State of America now
or hereafter in force, which obligations shall survive the termination of
Lessee's leasehold. During such reclamation, rehabilitation or water treatment
after termination of Lessee's leasehold hereunder, Lessee shall continue to have
such use of the Premises as is necessary or convenient to carry out its
obligations, subject to the provisions of Section 18.
24. ARBITRATION
24.1 Any disagreement or dispute between the parties hereto as to any of
the rights or obligations of the parties to this Agreement of Lease or as to the
performance or nonperformance of any of the provisions hereof, other than the
failure of Lessee to render an account of and pay royalties when due as herein
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provided, shall be submitted to arbitration under the jurisdiction of 9 U.S.C. 1
et seq., as follows: one (1) arbitrator shall be chosen by Lessor and one by
Lessee within ten (10) days after notice in writing from either party to the
other; the two (2) so chosen shall select a third arbitrator within five (5)
days after the selection of the second of them. If either party shall tail to
select an arbitrator within said period of ten (10) days, such arbitrator may be
appointed by any Federal court having jurisdiction over the area in which the
Premises, or any part thereof, lie, upon the application of the party. If the
two (2) arbitrators so chosen fail to agree upon a third arbitrator within five
(5) days after the selection of the second of them, the third arbitrator shall
be appointed by said court upon the application of either or both of the
parties. The award of the arbitrators shall be made in writing within fifteen
(15) days from the final submission of the question to the arbitrators and one
(1) copy thereof shall be furnished to each of the parties hereto. An award by
all or a majority of said arbitrators shall be final, conclusive, and binding on
the parties as to the question or questions submitted to arbitration. The
arbitrators shall determine the costs of the arbitration, including reasonable
compensation to the arbitrators, and the party or parties by which such costs
are to be paid. The award of the arbitrators may be entered as a decree or
order by any court of competent jurisdiction.
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25. NOTICES AND PAYMENTS
25.1 All communications from Lessee to Lessor hereunder shall be deemed to
be sufficiently given and served if sent (by certified mail in the instance of
notice) to:
Xxxxxxxx Company
c/o Xxxxxxx, Xxxxxx, Battle & Xxxxxxxxxxxx
P. O. Xxx 000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000-X000
or to such other address as Lessor may prescribe from time to time by written
notice to Lessee.
25.2 All communications from Lessor to Lessee hereunder shall be deemed to
be sufficiently given and served if sent (by certified mail in the instance of
notice) to:
Primeacre Land Corporation
c/o Bethlehem Steel Corporation
Real Estate Services Division
Xxxxxxxxx, Xxxxxxxxxxxx 00000
or at such other address as Lessee may prescribe from time to time by written
notice to Lessor.
26. RELATIONSHIP OF PARTIES
26.1 The relationship between the parties hereto is that of landlord and
tenant, and such relationship shall not be interpreted or established as that of
partners, joint venturers, covenants, co-tenants, principal and agent, or any
other relationship other than that of landlord and tenant. Nothing in this
Agreement of Lease, expressed or implied, is intended or shall be construed to
confer upon or give to any person, firm, or corporation, other than the parties
hereto and their successors or assigns, any remedy or claims under or by reason
of this
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Agreement of Lease or any term, covenant or condition hereof; and all the terms,
covenants, conditions, promises, and agreements in this Agreement of Lease
contained shall be for the sole and exclusive benefit of the parties hereto and
their successors and assigns.
26.2 Lessor's right of review and approval of Lessee's mining application,
plans, maps, and other data and Lessor's right to inspect Lessee's records or
mines or the exercise of any of those rights shall not be construed as creating
an employment relationship, a partnership, a joint venture, a cotenancy, an
agency or any relationship other than that of Lessor and Lessee between the
parties to this Agreement of Lease.
27. PROHIBITION OF ASSIGNMENT AND LIENS
27.1 Lessee may sublet any portion of the Premises upon giving notice
thereof to Lessor of its intention to sublet, and Lessee shall furnish Lessor
with a copy of any agreements by which it sublets any portion of the Premises.
27.2 Lessee shall not assign this Agreement of Lease without the prior
written consent of Lessor; provided, however, that Lessee may assign this
Agreement of Lease to Bethlehem Steel Corporation, a Delaware corporation, or to
any subsidiary of Bethlehem Steel Corporation or to any company into which
Lessee may be merged or that may be formed by any consolidation to which Lessee
shall be a party or to which substantially all of the assets of Lessee shall
have been conveyed; provided, moreover, that such merged company or such
consolidated company, as the
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case may be, shall in each such instance assume the obligations of Lessee; and
provided, further, that no such assignment shall relieve Lessee from liability
for the performance of all of the terms, covenants and conditions hereof.
28. SUCCESSORS AND ASSIGNS
28.1 This Agreement of Lease shall be binding upon and inure to the
benefit of the parties hereto and, subject to the provisions of Section 27, upon
and to their successors and assigns.
29. HEADINGS
29.1 The captions and headings of the various provisions of this Agreement
of Lease are for the purpose of convenience only and in no way define, limit or
describe the scope or intent of this Agreement of Lease or in any way affect or
alter any of the provisions hereof; and no such headings or captions shall be
used by any court or by the arbitrators referred to in Section 24 in
interpreting any of the provisions hereof.
30. GOVERNING LAW
30.1 This Agreement of Lease and the provisions hereof shall be governed
by and interpreted in accordance with the laws of the State of West Virginia.
31. TERMINATION OF EARLIER LEASE
31.1 The Agreement of Lease dated October 1, 1968, between Lessor and
Lessee is hereby terminated except as to any obligations that have heretofore
accrued thereunder.
32. ENTIRE AGREEMENT
32.1 This Agreement of Lease constitutes the entire agreement between
Lessor and Lessee with regard to the matters with which it is concerned.
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IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement of Lease
as of the day and year first above written.
XXXXXXXX COMPANY,
ATTEST: by
/s/ Xxxx Delle Xxxxxx /s/ Xxxxxxxx X. Xxxxx
Secretary President
ATTEST: PRIMEACRE LAND CORPORATION,
by
/s/ X.X. Xxxxxxxx, Xx. /s/ X. X. Xxxxxxxxxx
Assistant Secretary President
STATE OF WEST VIRGINIA )
) SS.:
COUNTY OF GREENBRIER )
I, Xxxx X. Xxxxxxxx, a Notary Public of said State and County, do certify
that Xxxxxxxx X. Xxxxx, who signed the writing above, bearing date the 1st day
of January, 1988, for XXXXXXXX COMPANY, a corporation, has this day in my said
County, before me, acknowledged the said writing to be the act and deed of said
corporation.
Given under my hand this 6th day of June, 1988.
/s/ Xxxx X. Xxxxxxxx
----------------------
Notary Public
My commission expires: September 8, 1991
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COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF LEHIGH )
I, Xxxxx X. Xxxxxxx, a Notary Public of said Commonwealth and County, do
certify that X. X. Xxxxxxxxxx, who signed the writing above, bearing date the
1st day of January, 1988, for PRIMEACRE LAND CORPORATION, a corporation, has
this day in my said County, before me, acknowledged the said writing to be the
act and deed of said corporation.
Given under my hand and official seal this 10th day of May, 1988.
/s/ Xxxxx X. Xxxxxxx
----------------------
Notary Public
This instrument was prepared by:
X. X. Xxxxxxxx, Xx.
c/o Bethlehem Steel Corporation
Xxxxxxxxx, Xxxxxxxxxxxx 00000
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ASSIGNMENT OF AGREEMENT OF LEASE
THIS ASSIGNMENT OF AGREEMENT OF LEASE, dated October 5, 1992, by and
between PRIMEACRE LAND CORPORATION, a Delaware corporation ("Primeacre"), and
ALLEGHENY LAND COMPANY NO. 2, a Delaware corporation ("A11egheny No. 2"),
WITNESSETH:
WHEREAS, by Agreement of Lease between Xxxxxxxx Company and Primeacre
dated January 1, 1988, and recorded in the Office of the Clerk of the County
Commission of Xxxxx County, West Virginia in Oil and Gas Lease Book No. 25, at
page 277, and in the Office of the Clerk of the County Commission of Linco1n
County, West Virginia in Lease Book No. 45, at page 333 (said Agreement of
Lease being hereinafter referred to as the "Xxxxxxxx Lease"), said Xxxxxxxx
Company leased to Primeacre certain premises located partly in Xxxxx County,
West Virginia and partly in Lincoln County, West Virginia; and
WHEREAS, by Sublease dated January 1, 1989, Primeacre sublet to Hobet
Mining, Inc. ("Hobet") the Winifrede seam of coal and the seams of coa1
overlying the Winifrede seam of coal underlying a portion of the premises
covered by the Xxxxxxxx Lease, and by Amendment No. 1 dated May 1, 1989,
recorded in the Office of the Clerk of the County Commission for Xxxxx County,
West Virginia in Coal Lease Book 23, at page 8O5, Primeacre and Hobet amended
said Sublease dated January 1, 1989, so as to grant to Hobet certain
additional rights with respect to a portion of the premises covered by the
Xxxxxxxx Lease; and
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WHEREAS, by Agreement dated April 26, 1991, Primeacre granted to
Allegheny Land Company ("Allegheny") the right to enter upon a portion of the
premises covered by the Xxxxxxxx Lease to perform test drilling and further
granted to Allegheny options to sublet three parcels of land comprising a
portion of the premises covered by the Xxxxxxxx Lease; and
WHEREAS, by another Agreement dated April 26, 1991, among said
Xxxxxxxx Company, Primeacre and Allegheny, said Xxxxxxxx Company waived certain
provisions of the Xxxxxxxx Lease as to certain mining operations of Allegheny
under a proposed sublease; and
WHEREAS, by Sublease dated November 1, 1991, recorded in said Xxxxx
County Office in Coal Lease Book 24, at page 574, and in the Office of the
Clerk of the County Commission for Lincoln County, West Virginia, in Lease Book
46, at page 538, Primeacre sublet to Allegheny the Winifrede seam of coal and
the seams of coal overlying the Winifrede seam of coal within a parcel of land
comprising a portion of the premises covered by the Xxxxxxxx Lease, and being
one of the parcels on which Allegheny was granted an option to sublet pursuant
to said first-mentioned Agreement dated April 26, 1991; and
WHEREAS, by Sublease dated January 2, 1992, Allegheny sublet to Hobet
its rights under said Sublease dated November 1, 1991; and
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36
WHEREAS, by letter agreement dated April 6, 1992, among Primeacre,
Hobet and Allegheny, said Sublease dated January 1, 1989, was terminated and
Primeacre and Allegheny agreed to amend said Sublease dated November 1, 1991,
to include a portion of the premises formerly covered by said Sublease dated
January 1, 1989, and A11egheny and Hobet agreed to amend said Sublease dated
January 2, 1992, to include such premises; and
WHEREAS, by Amendment No. 1 dated March 1, 1992, recorded in said
Xxxxx County Office in Coal Lease Book 24, at page 610, Primeacre and
Allegheny amended said Sublease dated November 1, 1991, to include the premises
formerly covered by said Sublease dated January 1, 1989; and
WHEREAS, by Sublease dated April 1, 1992, recorded in said Xxxxx
County Office in Coal Lease Book 24, at page 613, and in said Lincoln County
Office in Lease Book 46, at page 691, Primeacre sublet to Allegheny the
Winifrede seam of coal and the seams of coal overlying the Winifrede seam of
coal within a parcel of land comprising a portion of the premises covered by
the Xxxxxxxx Lease, and being one of the parcels on which Allegheny was
granted an option to sublease pursuant to said first-mentioned Agreement dated
Aprll 26, 1991.
NOW, THEREFORE, the parties hereto in consideration of the foregoing,
which are not mere recitals but are an integral part of this assignment, and
further in consideration of the sum of One Dollar ($1) and other good and
valuable consideration paid by Allegheny No. 2 to Primeacre, the receipt and
sufficiency of which are hereby acknowledged, hereby agree as follows:
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1. ASSIGNMENT.
Primeacre hereby sells, assigns, conveys and transfers to Allegheny No. 2,
pursuant to the terms and conditions of that certain Asset Purchase Agreement by
and between Primeacre and Allegheny No. 2 also entered into contemporaneously
with this Agreement, effective as of October 9, 1992, but subject to the consent
thereto by said Xxxxxxxx Company, all of the right, title and interest of
Primeacre in, to and under the Xxxxxxxx Lease, and the leasehold estate created
thereby and the appurtenances thereto, including all of the right, title and
interest of Primeacre, as sublessor, in and to the subleases and agreements
recited above, together with the amendments thereto dated October 5, 1992, and
entitled Consent to Agreement of Lease, Amendment of Agreement of Lease,
Estoppel Certificate and Guaranty.
2. ACCEPTANCE OF ASSIGNMENT.
Allegheny No. 2 hereby accepts the assignment set forth in paragraph 1
hereof, and hereby assumes and shall comply with, fulfill and perform all of the
obligations, covenants, terms and conditions thereof imposed upon the lessee
under the Xxxxxxxx Lease and accruing on and after the effective date of the
above assignment.
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IN WITNESS WHEREOF, the parties hereto have executed
this Assignment of Agreement of Lease as of the day and year
first above written.
ATTEST: PRIMEACRE LAND CORPORATION
by
/s/ X. X. XXXXXXXX, XX. /s/ X. X. XXXXXXXXXX
Secretary President
ATTEST: ALLEGHENY LAND COMPANY NO.2
by
/s/ XXXXX X. XXXXXX XXXXXXX X. XXXXX
Secretary Vice President
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39
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF LEHIGH )
The foregoing instrument was acknowledged before me this 5th day of
October, 1992, by X. X. Xxxxxxxxxx of PRIMEACRE LAND CORPORATION, a Delaware
corporation, on behalf of the corporation.
My commission expires December 27, 1993.
/s/ XXXX X. XXXXX
-------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF LEHIGH )
The foregoing instrument was acknowledged before me this 5th day of
October, 1992, by Xxxxxxx X. Xxxxx of ALLEGHENY LAND COMPANY NO. 2, a West
Virginia corporation, on behalf of the corporation.
My commission expires December 27, 1993.
/s/ XXXX X. XXXXX
-------------------
Notary Public
This instrument was prepared by:
X. X. Xxxxxxxx Xx.
c/o Primeacre Land Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000
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ASSIGNMENT OF LEASES
THIS ASSIGNMENT OF LEASES, dated October 5, 1992, by and between
PRIMEACRE LAND CORPORATION, a Delaware corporation ("Primeacre"), and
ALLEGHENY LAND COMPANY NO. 2, a Delaware corporation ("Assignee"),
WITNESSETH:
WHEREAS, Primeacre desires to assign its right, title and interest in
and to those certain lease and sublease agreements more particularly described
on Exhibit A attached hereto (collectively, the "Leases"); and
WHEREAS, Assignee desires to accept such assignment and to assume all
obligations of Primeacre under the Leases.
NOW, THEREFORE, the parties hereto for ONE DOLLAR ($1.00) and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, agree as follows:
1. ASSIGNMENT. Primeacre hereby assigns and transfers to Assignee,
effective as of October , 1992, all the right, title and interest of
Primeacre in, to, and under the Leases.
2. ACCEPTANCE OF ASSIGNMENT. Assignee hereby accepts the assignment
set forth in paragraph 1 hereof and hereby assumes, and shall comply with and
perform all of the obligations imposed upon Primeacre under the Leases and
accruing on and after October 9, 1992.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
of Leases as of the day and year first above written.
ASSIGNOR:
ATTEST: PRIMEACRE LAND CORPORATION
by
/s/ X.X. XXXXXXXX, XX. /s/ X. X. XXXXXXXXXX
Secretary President
ASSIGNEE:
ATTEST: ALLEGHENY LAND COMPANY NO. 2
by
/s/ XXXXX X. XXXXXX XXXXXXX X. XXXXX
Secretary Vice President
2
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Exhibit A:
1. Lease between The Chesapeake and Ohio Railway Company and Xxxxxxx
X. Xxxxxxxx dated April 30, 1953, concerning 0.14 acres of land for a driveway
and portion of a garage, as assigned to Bethlehem Steel Corporation by The
Chesapeake and Ohio Railway Company by Assignment of Leases dated May 1, 1975.
2. Agreement (of lease) by and between Bethlehem Mines Corporation,
Parsner Creek Lumber Company, Inc., and Hobet Mining and Construction Co.,
Inc., dated January 1, 1982, concerning the use of certain lands located in
Xxxxx County, West Virginia, as assigned to Xxxxxx Xxxxxx, d/b/a Sugar Tree
Lumber Company by Parsner Creek Lumber Company, Inc., by Assignment dated
September 18, 1984 (and consented to by Bethlehem Mines Corporation).
3. Sublease between Primeacre Land Corporation and Allegheny Land
Company dated November 1, 1991, as amended by Amendment No. 1 dated March 1,
1992, concerning the Winifrede seam of coal and all coal overlying said
Winifrede seam underlying a certain portion of the premises subject to the
lease between Xxxxxxxx Company and Primeacre Land Corporation dated January 1,
1988.*
a. Sublease Agreement between Allegheny Land Company and
Hobet Mining, Inc. dated January 1, 1992, concerning the leasing of certain
seams of coal underlying premises subject to the Sublease between Primeacre
Land Corporation and Allegheny Land Company dated November 1, 1991.
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4. Sublease between Primeacre Land Corporation and Allegheny Land
Company dated April 1, 1992, concerning the Winifrede seam of coal and all
coal overlying said Winifrede seam underlying a certain portion of the premises
subject to the lease between Xxxxxxxx Company and Primeacre Land Corporation
dated January 1, 1988.*
---------------
*Pursuant to exercise of option to sublease contained in Agreement between
Primeacre Land Corporation and Allegheny Land Company dated April 26, 1991.
Agreement between Xxxxxxxx Company, Primeacre Land Corporation and Allegheny
Land Company dated April 26, 1991, amends lease dated January 1, 1988, between
Xxxxxxxx Company and Primeacre Land Corporation for purposes of operations of
sublessee under said sublease.
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF LEHIGH )
On this, the 5th day of October, 1992, before me, a Notary Public in
and for the Commonwealth of Pennsylvania, personally appeared X. X. Xxxxxxxxxx,
who acknowledged himself to be the President of PRIMEACRE LAND CORPORATION, a
corporation, and that he as such President, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself as the President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ XXXX X. XXXXX
-------------------
Notary Public
COMMONWEALTH OF PENNSYLVANIA )
) SS.:
COUNTY OF LEHIGH )
On this, the 5th day of October, 1992, before me, a Notary Public in
and for the Commonwealth of Pennsylvania, personally appeared Xxxxxxx X. Xxxxx,
who acknowledged himself to be the Vice President of ALLEGHENY LAND COMPANY NO.
2, a corporation, and that he as such Vice President, being authorized to do so,
executed the foregoing instrument for the purposes therein contained by signing
the name of the corporation by himself as the Vice President.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
/s/ XXXX X. XXXXX
-------------------
Notary Public
4
