EXHIBIT 2.1
ASSET PURCHASE AGREEMENT
This is an Asset Purchase Agreement (this "Agreement"), dated as of
February 8, 2008, between (i) Xinergy Corp., a Tennessee corporation (the
"Buyer"), and (ii) National Coal Corporation, a Tennessee corporation, (the
"Seller").
RECITALS
A. The Seller, among other things, is engaged in the business of
mining coal and activities directly or indirectly relating thereto at Seller's
Straight Creek operations located in Xxxx, Xxxxxx and Xxxxxx Counties, Kentucky
(the "Business").
B. The Seller desires to sell to the Buyer all right, title and
interest of the Seller in and to the Purchased Assets (defined below), for
consideration and upon the terms and conditions hereinafter set forth.
C. The Buyer desires to purchase the Purchased Assets and assume
the Assumed Liabilities (defined below) from the Seller, and the Seller desires
to sell, convey, assign and transfer to the Buyer, the Purchased Assets together
with the Assumed Liabilities, all in the manner and subject to the terms and
conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein and of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Seller and the Buyer agree as follows:
ARTICLE 1 - DEFINITIONS
1.1 Definitions. As used herein, the following terms have the
meanings set forth below:
"Accounts Receivable" means all accounts receivable and the
right to payment from customers of the Seller and the full benefit of all
security for such accounts or debts including all accounts receivable
representing amounts receivable in respect of goods shipped or products sold or
services rendered to customers.
"Affiliate" means, with respect to a specific Person, any
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with the Person specified. The
term "control" means the possession, direct or indirect, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership, by contract or otherwise.
"Assignment of Contracts" means an Assignment of Contracts
substantially in the form attached hereto as EXHIBIT A.
"Assignment of Leases" means an Assignment of Leases
substantially in the form attached hereto as EXHIBIT B.
"Assumption of Liabilities" means an Assumption of Liabilities
substantially in the form attached hereto as EXHIBIT C.
"Xxxx of Sale" means the Xxxx of Sale between the Buyer and
the Seller, substantially in the form attached hereto as EXHIBIT D.
"Black Lung Liabilities" shall mean any Liability or benefit
obligations related to black lung claims and benefits under the Black Lung
Benefits Act of 1972, 30 U.S.C. xx.xx. 901 ET SEQ., the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. xx.xx. 801 ET SEQ., the Black Lung Benefits Reform
Act of 1977, Pub. L. No. 95-239, 92 Stat. 95 (1978), the Black Lung Benefits
Amendments of 1981, Pub. L. No. 97-119, Title 11, 95 Stat. 1643, in each case as
amended, if applicable, and occupational pneumoconiosis, silicosis or other lung
disease liabilities and benefits arising under state law or regulation or any
other Federal law or regulation now or hereafter in existence.
"Business Days" means any day other than a Saturday, Sunday or
other day on which national or state banking associations are required or
permitted by law to be closed in Kentucky.
"Claim" means any written action, suit, Proceeding, hearing,
investigation, litigation, charge, complaint, claim, or demand.
"Code" means the Internal Revenue Code of 1986, as amended.
"Deed(s)" shall mean the Special Warranty Deed(s)
substantially in the form attached hereto as EXHIBIT E.
"Employees" means any and all employees of the Seller.
"Environmental Law" means any applicable federal, state or
local law, statute, rule, regulation or ordinance relating to the regulation,
pollution, preservation or protection of human health, safety, the environment,
or natural resources or to emissions, discharges, Releases or threatened
Releases of pollutants, contaminants, Hazardous Materials or wastes into the
environment (including ambient air, soil surface water, ground water, wetlands,
land or subsurface strata).
"Environmental Permit" means any permit, approval,
certificate, registration, license or other authorization required under any
Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Escrow Agreement" means the Escrow Agreement substantially in
the form of EXHIBIT F attached hereto.
"GAAP" means generally accepted accounting principles,
consistently applied.
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"Governmental Authority" means any court, tribunal,
arbitrator, authority, agency, commission, official or other instrumentality of
the United States, any foreign country or any domestic or foreign state, county,
city or other political subdivision.
"Hazardous Materials" means (a) petroleum or petroleum
products, fractions, derivatives or additives, natural or synthetic gas,
asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls and radon
gas; (b) any substances defined as or included in the definition of "hazardous
wastes," "hazardous materials," "extremely hazardous wastes," "extremely
hazardous substances," "restricted hazardous wastes," "toxic substances," toxic
chemicals or "toxic pollutants," "contaminants" or "pollutants" or words of
similar import under any Environmental Law; (c) radioactive materials,
substances and waste, and radiation; and (d) any other substance exposure to
which is regulated under any Environmental Law.
"Indebtedness" of any Person means any obligations of such
Person, whether or not contingent, (a) for borrowed money, (b) evidenced by
notes, bonds, indentures or similar instruments, (c) for the deferred purchase
price of goods and services, other than trade payables incurred in the ordinary
course of business, (d) under capital leases, and (e) in the nature of
guarantees of the obligations described in clauses (a) through (d) above of any
other Person.
"Intellectual Property" means all domestic patents and patent
rights, trademarks and trademark rights, service marks and service xxxx rights,
service name and service name rights, brand names, inventions, processes,
formulae, copyrights, business and product names, logos, slogans, trade secrets,
industrial models, designs, computer programs, business telephones, facsimile
and e-mail addresses, websites and technology, and software (including all
source codes) and related documentation, drawings, know-how, methods, processes,
technology, engineering specifications, procedures, bills of material, trade
secrets, all pending applications for and registrations of patents, trademarks,
service marks and copyrights and any other intangible property used in or
associated with the conduct of the Business and the ownership of the Purchased
Assets, including all of the Seller's rights to any such property which is owned
by and licensed from others and any goodwill associated with any of the above;
provided, however, that Intellectual Property shall not include the trade names
and trade name rights of any Seller.
"Knowledge of Seller" with respect to any matter shall mean
matters within the actual knowledge of Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxx,
Xxxxxxx X. Xxxxxx or Xxxxxxx X. Xxxxxxxxx.
"Laws" means all laws, statutes, rules, regulations,
ordinances and other pronouncements having the effect of law of the United
States, any foreign country or any domestic or foreign state, county, city or
other political subdivision or of any Governmental Authority and includes,
without limitation, all Environmental Laws.
"Liabilities" means all Indebtedness, obligations, claims and
other liabilities of a Person, whether absolute, accrued, contingent, fixed or
otherwise or whether due or to become due.
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"Liens" means any mortgage, pledge, assessment, security
interest, lease, judgment lien, tax lien, mechanic's lien, materialman's lien,
other lien, adverse Claim, levy, charge, Option, right of first refusal, charge,
debenture, indenture, deed of trust, right-of-way, restriction, encroachment,
license, lease, security agreement, or other encumbrance of any kind, and other
restrictions or limitations on the use or ownership of real or personal property
or irregularities in title thereto or any conditional sale contract, title
retention contract or other contract to give any of the foregoing.
"Loss" means any loss, Claim, damage, liability or expense
(including reasonable attorneys' fees).
"Material Adverse Effect" means (a) an adverse effect on the
validity or enforceability of this Agreement or any of the Related Agreements in
any material respect, (b) an adverse effect on the condition (financial or
other), business, assets, results of operations, ability to conduct business or
properties of the Seller or the Buyer (as applicable), or the Purchased Assets,
taken as a whole, in any material respect, or (c) an impairment of the ability
of the Seller or the Buyer (as applicable) to fulfill its obligations under this
Agreement or any of the Related Agreements in any material respect.
"Order" means any writ, judgment, decree, injunction, or
similar order of any Governmental Authority, in each such case whether
preliminary or final.
"Permits Agreement" means the Permits Agreement in the form
attached hereto as Exhibit G.
"Permitted Lien" means any Lien (a) which is assumed or
consented to by the Buyer herein (including, without limitation, Liens included
in the Assumed Liabilities); (b) created by the Buyer; (c) in favor of lessors
of any Purchased Asset; (d) constituting easements, rights-of-way, restrictions
or minor defects or irregularities in title incurred in the ordinary course of
business and encumbrances consisting of zoning restrictions, easements, licenses
or restrictions on the use of the Real Property or minor imperfections in title
thereto; or; (e) imposed by Law which was incurred in the ordinary course of
business, such as carriers', warehousemens', landlords', and mechanics' Liens
and other similar Liens arising in the ordinary course of business.
"Person" means any natural person, corporation, limited
liability company, general partnership, limited partnership, proprietorship,
other business organization, entity, trust, union, association or Governmental
Authority.
"Proceeding" means any action, suit, proceeding, arbitration,
investigation or audit, whether or not by any Governmental Authority.
"Related Agreements" means the (a) the Assignment of
Contracts, (b) the Assignment of Leases, (c) the Assumption of Liabilities, (d)
the Xxxx of Sale, (e) the Deeds, (f) the Escrow Agreement, (g) the Permits
Agreement and (h) any other agreement, certificate or similar document to be
executed by any party hereto in connection with this Agreement.
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"Release" means any release, issuance, disposal, discharge,
dispersal, leaching or migration into the indoor or outdoor environment or into
or out of any property, including the movement of Hazardous Materials through
the air, soil, surface water, ground water or property other than as
specifically authorized by and in compliance with all Environmental Laws and
Environmental Permits.
"Taxes" means any and all taxes, fees, levies, duties,
tariffs, import and other charges, imposed by any taxing authority, together
with any related interest, penalties or other additions to tax, or additional
amounts imposed by any taxing authority, and without limiting the generality of
the foregoing, shall include net income alternative or add-on minimum tax, gross
income, gross receipts, sales, use, ad valorem, value added, franchise, profits,
license, transfer, recording, escheat, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, property, windfall profit, environmental,
custom duty, or other tax, governmental fee or other like assessment or charge
of any kind whatsoever.
"Tax Returns" means all federal, state, local, provincial and
foreign returns, declarations, claims for refunds, forms, statements, reports,
schedules, and information returns or statements, and any amendments thereof
(including, without limitation, any related or supporting information or
Schedule attached thereto) required to be filed with any Taxing authority in
connection with any Tax or Taxes.
1.2 RULES OF INTERPRETATION.
(a) The singular includes the plural and the plural
includes the singular.
(b) The word "or" is not exclusive.
(c) A reference to a Person includes its permitted
successors and permitted assigns.
(d) The words "include," "includes" and "including" are
not limiting.
(e) A reference in a document to an Article, Section,
Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit,
Schedule, Annex or Appendix of such document unless otherwise indicated.
Exhibits, Schedules, Annexes or Appendices to any document shall be deemed
incorporated by reference in such document. To the extent that any disclosure
set forth in any particular Schedule is applicable to the disclosure required to
be made in any other Schedule, such disclosure shall for purposes of this
Agreement be deemed to be made on all relevant Schedules.
(f) References to any document, instrument or agreement
(a) shall include all exhibits, schedules and other attachments thereto, (b)
shall include all documents, instruments or agreements issued or executed in
replacement thereof, and (c) shall mean such document, instrument or agreement,
or replacement or predecessor thereto, as amended, modified and supplemented
from time to time and in effect at any given time.
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(g) The words "hereof," "herein" and "hereunder" and
words of similar import when used in any document shall refer to such document
as a whole and not to any particular provision of such document.
(h) References to "days" shall mean calendar days, unless
the term "Business Days" shall be used.
(i) This Agreement is the result of negotiations among,
and has been reviewed by the parties hereto; accordingly, this Agreement shall
be deemed to be the product of all of the parties, and no ambiguity shall be
construed in favor of or against any party.
ARTICLE 2 - PURCHASE AND SALE OF ASSETS
2.1 PURCHASE AND SALE OF ASSETS. Upon the terms and subject to the
conditions contained in this Agreement, at the Closing, the Seller shall sell,
assign, transfer and convey to the Buyer, and the Buyer shall purchase, acquire
and accept from the Seller, all of the Seller's right, title, and interest in
and to the following assets (the "Purchased Assets"):
(a) the owned real property identified on Schedule
2.1(a)(i) (the "Owned Real Property") and the leased real property identified on
Schedule 2.1(a)(ii) (the "Leased Real Property," and together with the Owned
Real Property, the "Real Property);
(b) the machinery, equipment, furniture, fixtures,
vehicles, tools, supplies, improvements and other tangible personal property
owned by the Seller and identified on Schedule 2.1(b) (the "Owned Equipment")
and, to the extent transferable, all rights of the Seller to warranties and
licenses received from manufacturers and sellers of the Owned Equipment;
(c) the machinery, equipment, furniture, fixtures,
vehicles, tools, supplies, improvements and other tangible personal property
leased by the Seller and identified on Schedule 2.1(c) (the "Leased Equipment",
and collectively with the Owned Equipment, the "Equipment") and, to the extent
transferable, all rights of the Seller to warranties and licenses received from
manufacturers and lessors of the Leased Equipment;
(d) all of the Seller's permits, approvals, orders,
authorizations, consents, licenses, certificates, franchises, exemptions of, or
filings or registrations with or issued by any Governmental Authority, including
all permits relating to the reclamation of coal mining properties, which have
been issued or granted to or are owned, used or held by the Seller in the
Business and all pending applications therefor (the "Permits"), which are listed
on Schedule 2.1(d);
(e) all Intellectual Property owned or licensed by the
Seller or titled in any Affiliate of the Seller solely for use in the conduct of
the Business;
(f) all contracts, including Real Property leases,
equipment and personal property leases, the highwall miner operating lease, all
capital leases on the CAT equipment, and contracts for the sale of coal
(collectively, the "Contracts") which are listed on Schedule 2.1(f) hereto;
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(g) all coal and mineral rights in all mineable coal
reserves described on Schedule 2.1(g) hereto (the "Reserves");
(h) all extracted, unsold coal inventory, wherever
located, including stockpiled coal inventory, existing as of the Closing, which
shall include at least 10,000 marketable tons, with all tons of coal in
inventory in excess of 10,000 tons to be purchased by the Buyer at Closing at a
price of $42.00 per ton;
(i) all rights of ingress and egress to all of the
Reserves and Real Property;
(j) all maps, reserve studies, engineering reports, and
other records relating to the Purchased Assets; and
(k) all other assets owned by Seller and used by the
Seller primarily at the Straight Creek operation, which are determined by Buyer
in its due diligence investigation to be necessary for the operation of the
Business.
(l) The Parties agree that the Purchased Assets include
both the highwall miner head currently in use, which is owned by the Seller, and
the original head, which is buried in the mountain in the "Salt Trace" Permit
area. The Buyer assumes all responsibility to GATX for the buried head upon
termination or "buyout" of the GATX lease contract.
At the Closing, the Purchased Assets will be delivered free and clear
of all Liens, except Permitted Liens and the liens and encumbrances on the
equipment and trucks acquired by the Buyer and the obligations relating to the
Contracts acquired by the Buyer all of which will be assumed by the Buyer
subject to consent by the third party to such agreements.
2.2 EXCLUDED ASSETS. Notwithstanding any provision of Section 2.1,
the Seller shall retain all of its right, title and interest in the following
assets (collectively, the "Excluded Assets") and the definition of Purchased
Assets shall not include any of the following:
(a) All Accounts Receivable and notes receivable of the
Seller as of the Closing Date;
(b) All cash and cash equivalents of the Seller as of the
Closing Date;
(c) All performance bonds for reclamation or otherwise,
surety bonds or escrow agreements and any payment or prepayments made with
respect to, or certificates of deposit or other sums or amounts or assets posted
by the Seller to secure any of the foregoing for reclamation or otherwise;
(d) Any and all prepaid items, deposits, and retainers,
excepting prepaid royalties;
(e) All insurance policies and any rights or Claims
arising from such policies; and
(f) The capital stock, corporate books and records of
Seller.
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(g) All deposits and bonds.
Notwithstanding the foregoing enumeration of Excluded Assets, Buyer
shall purchase, accept and acquire only Purchased Assets expressly set forth in
Section 2.1.
2.3 ASSUMED LIABILITIES.
(a) At the Closing the Buyer shall assume all liabilities
of the Seller to the extent arising in connection with the Business, including
but not limited to the following Liabilities and obligations of the Seller (the
"Assumed Liabilities"), but excluding liabilities to Guggenheim and its
successors (being Steelhead Offshore Capital, LP; J-K Navigator Fund, LP; and
Big Bend 38 Investments, LP), and excluding the high yield bond fund
administered by Xxxxx Fargo, NA:
(i) all Liabilities for and obligations of the
Seller relating to the Purchased Assets arising, accruing or payable after the
Closing Date, including all Liabilities and obligations arising in connection
with the Contracts, other than Liabilities and obligations arising from breaches
thereof prior to the Closing Date; and
(ii) all Liabilities related to the Permits for
reclamation prescribed by law, contract or otherwise, including but not limited
to the bond shown on Schedule 2.1(d); provided, however, that the Seller and its
Affiliates shall retain the Liability for any fines and penalties arising out of
notices of violation, notices of non-compliance or orders, in each case issued
prior to the Closing, and
(iii) all bonds and obligations of whatever nature
relating to the real and personal property acquired by Buyer.
(b) The Buyer is assuming only the Assumed Liabilities
and is not assuming any other liability or obligation. All such other
liabilities and obligations shall be retained by and remain liabilities and
obligations of the Seller.
2.4 NON-ASSIGNMENT OF ASSETS. This Agreement shall not constitute
an agreement to assign or transfer any assets of the Seller, if an attempted
transfer or assignment thereof, without the approval, authorization or consent
of, or granting or issuance of any license or permit by, any third party thereto
(or with respect thereto), would constitute a breach thereof or in any way
negatively affect the rights of the Seller or the Buyer, as the assignee or
transferee of such asset, as the case may be, thereunder. If the Closing occurs
and such authorization, consent, approval, license or permit is required for the
transfer or assignment of any asset of the Seller at or before the Closing, but
not obtained, the Seller will cooperate with the Buyer without further
consideration (other than as provided in clause (b) of this Section 2.4) in any
arrangement reasonably acceptable to the Buyer and the Seller, designed to both
(a) provide the Buyer with the benefits of any such asset, and (b) cause the
Buyer to bear all costs and obligations of or under any such asset. Any transfer
or assignment to the Buyer of any asset that shall require the consent,
approval, authorization of, or granting of any license or permit by any third
party for such assignment or transfer as aforesaid shall be made subject to such
consent, approval, authorization, license or permit being obtained.
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2.5 AMOUNTS HELD IN TRUST. Any amounts received by the Buyer after
the Closing with respect to any Excluded Asset shall be held by the Buyer in
trust for the Seller until promptly paid to the Seller. Likewise, any amounts
received by the Seller after the Closing with respect to any Purchased Asset
shall be held by the Seller in trust for the Buyer until promptly paid to the
Buyer. Any such money received by Buyer or Seller shall be paid over to the
proper party within five (5) business days after receipt.
2.6 TRANSFER TAXES. The Seller shall be liable for all sales, use
and other transfer Taxes and all filing and recording fees arising from or
relating to the consummation of the transactions contemplated by this Agreement.
2.7 EXCLUDED LIABILITIES. The Buyer shall not assume or become
liable for, and the Assumed Liabilities shall not include, any Liabilities of
the Seller or any Affiliate of the Seller to the extent not arising in
connection with the Business, except for those specifically assumed pursuant to
Section 2.3 (the Liabilities of the Seller and its Affiliates not assumed by the
Buyer or its Affiliates are referred to as "Excluded Liabilities"). Without
limiting the generality of the preceding sentence, the Excluded Liabilities
include:
(a) any Liability related to any accounts payable or any
indebtedness of the Seller or any Affiliate of the Seller arising, accruable or
payable prior to the Closing Date;
(b) any Liability with respect to any goods sold or any
service provided by the Seller or any Affiliate of the Seller prior to the
Closing Date, including any such Liability (i) pursuant to any express or
implied representation, warranty, agreement, coal specification, undertaking or
guarantee made by the Seller or any Affiliate of the Seller or alleged to have
been made by the Seller or any Affiliate of the Seller, (ii) imposed or asserted
to be imposed by operation of law or (iii) pursuant to any doctrine of product
liability;
(c) any Liability or obligation with respect to any
litigation arising from the operation of the Business prior to the Closing Date,
except that any Liability or obligation associated with or related to the
condition of the Real Property, Equipment and other tangible personal property
as of the Closing Date shall be an Assumed Liability and not an Excluded
Liability;
(d) any Liability that relates to any Employee or former
Employee or to any employee or former employee of any of the Seller's Affiliates
(or any individual who applied for employment with the Seller or any Affiliate
of the Seller) who does not become an employee of the Buyer or any of its
Affiliates, other than any liability or obligation arising as a result of
actions after the Closing on the part of the Buyer that constitute tortious
conduct or that arise from the Buyer's relationship with such Persons;
(e) any Liability arising under or relating to any
employee benefit plan of the Seller; and
(f) any Liability of the Seller or any Affiliates of the
Seller for Taxes.
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ARTICLE 3 - PURCHASE PRICE; CLOSING AND DELIVERIES
3.1 CLOSING. The parties shall hold a closing (the "Closing") as
soon as practicable after satisfaction of the conditions to closing set forth in
Article 7, but in no event later than March 31, 2008 (the "Closing Date").
3.2 SELLER'S DELIVERIES. The sale, transfer, assignment and
delivery by the Seller of the Purchased Assets to the Buyer, as herein provided,
shall be effected on the Closing Date by the Seller's execution and delivery of
the Related Agreements to which it is a party, and other instruments of transfer
and conveyance reasonably satisfactory in form and substance to counsel for the
Buyer and the Seller, which shall include, without limitation, all documents of
title and instruments of conveyance necessary to transfer record and/or
beneficial ownership to the Buyer of all trucks, trailers which constitute
Purchased Assets, and any other property constituting Purchased Assets owned by
the Seller or its Affiliates which requires execution, endorsement and/or
delivery of a document in order to vest record or beneficial ownership thereof
in the Buyer.
3.3 BUYER'S DELIVERIES. At the Closing:
(a) The Buyer shall deliver an amount equal to Eleven
Million Dollars ($11,000,000) (the "Purchase Price") to, or at the direction of,
the Seller, in accordance with a funds memorandum provided to the Buyer by the
Seller, in immediately available funds to the account or accounts specified by
the Seller. In the event that there are less than 10,000 tons of marketable coal
in inventory as of the Closing, the Purchase Price will be reduced by an amount
equal to the difference between 10,000 tons and the actual tons of marketable
coal in inventory as of the Closing, multiplied by $42.00.
(b) Buyer has delivered to Seller a good faith deposit in
the amount of Two Hundred Thousand Dollars ($200,000) (the "Deposit"). If the
Closing does not occur for any reason whatsoever, other than Buyer's material
breach of the letter agreement dated January 8, 2008, by and between Buyer and
Seller, (the "Letter Agreement") or this Agreement, the Deposit shall be
returned to Buyer. If the Closing does not occur solely because of a material
breach of the Letter Agreement or this Agreement by Buyer, the entire Deposit
shall be retained by Seller. If the Closing does occur, the entire Deposit shall
be credited toward the Purchase Price.
(c) Buyer shall replace all of Seller's deposits and
bonds, including but not limited to the utility, payment and performance bonds,
and equipment bonds and deposits (but excluding reclamation bonds) shown on
Schedule 3.3(c) attached hereto, and cause the bonds and deposits of Seller to
be released to Seller at the Closing. Provided, however, Buyer shall replace
Seller's bonds and deposits with GATX at the Closing, and cause Seller's bonds
and deposits with GATX to be released within five (5) business days after the
Closing.
(d) The Buyer shall execute and deliver to the Seller the
Related Agreements to which it is a party and such other agreements as are
reasonably satisfactory in form and substance to counsel for the Buyer and the
Seller.
3.4 ALLOCATION OF PURCHASE PRICE. The Purchase Price shall be
allocated among the Purchased Assets as set forth in Schedule 3.4 hereto. The
parties hereto shall report the transactions contemplated herein for all tax
purposes in accordance with such allocation and, in any proceeding related to
the determination of any Tax, neither party hereto shall contend or represent
that such allocation is not a correct allocation.
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ARTICLE 4 - REPRESENTATIONS AND WARRANTIES OF THE SELLER
In order to induce the Buyer to enter into this Agreement, the Seller
makes the representations and warranties set forth below which are true, correct
and complete on the date hereof and shall be true, correct and complete as of
the Closing:
4.1 ORGANIZATION. Seller is a corporation duly organized and
validly existing under the Laws of its state of organization, and is authorized
to do business in every jurisdiction in which the failure to be so qualified
could result in a Material Adverse Effect. Seller has all requisite corporate
power and authority to own its properties and assets and to consummate the
transactions contemplated hereby.
4.2 AUTHORIZATION AND VALIDITY. Seller has all requisite corporate
power and authority to enter into this Agreement and the Related Agreements to
which it is a party, subject to the receipt of the consents, waivers,
authorizations and approvals set forth on Schedule 4.2. The execution and
delivery of this Agreement and the performance of the obligations hereunder have
been duly authorized by all necessary corporate action by Seller. This Agreement
and the Related Agreements to which Seller is a party have been, or will be,
duly executed by Seller and constitute its valid and binding obligation,
enforceable against it in accordance with their terms.
4.3 NO CONFLICT OR VIOLATION. Subject to the receipt of the
consents, waivers, authorizations and approvals set forth on Schedule 4.2, the
execution, delivery and performance by Seller of this Agreement and the Related
Agreements to which it is a party (a) do not and will not violate or conflict
with any provision of the organizational or governing documents, or bylaws of
Seller, (b) do not and will not violate any provision of any Law or any Order
applicable to Seller, and (c) do not and will not violate or result in a breach
of or constitute (with due notice or lapse of time or both) a default under any
contract, lease, loan agreement, mortgage, security agreement, trust indenture
or other agreement or instrument to which Seller is a party or by which it is
bound or to which any of Seller's properties or assets are subject, except for
any such violation, conflict, breach or default which would not reasonably be
expected to have a Material Adverse Effect.
4.4 CONSENTS AND APPROVALS. Schedule 4.2 sets forth a true and
complete list of each material consent, waiver, authorization or approval of any
Governmental Authority or of any other Person that is required in connection
with the execution, delivery and performance of this Agreement.
4.5 COMPLIANCE WITH LAW. Except as set forth on Schedule 4.5, the
Seller has not received written notice of any violation of any Law, nor is the
Seller in default with respect to any Order, applicable to the Purchased Assets.
4.6 LITIGATION. Except as set forth on Schedule 4.6, there are no
Claims, actions, suits, Proceedings or investigations related to the Purchased
Assets pending or, to the Seller's actual knowledge, threatened before any
federal or state court brought by or against the Seller.
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4.7 TITLE AND OWNERSHIP. Subject to the Permitted Encumbrances,
the Seller, or its Affiliates, as the case may be, will have good and marketable
title to the Owned Equipment, and title to the other Purchased Assets at the
Closing free and clear of the claims of all persons claiming under or through
Seller. Except as set forth on Schedule 4.2, at the Closing, the Seller will
have the right to transfer the Purchased Assets to the Buyer free and clear of
all Liens, other than Permitted Liens. Except for the buried GATX highwall miner
head, the equipment is accessible to the Buyer.
4.8 CONTRACTS. Other than as set forth on Schedule 4.8, neither
the Seller nor, to the Seller's actual knowledge, any other party to any of the
Contracts has threatened or commenced any action against any of the parties to
any of the Contracts or given or received any written notice of any default or
violation under any Contract that was not withdrawn or dismissed. To the
knowledge of the Seller, each of the Contracts is, or will be at the Closing,
valid, binding and in full force and effect against the Seller.
4.9 PERMITS. Schedule 2.1(d) sets forth a complete and correct
list of all operational permits, whether for coal mining, reclamation, or other
operational purposes, currently held by the Seller in connection with the
Business.
4.10 LABOR MATTERS. The Seller represents and warrants that (a) no
Employee is currently represented by a labor union or other collective labor
organization or association; (b) there are no collective bargaining agreements
or memoranda of understanding by which the Seller is bound or applicable to any
Employees; and (c) to the actual knowledge of the Seller, there is no union or
independent organizational activity among any Employees underway.
4.11 FINANCIAL ADVISORS. Neither the Seller nor any authorized
Person on the Seller's behalf has agreed to pay any brokerage fee, finder's fee
or commission which could reasonably be expected to become the obligation of the
Buyer with respect to the transactions contemplated by this Agreement.
4.12 REAL PROPERTY.
(a) To the actual knowledge of Seller, the map attached
hereto as Schedule 4.12 accurately and completely depicts the Real Property in
all material respects.
(b) To the actual knowledge of Seller, the Seller has
obtained all easements and rights of way required to use and operate the Real
Property in all material respects in the manner in which the Real Property is
currently being used and operated.
(c) Except as set forth on Schedule 4.12(c), the Seller
has not received notice of, and has no actual knowledge of, any Proceedings
pending or, to the actual knowledge of the Seller, threatened regarding the
ownership, use or possession of the Real Property, including subsidence claims,
condemnation, expropriation or similar Claims.
(d) Except as set forth on Schedule 4.12(d), the Seller
is not a party to any lease, assignment or similar arrangement under which the
Seller is a lessor or assignor with respect to, or under which any portion of,
the Real Property is made available for use by any third party.
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4.13 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.13:
(a) To the actual knowledge of Seller, the Seller is in
compliance in all material respects with all Environmental Laws in the conduct
of the Business;
(b) Since November 30, 2004, the Seller has not received
any written communications, whether from a Governmental Authority, citizens
group, Employee or otherwise, that alleges that the Business is not in full
compliance with any Environmental Law, except for such written communications
that have been resolved in all material respects.
(c) To the actual knowledge of the Seller, no Release has
occurred on or beneath the Real Property, except for inventories of Hazardous
Materials to be used, and wastes generated therefrom, in the ordinary course of
business of the Seller (which inventories and wastes, if any, were and are
stored or disposed of in accordance with applicable Environmental Laws) and
except for any such Release which would not result in a Material Adverse Effect.
4.14 ABSENCE OF CERTAIN CHANGES. Except as set forth in Schedule
4.14, since December 1, 2007, the Business has been conducted in all material
respects only in the ordinary course of business consistent with past practice,
and the Seller has not:
(a) failed to make any payment due under any Contract;
(b) paid, discharged or satisfied any material Liability
other than any such payment, discharge or satisfaction in the ordinary course of
business consistent with past practice;
(c) sold, transferred, or otherwise disposed of any
material properties or assets related to the Business (real, personal or mixed,
tangible or intangible), except in the ordinary course of business, consistent
with past practice;
(d) paid, loaned or advanced any amount to, or sold,
transferred or leased any material properties or assets related to the Business
(real, personal or mixed, tangible or intangible) to, or entered into any
agreement or arrangement with any Employee, except for compensation to Employees
at rates not exceeding the rates of such fees and compensation paid as of
December 1, 2007, plus pay raises in the ordinary course of business;
(e) knowingly waived or otherwise released any material
causes of action, lawsuits, judgments, Claims or demands related to the
Business;
(f) experienced any natural disaster that resulted in a
Material Adverse Effect; or
(g) agreed, whether in writing or otherwise, to take any
of the foregoing actions.
4.15 PURCHASED ASSETS. The Purchased Assets include all assets
currently used principally in the operation of the Business as currently
conducted.
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ARTICLE 5 - REPRESENTATIONS AND WARRANTIES OF THE BUYER
In order to induce the Seller to enter into this Agreement, the Buyer
makes the representations and warranties set forth below, which are true,
correct and complete on the date hereof and shall be true, correct and complete
as of the Closing:
5.1 ORGANIZATION. The Buyer is duly organized and validly existing
under the Laws of its state of organization, and is authorized to do business in
every jurisdiction in which the failure to be so qualified could result in a
Material Adverse Effect. The Buyer has all requisite power and authority to own
its properties and assets and to consummate the transactions contemplated
hereby.
5.2 AUTHORIZATION AND VALIDITY. The Buyer has all requisite
corporate power and authority to enter into this Agreement and the Related
Agreements to which it is a party. The execution and delivery of this Agreement
and the Related Agreements to which it is a party and the performance of the
obligations hereunder and thereunder have been duly authorized by all necessary
action by the Buyer. This Agreement and the Related Agreements to which the
Buyer is a party have been, or will be, duly executed by the Buyer and
constitute its valid and binding obligation, enforceable against it in
accordance with their terms.
5.3 CONSENTS AND APPROVALS. Except as disclosed on Schedule 5.3,
no consent, approval or action of, filing with or notice to, any Governmental
Authority or any other Person, on the part of the Buyer is required in
connection with the execution, delivery and performance of this Agreement or any
of the Related Agreements to which the Buyer is a party or the consummation of
the transactions contemplated hereby or thereby.
5.4 NO CONFLICT OR VIOLATION. The execution, delivery and
performance by the Buyer of this Agreement and the Related Agreements to which
it is a party (a) do not and will not violate or conflict with any provision of
the articles of incorporation of the Buyer, (b) do not and will not violate any
provision of any Law or any Order applicable to the Buyer, and (c) do not and
will not violate or result in a breach of or constitute (with due notice or
lapse of time or both) a default under any contract, lease, loan agreement,
mortgage, security agreement, trust indenture or other agreement or instrument
to which the Buyer is a party or by which it is bound or to which any of the
Buyer's properties or assets are subject, except for any such violation,
conflict, breach or default which would not reasonably be expected to have a
Material Adverse Effect.
5.5 FINANCIAL ADVISORS. Neither the Buyer nor any authorized
Person on the Buyer's behalf has agreed to pay any brokerage fee, finder's fee
or commission which could reasonably be expected to become the obligation of the
Seller with respect to the transactions contemplated by this Agreement.
5.6 FINANCING. The Buyer has obtained a commitment for financing
for the entire Purchase Price, on terms and conditions satisfactory to Buyer in
its sole discretion.
5.7 DUE DILIGENCE. The Buyer is satisfied in its sole discretion
with the results of its due diligence investigation of the Purchased Assets and
the Seller.
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ARTICLE 6 - SURVIVAL OF REPRESENTATION AND WARRANTIES
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of the Seller set forth in this Agreement or any
Related Agreement shall survive the Closing for a period of eighteen (18)
months, and shall thereafter (together with any obligation of indemnification
related thereto) be of no further force or effect whatsoever.
ARTICLE 7 - CONDITIONS PRECEDENT TO PERFORMANCE BY PARTIES
7.1 CONDITIONS PRECEDENT TO PERFORMANCE BY THE SELLER. The
obligation of the Seller to consummate the transactions contemplated by this
Agreement is subject to the fulfillment, at or before the Closing, of the
following conditions, any one or more of which may be waived by the Seller in
its sole discretion:
(a) REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE
BUYER. All representations and warranties made by the Buyer in Article 5 taken
as a whole, shall be true and correct in all material respects on the date of
this Agreement and on and as of the Closing Date (except to the extent that any
such representation and warranty is made as of a specified date, in which case
such representation and warranty shall continue to be made as of such specified
date), and the covenants and agreements of the Buyer to be performed on or
before the Closing Date shall have been duly performed in all material respects
in accordance with this Agreement, and the Seller shall have received a
certificate, dated the Closing Date and signed by an officer of the Buyer, to
that effect.
(b) Seller shall have received a "fairness opinion"
(acceptable in form and content to Seller's Board of Directors) not less than
five (5) days prior to the Closing from an independent third party evidencing
that the sale is fair and equitable to the shareholders of the Seller.
(c) Seller shall have obtained the consent of its Lenders
and other third parties identified on Schedule 7.1(c), or shall have waived
obtaining such consent.
7.2 CONDITIONS PRECEDENT TO PERFORMANCE BY THE BUYER. The
obligations of the Buyer to consummate the transactions contemplated by this
Agreement are subject to the fulfillment, at or before the Closing, of the
following conditions, any one or more of which may be waived by the Buyer in its
sole discretion:
(a) REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE
SELLER. All representations and warranties made by the Seller in Article 4 taken
as a whole, shall be true and correct in all material respects on the date of
this Agreement and on and as of the Closing Date (except to the extent that any
such representation and warranty is made as of a specified date, in which case
such representation and warranty shall continue to be made as of such specified
date), and the covenants and agreements of the Seller to be performed on or
before the Closing Date shall have been duly performed in all material respects
in accordance with this Agreement, and the Buyer shall have received a
certificate, dated the Closing Date and signed by an officer of the Seller, to
that effect.
(b) CONSENTS. The Seller shall have obtained all consents
shown on Schedule 7.1(c) for the sale, transfer, and assignment of the Purchased
Assets, on or before forty five (45) days after the date hereof.
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7.3 CONDITIONS TO EACH PARTY'S OBLIGATIONS. The respective
obligations of each party to consummate the transactions contemplated by this
Agreement shall be subject to the fulfillment or waiver on or before the Closing
of the following conditions:
(a) INJUNCTIONS. There shall not be outstanding any Order
prohibiting the consummation of the transactions contemplated by this Agreement
and no action shall have been commenced which could reasonably be expected to
prohibit the consummation of the transactions contemplated hereby.
(b) NO CHANGE IN LAW. There shall not have been any
action taken or any statute enacted by any Governmental Authority which would
render the parties unable to consummate the transactions contemplated hereby or
make the transactions contemplated hereby illegal or prohibit the consummation
of the transactions contemplated hereby.
ARTICLE 8 - COVENANTS
8.1 COVENANTS OF SELLER. The Seller covenants as follows:
(a) DUE DILIGENCE REVIEW; CONFIDENTIALITY.
Notwithstanding anything to the contrary contained in this letter agreement,
Buyer reserves the right to pursue and be satisfied, in its sole and absolute
discretion, with any and all due diligence matters relating to the Seller and
the Purchased Assets. For a period of thirty (30) days after the execution
hereof (the "Due Diligence Period"), Seller shall provide Buyer and Buyer's
employees, consultants, lenders, agents, attorneys, and independent accountants
(the "Buyer Representatives") with access to (a) all of Seller's books and
records relating to the Purchased Assets. Buyer shall indemnify, defend and hold
harmless Seller from any and all losses, claims, costs, and damages arising from
Buyer's entering into and conducting any due diligence investigations of the
Purchased Assets. Buyer's due diligence review shall not unreasonably interfere
with the operations of Seller. Buyer shall keep all information so provided
strictly confidential, shall not use such information other than for the
purposes of evaluating the transactions contemplated hereby, and shall not
permit the disclosure of the same (other than to the Buyer Representatives who
reasonably require such information for their evaluation of the transactions
contemplated hereby). If the transactions contemplated hereby are not
consummated, Buyer shall promptly return or destroy all books, records and other
materials obtained from Seller, and not retain copies thereof.
(b) FURTHER ASSURANCES. At the request and the sole
expense of the Buyer, at any time after the Closing Date, the Seller shall
execute and deliver such documents as the Buyer or its counsel may reasonably
request to effectuate the purposes of this Agreement.
(c) CONDUCT OF OPERATIONS. From the date hereof until the
Closing, the Seller shall carry on the Business in the ordinary course of
business consistent with past practice, and in material compliance with the
provisions of applicable Law, except as otherwise permitted or contemplated by
this Agreement or as otherwise consented to by the Buyer in writing, such
consent not to be unreasonably withheld or delayed.
(d) INDEMNIFICATION. The Seller shall indemnify and hold
harmless the Buyer, its Affiliates, and their respective directors, officers,
agents, and employees from and against any and all Liabilities and Claims
arising from or related to (i) any Seller's breach of any warranty,
representation, or covenant contained herein or in any Related Agreement and
(ii) the Excluded Liabilities.
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8.2 COVENANTS OF BUYER. The Buyer covenants as follows:
(a) ACCESS TO BOOKS AND RECORDS. The Buyer agrees to
furnish or cause to be furnished to the Seller, as promptly as practicable, such
information and assistance relating to the Purchased Assets and the Assumed
Liabilities as is reasonably necessary for the preparation and filing of any Tax
Return, claim for refund or other required or optional filings relating to Tax
matters, for the preparation for and proof of facts during any Tax audit, for
the preparation for any Tax protest, for the prosecution or defense of any suit
or other proceeding relating to Tax matters and for the answer to any inquiry
from any Governmental Authority relating to Tax matters. The Buyer agrees to
retain possession, at its own expense, of all accounting, business, financial
and Tax records and information (i) relating to the Purchased Assets or the
Assumed Liabilities that are in existence on the Closing Date and transferred to
the Buyer hereunder, or (ii) coming into existence after the Closing Date that
relate to the Purchased Assets or the Assumed Liabilities before the Closing,
for a period of at least six years from the Closing Date, and will give the
Seller notice and an opportunity to retain any such records if the Buyer
determines to destroy or dispose of any or all of them after such period. In
addition, from and after the Closing, the Buyer agrees that it will provide
access to the Seller and its attorneys, accountants and other representatives
(after reasonable notice and during normal business hours and without charge),
to the books, records, documents and other information relating to the Purchased
Assets or the Assumed Liabilities as the Sellers may deem necessary to properly
prepare for, file, prove, answer, prosecute and/or defend any such Tax Return,
claim, filing, Tax audit, Tax protest, suit, proceeding or answer. Such access
shall include, without limitation, access to any computerized information
retrieval systems relating to the Purchased Assets or the Assumed Liabilities.
(b) WORKERS' COMPENSATION; OCCUPATIONAL DISEASE. The
Buyer will obtain workers' compensation insurance, including occupational
disease coverage (including black lung), in accordance with all Laws applicable
to the Buyer, covering all of the Employees hired by the Buyer. The Buyer will
post any necessary bonds and meet all other requirements necessary to obtain
such insurance coverage.
(c) NOTIFICATION BY THE BUYER OF CERTAIN MATTERS. The
Buyer agrees to notify the Seller in writing promptly upon the Buyer's or its
authorized representatives' discovery of any information prior to the Closing
Date relating to the Seller or the operations by the Seller (including the
financial condition, assets and properties) of the Business which constitutes
(or would constitute) or indicates (or would indicate) a breach of any
representation, warranty or covenant of the Seller contained herein.
(d) OBTAINING CONSENTS. Whether before or after the
Closing, the Seller and the Buyer shall cooperate with one another and provide
commercially reasonable assistance as needed to the other to effect assignment
of the Contracts and the assignment or transfer of the Permits.
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(e) INDEMNIFICATION. The Buyer shall indemnify and hold
harmless the Seller, its Affiliates, and their respective directors, officers,
agents, and employees from and against any and all Liabilities and Claims
arising from or related to (i) the Buyer's breach of any representation,
warranty or covenant contained herein or in any Related Agreement; (ii) the
failure of Buyer to transfer title to any licensed vehicles which are part of
the Purchased Assets; (iii) the Assumed Liabilities; and (iv) any Claims and
Liabilities for acts and omissions by Buyer after the Closing.
(f) REPLACEMENT OF BONDS AND LETTERS OF CREDIT. Buyer
shall replace at Closing all non-reclamation bonds, deposits, or escrow funds of
the Seller issued or deposited for the benefit of any and all third parties,
including but not limited to performance, utility, payment, and insurance bonds,
and cause Seller's bonds and deposits to be released to Seller. The GATX bond
and deposit shall be replaced at Closing, and Seller's bond and deposit returned
within five (5) business days thereafter.
8.3 COVENANTS OF THE PARTIES.
(a) CONSENTS. The parties shall promptly apply for and
diligently prosecute all applications for, and shall use commercially reasonable
efforts promptly to obtain, such consents, authorizations and approvals from
such Governmental Authorities and third parties as shall be necessary or
appropriate to permit the consummation of the transactions contemplated by this
Agreement, and shall use commercially reasonable efforts to bring about the
satisfaction as soon as practicable of all the conditions necessary to effect
the consummation of the transactions contemplated by this Agreement.
Notwithstanding anything to the contrary contained herein, the parties hereto
agree that as a condition to obtaining the consent of any third party to any
coal supply contract or any other Contract to permit the consummation of the
transactions contemplated hereby, no party hereto shall have any obligation to
(i) pay any remuneration to third parties in exchange for such party's consent
or approval; (ii) file any lawsuit or take other legal action against such third
party with respect to any consent thereof; or (iii) make any amendment thereof
or waive any rights thereunder if as a result of such amendment or waiver such
coal supply contract or any other Contract would contain terms and conditions
that are less favorable in any material respect than the terms and conditions of
such coal supply contract or other Contract as in existence on the Closing Date.
Notwithstanding anything herein, the parties understand and agree that various
leases require the consent of the lessor for assignment to Buyer as contemplated
herein, and Seller shall agree to use its commercially reasonable efforts after
Closing to obtain the necessary consents to assign from all such lessors.
8.4 TRANSITION. The Seller shall cooperate with the Buyer and
shall provide commercially reasonable assistance in effecting transfers of
vendor accounts and services at the time of the Closing so as to avoid
interruption or temporary cessation of operations as a result of change of
ownership.
ARTICLE 9 -EMPLOYEES
9.1 HIRING. Buyer shall have the option, in its sole and absolute
discretion, to hire any or all employees of Seller principally involved in
operations related to the Assets. Seller shall provide all reasonably necessary
assistance to Buyer in hiring any such employees that Buyer determines it wishes
to hire, as well as in any employment transition matters.
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9.2 LIABILITIES. The Seller shall be responsible for any and all
obligations and Liabilities arising in connection with all Employees hired by
the Buyer arising or related to a time prior to the effective date of such
Employees' employment with the Buyer, including, without limitation, any
severance or other termination pay, and, except as otherwise required by Law,
all COBRA obligations. The Seller shall be responsible for all obligations and
Liabilities, whenever arising, with respect to all of the Employees not hired by
the Buyer. Seller agrees that all Employee options vested at the time of Closing
shall remain vested and exercisable for the periods now applicable to such
options.
9.3 RECORDS. Prior to and following the Closing, the Seller shall
provide the Buyer with records and other relevant data within the Seller's
control or access relating to the employment history of, and benefit matters
relating to, the Employees, as the Buyer shall reasonably request, to the extent
legally permitted.
9.4 EMPLOYEES NOT THIRD-PARTY BENEFICIARIES. Nothing in this
Section or elsewhere in this Agreement or the Related Agreements is intended to
confer upon any past, present or future Employee or his or her legal
representatives or heirs any rights as a third-party beneficiary or otherwise or
any other rights or remedies of any nature or kind whatsoever under or by reason
of the transactions contemplated by this Agreement or by the Related Agreements
including, without limitation, any rights of employment, continued employment or
any rights under or with respect to any welfare benefit, pension or other fringe
benefit plan, program or arrangement or any Plan.
ARTICLE 10 - TERMINATION
10.1 TERMINATION. This Agreement may be terminated:
(a) By mutual consent of the Buyer and the Seller prior
to Closing;
(b) By Buyer if the Seller has not received the "fairness
opinion" referred to in Section 7.1(b) not less than five (5) days prior to
Closing.
(c) By either the Seller or the Buyer by written notice
if the Closing does not occur on or before March 31, 2008; provided, however,
that as of such date the party terminating this Agreement is not in default
under this Agreement; or
(d) Provided the terminating party is not otherwise in
material default or breach of this Agreement, and has not failed or refused to
close without justification hereunder, by either the Buyer or the Seller,
without prejudice to other rights and remedies which the terminating party may
have, if the other party shall (i) have materially failed to perform its
covenants or agreements contained herein required to be performed on or prior to
the Closing Date, or (ii) have materially breached any of its representations or
warranties contained herein; provided, however, that in the case of clause (i)
or (ii), the defaulting party shall have a period of ten (10) days following
written notice from the non-defaulting party to cure any breach of this
Agreement, if such breach is curable.
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10.2 EFFECT OF TERMINATION; REMEDIES. In the event of termination
pursuant to Section 10.1, this Agreement shall become null and void and have no
effect (other than Sections 8.1(d) and 8.2(e) and Articles 10 and 11, which
shall survive termination), with no Liability on the part of the Seller or the
Buyer, or their respective Affiliates, with respect to this Agreement, except
for (i) the Liability of a party for its own expenses pursuant to Section 11.1;
and (ii) any Liability provided for in this Section, provided, however that any
such termination shall be without prejudice to the rights of any party hereto
arising out of the material breach by any other party of any covenant or
agreement contained in this Agreement.
ARTICLE 11 - MISCELLANEOUS
11.1 WAIVER OF WARRANTIES. EXCEPT AS SPECIFICALLY SET OUT IN THIS
AGREEMENT, SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER OF
MERCHANTABILITY, QUALITY, QUANTITY, RECOVERABILITY, TITLE, OR OTHERWISE AS TO
THE PURCHASED ASSETS OR INTEREST THEREIN, OR COAL RESERVES, OR MINING RIGHTS
OWNED BY SELLER AND INCLUDED IN THE PURCHASED ASSETS OR AS TO THE CONDITION OF
THE PURCHASED ASSETS, AND BUYER SHALL RELY UPON ITS OWN EXAMINATION THEREOF
THROUGH ENGINEERS AND OTHER REPRESENTATIVES SELECTED AND EMPLOYED SOLELY BY
BUYER.
11.2 EXPENSES. Whether or not the transactions contemplated hereby
are consummated, the Seller and the Buyer shall bear their own expenses,
including, without limitation, fees, disbursements and other costs of any
brokers, finders, investment bankers, attorneys, accountants and other advisors,
in connection with this Agreement and the transactions contemplated hereby.
11.3 NOTICES. All notices under this Agreement shall be given to
the parties at the following addresses (i) by personal delivery; (ii) by
facsimile transmission; (iii) by registered or certified mail, postage prepaid,
return receipt requested; or (iv) by nationally recognized overnight or other
express courier services:
(a) If to the Buyer:
Xinergy Corp.
0000 Xxxx Xxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: _____________
Telephone: ____________
Facsimile: ____________
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With a copy to:
Xxxxxx Xxxxxxxx
Xxxxx Xxxxx Xxxx LLC
0000 Xxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to the Seller:
National Coal Corporation
0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: _____________
With a copy to:
National Coal Corporation
0000 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: 000-000-0000
Facsimile: _____________
All notices shall be effective and shall be deemed delivered (i) if by
personal delivery, on the date of delivery if delivered during normal business
hours of the recipient, and if not delivered during such normal business hours,
on the next Business Day following delivery; (ii) if by facsimile transmission,
on the next Business Day following dispatch of such facsimile; (iii) if by
courier service, on the third (3rd) Business Day after dispatch thereof; and
(iv) if by mail, on the fifth (5th) Business Day after dispatch thereof. Any
party hereto may change its address by notice to all parties hereto delivered in
accordance with this Section 11.2.
11.4 AMENDMENTS. No supplement, modification or waiver of this
Agreement shall be binding unless in writing and executed by each party hereto.
11.5 WAIVER. At any time prior to the Closing, the Buyer or the
Seller may (a) extend the time for the performance of any of the obligations or
other acts of the other party hereto, (b) waive any inaccuracies in the
representations and warranties of the other party contained herein or in any
document delivered pursuant hereto, and (c) waive compliance with any of the
obligations of the other party or any of the conditions to its own obligations
contained herein to the extent permitted by law. Any agreement on the part of
the Buyer, on the one hand, and the Seller, on the other hand, to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of the Buyer and the Seller. The failure of a party to exercise
any right or remedy shall not be deemed or constitute a waiver of such right or
remedy in the future. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other similar or dissimilar
provision hereof, nor shall any such waiver constitute a continuing waiver
unless otherwise expressly provided.
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11.6 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by either of the parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other party. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of, and be enforceable by the
parties and their respective successors and permitted assigns.
11.8 PARTIES IN INTEREST. This Agreement shall be binding upon and
inure solely to the benefit of the parties hereto and their successors and
permitted assigns, and nothing in this Agreement, expressed or implied, is
intended to confer upon any other Person any rights or remedies of any nature
under or by reason of this Agreement.
11.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts (including via facsimile or e-mail signatures), each of which shall
be deemed to constitute an original, but all of which shall constitute one and
the same instrument, and shall become effective when one or more counterparts
have been signed by each of the parties hereto.
11.10 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such which may be hereafter declared invalid, void or unenforceable. In such
case, the parties hereto shall promptly meet and negotiate substitute provisions
for those rendered or declared illegal or unenforceable so as to preserve as
nearly as possible the contemplated economic effects of the transactions
contemplated hereby.
11.11 ENTIRE AGREEMENT. This Agreement and the Exhibits and
Schedules hereto and the Related Agreements constitute the entire agreement
among the parties hereto and supersede all prior agreements and understandings
oral or written, among the parties hereto with respect to the subject matter
hereof and thereof. There are no warranties, representations or other agreements
between the parties in connection with the subject matter hereof except as set
forth specifically herein or contemplated hereby.
11.12 GOVERNING LAW. This Agreement shall be governed by and
construed according to the laws of the Commonwealth of Kentucky without regard
to or application of its conflict of laws rules.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized representatives of the Buyer and the Seller on the date
first above written.
BUYER: XINERGY CORP.
By: /S/ XXX XXX
--------------------------------
Name: Xxx Xxx
Title: President
SELLER: NATIONAL COAL CORPORATION
By: /S/ XXXXXX XXXXXX
--------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Executive Officer
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NOTE REGARDING ATTACHMENTS
All of the following Exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The Registrant hereby agrees to furnish supplementally a copy of
any omitted attachment to the Securities and Exchange Commission upon request.
Exhibit A -- Assignment of Contracts
Exhibit B -- Assignment of Leases
Exhibit C -- Assumption of Liabilities
Exhibit D -- Xxxx of Sale
Exhibit E -- Deed(s)
Exhibit F -- Escrow Agreement
Exhibit G -- Permits Agreement