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EXHIBIT 2.1(b)
FIRST AMENDMENT TO EXCHANGE AGREEMENT
November 11, 1997
Reference is made to the Exchange Agreement dated as of October 20,
1997, by and among AEI Holding Company, Inc. ("the "Company"), Xxxxxxxxx
Enterprises, Inc. ("AEI"), Xxxxx Xxxxxxxxx and Xxxxxx Xxxxxxx (the "Exchange
Agreement"). Terms defined in the Exchange Agreement are used herein in this
First Amendment to Exchange Agreement ("Amendment Agreement") with the same
meaning.
WHEREAS, the Company and AEI desire to amend the Exchange Agreement to:
(i) include provisions regarding the transfer of permits and bonds because such
transfer shall not be completed by the Closing Date; and (ii) allocate the
payment of transfer and sales taxes and fees;
NOW, THEREFORE, the Company and AEI hereby agree as follows:
1. Amendment for Permits and Bonds. Upon and from the execution hereof,
the following provisions shall be added to the Exchange Agreement:
ARTICLE 13
13.1 Permits and Bonds. In the event that not all of AEI's
permits and licenses (the "Permits") have been transferred to the
Company or Tennessee Mining, Inc. ("TMI"), as appropriate, by the
Closing, AEI shall cooperate with the Company in any reasonable
arrangement (that is mutually agreeable to AEI and the Company)
designed to provide to the Company or TMI, as the case may be, the
benefits under any such Permits. In the event that not all Replacement
Bonds (as defined in Section 13.2) have been accepted by the
appropriate governmental authority as of the Closing, AEI shall
maintain in full force, following the Closing, all of AEI's reclamation
and performance bonds (the "Bonds") that have not been replaced.
13.2 Permit Transfer Applications and Replacement Bonds.
Promptly after the Closing Date, the Company shall or shall cause TMI
to: (i) submit to the appropriate governmental authorities all
applications and documents to transfer all transferable Permits to the
Company or TMI, as the case may be, as the sole permittee and to obtain
replacement permits for all non-transferable Permits; and (ii) obtain
(or transfer) bonds issued by a nationally recognized surety company to
replace the Bonds (the "Replacement Bonds"). The Company shall use
commercially reasonable efforts to ensure that all such Permits have
been validly issued to the Company or TMI, as the case may be, as the
sole permittee as promptly as practical after the Closing and that all
Replacement Bonds have been accepted by the appropriate governmental
authority as promptly as practical after the Closing. In the event that
the Company or TMI is unable to ensure the transfer of or obtain, as
the case may be, such Permits by Closing, or any
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governmental authority has not accepted the Replacement Bonds as of the
Closing, the Company shall indemnify and hold AEI harmless from any
loss, damage, cost, expense or liability that AEI suffers in connection
with (A) holding any Permit as agent for, or for the benefit of, the
Company or TMI, and (B) maintaining any Bond in full force and effect
after the Closing, including, without limitation, liability arising
from the Company's or TMI's operations relating to any such Bond.
2. Payment of Transfer and Sales Taxes. Upon and from its execution
hereof, the following provision shall be added to the Exchange Agreement:
2.4 Transfer and Sales Taxes. The Company shall pay all
transfer, sales and use taxes (if any) and all recording, filing and
other fees (if any) required in connection with the transfer of assets
pursuant to Section 2.1(a).
3. Ratification. The Exchange Agreement, as amended hereby, is hereby
ratified and confirmed in all respects. The execution, delivery and
effectiveness of this Amendment Agreement shall not, except as expressly
provided herein, operate as a waiver of any right, power or remedy of the
Company or AEI under the Exchange Agreement, nor constitute a waiver of any
provision of the Exchange Agreement.
4. Acquisition Document. This Amendment Agreement is an Acquisition
Document, and all provisions in the Exchange Agreement pertaining to Acquisition
Documents apply hereto.
5. Governing Law. This Amendment Agreement shall be governed by and
construed in accordance with the provisions of Section 12.8 of the Exchange
Agreement.
IN WITNESS WHEREOF, this instrument is executed as of the date first
above written.
XXXXXXXXX ENTERPRISES, INC.
By: /s/ Xxx Xxxxx
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Name: Xxx Xxxxx
Title: Chief Financial Officer
AEI HOLDING COMPANY, INC.
By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
Title: Chief Financial Officer
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