ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PITTSTON COAL COMPANY
AND
ALPHA TERMINAL COMPANY, LLC
October 29, 2002
TABLE OF CONTENTS
Page
-i-
ARTICLE I DEFINITIONS...........................................................................................1
1.1.Affiliate................................................................................................1
1.2.Agreement................................................................................................2
1.3.Asset Sale Company.......................................................................................2
1.4.Assigned Contracts.......................................................................................2
1.5.Assignment and Assumption Agreements.....................................................................2
1.6.Assignment and Assumption of Consortium Documents........................................................2
1.7.Assignment and Assumption of Parent Company Agreement....................................................3
1.8.Assumed Liabilities......................................................................................3
1.9.Assumed Parent Company Liabilities.......................................................................3
1.10. Assumed Partner Liabilities...........................................................................3
1.11. Business..............................................................................................3
1.12. Buyer.................................................................................................3
1.13. Buyer Closing Certificate.............................................................................3
1.14. Buyer Designee........................................................................................3
1.15. Buyer's Parent........................................................................................4
1.16. Closing...............................................................................................4
1.17. Closing Date..........................................................................................4
1.18. Coal Act..............................................................................................4
1.19. Code..................................................................................................4
1.20. Consortium Agreement..................................................................................4
1.21. Consortium Documents..................................................................................5
1.22. Contaminated..........................................................................................5
1.23. CPA Arbitrator........................................................................................5
1.24. Dispute...............................................................................................5
1.25. DTA...................................................................................................5
1.26. DTA Activities........................................................................................6
1.27. DTA Environmental Liabilities.........................................................................6
1.28. DTA Partners..........................................................................................6
1.29. DTA Revenue Bonds.....................................................................................6
1.30. Environmental Laws....................................................................................6
1.31. Facilities............................................................................................7
1.32. Governmental Authority................................................................................7
1.33. Hazardous Substances..................................................................................7
1.34. Indemnification and Guaranty Agreement................................................................8
1.35. Knowledge of PCC......................................................................................8
1.36. Law...................................................................................................8
1.37. Lease Agreement.......................................................................................8
1.38. Liability.............................................................................................9
1.39. Lien..................................................................................................9
1.40. Loan Agreement........................................................................................9
1.41. Material Adverse Effect...............................................................................9
1.42. Operating Agreement...................................................................................9
1.43. Ordinary Course of Business..........................................................................10
1.44. Parent Company Agreement.............................................................................10
1.45. Partner Matter.......................................................................................10
1.46. PCC..................................................................................................10
1.47. PCC Closing Certificate..............................................................................10
1.48. PCC Group............................................................................................10
1.49. PCC Parent...........................................................................................10
1.50. Permits..............................................................................................11
1.51. Permitted Liens......................................................................................11
1.52. Person...............................................................................................11
1.53. Pre-Closing Period...................................................................................11
1.54. Purchased Assets.....................................................................................11
1.55. Related Persons......................................................................................11
1.56. Retained Contract Rights.............................................................................11
1.57. Retained Contract Liabilities........................................................................12
1.58. Retained Liabilities.................................................................................13
1.59. Tax or Taxes.........................................................................................13
1.60. Tax Return...........................................................................................14
1.61. Throughput Agreement.................................................................................14
1.62. Transportation Agreement.............................................................................14
1.63. Voting Agreement.....................................................................................15
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ARTICLE II PURCHASE AND SALE OF ASSETS..........................................................................15
2.1.Transfer of Assets......................................................................................15
2.2.Assignment and Assumption Agreements and Other Documents................................................15
2.3.Assumption of Liabilities...............................................................................16
2.4.Proration of Liabilities................................................................................16
2.5.Indemnification and Guaranty Agreement..................................................................16
2.6.Additional Documents....................................................................................17
2.7.Partner Status..........................................................................................17
2.8.Allocation of Assumed Liabilities.......................................................................17
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PCC................................................................19
3.1.Incorporation...........................................................................................19
3.2.Execution, Delivery and Performance.....................................................................19
3.3.Authorization...........................................................................................20
3.4.Purchased Assets........................................................................................21
3.5.DTA Facilities..........................................................................................21
3.6.DTA Permits.............................................................................................22
3.7.Absence of Changes......................................................................................22
3.8.Assigned Contracts......................................................................................24
3.9.Litigation; Claims......................................................................................25
3.10. Legal Compliance.....................................................................................26
3.11. Environmental Compliance.............................................................................26
3.12. No Broker............................................................................................27
3.13. Powers of Attorney...................................................................................27
3.14. Transactions With Affiliates.........................................................................27
3.15. Absence of Certain Payments..........................................................................28
3.16. Disclosure...........................................................................................28
4
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER..............................................................28
4.1.Organization............................................................................................29
4.2.Execution, Delivery and Performance.....................................................................29
4.3.Authorization...........................................................................................29
0.0.Xx Broker...............................................................................................30
4.5.Reclamation and Environmental Compliance................................................................30
4.6.Financing...............................................................................................30
4.7.Disclosure..............................................................................................31
ARTICLE V CERTAIN COVENANTS....................................................................................31
5.1.Operation in Ordinary Course............................................................................31
5.2.Compliance with Law.....................................................................................31
5.3.Cooperation.............................................................................................32
5.4.Notices and Consents....................................................................................32
5.5.Publicity...............................................................................................33
5.6.Exclusivity.............................................................................................33
5.7.Access..................................................................................................34
5.8.Notice of Developments..................................................................................34
5.9.Further Assurances......................................................................................34
5.10. Voting Agreement.....................................................................................35
5.11. Subsequent Transfer of Purchased Assets..............................................................37
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING......................................................................38
6.1.Conditions Precedent to Each Party's Obligations........................................................38
6.2.Conditions Precedent to Obligations of Buyer............................................................39
6.3.Conditions Precedent to Obligations of PCC..............................................................41
ARTICLE VII CERTAIN TAX MATTERS..................................................................................42
7.1.Distributive Share of DTA for 2002......................................................................42
7.2.Transfer Taxes..........................................................................................43
7.3.Access for Tax Returns..................................................................................43
ARTICLE VIII TERMINATION................................................................................43
8.1.Termination.............................................................................................43
8.2.Effect of Termination...................................................................................45
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ARTICLE IX MISCELLANEOUS........................................................................................45
9.1.Entire Agreement........................................................................................45
9.2.Amendment...............................................................................................45
9.3.Extension; Waiver.......................................................................................46
9.4.Expenses................................................................................................46
9.5.Bulk Sales Waiver.......................................................................................46
9.6.Governing Law...........................................................................................46
9.7.Assignment..............................................................................................46
9.8.Notices.................................................................................................47
9.9.Counterparts; Headings..................................................................................48
9.10. Interpretation; Construction.........................................................................49
9.11. Severability.........................................................................................49
9.12. No Reliance..........................................................................................49
9.13. Retention of and Access to Records...................................................................49
9.14. Arbitration..........................................................................................50
6
EXHIBITS
Exhibit A-1 Assignment and Assumption of Consortium Documents
Exhibit A-2 Assignment and Assumption of Parent Company Agreement
Exhibit B Buyer Closing Certificate
Exhibit C Indemnification and Guaranty Agreement
Exhibit D PCC Closing Certificate
Exhibit E Opinion of Counsel to PCC
Exhibit F Opinion of Counsel to Buyer
Exhibit G Voting Agreement
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SCHEDULES
Schedule 1.4 Assigned Contracts
Schedule 1.9 Assumed Parent Company Liabilities
Schedule 1.10 Assumed Partner Liabilities
Schedule 1.35 Knowledge of PCC
Schedule 1.51 Permitted Liens
Schedule 3.1 Foreign States
Schedule 3.2 Conflicts
Schedule 3.4 Purchased Assets
Schedule 3.5 DTA Facilities
Schedule 3.7 Absence of Changes
Schedule 3.8(a) Excluded Contracts
Schedule 3.8(c) Consents
Schedule 3.9 Litigation; Claims
Schedule 3.11 Environmental Compliance
Schedule 3.13 Powers of Attorney
Schedule 3.14 Transactions with Affiliates
Schedule 5.4(a) PCC Consents
Schedule 5.4(b) Buyer Consents
Schedule 6.1(e)(i) PCC Material Consents
Schedule 6.1(e)(ii) Buyer Material Consents
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of the 29th day of October,
2002, by and between PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), and
ALPHA TERMINAL Company, LLC, a Delaware limited liability company ("Buyer").
RECITALS
WHEREAS, PCC owns directly all of the outstanding capital stock of
Pittston Coal Terminal Corporation, a Virginia corporation (the "Asset Sale
Company");
WHEREAS, PCC desires to cause to be sold and assigned, and Buyer
desires to purchase and assume, certain of the assets and certain of the
Liabilities (as hereinafter defined) of the Asset Sale Company;
WHEREAS, PCC desires to cause the Asset Sale Company to retain certain
assets and certain Liabilities; NOW, THEREFORE, in consideration of the
mutual covenants, conditions and agreements set forth herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, PCC and Buyer agree that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the
meanings specified:
1.1. Affiliate.
"Affiliate" shall mean, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. For purposes of
this Agreement, none of Dominion Terminal Associates or any of its partners,
other than the Asset Sale Company, shall be deemed an Affiliate of PCC or any of
its Affiliates.
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1.2. Agreement.
"Agreement" shall mean this Asset Purchase Agreement, together with the
Exhibits and Schedules attached hereto, which are incorporated into this Asset
Purchase Agreement by this reference, as the same may be amended from time to
time in accordance with the terms hereof.
1.3. Asset Sale Company.
"Asset Sale Company" shall have the meaning given to it in the Recitals to
this Agreement.
1.4. Assigned Contracts.
"Assigned Contracts" shall mean the Consortium Documents and the other
written contracts, agreements, personal and real property leases, relationships
and commitments, of the Asset Sale Company listed on Schedule 1.4.
1.5. Assignment and Assumption Agreements.
"Assignment and Assumption Agreements" shall mean, collectively, the
Assignment and Assumption of Consortium Documents and the Assignment and
Assumption of Parent Company Agreement.
1.6. Assignment and Assumption of Consortium Documents.
"Assignment and Assumption of Consortium Documents" shall mean the
assignment and assumption agreement substantially in the form of Exhibit A-1
attached hereto.
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1.7. Assignment and Assumption of Parent Company Agreement.
"Assignment and Assumption of Parent Company Agreement" shall mean the
assignment and assumption agreement substantially in the form of Exhibit A-2
attached hereto.
1.8. Assumed Liabilities.
"Assumed Liabilities" shall mean all Assumed Partner Liabilities and all
Assumed Parent Company Liabilities.
1.9. Assumed Parent Company Liabilities.
"Assumed Parent Company Liabilities" shall mean all Liabilities of PCC
Parent listed on Schedule 1.9, and, in any event, excludes any Retained
Liabilities.
1.10. Assumed Partner Liabilities.
"Assumed Partner Liabilities" shall mean all Liabilities of the Asset Sale
Company listed on Schedule 1.10, and, in any event, excludes any Retained
Liabilities.
1.11. Business.
"Business" shall mean the ownership of the Purchased Assets.
1.12. Buyer.
"Buyer" shall have the meaning given to it in the preamble of this
Agreement.
1.13. Buyer Closing Certificate.
"Buyer Closing Certificate" shall mean the certificate of Buyer
substantially in the form of Exhibit B attached hereto.
1.14. Buyer Designee.
"Buyer Designee" shall have the meaning set forth in Section 5.10.
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1.15. Buyer's Parent.
"Buyer's Parent" shall mean Alpha Natural Resources, LLC, a Delaware
limited liability company.
1.16. Closing.
"Closing" shall mean the closing of the transactions contemplated by this
Agreement beginning at 10:00 a.m., local time, on the Closing Date, at the
offices of Hunton & Xxxxxxxx, Riverfront Plaza, East Tower, 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000.
1.17. Closing Date.
"Closing Date" shall mean November 30, 2002 or such other date as the
parties may mutually agree in writing.
1.18. Coal Act.
"Coal Act" shall mean the Coal Industry Retiree Health Benefit Act of 1992
as amended through the Closing Date (codified at Subtitle J of the Code).
1.19. Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and, where
appropriate, any predecessor or successor provisions of Law, and all regulations
thereunder.
1.20. Consortium Agreement.
"Consortium Agreement" shall mean the Second Amended and Restated
Consortium Agreement, dated as of July 1, 1987, initially by and among Ashland
Terminal, Inc., a Delaware corporation, Cavalier Coal Terminal Company, a
Delaware corporation, Xxxxx River Coal Terminal Company, a Delaware corporation,
Peabody Terminals, Inc., a Delaware corporation, BHP-Utah Terminal Company, a
Delaware corporation, Xxxxxxxxxxxx Terminal Company, a Delaware corporation, and
the Asset Sale Company, as amended by the First Amendment thereto dated as of
March 31, 1989, the Second Amendment thereto dated as of .September 30, 1989,
the Third Amendment thereto dated as of September 11, 1990, and the Fourth
Amendment thereto dated as of November 15, 1992, the Fifth Amendment thereto
dated as of December 31, 2001.
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1.21. Consortium Documents.
"Consortium Documents" shall mean, collectively, the Consortium Agreement,
the Operating Agreement, the Throughput Agreement, the Transportation Agreement
and the Parent Company Agreement.
1.22. Contaminated.
"Contaminated" shall mean the presence of one or more Hazardous Substances
in such quantity or concentration as to: (i) violate any Environmental Law; (ii)
require disclosure to any Governmental Authority; (iii) require remediation or
removal; (iv) interfere with or prevent the use of any of the Purchased Assets
or the Facilities as customarily intended; or (v) create any contribution
Liability to fund the clean up of the Facilities.
1.23. CPA Arbitrator.
"CPA Arbitrator" shall have the meaning set forth in Section 2.8 hereof.
1.24. Dispute.
"Dispute" shall have the meaning set forth in Section 9.14 hereof.
1.25. DTA.
"DTA" shall mean Dominion Terminal Associates, a Virginia general
partnership.
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1.26. DTA Activities.
"DTA Activities" shall mean those activities of DTA that have taken place
on or through the use of the Facilities that involve receiving, unloading,
storing, and handling and loading coal and coal by-products.
1.27. DTA Environmental Liabilities.
"DTA Environmental Liabilities" shall mean any obligation the Asset Sale
Company may have as a DTA Partner for Liabilities that relate or arise from any
Hazardous Substance related to the DTA Activities conducted in accordance with
standard industry practices.
1.28. DTA Partners.
"DTA Partners" shall mean all of the partners of DTA.
1.29. DTA Revenue Bonds.
"DTA Revenue Bonds" shall mean $43,160,000 principal amount of Coal
Terminal Revenue Refunding Bonds, Series 1992, due June 1, 2020, issued by the
Peninsula Ports Authority of Virginia, and any amendments, modifications,
refundings or refinancings thereof.
1.30. Environmental Laws.
"Environmental Laws" shall mean collectively, all federal, foreign, state,
and local Laws in effect as of the Closing Date that relate to (a) the
prevention, abatement or elimination of pollution, or the protection of the
environment, or of natural resources, including, without limitation, Laws
applicable to coal mining operations or related activities, (b) the generation,
handling, treatment, storage, disposal or transportation of waste materials, (c)
the regulation of or exposure to Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C.ss.ss.9601 et. seq. ("CERCLA"), the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, as amended, 42
U.S.C.ss.ss.6901 et. seq. ("RCRA"), the Clean Air Act, 42 U.S.C.ss.ss.7401 et.
seq., the Clean Water Act, 33 U.S.C. ss.ss.1251 et. seq., the Toxic Substances
Control Act, 15 U.S.C.ss.ss.2601 et. seq., the Emergency Planning and Community
Right to Know Act, 42 U.S.C.ss.ss.11001 et. seq., and any foreign, state,
county, municipal, or local statutes, Laws or ordinances similar or analogous to
the federal statutes listed in this sentence.
14
1.31. Facilities.
"Facilities" shall have the meaning set forth in the Lease Agreement.
1.32. Governmental Authority.
"Governmental Authority" shall mean any governmental, judicial,
legislative, executive, administrative or regulatory authority of the United
States, or of any foreign, state or local government or any subdivision, agency,
commission, office, authority or bureau thereof or any quasi-governmental entity
or authority of any nature.
1.33. Hazardous Substances.
"Hazardous Substances" shall mean any substance, chemical, waste, solid,
material, pollutant or contaminant that is defined or listed as hazardous or
toxic under any applicable Environmental Laws. Without limiting the generality
of the foregoing it shall also include any radioactive material, including any
naturally-occurring radioactive material, and any source, special or by-product
material as defined in 42 U.S.C. 2011, et seq., any amendments or authorizations
thereof, any asbestos-containing materials in any form or condition, any
polychlorinated biphenyls in any form or condition, radioactive waste, or
natural gas, natural gas liquids, liquified natural gas, condensate, or
derivatives or byproducts thereof or oil and petroleum products or by products
and constituents thereof.
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1.34. Indemnification and Guaranty Agreement.
"Indemnification and Guaranty Agreement" shall mean the agreement by and
among PCC Parent, PCC, Buyer and Buyer's Parent substantially in the form of
Exhibit C attached hereto.
1.35. Knowledge of PCC.
"Knowledge of PCC" shall mean, for the individuals listed on Schedule 1.35,
any such individual's actual knowledge and what any such individual should have
known after reasonable inquiry within the scope of that individual's job
responsibilities.
1.36. Law.
"Law" and "Laws" shall mean any applicable United States or foreign,
federal, state, local or other law or governmental requirement of any kind, and
the rules, regulations and orders promulgated thereunder.
1.37. Lease Agreement.
"Lease Agreement" shall mean the Lease dated as of October 15, 1982,
initially by and among the Peninsula Ports Authority of Virginia, Armco Terminal
Company, a Delaware corporation, Ashland Terminal, Inc., a Delaware corporation,
Sierra Coal Company, a Delaware corporation, Xxxxxxxxxxxx Terminal Company, a
Delaware corporation, and the Asset Sale Company, as amended by the First
Amendment thereto dated February 27, 1984, the Second Amendment thereto date as
of July 31, 1986, the Third Amendment thereto dated as of July 1, 1987 and the
Fourth Amendment thereto dated as of November 15, 1992.
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1.38. Liability.
"Liability" shall mean any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), including any
liability for Taxes. "Liabilities" shall mean one or more items of Liability.
1.39. Lien.
"Lien" shall mean any lien, encumbrance, mortgage, charge, claim,
restriction, pledge, security interest or imposition of any kind.
1.40. Loan Agreement.
"Loan Agreement" shall mean the Loan Agreement, dated as of November 15,
1992, between Peninsula Ports Authority of Virginia and DTA.
1.41. Material Adverse Effect.
"Material Adverse Effect" shall mean any event, change or occurrence that
individually, or together with any other event, change or occurrence, has a
material adverse impact on the Business, taken as a whole, without regard to the
duration of such material adverse impact.
1.42. Operating Agreement.
"Operating Agreement" shall mean the Amended and Restated Operating
Agreement, dated as of January 1, 1988, initially by and among DTA, Ashland
Terminal, Inc., BHP-Utah Terminal Company, Cavalier Coal Terminal Company, Xxxxx
River Coal Terminal, Peabody Terminals, Inc, Xxxxxxxxxxxx Terminal Company and
the Asset Sale Company, as amended by the First Amendment thereto dated as of
January 1, 1989, the Second Amendment thereto dated as of September 11, 1990,
the Third Amendment thereto dated as of August 24, 2000 and the Fourth Amendment
thereto dated as of December 31, 2001.
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1.43. Ordinary Course of Business.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
1.44. Parent Company Agreement.
"Parent Company Agreement" shall mean the Seventh Amended and Restated
Parent Company Agreement, dated as of September 11, 1990, by and among Ashland
Coal, Inc., a Delaware Corporation, Peabody Holding Company, Inc., a New York
corporation, Xxxxxxxxxxxx Coal Company, a Delaware corporation, and PCC Parent.
1.45. Partner Matter.
"Partner Matter" shall have the meaning set forth in Section 5.10 hereof.
1.46. PCC.
"PCC" shall have the meaning given to it in the preamble to this Agreement.
1.47. PCC Closing Certificate.
"PCC Closing Certificate" shall mean the certificate of PCC substantially
in the form of Exhibit D attached hereto.
1.48. PCC Group.
"PCC Group" shall have the meaning set forth in Section 1.53 hereof.
1.49. PCC Parent.
"PCC Parent" shall mean The Pittston Company, a Virginia corporation.
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1.50. Permits.
"Permits shall have the meaning set forth in Section 3.6 hereof.
1.51. Permitted Liens.
"Permitted Liens" shall mean those Liens affecting the Purchased Assets
that are listed on Schedule 1.51.
1.52. Person.
"Person" shall mean any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union or other entity or Governmental
Authority.
1.53. Pre-Closing Period.
"Pre-Closing Period" shall mean any taxable period ending on or before the
Closing Date.
1.54. Purchased Assets.
"Purchased Assets" shall mean the rights of the Asset Sale Company with
respect to the Assigned Contracts, including in any event all of the Asset Sale
Company's rights as a partner in DTA (subject to Section 2.7 hereof) but
excluding the Retained Contract Rights.
1.55. Related Persons.
"Related Persons" shall mean related persons as that term is defined in
Section 9701(c)(2) of the Coal Act, except that it shall not include successors
in interest.
1.56. Retained Contract Rights.
"Retained Contract Rights" shall mean any and all rights under or interest
in the Assigned Contracts relating to the DTA Revenue Bonds, including without
limitation any right to, or to cause DTA to, pay, prepay, defease, call, redeem,
refund, refinance, modify or satisfy the DTA Revenue Bonds, in whole or in part,
reset any interest rate related thereto, perform any obligation of the Peninsula
Ports Authority of Virginia in respect thereof or amend, modify, restate,
terminate or assign, or cause the amendment, modification, restatement,
termination or assignment of, any document (including any Consortium Document)
related thereto. Without limiting the foregoing, the Retained Contract Rights
shall include any right enumerated in Sections 3.2, 3.3 or 3.4 of the Throughput
Agreement.
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1.57. Retained Contract Liabilities.
"Retained Contract Liabilities" shall mean any and all Liabilities of the
Asset Sale Company under the Assigned Contracts (excluding in any event the
Assumed Liabilities) relating to the DTA Revenue Bonds, including without
limitation (i) any obligation to, or cause DTA to, pay, prepay, defease, redeem,
refund, refinance or satisfy the DTA Revenue Bonds, pay any interest thereon, or
pay any costs and expenses related thereto, (ii) any Liability enumerated in
Sections 3.2, 3.3 or 3.4 of the Throughput Agreement, (iii) any Liability
relating solely to the DTA Revenue Bonds enumerated in Section 6.1 of the
Consortium Agreement and (iv) any Liability relating to the DTA Revenue Bonds
arising out of or in connection with DTA's obligations under the Loan Agreement
or the Lease Agreement, except to the extent, in each case, that such
Liabilities (excluding the obligations to pay the principal of and interest on
the DTA Revenue Bonds and the related expenses set forth in Section 5.2 of the
Loan Agreement in amounts and in accordance with the schedule of principal and
interest payments in effect as of the date hereof with such changes as PCC shall
approve, which are and shall remain solely the Liability of the Asset Sale
Company and PCC) are caused by the negligence, misconduct or breach of any
obligation of Buyer or Buyer's Parent with respect to the Purchased Assets or
under the Assigned Contracts, the Assignment and Assumption Agreements or the
Indemnification and Guaranty Agreement.
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1.58. Retained Liabilities.
"Retained Liabilities" shall mean (a) (1) all Liabilities, if any, of the
Asset Sale Company and its Related Persons (collectively, the "PCC Group") under
the Coal Act, and (2) all Liabilities, if any, of the PCC Group under any
post-Closing amendments to the Coal Act for (i) beneficiaries eligible under the
Coal Act who are assigned to a member of the PCC Group or for whom a member of
the PCC Group is required to provide or pay for medical benefits pursuant to
Sections 9711 or 9712 of the Coal Act or (ii) death benefit premiums or
unassigned beneficiary premiums (as those terms are used in Sections 9704(c) and
9704(d) of the Coal Act) for beneficiaries eligible under the Coal Act, that are
assessed against any member of the PCC Group; provided, for the avoidance of
doubt, that the Liabilities retained pursuant to (1) and (2) above shall not be
affected by Buyer or any of its Affiliates being identified under the Coal Act
or any post-Closing amendments thereto as a successor, successor in interest or
"Related person" under the Coal Act or any post-Closing amendments thereto to
any member of the PCC Group solely as a result of Buyer's purchase of the
Purchased Assets; (b) all Liabilities, if any, of the Asset Sale Company for
cash advances or other contributions to DTA in respect of Terminal Operating
Expenses (as defined in the Operating Agreement) accrued through, and allocable
to the period ending on, the Closing Date; and (c) all Retained Contract
Liabilities.
1.59. Tax or Taxes.
"Tax" or "Taxes" mean any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
custom duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, reclamation fees or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not, but shall not
include, for purposes of this Agreement only, Liabilities under the Coal Act, of
whatever nature and regardless of how denominated.
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1.60. Tax Return.
"Tax Return" shall mean any original or amended report, return,
declaration, claim for refund, statement, document, schedule, attachment or
other information supplied or required to be supplied to a Governmental
Authority with respect to Taxes, including any return of an affiliated, combined
or unitary group.
1.61. Throughput Agreement.
"Throughput Agreement" shall mean the Amended and Restated Throughput and
Handling Agreement, dated as of July 1, 1987, initially by and among Ashland
Terminal, Inc., Cavalier Coal Terminal Company, Xxxxx River Coal Terminal
Company, Peabody Terminals, Inc., Xxxxxxxxxxxx Terminal Company, the Asset Sale
Company and DTA, as amended by the First Amendment thereto dated as of September
30, 1989, the Second Amendment thereto dated as of September 11, 1990, the Third
Amendment thereto dated as of November 15, 1992, and the Fourth Amendment
thereto dated as of June 2, 1994.
1.62. Transportation Agreement.
"Transportation Agreement" shall mean the Fifth Amendment effective as of
January 1, 1988 to the Transportation Agreement, dated as of April 24, 1982,
initially by and among CSX Transportation, Inc., Ashland Terminal, Inc.,
Cavalier Coal Terminal Company, Xxxxx River Coal Terminal Company, Peabody
Terminals, Inc., BHP-Utah Terminal Company, Xxxxxxxxxxxx Terminal Company, the
Asset Sale Company and DTA, as amended by the Sixth Amendment thereto dated as
of January 1, 1989, and the Seventh Amendment thereto dated as of September 11,
1990.
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1.63. Voting Agreement.
"Voting Agreement" shall mean the voting agreement substantially in the
form of Exhibit G attached hereto.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1. Transfer of Assets.
On the Closing Date, PCC (on behalf of the Asset Sale Company) shall cause
to be sold, conveyed, transferred and assigned to Buyer, and Buyer shall
acquire, the Purchased Assets. At the Closing, subject to the terms and
conditions of this Agreement, PCC agrees to: (i) cause all of its rights and
interest in the Purchased Assets to be transferred to Buyer; and (ii) perform
its obligations under this Agreement to be performed at or before Closing. In
consideration for the Purchased Assets, Buyer shall: (i) assume the Assumed
Partner Liabilities; (ii) cause Buyer's Parent to assume the Assumed Parent
Liabilities; and (iii) perform its obligations under this Agreement to be
performed at or before Closing. Buyer and Buyer's Parent shall not assume or
have any responsibility with respect to any Liability of PCC Parent, PCC, the
PCC Group or the Asset Sale Company that is not an Assumed Liability.
2.2. Assignment and Assumption Agreements and Other Documents.
At the Closing, PCC shall cause the Asset Sale Company and PCC Parent to:
(i) execute and deliver to Buyer the Assignment and Assumption Agreements and
such other documents as may be necessary to convey to Buyer the Purchased
Assets; and (ii) perform its obligations under the Agreement to be performed at
or before the Closing.
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2.3. Assumption of Liabilities.
At the Closing, Buyer shall execute and deliver, and shall cause Buyer's
Parent to execute and deliver, to PCC the Assignment and Assumption Agreements
and such other documents and instruments as may be necessary for Buyer and
Buyer's Parent to assume all of the Assumed Liabilities. Buyer and Buyer's
Parent shall not assume or have any responsibility, however, with respect to any
Liability of PCC Parent, PCC, the PCC Group or the Asset Sale Company that is
not an Assumed Liability.
2.4. Proration of Liabilities.
PCC and Buyer shall cooperate with each other to provide for payments due
with respect to the Assumed Liabilities and the Retained Liabilities. If,
following the Closing, Buyer or any of its post-Closing Affiliates receives or
is the beneficiary of any payment or credit in any form with respect to the
Asset Sale Company (other than the Purchased Assets) or DTA that should (or, but
for the Closing, would) have been paid or credited to PCC or its Affiliates,
Buyer shall forward, or shall cause such post-Closing Affiliate to forward, an
amount equal to such payment or credit to PCC within five business days of
receipt. If, following the Closing, PCC or any of its post-Closing Affiliates
receives any payment in any form with respect to the Purchased Assets that
should have been paid to Buyer or its Affiliates, PCC shall forward, or shall
cause such post-Closing Affiliate to forward, such payment to Buyer within five
business days of receipt.
2.5. Indemnification and Guaranty Agreement.
At the Closing, PCC and Buyer shall, and PCC shall cause the PCC Parent and
Buyer shall cause Buyer's Parent to, execute and deliver the Indemnification and
Guaranty Agreement.
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2.6. Additional Documents.
At the Closing, PCC and Buyer shall, and PCC shall cause the Asset Sale
Company and the PCC Parent to, and Buyer shall cause Buyer's Parent to, execute
and deliver all such other documents or instruments necessary or appropriate to
effect the transactions contemplated by this Agreement, including the documents
provided in this Article II.
2.7. Partner Status.
It is the desire and intention of the parties that Buyer become, and that
the Asset Sale Company withdraw and be released as, a full partner in DTA. To
that end, each of PCC and Buyer will use its commercially reasonable efforts to
cause the other DTA Partners to execute such documents as may be necessary to
(a) admit Buyer as a full partner in DTA, (b) cause the withdrawal of the Asset
Sale Company as a full partner in DTA and release the Asset Sale Company from
all of its Liabilities under the Consortium Documents (other than any Retained
Liabilities), and (c) amend the Transportation Agreement to evidence the
foregoing, provided that all such documents and amendments shall provide that
the Retained Contract Rights and Retained Liabilities shall remain with the
Asset Sale Company.
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2.8. Allocation of Assumed Liabilities.
The Assumed Liabilities (to the extent they constitute part of the amount
realized for federal Income Tax purposes) shall be allocated among the Purchased
Assets in accordance with a schedule to be agreed upon by Buyer and PCC after
the Closing Date. Buyer shall prepare such allocation schedule and deliver it to
PCC upon a date to be agreed upon between the parties, which date shall be no
later than 60 days after the Closing Date. PCC shall be deemed to agree with
such allocation schedule unless, within ten (10) days after the date PCC
receives the allocation schedule from Buyer, PCC notifies Buyer in writing of
(i) each allocation with which it disagrees and (ii) for each such allocation,
the amount that PCC proposes to allocate. If PCC provides such notice to Buyer,
the parties shall proceed in good faith to resolve mutually the disputed
allocation amounts within fifteen (15) days after the date on which PCC notifies
Buyer of a disagreement with Buyer's proposed allocation. If PCC and Buyer
cannot resolve any such differences, the parties agree to submit such
differences to arbitration in Abingdon, Virginia by the accounting firm of
Deloitte & Touche, LLP or another accounting firm mutually acceptable to both
parties (the "CPA Arbitrator") to resolve such differences. The CPA Arbitrator
shall make such review and examination of the relevant facts and documents as
the CPA Arbitrator deems appropriate and shall permit each of Buyer and PCC to
make a written presentation of their respective positions. Within forty-five
(45) days after submission of such dispute by both parties, the CPA Arbitrator
shall resolve such dispute in writing and shall prepare and deliver its
decision, which shall (i) be based upon a determination of the fair market value
of the Purchased Assets, (ii) defer to valuations that have been prepared in
accordance with generally accepted valuation techniques absent manifest error,
(iii) be final and binding upon the parties without further recourse or
collateral attack and (iv) accept either Buyer's or PCC's position in its
entirety. The party whose position is not accepted by the CPA Arbitrator shall
pay all fees and costs of such CPA Arbitrator to arbitrate such dispute. The
allocation schedule shall include, at a minimum, information necessary to
complete Part II of IRS Form 8594. The allocation to the Purchased Assets is
intended to comply with the requirements of Section 1060 of the Code. The
parties shall cooperate to comply with all substantive and procedural
requirements of Section 1060 and, after the completion and agreement by the
parties to the allocation schedule, such allocation schedule shall be adjusted
only if and to the extent necessary to comply with such requirements of Section
1060. Buyer and PCC agree that they will not take nor will they permit any
Affiliate to take, for Income Tax purposes, any position inconsistent with such
allocation schedule to the Purchased Assets; provided, however, that (i) Buyer's
cost for the Purchased Assets may differ from the total amount allocated
hereunder to reflect the inclusion in the total cost of items (for example,
capitalized acquisition costs) not included in the total amount so allocated and
(ii) the amount realized by the Asset Sale Company may differ from the total
amount allocated hereunder to reflect transaction costs that reduce the amount
realized for federal Income Tax purposes.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PCC
PCC hereby represents and warrants to Buyer that the statements contained
in this Article III are correct and complete, except as set forth in the
Schedules delivered by PCC to Buyer in connection with this Agreement. The
Schedules are arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Article III.
3.1. Incorporation.
PCC and the Asset Sale Company are corporations duly organized, validly
existing and in good standing under the Laws of the respective state or
commonwealth of each such company's incorporation. PCC is duly qualified or
licensed to transact business as a foreign corporation in Virginia and is in
good standing under the laws of Virginia. Set forth on Schedule 3.1 is the name
of each state or other jurisdiction in which each such company has either paid
taxes or had an office in the three years prior to the date of this Agreement.
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3.2. Execution, Delivery and Performance.
The execution, delivery and performance by PCC of this Agreement and by PCC
and the Asset Sale Company of each other agreement or instrument to which it is
a party executed in connection herewith or delivered pursuant hereto and the
consummation of the transactions contemplated herein and therein will not, with
or without the giving of notice or the passage of time, or both: (i) conflict
with, or result in a violation or breach of, or a default, right to accelerate,
right to exercise any remedy or loss of rights under, or result in the creation
of any Lien (other than Permitted Liens) under or pursuant to, any provision of
PCC's or the Asset Sale Company's Articles of Incorporation or Bylaws or of any
material franchise, mortgage, deed of trust, Lien, lease, license, instrument,
agreement, consent, approval, waiver or understanding to which PCC or the Asset
Sale Company is a party or by which the Asset Sale Company is bound, or any Law
or any order, judgment, writ, injunction or decree to which PCC or the Asset
Sale Company is a party or by which PCC, the Asset Sale Company or the Purchased
Assets may be bound or affected; (ii) require the approval, consent or
authorization of, prior notice to, or filing or registration with any
Governmental Authority or, contravene, conflict with or result in a violation of
any of the terms or requirements of, or give any Governmental Authority the
right to revoke, withdraw, suspend, cancel or terminate any authorization issued
by a Governmental Authority that is held by PCC or the Asset Sale Company or
that otherwise relates to the Purchased Assets; or (iii) give any Governmental
Authority or other Person the right to challenge any of the transactions
contemplated hereunder or exercise any remedy or obtain any relief under any Law
to which PCC or the Asset Sale Company is subject.
3.3. Authorization.
PCC has full power and authority to enter into and deliver this Agreement
and to perform its obligations hereunder and each of PCC, PCC Parent and the
Asset Sale Company has full power and authority to enter into and deliver each
other agreement or instrument to which it is a party executed in connection
herewith and delivered pursuant hereto and to perform its obligations
thereunder. PCC's execution, delivery and performance of this Agreement and the
execution, delivery and performance of all other agreements and instruments by
PCC, PCC Parent and the Asset Sale Company in connection herewith and delivered
pursuant hereto and the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of PCC, PCC Parent and
the Asset Sale Company. This Agreement and all other agreements or instruments
executed by PCC, PCC Parent or the Asset Sale Company in connection herewith and
delivered by PCC, PCC Parent or the Asset Sale Company pursuant hereto have been
duly executed and delivered by PCC, PCC Parent or the Asset Sale Company and
this Agreement and all other agreements and instruments executed by PCC, PCC
Parent or the Asset Sale Company in connection herewith and delivered by PCC,
PCC Parent or the Asset Sale Company pursuant hereto constitute the legal, valid
and binding obligation of PCC, PCC Parent or the Asset Sale Company, as the case
may be, enforceable in accordance with their respective terms (subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
Laws affecting generally the enforcement of creditors' rights).
3.4. Purchased Assets.
The Asset Sale Company owns a valid interest in the Purchased Assets,
including without limitation a 32.5% partnership interest in DTA, free from
Liens and restrictions on transfer, other than Permitted Liens.
3.5. DTA Facilities.
To the Knowledge of PCC, the Lease Agreement is a valid and enforceable
lease of the Facilities (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally the
enforcement of creditors' rights). No rights of the Asset Sale Company under the
Lease Agreement have been assigned or otherwise transferred as security for any
obligation of the Asset Sale Company. The consummation of the transactions
contemplated by this Agreement will not create or constitute, either with or
without notice or the passage of time, a default or event of default under the
Lease Agreement or require the consent of any other party to the Lease Agreement
in order to avoid a default or event of default.
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3.6. DTA Permits.
To the Knowledge of PCC, DTA owns or holds all permits, licenses, orders,
certificates, registrations, approvals, consents and authorizations
(collectively, "Permits") of all Governmental Authorities and all other Permits
necessary for the conduct of its business as currently conducted.
3.7. Absence of Changes.
To the Knowledge of PCC, since December 31, 2001, DTA has not:
(a) borrowed or agreed to borrow any funds or incurred, or become subject
to, any Liability, or issued any note, bond or other debt security, or
guaranteed any indebtedness for borrowed money or capitalized lease
obligation, except Liabilities incurred in the Ordinary Course of
Business, none of which would reasonably be expected to result in an
impact greater than $100,000;
(b) paid any Liability other than current Liabilities in the Ordinary
Course of Business;
(c) sold, transferred or otherwise disposed of, or agreed to sell,
transfer or otherwise dispose of any of its assets or properties, or
canceled or otherwise terminated, or agreed to cancel or otherwise
terminate, other than in the Ordinary Course of Business, any Permits;
29
(d) except in the Ordinary Course of Business, entered into any agreement,
contract, lease or license (or series of related agreements,
contracts, leases or licenses) or made or permitted any material
amendment to or termination, acceleration, modification or
cancellation of any written contract or agreement to which it is a
party or breached any provision of any such contract or agreement;
(e) merged or consolidated with any other Person;
(f) mortgaged, pledged or subjected to any Lien any of its assets or
properties;
(g) made any capital expenditure (or series of related capital
expenditures) (x) involving more than $100,000 or (y) outside the
Ordinary Course of Business;
(h) made any capital investment in, any loan to, or any acquisition of the
securities or assets of, any other Person (or series of related
capital investments, loans and acquisitions) either (x) involving
$100,000 or (y) outside the Ordinary Course of Business;
(i) delayed or postponed the payment of accounts payable and other
Liabilities outside the Ordinary Course of Business;
(j) cancelled, compromised, waived or released any right or claim (or
series of related rights and claims) either (x) involving more than
$100,000 or (y) outside the Ordinary Course of Business;
(k) made any loan to, or entered into any other transaction with, any of
the partners, managers or employees of DTA outside the Ordinary Course
of Business;
(l) entered into any employment contract or collective bargaining
agreement, written or oral, or modified the terms of any existing such
contract;
30
(m) except in the Ordinary Course of Business adopted, amended, modified
or terminated any bonus, profit-sharing, incentive, severance or other
plan, contract or commitment for the benefit of any of employees of
DTA, or taken any such action with respect to any other employee
benefit plan;
(n) made any other change in employment terms for any of the managers or
employees of DTA outside the Ordinary Course of Business;
(o) suffered any damage, destruction or loss (excluding operating losses),
whether or not covered by insurance, that has had or would reasonably
be expected to have a Material Adverse Effect;
(p) implemented or adopted any change in its accounting methods or
principles or the application thereof; or
(q) entered into any agreement, arrangement or understanding with respect
to any of the foregoing.
3.8. Assigned Contracts.
(a) PCC has made available to Buyer copies of all of the written Assigned
Contracts, or a written summary setting forth the terms and conditions
where no copies exist, including all amendments, modifications,
waivers and elections applicable thereto. The Assigned Contracts are
all of the agreements related to the Purchased Assets to which the
Asset Sale Company or PCC Parent is a party.
(b) As to the Asset Sale Company party thereto: (i) the Assigned Contracts
are valid and binding, enforceable in accordance with their respective
terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally
the enforcement of creditors' rights), and are in full force and
effect; (ii) the consummation of the transactions contemplated herein
will not, with or without the giving of notice or the passage of time,
or both, conflict with, or result in a violation or breach of, or a
default, right to accelerate, right to exercise any remedy or loss of
rights under the Assigned Contracts; (iii) the Asset Sale Company is
not, nor to the Knowledge of PCC, is any other party in material
breach or default, and no event has occurred that, with notice or
lapse of time, would constitute a breach or default, or permit
termination, modification or acceleration, under the Assigned
Contracts; and (iv) the Asset Sale Company has not, nor to the
Knowledge of PCC has any other party, repudiated any provision of the
Assigned Contracts.
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(c) Schedule 3.8(c) sets forth the consents and approvals of third parties
and Governmental Authorities required to be obtained as a result of
the transactions contemplated by this Agreement. PCC has provided the
written notices of right of first refusal to all general partners of
DTA as specified in Sections 7.2(ii)(a),(b),(c) and (d) of the
Consortium Agreement and the time periods applicable to each right of
first refusal have expired without notice being made by any such
partner of its exercise of any such right.
3.9. Litigation; Claims.
Schedule 3.9 lists all claims, legal actions, suits, litigation,
arbitrations, disputes, investigations, proceedings by or before any
Governmental Authority involving more than $100,000 and all orders, decrees or
judgments, now pending or in effect, or, to the Knowledge of PCC, threatened or
contemplated, against or affecting the Asset Sale Company, the Purchased Assets
or the consummation of the transactions contemplated by this Agreement, except
to the extent involving Taxes for Pre-Closing Periods.
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3.10. Legal Compliance.
As it may affect the Purchased Assets, the Asset Sale Company and its
predecessors and Affiliates and, to the Knowledge of PCC, DTA, have complied in
all material respects with all Laws as presently in effect, and no material
action, suit, proceeding, hearing, investigation, charge, complaint, claim,
demand, or notice is pending against any of the Asset Sale Company and its
predecessors and Affiliates or, to the Knowledge of PCC, DTA, alleging any
failure so to comply.
3.11. Environmental Compliance.
(a) To the Knowledge of PCC, DTA is in material compliance with all
Environmental Laws related to the Facilities.
(b) To the Knowledge of PCC, (A) none of the Facilities has been or is
being used in any manner associated with the production, manufacture,
processing, generation, storage, treatment, disposal, management,
shipment or transportation of Hazardous Substances and none of such
Facilities is Contaminated by any Hazardous Substance; (B) there are
no underground storage tanks regulated pursuant to RCRAss.9001 (42
X.X.X.xx. 6991) or equivalent authorized state program, and no above
ground storage tanks, located at, on, in or under the Facilities; (C)
there is no asbestos-containing material in any form or condition
located at, on, in or under the Facilities; (D) there are no materials
or equipment containing polychlorinated biphenyls located at, on, in
or under the Facilities, (E) there are no landfills or other areas
located at, on, in or under the Facilities where Hazardous Substances
have been disposed; and (F) DTA has not disposed of any Hazardous
Substance at any offsite disposal area located on the property of any
other Person, other than a facility permitted by any Governmental
Authority with jurisdiction to receive such Hazardous Substance.
33
(c) To the Knowledge of PCC, DTA has not, with respect to the Facilities,
either expressly or by operation of Law, assumed or undertaken any
Liability, including without limitation, any Liability for corrective
or remedial action, of any other Person relating to any Environmental
Laws.
3.12. No Broker.
None of the Asset Sale Company, PCC or the PCC Parent has had any dealings,
negotiations or communications with or retained any broker or other intermediary
in connection with the transactions contemplated by this Agreement and none of
the foregoing is committed to any Liability for any brokers' or finders' fees or
any similar fees in connection with the transactions contemplated hereby, other
than Rothschild Inc., who shall be compensated solely by PCC or an Affiliate of
PCC.
3.13. Powers of Attorney.
There are no outstanding powers of attorney executed on behalf of the Asset
Sale Company affecting the Purchased Assets.
3.14. Transactions With Affiliates.
The Assigned Contracts do not include any Liability between the Asset Sale
Company and any Affiliate of the Asset Sale Company. At the Closing, the
Purchased Assets will not include any receivable or other Liability from an
Affiliate of the Asset Sale Company.
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3.15. Absence of Certain Payments.
During the five (5) year period prior to the date of this Agreement, to the
Knowledge of PCC, neither the Asset Sale Company nor DTA has (nor has any
director, officer, agent, or employee of the Asset Sale Company or DTA nor any
other person, acting on behalf of the Asset Sale Company or DTA) directly or
indirectly: used any of such company's funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; made
any unlawful payment to foreign or domestic government officials or employees or
to foreign or domestic political parties or campaigns from such company's funds;
violated any provision of the Foreign Corrupt Practices Act of 1977 applicable
to such company; established or maintained any unlawful or unrecorded fund of
such company's monies or other assets; made any false or fictitious entry on the
books or records of such company; or made any bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment, to any person or entity, private
or public, regardless of form, whether in money, property, or services, to
obtain favorable treatment in securing business or to obtain special concessions
for such company, or to pay for favorable treatment for business secured or for
special concessions already obtained for such company.
3.16. Disclosure.
The representations and warranties contained in this Article III do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Article III not misleading.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to PCC that:
4.1. Organization.
Buyer is a duly formed limited liability company, validly existing and in
good standing under the Laws of the State of Delaware.
4.2. Execution, Delivery and Performance.
The execution, delivery and performance of this Agreement and each other
agreement or instrument executed in connection herewith or delivered pursuant
hereto and the consummation of the transactions contemplated herein and therein
will not, with or without the giving of notice or the passage of time, or both,
(i) conflict with, or result in a violation or breach of, or a default, right to
accelerate or loss of rights under, or result in the creation of any Lien, under
or pursuant to, any provision of Buyer's organizational documents or of any
franchise, mortgage, deed of trust, lease, license, instrument, agreement,
consent, approval, waiver or understanding, any Law, or any finding, order,
judgment, writ, injunction or decree to which Buyer is a party or by which Buyer
or its respective assets may be bound or affected; or (ii) require the approval,
consent or authorization of, or prior notice to, filing with or registration
with, any Governmental Authority, or any other Person or entity.
4.3. Authorization.
Buyer has full power and authority to enter into and deliver this Agreement
and to perform its obligations hereunder, and each of Buyer and Buyer's Parent
has full power and authority to enter into and deliver each other agreement or
instrument to which it is a party executed in connection herewith or delivered
pursuant hereto and to perform its obligations thereunder. Buyer's execution,
delivery and performance of this Agreement and the execution, delivery and
performance of all other agreements and instruments by Buyer and Buyer's Parent
in connection herewith or delivered pursuant hereto and the transactions
contemplated hereby have been duly authorized by all requisite action on the
part of Buyer and Buyer's Parent. This Agreement and all other agreements or
instruments executed by Buyer or Buyer's Parent in connection herewith or
delivered by Buyer or Buyer's Parent pursuant hereto have been duly executed and
delivered by Buyer and this Agreement and all other agreements and instruments
executed by Buyer or Buyer's Parent in connection herewith or delivered by Buyer
pursuant hereto constitute the legal, valid and binding obligation of Buyer or
Buyer's Parent, as the case may be, enforceable in accordance with their
respective terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally the
enforcement of creditors' rights).
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4.4. No Broker.
Buyer has had no dealings, negotiations or communications with any broker
or other intermediary in connection with the transactions contemplated by this
Agreement nor is it committed to any Liability for any brokers' or finders' fees
or any similar fees in connection with the transactions contemplated hereby.
4.5. Reclamation and Environmental Compliance.
Buyer and all operators it owns or controls are in compliance with all
Environmental Laws in all material respects.
4.6. Financing.
Buyer will have available to it, at the Closing, financial resources
sufficient to consummate the transactions contemplated by this Agreement.
4.7. Disclosure.
The representations and warranties contained in this Article IV do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements and information contained in this
Article IV not misleading.
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ARTICLE V
CERTAIN COVENANTS
5.1. Operation in Ordinary Course.
Except as provided in this Agreement, between the date of this Agreement
and the Closing, PCC shall cause the Asset Sale Company, in relation to the
Purchased Assets, to: (i) carry on its business in the Ordinary Course of
Business; (ii) use commercially reasonable efforts to preserve intact its
current business organization and properties until the Closing Date, and
maintain the relations and good will with its suppliers, customers, landlords,
creditors, agents, and others having business relationships with the Asset Sale
Company; (iii) not enter into any contract or other obligation binding upon the
Asset Sale Company involving its employees, any union, or an expenditure,
purchase, sale, cost or commitment (unless such contract is cancelable in thirty
or fewer days, involves less than $100,000, or is for consumable purchases)
without the prior written consent of Buyer; and (iv) report regularly to Buyer
concerning the status of the business and finances of the Asset Sale Company.
5.2. Compliance with Law.
Between the date of this Agreement and the Closing, the Asset Sale Company
shall comply in all material respects with all applicable Laws and with all
orders of any Governmental Authority.
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5.3. Cooperation.
Subject to the terms and conditions herein provided, each of PCC and Buyer
agrees to use its commercially reasonable efforts to take, or cause to be taken,
all action, and to do, or cause to be done, all things necessary, proper and
advisable under Law, to consummate and make effective the transactions
contemplated by this Agreement, including obtaining the consents, approvals and
releases required by Sections 2.7, 6.1 and 6.3. In case at any time after the
Closing Date any further action is necessary or desirable to carry out the
purposes of this Agreement, PCC and Buyer will, and PCC will cause the Asset
Sale Company and the PCC Parent to, execute any additional instruments
reasonably necessary to consummate the transactions contemplated hereby.
5.4. Notices and Consents.
PCC and Buyer each will use their commercially reasonable efforts to obtain
consents of all Governmental Authorities and other third parties necessary to
the consummation of the transactions contemplated by this Agreement. PCC and
Buyer will use their commercially reasonable efforts to cause the other DTA
Partners to (a) execute such documents as may be necessary to admit Buyer, and
cause the withdrawal and release of the Asset Sale Company, as a full partner in
DTA and (b) amend the Transportation Agreement to evidence the foregoing. PCC
shall have responsibility for providing any notices to third parties that may be
required by the transactions contemplated by this Agreement and for obtaining,
or causing to be obtained, at its sole cost and expense, the consents listed on
Schedule 5.4(a) and Buyer shall have responsibility for obtaining, at its sole
cost and expense, all consents listed on Schedule 5.4(b).
39
5.5. Publicity.
All general notices, releases, statements and communications to any
employees, suppliers, distributors and customers of the Asset Sale Company, to
the general public and to the press relating to the transactions contemplated by
this Agreement shall be made only at such times and in such manner as may be
mutually agreed upon by PCC and Buyer; provided, however, that either party
hereto (or, in the case of PCC, the PCC Parent) shall be entitled to make a
public announcement of the foregoing if: (a) in the opinion of its legal
counsel, such announcement is required to comply with Law or any listing
agreement with any national securities exchange or inter-dealer quotation
system; and (b) such disclosing party gives a reasonable period of notice and
opportunity to comment to the other party hereto of its intention to make such
public announcement; provided that, failure to comment within 24 hours of
receipt of such notice shall be deemed a waiver of the opportunity to comment;
and provided, further, that nothing in this Section 5.5 shall operate to
prohibit the Asset Sale Company or Buyer from communicating, after the Closing
Date, with their respective suppliers, distributors, customers and Governmental
Authorities the fact that the transaction has occurred or to employees regarding
their employment or the terms and conditions thereof, the operation of the
Purchased Assets or matters necessarily related thereto.
5.6. Exclusivity.
PCC will not (nor will it cause or permit the Asset Sale Company or the PCC
Parent to) (i) solicit, initiate or encourage the submission of any proposal or
offer from any Person relating directly or indirectly to the acquisition of the
Purchased Assets, or any portion thereof, or (ii) participate in any discussions
or negotiations regarding, furnish any information with respect to, assist or
participate in, or facilitate in any other manner, any effort or attempt by any
Person to do or seek any of the foregoing. PCC will notify Buyer immediately if
any Person makes any proposal, offer, inquiry or contact with respect to any of
the foregoing.
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5.7. Access.
At or prior to the Closing Date, PCC will permit (and will cause the Asset
Sale Company to permit) representatives of Buyer to have full access at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Asset Sale Company, to all premises, properties,
personnel, books, records (including Tax records), contracts and documents of or
pertaining to the Purchased Assets. Copies of and access to accounting records,
ledgers and other pertinent documents or work papers related to the Purchased
Assets will be made available to Buyer at all reasonable times, and in a manner
so as not to interfere with the normal business operations of the Asset Sale
Company, upon request.
5.8. Notice of Developments.
Each party will give prompt written notice to the other party of any
material adverse development causing a breach of any of its own representations
and warranties in Article III and Article IV above. No disclosure by any party
pursuant to this Section 5.8, however, shall be deemed to amend or supplement
the Schedules to such representations and warranties or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant.
5.9. Further Assurances.
The parties shall cooperate in a commercially reasonable manner with each
other and with their respective representatives in connection with any steps
required to be taken as part of their respective obligations under this
Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents; and (c)
do such other acts and things, all as the other party may reasonably request for
the purpose of carrying out the intent of this Agreement and the transactions
contemplated.
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5.10. Voting Agreement.
(a) In furtherance of the desire of the parties that Buyer have all
the rights of a full partner in DTA, PCC hereby agrees that, from and after
the Closing Date, until such time as Buyer shall have been admitted as a
full partner in DTA, PCC shall, or shall cause the Asset Sale Company to,
give Buyer prior written notice of any matter submitted to the DTA partners
(whether such matter is submitted to a vote, written consent or other
approval) (a "Partner Matter"). The notice provided to Buyer shall include
a description of the Partner Matter and the date and time fixed for taking
action on such Partner Matter, and such notice shall be given no later than
the earlier of (a) two days after the Asset Sale Company becomes aware
(whether by written notice or otherwise) of any Partner Matter to be
submitted to the DTA partners for consideration and (b) prior to the time
any action is taken on such Partner Matter. As soon as practicable
following receipt of such notice by Buyer, and in any event no later than
the time specified for action in such notice, Buyer shall inform PCC or the
Asset Sale Company in writing of how Buyer would elect to vote, whether
Buyer would grant consent or approval, or how Buyer would elect to act on
the Partner Matter and PCC shall cause the Asset Sale Company to vote its
interest as a partner in DTA as Buyer may so instruct, subject to the
Retained Contract Rights and Section 5.10(b) hereof. Alternatively, at
Buyer's request, the Asset Sale Company shall appoint a person designated
by Buyer, in its sole discretion, as the agent of the Asset Sale Company
(the "Buyer Designee"), pursuant to the Consortium Agreement and the other
Consortium Documents, to (i) receive all notices regarding Partner Matters,
(ii) attend or otherwise participate in any meetings of the DTA Partners
and (iii) vote on Partner Matters, subject to the Retained Contract Rights
and Section 5.10(b) hereof. Buyer agrees to, or to cause the Buyer Designee
to: (i) send a copy of each written notice received by the Buyer Designee
regarding a Partner Matter within two days after receipt of such notice to
the Asset Sale Company; (ii) when possible, give the Asset Sale Company an
opportunity to have a representative observe meetings of the DTA partners;
and (iii) deliver to the Asset Sale Company a written summary of all
actions taken with respect to a Partner Matter within two days of such
action. Buyer agrees to indemnify and hold harmless the Pittston
Indemnified Persons from any and all Adverse Consequences resulting from
actions by the Asset Sale Company pursuant to this Section 5.10 or by the
Buyer Designee (as such terms are defined in the Indemnification and
Guaranty Agreement). On the Closing Date, Buyer shall, and PCC shall cause
the Asset Sale Company to, enter into the Voting Agreement. The parties
acknowledge and agree that the Voting Agreement shall be assignable by
Buyer to a third party Transferee in connection with a Transfer pursuant to
Section 5.11 or to an Affiliate.
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(b) Pursuant to this Asset Purchase Agreement, the Asset Sale Company
has retained as part of the Retained Contract Rights any and all rights to
take, and to cause DTA to take or prevent DTA from taking, any action in
respect of the Retained Contract Rights, the Loan Agreement or the DTA
Revenue Bonds. In the event Buyer exercises its rights under the Voting
Agreement, Buyer shall not, and shall not permit DTA to, take any action in
respect of the Retained Contract Rights, the Loan Agreement, the DTA
Revenue Bonds, or any other action that creates a Liability for the Asset
Sale Company related to the DTA Revenue Bonds. Further, Buyer shall not,
and shall not permit DTA to, breach any provision or covenant contained in
Sections 2.2(f), 3.2, 6.1, 6.3 and 6.4 of the Loan Agreement.
5.11. Subsequent Transfer of Purchased Assets.
If, at any time following the Closing Date, but prior to the time that
Buyer has been admitted (and the Asset Sale Company released) as a full partner
in DTA, Buyer (or any of its Affiliates) desires to sell, assign or otherwise
transfer (a "Transfer") all or any portion of the Purchased Assets to another
Person (the "Transferee"), then Buyer shall provide written notice of such
proposed Transfer to PCC, together with a copy of the most recent financial
statements of such Transferee, which PCC shall agree to keep confidential and
not use for any purpose other than evaluating the creditworthiness of the
Transferee. Provided that the net assets (i.e., total assets minus total
liabilities) of the Transferee as of the date of such most recent financial
statements and as of the date of such Transfer is not less than $25,000,000,
then PCC shall consent to such Transfer and shall, and shall cause the Asset
Sale Company to, take all actions as may be reasonably requested by Buyer to
effect the Transfer and use its commercially reasonable efforts to cause the
Transferee to be admitted as a full partner of DTA (and, in the event the
Transferee is not so admitted as a DTA Partner, to provide the Transferee with
the same rights and benefits as provided to Buyer hereunder in respect of the
Purchased Assets and the Asset Sale Company's partnership interest in DTA,
including without limitation, the rights set forth in the Voting Agreement);
each of Buyer and PCC shall be required to bear its own costs and expenses of
all such actions only in respect of one such Transfer (regardless of whether
such Transfer involves a transfer of all or a portion of Buyer's interest in
DTA), and Buyer shall be required to bear the costs and expenses of all such
actions (and shall reimburse PCC and the Asset Sale Company promptly upon
request for any expense reasonably incurred by them in connection with such
actions) with respect to any additional Transfer of Purchased Assets.
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ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1. Conditions Precedent to Each Party's Obligations.
The respective obligations of each party to consummate the transactions
contemplated by this Agreement are subject to the satisfaction at or prior to
the Closing Date of the following conditions precedent:
(a) no action, suit, proceeding, order, decree or injunction shall
have been commenced, threatened or entered by or before any Governmental
Authority that remains in force and that (i) prohibits, seeks to prohibit,
or imposes or seeks substantial damages in connection with, the
consummation of the transactions contemplated by this Agreement, (ii) seeks
or imposes relief that causes or would cause any of the transactions
contemplated by this Agreement to be rescinded following consummation, or
(iii) affects adversely the right of Buyer to own the Purchased Assets or
to operate the Business on or after the Closing Date;
(b) PCC Parent, PCC, Buyer and Buyer's Parent shall have executed and
delivered to each other party thereto the Indemnification and Guaranty
Agreement and any other documentation required in all transactions
contemplated or covered by such agreement, in form and substance as set
forth in Exhibit C attached hereto and the same shall be in full force and
effect;
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(c) All other transactions pursuant to which Buyer or any of its
Affiliates acquire assets related to the Business shall have been
consummated prior to or simultaneously with the transactions contemplated
by this Agreement;
(d) PCC and Buyer shall have executed and delivered to each other all
such other documents or instruments necessary or appropriate to effect the
transactions contemplated by this Agreement; and
(e) PCC shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(i) and PCC shall have provided such
payments and/or assurances as may be reasonably required to obtain all such
consents. Buyer shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(ii) and Buyer shall have provided such
payments, guarantees and/or assurances as may be reasonably required to
obtain all such consents.
6.2. Conditions Precedent to Obligations of Buyer.
The obligations of Buyer to consummate the transactions contemplated by
this Agreement are subject to the satisfaction or waiver at or prior to the
Closing Date of the following conditions precedent:
(a) all of the representations and warranties of PCC set forth in this
Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, without regard to any qualification or limitation with respect to
materiality (whether by reference to "Material Adverse Effect" or
otherwise), shall be true and correct in all respects as of the date hereof
and at and as of the Closing Date with the same effect as though such
representations and warranties were made at and as of the Closing unless
the aggregate failure of such representations or warranties to be true and
correct does not have a Material Adverse Effect; provided that if a
representation or warranty is expressly made only as of a specific date, it
need only be true and correct in all respects as of such date, and Buyer
shall have received the PCC Closing Certificate required by Section 6.2(g)
below dated as of the Closing Date executed by PCC to such effect;
(b) all of the covenants and obligations that PCC is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing Date shall have been duly performed and complied with in all
material respects;
(c) all proceedings and actions, corporate or other, to be taken by
PCC, the Asset Sale Company or PCC Parent in connection with the
transactions contemplated by this Agreement and all documents incident
thereto, including all actions necessary to authorize the execution,
delivery and performance of this Agreement and the transactions
contemplated hereby, shall have been taken and shall be reasonably
satisfactory in form and substance to Buyer and Buyer's counsel;
(d) PCC shall have, and shall have caused the Asset Sale Company to
have, executed and delivered the Assignment and Assumption Agreements and
such other documents as may be necessary to convey to Buyer the Purchased
Assets;
(e) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that, individually, or
together with any other change, event or occurrence, has had or could
reasonably be expected to have a Material Adverse Effect;
(f) Buyer shall have received an opinion of counsel to PCC addressed
to Buyer substantially in the form of Exhibit E; and
(g) Buyer shall have received an executed copy of the PCC Closing
Certificate.
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6.3. Conditions Precedent to Obligations of PCC.
The obligation of PCC to consummate and cause the consummation of the
transactions contemplated by this Agreement is subject to the satisfaction or
waiver at or prior to the Closing Date of the following conditions precedent:
(a) all of the representations and warranties of Buyer set forth in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, without regard to any qualification or limitation with respect to
materiality, shall be true and correct in all respects as of the date
hereof and at and as of the Closing Date with the same effect as though
such representations and warranties were made at and as of the Closing
unless the aggregate failure of such representations or warranties to be
true and correct does not have a material adverse effect on Buyer's ability
to consummate the transactions contemplated by this Agreement or fulfill
its post-Closing obligations hereunder; provided that if a representation
or warranty is expressly made only as of a specific date, it need only be
true and correct in all respects as of such date, and PCC shall have
received Buyer's Closing Certificate required by Section 6.3(g) below dated
as of the Closing Date executed by Buyer to such effect;
(b) all of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing Date shall have been duly performed and complied with in all
material respects;
(c) all proceedings and actions, corporate or other, to be taken by
Buyer and Buyer's Parent in connection with the transactions contemplated
by this Agreement, and all documents incident thereto, including all
actions necessary to authorize the execution, delivery and performance of
this Agreement and the transactions contemplated hereby, shall have been
taken and shall be reasonably satisfactory in form and substance to PCC and
its counsel;
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(d) Buyer shall have executed and delivered the Assignment and
Assumption Agreements (subject to Section 2.7) and such other documents as
may be necessary for Buyer to assume all of the Assumed Liabilities;
(e) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that, individually, or
together with any other change, event or occurrence, has had or could
reasonably be expected to have a Material Adverse Effect;
(f) PCC shall have received an opinion of counsel to Buyer addressed
to PCC substantially in the form of Exhibit F;
(g) PCC shall have received an executed copy of Buyer's Closing
Certificate; and
(h) PCC and PCC Parent shall have been released from all requirements
and obligations related to the Assumed Liabilities for the period after the
Closing Date.
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ARTICLE VII
CERTAIN TAX MATTERS
7.1. Distributive Share of DTA for 2002.
Within 15 days after Closing, if Buyer has been admitted as a partner in
DTA, PCC and Buyer agree that they shall jointly request DTA to determine each
DTA partner's (including Buyer) 2002 distributive share of any item of income,
gain, loss, deduction or credit of the partnership by not only closing the books
at year end, but also by determining the distributive share of the items noted
as if the books were closed on the Closing Date. The intent under this section
is not to simply allocate such items between PCC and Buyer based upon the number
of days of partnership interest ownership in calendar year 2002.
7.2. Transfer Taxes.
All transfer, recording and similar Taxes arising in connection with the
transactions contemplated hereunder shall be borne equally by PCC and Buyer. PCC
and Buyer shall (and they shall cause their respective Affiliates to) cooperate
to comply with all Tax Return requirements for such Taxes and provide such
documentation and take such other actions as may be necessary to minimize the
amount of any such Taxes.
7.3. Access for Tax Returns.
Following the Closing Date, Buyer shall, at reasonable times, and in a
manner so as not to interfere with normal business operations, allow PCC (and if
requested by PCC, representatives of federal, state or local agencies) access to
the Purchased Assets for purposes of reviewing information pertinent to any Tax
Return filed by PCC Parent or any of its Affiliates, including the Asset Sale
Company.
ARTICLE VIII
TERMINATION
8.1. Termination.
This Agreement may be terminated prior to the Closing Date
only as follows:
(a) by mutual written consent of PCC and Buyer;
(b) by either PCC or Buyer, if the Closing Date shall not have
occurred prior to the close of business on December 31, 2002 or such later
date as the parties may agree in writing (provided, that the right to
terminate this Agreement under this Section 8.1(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause, in whole or in part, of, or has resulted in, the
failure of the conditions in Article VI to be satisfied and the Closing
Date to occur on or before such date);
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(c) by PCC or Buyer if an action, suit, or proceeding, shall have been
commenced or threatened by or before any Governmental Authority, or any
order, decree or injunction shall have been entered therein, that (i)
prohibits, seeks to prohibit, or imposes or seeks substantial damages in
connection with, the consummation of the transactions contemplated by this
Agreement, (ii) seeks or imposes relief that causes or would cause any of
the transactions contemplated by this Agreement to be rescinded following
consummation or (iii) affects adversely the right of Buyer to own the
Purchased Assets or to operate the Business;
(d) by Buyer if (i) the representations of PCC contained in this
Agreement are not true and correct in all material respects as if made at
and as of that time, except for failures to be true and correct that are
capable of being and are cured within fifteen (15) days after written
notice from Buyer to PCC of such failure or (ii) PCC has failed to comply
materially with its respective obligations under this Agreement, except for
failures to comply that are capable of being and are cured within fifteen
(15) days after written notice from Buyer to PCC of such failure; or
(e) by PCC if (i) the representations of Buyer contained in this
Agreement are not true and correct in all material respects as if made at
and as of that time, except for failures to be true and correct that are
capable of being and are cured within fifteen (15) days after written
notice from PCC to Buyer of such failure or (ii) Buyer has failed to comply
materially with its obligations under this Agreement, except for failures
to comply that are capable of being and are cured within fifteen (15) days
after written notice from the PCC to Buyer of such failure.
8.2. Effect of Termination.
If this Agreement is terminated pursuant to Section 8.1 hereof, all further
obligations of the parties under or pursuant to this Agreement shall terminate
without further Liability of either party to the other except: (a) as set forth
in Section 9.4; and (b) for breaches of representations, warranties, or
covenants or for fraud. PCC and Buyer hereby agree that the provisions of this
Section 8.2 and of Section 9.4 shall survive any termination of this Agreement
pursuant to the provisions of this Article VIII.
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ARTICLE IX
MISCELLANEOUS
9.1. Entire Agreement.
This Agreement, the documents referred to herein and to be delivered
pursuant hereto and any other agreement entered into contemporaneously with this
Agreement among PCC, PCC Parent, Buyer and Buyer's Parent or the Affiliates of
any of them constitute the entire agreement between the parties pertaining to
the subject matter hereof, and supersede all prior agreements, understandings,
negotiations and discussions of the parties, whether oral or written, and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein or therein.
9.2. Amendment.
This Agreement may be amended by an instrument in writing and signed on
behalf of all of the parties hereto at any time.
9.3. Extension; Waiver.
At any time prior to the Closing Date, the parties may (i) extend the time
for the performance of any of the obligations or other acts of the other parties
hereto, (ii) waive any inaccuracies in the representations and warranties
contained herein or in any document, certificate or writing delivered pursuant
hereto or (iii) waive compliance with any of the agreements or conditions
contained herein, other than the conditions contained in Section 6.1(a) hereof
as it relates to the entry of an order in any proceeding by or before a
Governmental Authority. Any agreement on the part of any party to any such
extension or waiver shall be valid only if set forth in an instrument in writing
and signed on behalf of such party.
9.4. Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto shall pay the fees and expenses of their
respective counsel, investment bankers, financial advisors, accountants and
other experts and the other expenses incident to the negotiation and preparation
of this Agreement and consummation of the transactions contemplated hereby.
9.5. Bulk Sales Waiver.
Buyer hereby waives compliance with all applicable bulk sales Laws.
9.6. Governing Law.
This Agreement shall be construed and interpreted according to the Laws of
the Commonwealth of Virginia, without regard to the conflicts of Law rules
thereof.
9.7. Assignment.
This Agreement and each party's respective rights hereunder may not be
assigned at any time except as expressly set forth herein without the prior
written consent of the other party, provided that PCC may assign its rights
hereunder to any Affiliate of PCC after the Closing Date without the consent of
Buyer and Buyer may assign its rights hereunder to any Affiliate of Buyer prior
to, at or after the Closing Date without the consent of PCC and, further
provided, that nothing in this Agreement shall prevent a successor in interest
to either party from enforcing the provisions of this Agreement.
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9.8. Notices.
All communications, notices and disclosures required or permitted by this
Agreement shall be in writing and shall be deemed to have been given when
delivered personally or by messenger or by overnight delivery service, or within
five days of being mailed by registered or certified United States mail, postage
prepaid, return receipt requested, or, in the case of notices pursuant to
Section 5.10 hereof, by confirmed facsimile on the business day transmitted, if
such facsimile transmission was sent prior to 5:00 p.m., in all cases addressed
to the person for whom it is intended at his address set forth below or to such
other address as a party shall have designated by notice in writing to the other
party in the manner provided by this Section 9.8:
If to PCC: Pittston Coal Company
000 X.X. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to: Pittston Coal Company
c/o The Pittston Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
Facsimile: (000) 000-0000
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And a copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Heuhsen, Esq.
Facsimile: (000) 000-0000
If to Buyer: Alpha Terminal Company, LLC
c/o Alpha Natural Resources, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President
Facsimile:
With a copy to: First Reserve Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile:
First Reserve Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile:
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile:
9.9. Counterparts; Headings.
This Agreement may be executed in several counterparts, each of which shall
be deemed an original, but such counterparts shall together constitute but one
and the same Agreement. The Table of Contents and Article and Section headings
in this Agreement are inserted for convenience of reference only and shall not
constitute a part hereof.
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9.10. Interpretation; Construction.
(a) Unless the context requires otherwise, all words used in this
Agreement in the singular number shall extend to and include the plural,
all words in the plural number shall extend to and include the singular and
all words in any gender shall extend to and include all genders.
(b) This Agreement has been fully negotiated by the parties hereto and
shall not be construed by any Governmental Authority or arbitrator against
either party as the drafting party.
9.11. Severability.
If any provision of this Agreement is held invalid or unenforceable by any
court of competent jurisdiction, the other provisions of this Agreement will
remain in full force and effect. Any provision of this Agreement held invalid or
unenforceable only in part or degree will remain in full force and effect to the
extent not held invalid or unenforceable.
9.12. No Reliance.
No third party is entitled to rely on any of the representations,
warranties and agreements contained in this Agreement and PCC and Buyer assume
no Liability to any third party because of any reliance on the representations,
warranties and agreements of PCC and Buyer contained in this Agreement, other
than Section 5.5 hereof, which are intended to be for the benefit of the Persons
expressly covered thereby and may be enforced by such Persons.
9.13. Retention of and Access to Records.
After the Closing Date, Buyer shall retain for a period consistent with
Buyer's record retention policies and practices those books and records relating
to the Asset Sale Company delivered to Buyer. Buyer also shall provide to PCC
and its Affiliates reasonable access thereto, during normal business hours and
on at least three days' prior written notice, to enable them to prepare
financial statements or Tax Returns or deal with Tax audits or litigation. Buyer
shall deliver to PCC at least thirty days written notice prior to the
destruction or other disposal of any such books and records. PCC and its
Affiliates may elect to take delivery of any such books and records that Buyer
intends to destroy or otherwise dispose of and to copy any such books and
records that Buyer intends to keep, all at their own expense.
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9.14. Arbitration.
Any dispute, controversy or claim arising out of or relating to this
Agreement (a "Dispute"), excluding any dispute or disagreement among the parties
concerning the allocation of the Assumed Liabilities, which shall be resolved
pursuant to Section 2.8, or with respect to the Voting Agreement, which shall be
resolved pursuant to the provisions thereof, shall be decided by binding
arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association. PCC and Buyer shall jointly select one arbitrator. If
the two parties shall fail to select an arbitrator within fourteen calendar days
after arbitration is requested, then such arbitrator shall be selected by the
American Arbitration Association or any successor thereto upon application of
either party. No Dispute shall be consolidated in any arbitration with any
dispute, claim or controversy of any other party. The arbitration shall be
conducted in Roanoke, Virginia, and any court having jurisdiction thereof may
immediately issue judgment on the arbitration award. The parties agree that the
arbitration provided for in this Section 9.14 shall be the exclusive means to
resolve all Disputes.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
PITTSTON COAL COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Development
and Technical Resources
ALPHA TERMINAL COMPANY, LLC
By: /s/ Xxxxx Xxxxx
-------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
