EXHIBIT 10.29
FINAL
ASSET PURCHASE AGREEMENT
by and between
TMD Acquisition Corporation,
Buyer,
and
ASARCO LLC
Seller
Dated as of March _____, 2005
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (the "Agreement") is made and entered into as of
the ________ day of March, 2005, by and between TMD Acquisition Corporation, a
Tennessee corporation ("Buyer"), and ASARCO LLC, a Delaware limited liability
company ("Seller"). Defined terms are set forth in Article I.
RECITALS
A. Buyer desires to purchase from Seller the Assets and to assume the
Assumed Liabilities, on the following terms and conditions; and
B. Seller desires to sell to Buyer the Assets and to assign to Buyer the
Assumed Liabilities, on the following terms and conditions.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual
covenants, representations, warranties, conditions, and agreement hereinafter
expressed, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
1.1. "Action" means any suit, action, claim, hearing, administrative action,
demand, demand letter, Governmental investigation, notice of violation,
agreement, understanding, or proceeding arising out of any violation or alleged
violation of any Law or any breach or alleged breach of any Contract.
1.2. "Affiliate" means a Person that directly, or indirectly through one or more
intermediaries, controls, is controlled by, or is under common control with, the
Person referred to. In this definition, "control" means the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of securities, by contract, or
otherwise.
1.3. "Agreement" has the meaning set forth in the Preamble to this Agreement.
1.4. "Asarco Group Liabilities" means liabilities which pertain to the operating
business of Asarco generally, and which were not incurred directly by or on
behalf of the Business.
1.5. "Assets" has the meaning set forth on Schedule 1.5 attached hereto.
1.6. "Assignment and Assumption Agreement" means the instrument in a form
reasonably acceptable to Buyer to be delivered at Closing whereby Buyer shall
assume the Assumed Liabilities.
1.7. "Assumed Liabilities" means only those Liabilities of Seller relating to or
arising out of the ownership or use of the Assets which are specified on
Schedule 1.5 attached hereto, and
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which exclude from the definition thereof (i) the Excluded Liabilities; (ii)
Asarco Group Liabilities; and (iii) any Liability which results from or arises
out of any fact, occurrence or event which constitutes a breach of a
representation or warranty of Seller contained in this Agreement, including
without limitation, any Schedule or Exhibit attached hereto or delivered
herewith, as the same may be amended, modified or updated between the date
hereof and the Closing Date.
1.8. "Authorizations" means all permits, licenses, certificates, grants or other
authorizations of Governmental Authorities.
1.9. "Xxxx of Sale" means the instrument in a form acceptable to Buyer which
will be delivered at Closing conveying title to those Assets which are personal
property.
1.10. "Business" means the Tennessee Mines Division zinc business of Seller
conducted or owned as of the date of this Agreement, consisting of, among other
things, the Young, Xxxxx and Xxx xxxxx, the Xxxxx concentrator, and the Middle
Tennessee exploration properties, and including in all cases, without
limitation, operations, impoundments and processing and other facilities
incidental and ancillary to each of the foregoing.
1.11. "Buyer" means TMD Acquisition Corporation, a Tennessee corporation.
1.12. "Closing" means the consummation of the transactions contemplated by this
Agreement.
1.13. "Closing Date" means the earliest practicable date following the
satisfaction or waiver by each Party of the other Party's conditions to Closing
as set forth in Articles VI and VII to this Agreement, but in no event later
than August 1, 2005, or such other date as the Parties may agree in writing.
1.14. "Communication" means any verbal or written communication or document
relating to the Business (including, without limitation, the Information
Memorandum or any similar document) whether prepared or transmitted by Seller or
any Affiliate of Seller, or a representative of Seller, and supplied to or on
behalf of Buyer prior to or after the date hereof or in any presentation of the
Business in connection with the transactions contemplated by this Agreement.
1.15. "Confidentiality Agreement" means that certain agreement entered into
between Buyer and Seller and dated as of June 3, 2004.
1.16. "Consideration" has the meaning set out in Section 2.3.
1.17. "Contingent Closing Payment" means a cash payment in the amount of up to
$1.5 million, paid to Seller in cash at the Closing. If the Buyer receives net
proceeds from Buyer's financing of at least $22.5 million the Contingent Closing
Payment to Seller shall be the incremental net proceeds of Buyer's financing
above $22.5 million not to exceed $1.5 million and any difference between the
actual Contingent Closing Payment and $1.5 million shall be paid to Seller by
delivery at the Closing of the Note.
1.18. "Contract" means any contract, agreement, arrangement, understanding,
lease, indenture, note, bond (including, but not limited to, industrial revenue
bonds), evidence of indebtedness,
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undertaking, binding commitment or instrument, or purchase order entered into or
made by or on behalf of Seller in connection with the Business.
1.19. "Court" means any court, grand jury, administrative or regulatory body,
Government agency, arbitration or mediation panel or similar body.
1.20. "Dollars" or "$" means United States Dollars.
1.21. "Effective Time" means the effective time of the Closing, which shall be
as of 11:59 p.m. on the day preceding the Closing Date.
1.22. "Environment" means all components of the earth, including land, air,
water, any layer of the atmosphere, any organic or inorganic matter and any
living organism including humans.
1.23. "Environmental Claims" means all third-party Actions, Liens or
Governmental Orders arising out of any violation or alleged violation of any
Environmental Laws or Environmental Permits, including but not limited to (i)
any and all Environmental Claims by Governmental Authorities for enforcement,
cleanup, removal, response, remedial or other actions or damages pursuant to any
applicable Environmental Laws and Environmental Permits, and (ii) Environmental
Claims by any third-party seeking damages, contribution, indemnification, cost
recovery, compensation, private or Governmental enforcement or injunctive relief
resulting from Hazardous Substances or arising from alleged injury or threat of
injury to the Environment.
1.24. "Environmental Health and Safety Laws" has the meaning given to it in
Section 3.10(k) of this Agreement.
1.25. "Environmental Permits" means all permits, registrations, approvals,
identification numbers, authorizations, and licenses, any renewals of
Environmental Permits and all filings with applications to and submissions to
any Governmental Authority or other authority, required by any applicable
Environmental Laws.
1.26. "Escrow Agent" means the escrow agent identified in the Escrow Agreement.
1.27. "Escrow Agreement" means an agreement entered into among Buyer, Seller and
the Escrow Agent within ten (10) days from the date of this Agreement, and
substantially in the form of Exhibit A attached hereto.
1.28. "Escrowed Funds" means the sum of $250,000 payable by Buyer within ten
(10) days from the date of this Agreement into an escrow account to be
maintained by the Escrow Agent in accordance with the terms of the Escrow
Agreement, and which amounts are to be paid over to Seller at Closing.
1.29. "Excluded Assets" means those assets of Seller that are specifically
described on Schedule 1.29 attached hereto, and "Excluded Liabilities" means
those specific Liabilities of Seller that are specifically described on Schedule
1.29 attached hereto.
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1.30. "Guaranteed Closing Payment" means a cash payment of $6.5 million, payable
at the Closing, and comprising, in part, all Escrowed Funds available for
payment over to Seller at the Closing Date as set forth herein.
1.31. "Government" or "Governmental" means or refers to the United States of
America, any other nation or sovereign state, any federal, bilateral or
multilateral governmental authority, any Indian tribe, state, possession,
territory, county, district, city or other governmental unit or subdivision, and
any branch, agency, or judicial body of any of the foregoing.
1.32. "Governmental Authority" means any federal, Indian tribe, state, municipal
or local Government or authority, regulatory or administrative agency,
commission, department, board, bureau, agency, instrumentality, Court, tribunal,
arbitrator or arbitral body of any Government.
1.33. "Governmental Order" means any Order, writ, rule, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
1.34. "Hazardous Substances" has the meaning given to it in Section 3.10(e).
1.35. "HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976
(incorporated as Section 7A of the Xxxxxxx Act), as amended.
1.36. "Indemnified Losses" means Losses, plus reasonable attorneys' fees and
expenses incurred in connection with Losses and/or enforcement of this
Agreement.
1.37. "Indemnified Party" means the Party that is seeking indemnification
pursuant to the terms of this Agreement.
1.38. "Indemnifying Party" means the Party from whom indemnification is sought
pursuant to the terms of this Agreement.
1.39. "Information Memorandum" means that certain "Information Memorandum for
the Tennessee Mines Division" dated May, 2004 provided by Seller to Buyer in
connection with the transactions contemplated by this Agreement.
1.40. "Intellectual Property" means the patents, trademarks, service marks,
trade names, copyrights, and copyrighted works, registrations thereof and
applications therefore, and including without limitation, all good will
associated with any of the foregoing, used by Seller solely in connection with
the Business; and licenses, sublicenses, assignments, and agreements in respect
of any of the foregoing.
1.41. "Knowledge" has the meaning given to it in Section 3.14(b).
1.42. "Law" means any statute, law, code, treaty, ordinance, rule, regulation,
instrument, directive, decree, agreement, policy, Order, consent decrees and
consent orders, or injunction of or with any Government, Governmental Authority,
quasi-Governmental authority, or Court, and includes without limitation all
judicial and administrative interpretations thereof, and all rules or
regulations of any regulatory or self-regulatory authority compliance with which
is required by Law.
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1.43. "Liabilities" means liabilities and obligations, whether known or unknown,
contingent or absolute, liquidated or unliquidated, and whether or not required
to be reflected on the financial statements of a business, whether arising under
any Contract, Law, Lien, Order, Plan, Royalty or otherwise.
1.44. "Lien" means any lien, security interest, mortgage, deed of trust, option,
lease, tenancy, occupancy, covenant, condition, easement, agreement, Royalty,
pledge, hypothecation, charge, claim or other encumbrance.
1.45. "Losses" means any and all claims, losses, damages, Liabilities, expenses
or costs.
1.46. "Material Adverse Effect" means a material adverse effect on the business,
operations, results of operations, properties, business prospects, earnings,
liabilities or condition, financial or otherwise on the Business taken as a
whole.
1.47. "Note" means that certain promissory to be delivered by Buyer to Seller at
Closing, and having a principal amount equal to $1.5 million, less the amount of
the Contingent Closing Payment actually paid to Seller at the Closing, and in a
form to be agreed upon by the Parties not less than thirty (30) days prior to
the Closing. The term of the Note shall be no longer than one year and the
interest rate shall be 2% over LIBOR.
1.48. "NSR Royalty" means the net smelter return Royalty on zinc produced from
the Assets, granted by Buyer as part of the Purchase Price. The NSR Royalty
shall be capped at the aggregate amount of $10 million, and shall be calculated
as follows: Where the closing zinc price is less than 46.00 cents per pound
there shall be no NSR Royalty payable; where zinc price is 46.00 cents per
pound, the NSR Royalty shall be 2.5000%; the NSR Royalty shall be increased
proportionately from 2.5000% at 46.00 cents per pound to 3.0000% at 60.00 cents
per pound. For example, if zinc prices average 52.45 cents per pound, the
royalty would be calculated as follows: 2.5000% + [($0.5245-$0.4600)/($0.1400))
x 0.5000%] = 2.7307%; the NSR Royalty shall be 3.0000% at zinc prices of 60.00
cents per pound or above. All zinc prices in this section mean the simple
average of the daily closing zinc price on the London Metals Exchange for any
given calendar quarter. The NSR Royalty shall be granted by Buyer to Seller at
Closing by a deed (the "NSR Royalty Deed") in a form to be agreed upon by the
Parties not less than thirty (30) days prior to the Closing.
1.49. "Order" means any order, judgment, writ, injunction, award or decree of
any Court or Government.
1.50. "Ordinary Course" means, with respect to the Business (or part thereof),
the ordinary course of commercial operations customarily engaged in by the
Business (or such part thereof) consistent with past practices.
1.51. "Party" means either Buyer or Seller, and "Parties" means both of them.
1.52. "Person" means any natural person, any corporation, partnership, limited
liability company, limited liability partnership, joint venture, trust,
association, company, or other legal entity, and any Government.
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1.53. "Purchase Price" means the following:
(i) the Guaranteed Closing Payment;
(ii) either the Contingent Closing Payment, the Note, or both (as
applicable); and
(iii) the NSR Royalty Deed.
1.54. "Real Property" means each parcel of real property included in the Assets,
including without limitation all mines, dumps, impoundments, xxxxx pads,
tailings, buildings, plants, warehouses, railroad tracks, rights of way,
easements, facilities and other improvements and fixtures thereon and
appurtenances thereto and all mining and mineral rights associated therewith
(whether pursuant to patented or unpatented mining claims, mineral leases or
otherwise), to the extent owned or leased by Seller.
1.55. "Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, migrating, leaching, seeping,
dumping or disposing into the Environment.
1.56. "Royalty" means any share of sales, profit or mineral product reserved by
the owner of property for permitting another to use the property or produce
mineral products from the property.
1.57. "Schedules" means the schedules provided for and referred to in this
Agreement.
1.58. "Seller" means ASARCO LLC, a Delaware limited liability company.
1.59. "Taxes" means all taxes, charges, fees, duties, levies or other like
assessments imposed or assessed by any Government, including income, profits,
windfall profit, severance, employment (including Social Security, state pension
plans, and unemployment insurance), withholding, payroll, franchise, gross
receipts, sales, use, transfer, stamp, occupation, real or personal property, ad
valorem, value added, premium, and excise taxes; and shall include all
penalties, fines, assessments, additions to tax, and interest resulting from or
incurred in connection with such Taxes or in connection with such penalties,
fines, assessments or additions to Tax. Any one of the foregoing Taxes maybe
referred to sometimes as a "Tax."
1.60. "Taxing Authority" means any Government or Governmental Authority
responsible for the imposition or collection of any Tax.
1.61. "Transfer Taxes" means all excise, sales, use, transfer (including Real
Property transfer or gains), stamp, documentary, filing, recordation and other
similar Taxes and fees which may be imposed or assessed as a result of the
transactions effected pursuant to this Agreement, together with any interest,
additions or penalties with respect thereto and any interest in respect of such
additions or penalties.
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ARTICLE II.
PURCHASE AND SALE OF ASSETS
2.1. ASSETS TO BE PURCHASED. Subject to the terms and conditions hereof, on the
Closing Date and as of the Effective Time, Seller shall sell to Buyer the Assets
owned by Seller and used or useful in the conduct of the Business. Schedule 1.5
is a true and complete listing of all Assets.
2.2. ASSUMED LIABILITIES. Subject to the terms and conditions hereof, on the
Closing Date and as of the Effective Time, Seller shall assign and transfer to
Buyer, and Buyer shall assume, all of the Assumed Liabilities. Except for the
Assumed Liabilities, Seller shall be and remain solely liable and responsible
for all other debts, obligations, duties, and Liabilities of Seller and the
Business. Buyer does not and shall not assume, accept liability for, agree to
pay or pay any other debts, obligations, duties or Liabilities of any nature of
Seller or the Business.
2.3. CONSIDERATION. The Consideration shall be the Purchase Price, plus the
amount of the Assumed Liabilities. The allocation of the Purchase Price and the
Consideration shall be as set forth on Schedule 2.3 hereof, which shall be
agreed upon within thirty (30) days prior to the Closing, initialed by both
parties and attached to this Agreement for the Closing. The Parties agree to
report this transaction for federal, state and local tax purposes consistently
and in accordance with such Schedule 2.3.
2.4. CLOSING. The Closing shall take place at 9:00 a.m. on the Closing Date at
the offices of the Seller in Phoenix, AZ, or at such other time and place as the
Parties may agree in writing.
2.5. DELIVERIES OF SELLER AT CLOSING. At Closing, subject to performance of all
conditions to Seller's obligations in Article VII, Seller shall execute and
deliver or cause to be delivered the documents identified in Article VI.
2.6. DELIVERIES OF BUYER AT CLOSING. At Closing, subject to the conditions to
Buyer's obligations in Article VI, Buyer shall (a) execute and deliver or cause
to be delivered the documents identified in Article VII, (b) transfer by wire
transfer in immediately available funds, to an account designated by Seller, the
cash portion of the Purchase Price, and (c) deliver the NSR Royalty Deed.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller hereby makes the following representations and warranties, each of which
is true and correct on the date hereof and each of which shall survive the
Closing Date as provided in Section 8.1:
3.1. CORPORATE EXISTENCE AND POWER OF SELLER. Seller is a limited liability
company validly existing and in good standing under the Laws of the State of
Delaware. Previously, Seller was a corporation existing under the Laws of New
Jersey. The entirety of the business and assets of Asarco, Incorporated,
including without limitation, the Business, was transferred to the Delaware
limited liability company in a corporate reorganization, effected as of February
17, 2005. All Assets, Liabilities, Authorizations and Contracts of Seller were
transferred to the Delaware limited liability company pursuant to the
reorganization, and there is no liability or impediment
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to Seller in conducting the Business as previously conducted, or in selling the
Business to Buyer as contemplated herein, by virtue of such reorganization.
Seller has the corporate power to enter into this Agreement, to perform its
obligations hereunder, and to consummate the transactions contemplated hereby.
3.2. APPROVAL AND ENFORCEABILITY OF AGREEMENT.
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized, approved and
ratified by all necessary action on the part of Seller. Seller, to the extent
required, has full authority to enter into and deliver this Agreement, to
perform its obligations hereunder, and to consummate the transactions
contemplated hereby.
(b) Assuming the due execution and delivery hereof by Buyer, this Agreement
is the legal, valid and binding obligation of Seller, enforceable against Seller
according to its terms.
(c) The execution, delivery, and performance of this Agreement by Seller
will not (a) violate or require any consent, approval, or filing under (i) any
Law or any Governmental Authority, or (ii) any judgment, injunction, order, writ
or decree of any court, arbitrator, Government or Governmental Authority by
which Seller or any of the Assets are bound; (b) conflict with, require any
consent, approval, or filing under, result in the breach (whether or not with
the giving of notice or lapse of time, or both) or termination of any provision
of, constitute a default under, or result in the creation of any claim, security
interest, lien, charge, or encumbrance upon any of the Assets pursuant to, (i)
Seller's articles of incorporation or bylaws, (ii) any indenture, mortgage, deed
of trust, license, permit, approval, consent, franchise, lease, Contract, or
other instrument, document or agreement to which Seller is a party or by which
Seller or any of the Assets is bound, or (iii) any judgment, injunction, order,
writ or decree of any court, arbitrator, Government or Governmental Authority by
which Seller or any of the Assets is bound; and all Permits and Authorizations
required to be held or obtained prior to the Closing, shall have been obtained
and shall be in full force and effect as of the Closing Date, except where the
failure to hold any such Authorization will not have a Material Adverse Effect
on the Business or Buyers following the Closing.
3.3. FINANCIAL INFORMATION. To the best of Seller's Knowledge, the historical
cost data reports for the Business, provided by Seller to Buyer, are true and
correct in all material respects and fairly present the financial data therein
for the periods and with respect to the subject matter covered by such reports.
3.4. TAX MATTERS. Except as would not result in a Material Adverse Effect,
Seller has duly and timely filed with all appropriate Taxing Authorities all tax
returns, information returns, and reports required to be filed by Seller. Seller
has paid in full all taxes, interest, penalties, assessments and deficiencies
owed by Seller to all Taxing Authorities. All taxes and other assessments and
levies which Seller is required by applicable Law to withhold or to collect have
been duly withheld and collected and have been paid over to the proper
Governments and Governmental Authorities or are properly held by Seller for such
payment. All claims by the IRS or any state Taxing Authorities for taxes due and
payable by Seller have been paid by Seller. Seller is not a party to, and is not
aware of, any pending or threatened action, suit, proceeding, or
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assessment against it for the collection of taxes by any Taxing Authorities.
Seller is not a party to any agreement or undertaking involving any Tax
allocation, Tax sharing or other similar agreement.
3.5. PROPERTIES AND ROYALTIES.
(a) REAL PROPERTY. Seller holds rights to or interests in each Real
Property, either in fee simple, under valid, subsisting and enforceable private
or Governmental leases, or through patented or unpatented mining claims,
licenses, contracts or concessions (or, where applicable, applications or
renewals thereof), as the case may be, together with any material easements,
rights-of-way or other surface access rights, necessary for the operation of the
Business as currently being conducted, except for any rights or interests the
absence of which would not have a Material Adverse Effect. Seller is not and, to
Seller's Knowledge, other parties are not, in material default under the terms
of any such leases, claims, licenses, contracts or concessions. Exhibit 2 to
Schedule 1.5 sets forth a listing of all Real Property, and Schedule 3.5 sets
forth a list of all Royalties required to be paid with respect to production
from such Real Property. Promptly upon request from the Buyer, Seller shall
provide to Buyer copies of all documentation pertaining to all Real Property
which are in Seller's possession and Seller shall use its reasonable efforts to
procure such other documentation and information pertaining thereto as Buyer may
reasonably request. The Seller possesses valid rights to, claims valid rights
to, and currently has authority to take and use, all water necessary to support
the current or historical operation of each Real Property, except for any such
rights the absence of which would not have a Material Adverse Effect. All of
Seller's right, title and interest in each of the Real Properties will be
transferred to Buyer after the Effective Time pursuant to the documents of
conveyance provided for in Article VI.
(b) TITLE TO ASSETS. Seller has good and marketable title to, or a valid
leasehold interest in, the Assets, free and clear of all mortgages, pledges,
security interests or other encumbrances other than standard exceptions of
record (comprising easements, rights of ingress or egress and other similar
title exceptions). Schedule 1.5 hereof sets forth all material Assets used in
and necessary for the operation of the Business. All of Seller's right, title
and interest, including leasehold interest, in each of the Assets (whether or
not set forth on Schedule 1.5) shall be transferred to Buyer after the Effective
Time pursuant to the documents of conveyance provided for in Article VI. For
purposes of this Section 3.5(b), an Asset shall be deemed material if its book
value, or fair market value (whichever is higher) equals at least $25,000.
3.6. INTELLECTUAL PROPERTY. (a) Seller has taken all commercially reasonable
actions to maintain and protect the material Intellectual Property in all
material respects; and (b) there has been no material claim made against Seller
asserting the invalidity, misuse or unenforceability of any of the material
Intellectual Property or challenging Seller's right to use or ownership or
alleging infringement of any of the material Intellectual Property. Seller has
no Knowledge that any person is or has been infringing upon the Intellectual
Property rights of Seller used or useful in the conduct of the Business as
currently being conducted.
3.7. COMPLIANCE WITH LAWS; PERMITS AND LICENSES. Except as set forth in Schedule
3.7 and, whether or not so scheduled on Schedule 3.7, except where the failure
to comply has not had and will not have a Material Adverse Effect on the
Business as currently being conducted, (a) Seller
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is in compliance in all respects with all Laws applicable to the Business; (b)
Seller holds or has filed in a timely manner applications or renewals for all
Authorizations required for the conduct of the Business as now conducted; (c)
Seller is in compliance with the Authorizations; and (d) there is no reasonable
ground to believe that any of the Authorizations will not, in the Ordinary
Course, be renewable upon their expiration. Anything in this Section 3.6
notwithstanding, it is understood and agreed that the foregoing shall not (i) be
deemed inaccurate by reason of the ordinary expiration of Authorizations, the
renewal of which is expected to be obtained in the Ordinary Course without
material expense or material interruption of existing operations or (ii) apply
to Environmental Laws or Permits which are dealt with in Section 3.7.
3.8. CONTRACTS. Except as set forth in Schedule 3.8, Seller is not a party to
any Contract which is material to the Business as a whole under the terms of
which any other party to that Contract is, by reason of compliance with any
provision of this Agreement, entitled: (a) to terminate that Contract earlier
than it would, apart from that compliance, have been liable to be terminated; or
(b) to require the adoption of terms less favorable to such Seller than those
subsisting in the absence of that compliance. Seller is not a party to any
Contract which is material to the Business as a whole of which it is in material
default, and no event has occurred which may be grounds for termination of any
such Contract by the other party to such Contract, in each case whether with the
giving of notice or lapse of time, or both. A list of all material Contracts are
set forth on Schedule 3.8 and copies of such material Contracts shall be
delivered to Buyer upon request.
3.9. LITIGATION AND ARBITRATION. There is no material Action now pending or, to
Seller's Knowledge, threatened before any Court, grand jury, Government
Authority, arbitration or mediation panel or similar body to which Seller, in
connection with the Business or the Assets, is a party. There is no material
Action now pending or, to the Knowledge of Seller, threatened before any Court,
grand jury, Government Authority, arbitration or mediation panel or similar body
which seeks to prevent the consummation of the transactions contemplated by this
Agreement
3.10. ENVIRONMENTAL MATTERS.
(a) To the best of its Knowledge, except as set forth on Schedule 3.10,
Seller is and, for the five (5) year period immediately preceding the date of
this Agreement, has been in material compliance with all Laws governing its
business, operations, properties and assets, including without limitation,
Environmental, Health, and Safety Laws (as defined herein), and no event has
occurred or is continuing which, with or without the passage of time or the
giving of notice, or both, would constitute such non-compliance or have a
Materially Adverse Effect on the Assets or any of Seller's claims or rights
therein.
(b) To the best of its Knowledge, except as set forth in Schedule 3.10, and
except as would not result in a Material Adverse Effect, Seller has obtained, or
caused to be obtained, and is in full compliance with, all Authorizations
required by all Laws, including without limitation the Environmental, Health and
Safety Laws for the ownership of its properties and assets and the operation of
its Business as currently being conducted. There are no administrative or
judicial investigations, notices, claims or other proceedings pending or, to the
best of Seller's Knowledge threatened, by any Governmental Authority or third
parties against Seller, its Business, operations, properties, or Assets, which
question the validity or entitlement of Seller to any
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Authorization required by any Laws, including without limitation the
Environmental, Health and Safety Laws for the ownership of Seller's Assets and
the operation of its Business as currently being conducted, or wherein an
unfavorable decision, ruling or finding could have a Material Adverse Effect on
the Assets.
(c) As it relates to the Assets, Seller has not received notice, and Seller
has no Knowledge of any facts which could give rise to any notice, that Seller
is a potentially responsible party for (i) a federal or state environmental
cleanup site; (ii) in connection with the discharge of any hazardous substance
into the water, into the air or on, into, or beneath the surface of the earth;
or (iii) for corrective action under CERCLA, RCRA or any other applicable
Environmental Health and Safety Laws. To the best of its Knowledge, Seller has
not submitted nor was it required to submit any notice pursuant to Section
103(c) of CERCLA with respect to the any of Seller's Real Property. As it
relates to the Assets, Seller has not received any written or oral request for
information in connection with any federal or state environmental cleanup site,
or in connection with any of the real property or premises where Seller has
transported, transferred or disposed of other wastes. As it relates to the
Assets, except as set forth on Schedule 3.10, Seller has not been required to
and has not undertaken any response or remedial actions or clean-up actions of
any kind at the request of any Governmental Authorities or at the request of any
other third party.
(d) As used in this Agreement, the term "Environmental, Health and Safety
Laws" means, without limitation, all Laws, any of which govern (or purport to
govern) or relate to pollution, protection of the environment, public health and
safety, air emissions, water discharges, hazardous or toxic substances, solid or
hazardous waste or occupational health and safety, as any of these terms are or
may be defined in such statutes, laws, rules, regulations, codes, orders, plans,
injunctions, decrees, rulings and changes or ordinances, or judicial or
administrative interpretations thereof, including, without limitation, RCRA,
CERCLA, the Hazardous Substances Transportation Act, the Toxic Substances
Control Act, the Clean Air Act, the Clean Water Act, FIFRA, EPCRA and OSHA.
3.11. EMPLOYEE MATTERS. At Closing Seller shall have no employee working for it
solely or primarily in connection with the Assets or Properties of the Business,
and there is no Liability to Buyer, or any agent or representative thereof, by
virtue of Seller's employment or termination prior to the Closing of any such
employee, contractor or representative.
3.12. BROKER'S FEES. Other than CB Xxxxxxx Xxxxx, Inc., whose fees will be paid
by Seller, Seller has not retained any broker, finder or agent or agreed to pay
any brokerage fees, finder's fees or commissions with respect to the
transactions contemplated by this Agreement.
3.13. FULL DISCLOSURE. This Agreement (including the Schedules and Exhibits
hereto) does not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements contained herein not
misleading. There is no fact known to Seller which is not disclosed in this
Agreement which materially adversely affects the accuracy of the representations
and warranties contained in this Agreement or the financial condition,
operations, results of operations, business prospects, earnings, Assets, or
Liabilities of the Business as currently being conducted.
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3.14. DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; KNOWLEDGE; DISCLOSURE.
(a) Seller does not make, and has not made, any representations or
warranties relating to Seller, the Business, the Assets, the Real Property, the
Assumed Liabilities or otherwise in connection with the transactions
contemplated hereby other than those expressly set out in this Article III
(including all Schedules pertaining thereto). Without limiting the generality of
the foregoing, Seller has not made, and shall not be deemed to have made, any
representations or warranties in any Communications, and no statement contained
in any Communications shall be deemed a representation or warranty hereunder or
otherwise. It is understood that any cost estimates, projections or other
predictions, any data, any financial information or any memoranda or offering
materials or presentations, including but not limited to the Communications, are
not and shall not be deemed to be or to include representations or warranties of
Seller. No Person has been authorized by Seller to make any representation or
warranty relating to Seller, the Business, the Assets, the Assumed Liabilities
or otherwise in connection with the transactions contemplated hereby and, if
made, such representation or warranty must not be relied upon as having been
authorized by Seller. In particular, and without limiting in any way the
generality of the foregoing, Buyer expressly acknowledges that no warranty is
given by Seller and no representation is made by it in relation to: (i) the
condition, fitness for purpose, suitability, functionality or lack of defects of
the properties, plant and equipment of the Business; (ii) future matters,
including future or forecast costs, revenues or profits, values, reserves or
resources (whether proved, probable or inferred); or (iii) markets or supplies.
(b) Wherever used in this Agreement, the term "Knowledge", when used in
respect of Seller, refers to the actual knowledge of the management of Seller
identified on Schedule 3.14 attached hereto, after due investigation of all
files of Seller and due inquiry of all relevant personnel of Seller, in each
case as they pertain to the Business.
(c) Notwithstanding anything to the contrary contained in this Agreement or
in any of the Schedules, any information disclosed in one Schedule shall be
deemed to be disclosed in all Schedules, provided that the disclosure of such
information on such Schedule clearly identifies the other Schedule(s) to which
such disclosure relates, either by Schedule number or by sufficient information
appearing on such Schedule that a reasonable person would infer, from such
disclosure alone and without further investigation, the specific identity of the
other Schedule(s) where such disclosure is appropriate. Notwithstanding the
foregoing sentence, no breach shall be deemed to have occurred by reason of the
failure of Seller to make any such clear identification so long as Buyer is not
prejudiced in any was as a result of such failure. Certain information set forth
in the Schedules may be included solely for informational purposes and may not
be required to be disclosed pursuant to this Agreement. The disclosure of any
information shall not be deemed to constitute an acknowledgment that such
information is required to be disclosed in connection with the representations
and warranties made by Seller in this Agreement or that it is material, nor
shall such information be deemed to establish a standard of materiality.
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ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby makes the following representations and warranties, each of which
is true and correct on the date hereof and each of which shall survive the
Closing Date as provided in Section 8.1:
4.1. CORPORATE EXISTENCE OF BUYER. Buyer is a Tennessee corporation, validly
existing and in good standing under the Laws of Tennessee. Buyer has the
corporate power to enter into this Agreement, to perform its obligations
hereunder, and to consummate the transactions contemplated hereby.
4.2. APPROVAL AND ENFORCEABILITY OF AGREEMENT.
(a) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized, approved and
ratified by all necessary action on the part of Buyer. Buyer has full authority
to enter into and deliver this Agreement, to perform its obligations hereunder,
and to consummate the transactions contemplated hereby.
(b) Assuming the due execution and delivery hereof by Seller, this
Agreement is the legal, valid and binding obligation of Buyer, enforceable
against Buyer according to its terms.
4.3. NO BREACH OF ARTICLES OR INDENTURES. The execution of this Agreement and
the consummation of the transactions contemplated hereby has not and will not
constitute or result in the breach of any of the provisions of, or constitute a
default under, the Articles of Incorporation or bylaws of Buyer, or any material
indenture, evidence of indebtedness or other commitment to which Buyer is a
party or by which it is bound, which breach or default would have a Material
Adverse Effect on Buyer.
4.4. LITIGATION AND ARBITRATION. There is no Action now pending or, to the
knowledge of Buyer, threatened before any Court, grand jury, Government
Authority, arbitration or mediation panel or similar body which seeks to prevent
the consummation of the transactions contemplated by this Agreement.
4.5. BROKERS AND INTERMEDIARIES. Neither Buyer nor any of its Affiliates has
employed any broker, finder, advisor or intermediary in connection with the
transactions contemplated by this Agreement which would be entitled to a
broker's, finder's or similar fee or commission in connection therewith or upon
the consummation thereof.
ARTICLE V.
CERTAIN COVENANTS AND AGREEMENTS OF SELLER AND BUYER
5.1. ACCESS AND INFORMATION.
(a) Between the date of this Agreement and the Closing Date, Seller shall
permit Buyer and its representatives to have reasonable access during normal
business hours, upon reasonable advance notice, to the books and records of the
Business and shall provide Buyer with
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reasonable access to the Real Property, Assets and Business, provided that such
access shall be conducted by Buyer and its representatives in such a manner as
not to interfere unreasonably with the Business. Additionally, Seller shall
provide to Buyer in a timely manner all information as is reasonably requested
by Buyer in order for Buyer to provide documentation and information to Buyer's
investors or potential investors in the Business. Buyer shall notify Seller in
writing promptly upon its discovery of any information which, in its good faith
discretion, constitutes or would indicate a breach by Seller of any
representation, warranty, covenant or agreement of Seller hereunder. Should any
information require any change in any Schedule attached hereto if the Schedule
were dated the date of the occurrence or discovery of any such fact or
condition, Seller shall promptly deliver to Buyer a supplement to such Schedule
incorporating such change, which will be deemed to have amended such Schedule
for all purposes. Unless Buyer timely exercises a right to terminate this
Agreement pursuant to Section 10.3(c), Seller's supplement pursuant to this
Section 5.1 shall be deemed to amend this Agreement and any related Schedules
and to have cured any misrepresentations or breach of representation or warranty
that otherwise might have existed by reason of such fact or condition. Any
information provided pursuant to this Section 5.1 shall be subject to the
Confidentiality Agreement.
(b) For the period of seven (7) years after the Closing Date, Seller shall
reasonably consider a request by Buyer for copies of or access to documents in
Seller's possession which relate to the Business. The Seller shall not
unreasonably withhold its consent to providing such documents. The Seller shall
however be entitled to withhold its consent to a request for copies of, or
access to documents where:
(i) the information is confidential or commercially sensitive to
Seller or an Affiliate of Seller; or
(ii) the information is confidential to any third party;
Provided, however, that such information will not be withheld if it is required
to be disclosed by Buyer in connection with Buyer's compliance with any
securities or other Law and such information pertains to or was used by the
Business. Buyer shall reimburse Seller for any costs reasonably incurred by
Seller in complying with a request for copies of or access to documents under
this clause.
(c) Buyer will retain all books, records and other documents pertaining to
the Business in existence at the Effective Time and transferred to Buyer as part
of the Assets and will make the same available after the Effective Time for
inspection and copying by Seller at such Person's expense during the normal
business hours of Buyer upon reasonable request and upon reasonable notice. For
a period of seven (7) years following the Closing Date, no such books, records
or documents shall be destroyed by Buyer without first advising Seller in
writing and giving Seller a reasonable opportunity to obtain possession thereof.
Without limiting the generality of the foregoing, Buyer will make available to
Seller and any Affiliate of Seller, and their respective representatives, all
information deemed necessary or desirable by Seller in preparing their
respective financial statements or tax returns. Seller shall provide to Buyer at
the Closing or as soon thereafter as is reasonably possible all appropriate
books and records of the Business being sold pursuant to this Agreement and the
transaction contemplated hereby.
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5.2. AUTHORIZATIONS. Promptly after the execution of this Agreement, Buyer shall
use its commercially reasonable efforts to obtain such Authorizations as may be
required to complete lawfully the transactions contemplated hereby. Seller
agrees to cooperate fully, execute, and deliver such instruments and documents
and take all such other and further actions as may be necessary or desirable in
order to obtain such Authorizations.
5.3. CONDUCT OF BUSINESS.
(a) Prior to the Closing, except as otherwise contemplated by this
Agreement or consented to or approved by Buyer (which consent shall not be
unreasonably withheld), Seller shall use its commercially reasonable efforts to
cause the Business to be operated in all material respects in the Ordinary
Course of the Business as currently being conducted, and to maintain the
facilities at their current status until the date of Closing. Seller is
responsible for all maintenance expenses including mine dewatering,
environmental monitoring, and other costs necessary to maintain the current
state of the equipment and all other assets until Closing.
(b) Without the prior written consent of Buyer, which will not be
unreasonably withheld, Seller in connection with the Business, will not (i)
make, or enter into any Contract that would be assumed by Buyer as part of the
Assumed Liabilities, for, any material capital expenditure or enter into any
material lease of capital equipment or real estate, (ii) enter into any Contract
that would be assumed by Buyer as part of the Assumed Liabilities, whether for
the purchase or sale of inventory, supplies, other products or services or
otherwise, and whether in the Ordinary Course of the Business or otherwise,
involving more than $10,000 or enter into any series of such Contracts with one
party or affiliated group of parties involving more than $50,000 in the
aggregate.
5.4. EMPLOYEE MATTERS.
(a) Seller shall terminate all employees and independent contractors,
unless otherwise instructed by Buyer, prior to the Effective Time. Buyer shall
not be responsible for any of Seller's termination costs of any former employee
and terminated independent contractors of Seller, including but not limited to
accrued but unpaid wages, payments to such terminated employee pursuant to an
employee benefit plan or such other similar plans as in effect prior to the
Closing, or accrued but unpaid sick leave or vacation, as applicable, even if
Buyer hires any such former employee.
5.5. TAX MATTERS.
(a) All Transfer Taxes shall be shared equally by Buyer and Seller. Buyer
and Seller shall cooperate in the timely preparation and filing of any tax
returns that must be filed in connection with any Transfer Taxes. Any such Taxes
or fees resulting from any subsequent transfer of the acquired Assets or Assumed
Liabilities or any transfer of property on or subsequent to the Closing shall be
borne entirely by Buyer.
(b) Liability for real property, personal property, ad valorem and similar
non- income Taxes arising from the ownership of the Assets or the Assumed
Liabilities and imposed on a periodic basis for any taxable period beginning
before and ending after the Effective Time shall be prorated between Seller and
Buyer with Seller bearing a portion of such Taxes based on the
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number of days in the taxable period prior to and including the Effective Time
and Buyer bearing a portion of such Taxes based on the number of days in the
taxable period after the Effective Time. Taxes described in this paragraph shall
be timely remitted to the Taxing Authority by Seller, if due prior to the
Closing, in which case Buyer shall pay to Seller its portion of such Taxes at
the Closing, and by Buyer, if due on or after the Closing, in which case Seller
shall pay to Buyer its portion of such Taxes within ten (10) business days after
such remittance and notice to Seller.
(c) After the Closing Date, each of Seller and Buyer and their respective
Affiliates shall:
(i) assist the other Party and its Affiliates in preparing any Tax
Returns which such Party is responsible for preparing and filing;
(ii) cooperate fully in preparing for any tax audit relating to or
arising out of the Business;
(iii) make available to the other and to any Taxing Authority as
reasonably requested all information, books, records, and documents
relating to Taxes arising out of the conduct of the Business or the
ownership or use of the Assets;
(iv) furnish the other Party with copies of all correspondence
received from any Taxing Authority in connection with any tax audit
relating to or arising out of the conduct of the Business or the ownership
or use of the Assets with respect to any such taxable period.
5.6. ANNOUNCEMENT. Neither Party will issue any press release or otherwise make
any public statement with respect to this Agreement and the transactions
contemplated hereby without the prior written consent of the other Party (which
consent shall not be unreasonably withheld or delayed), except as may be
required by applicable Law; provided, however, that in the event any Party is
required by Law to issue a press release or otherwise make any public statement
or disclosure with respect to this Agreement and the transactions contemplated
hereby, such Party will promptly notify the other Party so that such Party may
seek a protective order or other appropriate remedy and in the event that no
such protective order or other remedy is obtained, the Party may make such
disclosure which such Party is advised in writing by counsel is required by Law.
5.7. USE OF NAMES. Anything herein to the contrary notwithstanding, no interest
in or right to use the names "ASARCO", "ASARCO Tennessee Mines Division", or the
respective logos, names, trademarks, trade names or the like of Seller is being
transferred hereunder Buyer agrees that it will as promptly as practicable but
in any event within 45 days following the Effective Time, cause the Business to
discontinue using such names, logos, trademarks, trade names and the like, and
remove or obliterate them from all signs, purchase orders, invoices, sales
orders, packaging stock, labels, letterheads, shipping documents and other
materials used or produced by the Business. Notwithstanding anything contained
herein to the contrary, Buyer agrees that after the Effective Time it will
neither use, nor permit any of its Affiliates to use, any purchase orders,
invoices, sales orders, letterheads or shipping documents existing on the date
hereof, which bear
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any trade name, name, trademark or logo of Seller or any trade name, name,
trademark or logo confusingly similar thereto, without first obliterating or
covering such trade name, name, trademark or logo. At Seller's request, Buyer
will cooperate, and will cause each of its Affiliates to cooperate, in taking
all steps reasonably necessary in any jurisdiction to preserve for Seller and
its Affiliates and, where appropriate, assign to Seller and its Affiliates, all
right, title and interest in and to said names, logos, trademarks, trade names,
and the like, registration and usage thereof and the goodwill associated
therewith. Buyer will not, and will cause each of its Affiliates not to,
misappropriate, misrepresent or otherwise infringe, abuse or diminish the value
of said trade names, names, trademarks or logos.
5.8. RISK OF LOSS. All risk of loss or damage to or destruction of the Assets,
in whole or in part, shall be and remain with Seller until the Effective Time of
the Closing, provided that all of the transactions contemplated hereby shall
have been consummated.
5.9. COMMERCIALLY REASONABLE EFFORTS. Each of the Parties shall use its
commercially reasonable efforts to fulfill or obtain the fulfillment of the
conditions of the Closing, including, without limitation, the execution and
delivery of all agreements contemplated hereunder to be so executed and
delivered.
5.10. NO SHOP. Seller agrees that during the period commencing on the date
hereof and ending on the earlier of the Closing Date or the termination of this
Agreement, Seller will not, directly or indirectly, (a) encourage, solicit or
initiate discussions or negotiations with any corporation, partnership, person,
entity or group, other than Buyer, concerning any merger, consolidation, sale of
assets, sale of securities, joint venture, or acquisition of beneficial
ownership with respect to the Seller, the Business or the Assets, and (b)
otherwise initiate any action (unless in response to an unsolicited offer) which
would prejudice the ability of Buyer to close under this Agreement
ARTICLE VI.
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions provided for in this
Agreement shall be subject to the satisfaction of each of the following
conditions on or before the Closing Date, subject to the right of Buyer to waive
any one or more of such conditions:
6.1. REPRESENTATIONS AND WARRANTIES OF SELLER. The representations and
warranties of Seller contained in this Agreement shall be true and correct in
all material respects on the date hereof and on the Closing Date, except to the
extent that any representation or warranty is made only as of a specified date,
in which case such representation or warranty shall be true and correct in all
material respects as of such date, and except to the extent of changes permitted
by the terms of this Agreement.
6.2. PERFORMANCE OF THIS AGREEMENT. Seller shall have materially performed or
complied with all of the obligations to be performed or complied with by it
under the terms of this Agreement on or prior to the Closing Date.
6.3. CERTIFICATE OF SELLER. Buyer shall have received a certificate signed by an
authorized officer of Seller dated as of the Closing Date certifying that the
conditions set forth in Sections 6.1 and 6.2 hereof have been fully satisfied.
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6.4. AUTHORIZATIONS, ASSIGNMENTS AND CONSENTS. All necessary Authorizations
pursuant to Section 5.2 shall have been obtained or applied for, all consents to
the assignment of all contracts and other documents or instruments to be
assigned hereunder shall have been obtained or applied for, and all notices
required to be delivered pursuant to any of the foregoing shall have been
delivered in each case at or prior to the Closing.
6.5. NO INJUNCTIONS. No injunction, restraining order or decree of any Court or
Governmental Authority shall exist against Buyer or Seller that prevents, or
seeks to prevent, the transactions contemplated hereby.
6.6. FINANCIAL ABILITY. Buyer shall have entered into binding financing or
credit arrangements, and sufficient funds shall be available to Buyer at and
after the Closing, to pay the cash portion of the Purchase Price, including the
Contingent Closing Payment and the Guaranteed Closing Payment.
6.7. DOCUMENTS. Buyer shall receive from Seller on the Closing Date:
(a) an executed copy of this Agreement with all Schedules and Exhibits
attached as updated through the Closing.
(b) the Xxxx of Sale;
(c) the Assignment and Assumption Agreement;
(d) general warranty deeds in respect to the Real Property;
(e) other appropriate documents conveying to Buyer title to the Assets;
(f) the certificate identified in Section 6.3;
(g) an opinion of Seller's counsel in form and substance reasonably
acceptable to Buyer and its counsel, an including the enforceability against
Seller of the agreements representations, warranties and covenants made by
Seller herein under the Laws of Tennessee and any other applicable
jurisdiction(s); and
(h) title insurance policies for the Real Property paid for by, and in form
and substance satisfactory to, Buyer.
6.8. COMPLIANCE WITH APPLICABLE LAW.
The filing and waiting period requirements of any and all approvals necessary
under the HSR Act and any other applicable Law relating to consummation of the
transactions provided for herein shall have been duly complied with.
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ARTICLE VII.
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transactions provided for in this
Agreement shall be subject to the satisfaction of each of the following
conditions on or before the Closing Date, subject to the right of Seller to
waive any one or more of such conditions:
7.1. REPRESENTATIONS AND WARRANTIES OF BUYER. The representations and warranties
of Buyer contained in this Agreement shall be true and correct in all material
respects on the date hereof and on the Closing Date, except to the extent that
any representation or warranty is made as of a specified date, in which case
such representation or warranty shall be true in all material respects as of
such date, and except to the extent of changes permitted by the term of this
Agreement.
7.2. PERFORMANCE OF THIS AGREEMENT. Buyer shall have materially performed or
complied with all of the obligations to be performed or complied with by it
under the terms of this Agreement on or prior to the Closing Date.
7.3. CERTIFICATE OF BUYER. Seller shall have received a certificate signed by an
authorized officer of Buyer dated as of the Closing Date certifying that the
conditions set forth in Sections 7.1 and 7.2 hereof have been fully satisfied,
confirming that Buyer has made its own independent investigation, analysis and
evaluation of the Assets, Assumed Liabilities and Business (provided that such
certification shall in no way be deemed a waiver of, or in any way relieve
Seller from any obligation with respect to Seller's representations and
warranties under, this Agreement), and confirming the acknowledgment set forth
in Section 8.2.
7.4. NO INJUNCTIONS. No injunction, restraining order or decree of any Court or
Governmental Authority shall exist against Buyer or Seller that prevents the
transactions contemplated hereby.
7.5. PAYMENT OF PURCHASE PRICE AND ASSUMPTION OF LIABILITIES. Seller shall
receive from Buyer on the Closing Date the cash portion of the Purchase Price
and the note, if applicable, to be delivered under Section 2.3 hereof and the
Assignment and Assumption Agreement, duly executed by Buyer.
7.6. COMPLIANCE WITH APPLICABLE LAW. The filing and waiting period requirements
of and any approvals necessary under the HSR Act and any other applicable Law
relating to consummation of the transactions provided for herein shall have been
duly complied with.
7.7. DOCUMENTS. Seller shall have received (a) a signed copy of this Agreement
with all Schedules and Exhibits attached, as updated through and including the
Closing; and (b) the NSR Royalty Deed signed by an authorized officer of Buyer
and dated as of the Closing Date; and (c) the Note, if applicable.
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ARTICLE VIII.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES;
CERTAIN ACKNOWLEDGMENTS
8.1. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Parties made in this Agreement shall survive the Closing and
shall remain in effect for a period of two (2) years after the Closing Date with
respect to all representations and warranties, and shall thereupon terminate and
be of no further force and effect and no claim for indemnity under Article IX
shall thereafter be made with respect thereto except that (a) representations
under Section 3.4 with respect to Tax Matters shall survive for the applicable
statute of limitations and (b) representations under Sections 3.1 and 3.2 with
respect to corporate existence, authority, validity of signatures and
enforceability of this Agreement, Section 3.4 with respect to taxes, and Section
3.10 with respect to the Environmental Health and Safety Laws shall survive
indefinitely. Without limiting the foregoing, to the extent any Party has
knowledge of the breach of a representation, warranty or agreement of the other
Party (or the facts constituting such breach) and nonetheless proceeds with the
Closing, such breach shall be deemed to have been waived and such Party shall
have no rights with respect thereto.
8.2. INFORMATION. Buyer hereby acknowledges each of the following:
(a) From the Effective Time, Seller's insurance relating to the continued
operation of the Business and Assets will lapse;
(b) From the Effective Time, the arrangements (whether documented formally,
undocumented, informal or non-contractual) on which certain services and
benefits provided by Seller to the Business (including, without limitation,
services provided by Seller and certain technology licenses and general supply
contracts facilitated by Seller for the benefit of the Business) will terminate.
Without limiting this paragraph (b) Buyer agrees that Buyer will negotiate at
its cost and expense, within ninety (90) days from the Closing Date, replacement
information technology license, maintenance, communication and other services
contracts with the third party suppliers of information technology where
licenses are currently held by Seller in relation to services utilized by the
Business. Buyer shall indemnify Seller and its Affiliates against any claim
suffered or incurred by Seller or any of its Affiliates (and any costs, charges
or expenses incurred by Seller or any of its Affiliates) as a consequence of
Buyer's use of those licenses and contracts throughout such ninety (90) -- day
period.
ARTICLE IX.
INDEMNIFICATION
9.1. INDEMNIFICATION OF BUYER. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to indemnify and hold Buyer harmless from,
against and in respect of, any and all Indemnified Losses incurred by Buyer to
the extent directly or indirectly resulting from or arising out of (a) any
breach or violation of the representations, warranties, covenants or agreements
of Seller contained in this Agreement, (b) any debts, obligations, duties or
liabilities of Seller other than the Assumed Liabilities, or (c) the operation
of the Business or the ownership or use of the Assets prior the Closing Date.
All Indemnified Losses shall be governed solely by
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Section 9.2. In computing the amount of Indemnified Losses incurred by Buyer,
the amount of any income tax savings actually realized by Buyer as a result
thereof shall be taken into account.
9.2. LIMITATIONS ON CLAIMS. In no event shall Seller have any obligation to
indemnify Buyer in respect of Indemnified Losses in excess of an amount equal to
$1,625,000 plus 25% of the NSR Royalty actually paid by Buyer to Seller
hereunder, except for indemnity arising out of any material breach of Sections
3.1, 3.3, 3.4 and 3.10 of this Agreement, in which case Seller shall not be
required to pay to Buyer as Indemnification hereunder more than the aggregate
amounts of Purchase Price paid to Seller in cash, and provided further that
Buyer shall have the right to set-off any additional amounts for which
indemnification may be properly paid to Buyer hereunder from any payments owing
or to become owed to Seller pursuant to the NSR Royalty Deed. Notwithstanding
anything in this Agreement to the contrary, Seller shall have no obligations or
liabilities under this Agreement:
(a) unless Buyer has given written notice to Seller setting out specific
details of the Indemnified Losses as soon as reasonably practicable after Buyer
becomes aware of the facts, matters or circumstances on which the claim is
based, and in any event by the expiration of the relevant representations and
warranties as provided in Section 8.1;
(b) unless and until the amount of all Indemnified Losses totals at least
Seventy Five Thousand Dollars ($75,000) in the aggregate, provided however, that
materiality limitations shall not be taken into consideration when calculating
the aggregate amount of Indemnified Losses for purposes of this Section 9.2(b);
(c) to the extent that compensation in respect of the Indemnified Loss:
(i) is recovered by Buyer or any Affiliate under or out of any
insurance or indemnity agreement; or
(ii) would have been recoverable by Buyer or any Affiliate under or
out of any insurance or indemnity by reasonable efforts to pursue the
Indemnified Loss under such insurance or indemnity;
(e) if the Indemnified Loss arises solely from any change after the date of
this Agreement in any applicable Law (whether or not with any retrospective
effect);
(f) for any indirect, special, consequential, nominal or incidental damages
or lost profits.
9.3. INDEMNIFICATION OF SELLER. Subject to the terms and conditions of this
Agreement, Buyer hereby agrees to indemnify and hold Seller harmless from,
against and in respect of, any and all Indemnified Losses incurred by any of
them to the extent directly resulting from or arising out of any breach or
violation of the representations, warranties, covenants or agreements of Buyer
contained in this Agreement or arising from the operation of the Business or the
ownership or use of the Assets after the Closing Date or from the Assumed
Liabilities, provided that Seller shall have no right to indemnification
hereunder unless and until the amount of all Indemnified Losses totals at least
Seventy Five Thousand Dollars ($75,000) in the aggregate. In no event shall
Buyer have any obligation to indemnify Seller in respect of Indemnified Losses
in excess of
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an amount equal to $1,625,000 plus 25% of the NSR Royalty actually paid by Buyer
to Seller hereunder, nor shall Buyer be liable to Seller for any indirect,
special, consequential, nominal or incidental damages or lost profits.
9.4. PARTICIPATION IN LITIGATION. In the event any suit or other proceeding is
initiated which an Indemnified Party alleges that an Indemnifying Party is or
may be obligated to indemnify the Indemnified Party hereunder, the Indemnifying
Party shall control the defense of such suit or proceeding, at its expense and
by counsel of its choosing, provided that such counsel is reasonably
satisfactory to the Indemnified Party; provided, however, that the Indemnified
Party shall have the right to engage its own counsel, at its own expense, to
participate in such defense. Such counsel shall be afforded access to all
information pertinent to the suit or proceeding in question. If, in the
reasonable opinion of counsel to the Indemnified Party, there are defenses
available to the Indemnified Party which are different from or additional to
those available to the Indemnifying Party or which give rise to a material
conflict between the defense of the Indemnified Party and of the Indemnifying
Party, then upon notice to the Indemnifying Party, the Indemnified Party may
elect to engage separate counsel to conduct its defense, at the expense of the
Indemnifying Party, and the Indemnifying Party shall not have the right to
direct or conduct such defense. The Indemnifying Party shall not settle or
otherwise compromise any such suit or proceeding without the prior consent of
the Indemnified Party, which consent shall not be unreasonably withheld, if the
effect of such settlement or compromise would be to impose material liability on
the Indemnified Party.
9.5. CLAIMS PROCEDURE. In the event from time to time an Indemnified Party
believes that it has or will suffer any Losses for which an Indemnifying Party
is obligated to indemnify it hereunder, it shall promptly notify such
Indemnifying Party in writing of the matter, specifying therein the reason why
the Indemnified Party believes that the Indemnifying Party is or will be
obligated to indemnify, the amount, if liquidated, to be indemnified, and the
basis on which the Indemnified Party has calculated such amount; if not yet
liquidated, the notice shall so state.
ARTICLE X.
MISCELLANEOUS
10.1. ASSIGNMENT; BINDING AGREEMENT.
(a) Neither this Agreement nor any rights or obligations of a Party
hereunder may be assigned without the other Party's prior written consent except
to an Affiliate of a Party (provided that in such event such Party shall remain
liable for the performance of any obligations it may assign to an Affiliate).
(b) This Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by the parties hereto and to their respective successors and
permitted assigns. Nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights, remedies, obligations, or liabilities.
10.2. FURTHER ASSURANCES. From time to time after the Closing, Seller will
execute and deliver, or cause to be executed and delivered, such documents to
Buyer as Buyer shall reasonably request in order to consummate more effectively
the transactions contemplated by
-23-
this Agreement, and from time to time after the Closing, Buyer will execute and
deliver, or cause to be executed and delivered, such documents to Seller as
Seller shall reasonably request in order to consummate more effectively the
transactions contemplated by this Agreement.
10.3. TERMINATION OF AGREEMENT. This Agreement and the transactions contemplated
hereby may be terminated prior to the Closing Date only as follows:
(a) by mutual written consent of Buyer and Seller;
(b) by either Buyer or Seller if the Closing shall not have occurred on or
before August 1, 2005, or such other date, if any, as Buyer and Seller shall
agree upon in writing, provided that such failure of the Closing to occur is not
the result of a breach of this Agreement by the Party seeking to terminate this
Agreement or the amendment of any Schedule pursuant to Section 5.1(a) of this
Agreement which amendment, materially and adversely affects the value of the
transaction contemplated hereby.;
(c) by Buyer after receipt by Buyer of a supplement delivered by Seller
pursuant to Section 5.1, if the matter disclosed in the supplement would have a
Material Adverse Effect; provided, however, that Buyer may only terminate this
Agreement pursuant to this Section 10.3(c) if it first gives notice to Seller of
Buyer's intent to so terminate and Seller has not remedied or taken steps that
would remedy the situation giving rise to the Material Adverse Effect within 30
days of receipt of such notice; and
(d) by Buyer if, after using its commercially reasonable efforts in an
attempt to procure financing to consummate the transactions contemplated herein,
it is unable to secure such financing.
10.4. BULK SALES. Intentionally omitted.
10.5. EXPENSES. Each of the Parties shall pay the fees and expenses of its
respective counsel, accountants and other experts and shall pay all other
expenses incurred by it in connection with the negotiation, preparation and
execution of this Agreement and the consummation of the transactions
contemplated hereby.
10.6. ENTIRE AGREEMENT AND MODIFICATION. This Agreement, including the Exhibits
and Schedules attached hereto and the documents delivered pursuant hereto,
constitutes the entire agreement between the Parties and supersedes all prior
discussions, negotiations or agreements covering the subject matter of this
Agreement. No changes of, modifications of, or additions to this Agreement shall
be valid unless the same shall be in writing and signed by all Parties hereto.
10.7. SEVERABILITY. If any provision of this Agreement shall be determined to be
contrary to Law and unenforceable by any Court, the remaining provisions shall
be severable and enforceable in accordance with their terms.
10.8. WAIVER. Any of the conditions to Closing set forth in this Agreement may
be waived at any time prior to or at the Closing hereunder by the Party entitled
to the benefit thereof. The failure of any Party hereto to enforce at any time
any of the provisions of this Agreement shall in no way be construed to be a
waiver of any other breach of such provision, nor in any way to
-24-
affect the validity of this Agreement or any part hereof or the right of such
Party thereafter to enforce each and every such provision. No waiver of any
breach of or non-compliance with this Agreement shall be held to be a waiver of
any other or subsequent breach or non-compliance.
10.9. COUNTERPARTS. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10.10. HEADINGS; INTERPRETATION. The table of contents and article and section
headings contained in this Agreement are inserted for convenience only and shall
not affect in any way the meaning or interpretation of the Agreement. Both
Parties have participated substantially in the negotiation and drafting of this
Agreement and each Party hereby disclaims any defense or assertion in any
litigation or arbitration that any ambiguity herein should be construed against
the draftsman.
10.11. GOVERNING LAW. This Agreement shall be construed and interpreted
according to the Laws of the State of Tennessee, without regard to the
application of choice of law principles. Each of the Parties irrevocably agrees
that any Action or proceeding with respect to this Agreement or for recognition
and enforcement of any judgment in respect hereof brought by the other Party
hereto or its successors or assigns shall be brought and determined in the
United States District Court for the District in which Memphis is located, and
each of the Parties hereby irrevocably submits with regard to any such Action or
proceeding for itself and in respect to its property, generally and
unconditionally, to the jurisdiction of the aforesaid courts. Each of the
Parties hereto hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim, or otherwise, in any Action or proceeding
with respect to this Agreement, (a) any claim that it is not personally subject
to the jurisdiction of the above named court for any reason other than the
failure to serve process in accordance with this Section 10.11, (b) that it or
its property is exempt or immune from jurisdiction of any such court or from any
legal process commenced in such courts (whether through judgment or otherwise),
and (c) to the fullest extent permitted by applicable Law that (i) the Action or
proceeding in any such court is brought in an inconvenient forum, (ii) the venue
of such Action or proceeding is improper and (iii) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts. Each Party
hereto waives all personal service of any and all process upon such Party
related to this Agreement and consents that all service of process upon such
Party shall be made by hand delivery, certified mail or confirmed telecopy
directed to such Party at the address specified in Section 10.12 hereof; and
service made by certified mail shall be complete seven days after the- same
shall have been posted. In the event either Party shall be forced to bring any
legal action to protect or defend its rights hereunder, then the prevailing
party in such proceeding shall be entitled to reimbursement from the
non-prevailing Party of all fees, costs and other expenses (including, without
limitation, the reasonable expenses of its attorneys) in bringing or defending
against such action.
10.12. NOTICES. All notices, requests, demands and other communications
hereunder shall be deemed to have been duly given if the same shall be in
writing and shall be delivered or sent (a) by personal delivery against a
receipted copy, (b) by facsimile against a confirmation of receipt, or (c) by a
nationally-recognized overnight commercial courier against a delivery
confirmation, and addressed as set forth below:
-25-
(a) If to Buyer:
TMD Acquisition Corporation
000 Xxxx Xxxx Xxxxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Chief Executive Officer
Facsimile: (000) 000-0000 and (000) 000-0000
with a copy (which shall not constitute notice) to:
August Law Group, P.C.
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. August, Esq.
Facsimile: (000) 000-0000
(b) If to Seller:
ASARCO LLC
0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx
Attention: General Counsel
Facsimile: 000-000-0000
Any such notice shall be effective upon receipt as confirmed above. Either Party
may change the address to which notices are to be addressed by giving the other
Party notice in the manner herein set forth.
10.13. REMEDIES. The parties hereto acknowledge that in the event of a breach of
this Agreement, any claim for monetary damages hereunder may not constitute an
adequate remedy, and that it may therefore be necessary for the protection of
the parties and to carry out the terms of this Agreement to apply for the
specific performance of the provisions hereof. It is accordingly hereby agreed
by all parties that no objection to the form of the action or the relief prayed
for in any proceeding for specific performance of this Agreement shall be raised
by any Party, in order that such relief may be expeditiously obtained by an
aggrieved Party. All parties may proceed to protect and enforce their rights
hereunder by a suit in equity, transaction at law or other appropriate
proceeding, whether for specific performance or for an injunction against a
violation of the terms hereof or in aid of the exercise of any right, power or
remedy granted hereunder or by law, equity or statute or otherwise. No course of
dealing and no delay on the part of any Party in exercising any right, power or
remedy shall operate as a waiver thereof or otherwise prejudice its rights,
powers or remedies, and no right, power or remedy conferred hereby shall be
exclusive of any other right, power or remedy referred to herein or now or
hereafter available at law, in equity, by statute or otherwise.
[SIGNATURES APPEAR ON NEXT PAGE]
-26-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
day and year first above written.
TMD Acquisition Corporation Buyer
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: CEO
ATTEST:
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
ASARCO LLC
Seller
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
By: /s/ Xxxxxx X. Xxxxx Xxxx
------------------------------------
Name: Xxxxxx X. Xxxxx Rada
Title: VP Metallurgical Equipment
TABLE OF SCHEDULES AND EXHIBITS
Schedule 1.5 ........................................................... Assets
Exhibit 1 to Schedule 1.5 .............................. Major Equipment List
Exhibit 2 to Schedule 1.5 ............... List of Real Property and Royalties
Schedule 1.29 .................................................. Excluded Assets
Schedule 2.3 ................... Allocation of Purchase Price and Consideration
Schedule 3.5 ......................................... Properties and Royalties
Schedule 3.7 ....................... Compliance with Laws, Permits and Licenses
Schedule 3.8 ........................................................ Contracts
Schedule 3.10 ............................................ Environmental Matters
Schedule 3.14 .......................... Disclaimer of Other Representations and
Warranties; Knowledge; Disclosure
Exhibit A ................................................. Escrow Agreement
SCHEDULE 1.5
ASSETS
"Assets" means the following assets and property and associated rights and
interests, real, personal, and mixed, tangible and intangible, of whatever kind,
owned by Seller in connection with the Business:
(a) the TMD Major Equipment List appended to this Schedule 1.5 as Exhibit
1;
(b) the Real Property and Royalties appended to this Schedule 1.5 as
Exhibit 2;
(c) all assets owned by Seller for use solely in connection with the
Business;
(d) all inventories of Seller for use solely in connection with the
Business, including but not limited to all raw materials, finished goods,
component parts and work in process;
(e) all Contracts of a Seller, including all rights, claims and obligations
thereunder;
(f) all machinery, equipment, vehicles, consumables, supplies, spare parts
and tools of Seller used solely in connection with the Business;
(g) all Real Property of Seller used solely in connection with the
Business, including without limitation all fee land, patented and unpatented
claims, leases (surface and mineral) and water rights;
(h) all Real Property improvements and fixtures thereon and appurtenances
thereto of Seller used solely in connection with the Business, including without
limitation all surface, underground and in-situ mines, concentrators, dumps,
impoundments excluding tailings, buildings, plants, processing facilities, tank
houses, warehouses, railroad tracks, rights of way, easements, and all mining
and mineral rights associated therewith;
(i) all permits, registrations, approvals, licenses and certifications
issued (or applications or renewals thereof) to Seller by a Government solely in
connection with the Business, to the extent assignable under the terms thereof
and applicable Law;
(j) all Intellectual Property and documentation thereof and the right and
power to assert, defend and recover title thereto in the same manner and to the
same extent as Seller could or could cause to be done if the transactions
contemplated hereby did not occur, and the right to recover for past damages on
account of the infringement, misuse, or theft thereof and all trade secrets
owned by Seller and used solely in connection with the Business;
(k) all records, including business, computer, engineering, and other
records, and all associated documents, discs, tapes, and other storage or
recordkeeping media of Seller prepared or held solely in connection with the
Business, including but not limited to all sales data, customer lists, accounts,
bids, contracts, supplier records, and other data and information of the
Business, excluding corporate minute books and Tax records of Seller; and
(l) all Authorizations, Environmental Permits and other permits.
EXHIBIT 1 TO SCHEDULE 1.5
TMD MAJOR EQUIPMENT LIST
YOUNG MINE
YOUNG SHAFT:
- Hoist 1: Allis Chalmers, double drum (10'3" x 6'8"), 700 HP motor
- Hoist 2: Ottumwa Iron Works, double drum (7'6" x 4'1.5"), 450 HP motor
- Head frame: American Bridge Company (97' centerline)
- Air Compressors: 1 Joy 2,000 CFM, 3 Xxxxxxxxx Xxxx 2,000 CFM
- Fans: 1 Buffalo Forge 1190 rpm, 1 Joy 1,150 rpm, 1 Peabody ABC Company
1,170 rpm, 2 Jet Air 1,200 rpm
BEAVER CREEK SHAFT:
- Hoist 1: Xxxxxxxx, double drum (8' x 3'l0"), 2 150 HP motors
- Hoist 2: Xxxxxxxxx Xxxx, double drum (6' x 5'), 250 HP)
- Headframe: Xxxxxxx Steel (98' 6.5")
- Air Compressors: 3 Xxxxxxxxx-Xxxx 1,150 CFM
UNDERGROUND CRUSHER/CONVEYOR:
- Young Shaft:
- Svedala Apron Feeder 48" X 10'3"
- Xxxxxxx Type H Jaw Crusher 36" x 48", 150 HP Motor
- Feeding: Continental 830 ft. 150 hp 48" Belt Conveyor &
Continental 2,000 ft.200 hp 48" Belt Conveyor (14-48 Gallery)
- Beaver Creek Shaft:
- Birdsboro Jaw Crusher 36" x 42"
- 150 HP Motor, choke feed
MOBILE EQUIPMENT:
- Loaders: 2 EJC 300 9 yd; 1 Xxxxxx 9yd
- Haul Trucks: 3 Toro 40D 30 ton
- Jumbo Drills: 1 Eimco Secoma Pluton 17
- Locomotives: 1 Brookeville 15 ton, 1 Xxxxxxx 15 ton
- Misc: I pipe rig, 1 longhole drill, 3 high scalers, 1 lube truck, 1
truck, 1 scaler, 1 grader, 2 bolters
XXXXX MINE
XXXXX SHAFT:
- Hoist 1: Xxxxxxxxx Xxxx, single drum, 900 HP motor
- Hoist 2: Xxxxxxxxx Xxxx, single drum (53" x 36"), 1 75 HP motor and 1
100 HP motor
- Air Compressors: 4 Joy 1,662 cfm
- Fans: 1 Xxxxxxx Mfg 1,175 rpm, 1 Buffalo Forge 1,170 rpm, 1 Buffalo
Mfg 1,775 rpm
-2-
UNDERGROUND CRUSHER:
- Crusher: Xxxxxxx 36" x 48"jaw crusher
- Apron Feeder: Svedala Industries 48" x 12' 2.75", Svedala Industries
48" x 10"
MOBILE EQUIPMENT:
- Loaders: 9 yd - 2 EJC, 1 Toro, 1 Xxxxxx
- Haul Trucks: 26 ton -- 2 EJC, 2 Tamrock
- Jumbo Drills: 3 Eimco Secoma Pluton 17, 1 Tamrock
- Locomotives: 12 ton -- 1 Plymouth, 2 Brookeville
- Misc: 3 bolters, 1 anfo rig, 3 scalers, 2 high scalers, 2 graders, 1
pipe rig, 1 longhole drill
XXX MINE
XXX SHAFT:
- Hoist: Xxxxxxxxx Xxxx, single drum (9' x 7'), 200 HP motor
- Air Compressors: 1 Xxxxxxxxx Xxxx 900 cfm, 1 Xxxxxxxxx Xxxx 450 cfm, 1
Xxxxxxxxx Xxxx 1,100 cfm, 2 Xxxxxxxxx Xxxx 1,150 cfm,
- Fans: 1 Joy 1,150 rpm, 1 Buffalo Forge 1,170 rpm
MOBILE EQUIPMENT:
- Loaders: 9 yd - 1 EJC, 1 Toro, 2 Xxxxxx
- Haul Trucks: 26 ton -- 2 Xxxxxx, 2 MTI/JCI
- Jumbo Drills: 2 Xxxxxx, 2 Tamrock
- Locomotives: 1 JCI 10 ton, 1 Brookeville 12 ton
- Misc: 2 bolters, 1 anfo rig, 2 scalers, 2 high scalers, 2 graders, 1
pipe rig, longhole drill
YOUNG MILL
- Xxxxxxx jaw crusher 48"x 60"
- Xxxxxx crusher 7 ft
- Heavy media separation cone
- Xxxxx xxxx mill 13.5' x 15 ft
- Flotation -- 2,700 cu ft rougher-scavenger capacity, 1,800 cu ft
cleaning capacity
- Thickener -- 40 ft diameter
- Filter -- 10 ft diameter Eimco disc filter
- Xxxxx D30 and D20 cyclones
- Misc. screens, pumps, conveyors, tanks, tailings classification
systems
EXHIBIT 2 TO SCHEDULE 1.5
LIST OF REAL PROPERTY AND ROYALTIES
ASARCO FEE SIMPLE LAND - TENNESSEE MINES
COUNTY DESCRIPTION MAP PARCEL TOTAL ACRES
------ ----------- --- ------ -----------
Jefferson Xxx 00 Air Shaft 035 003 38.68
Xxxxxxxxx Xxxx Air Shaft 042 005 35.52
Xxxxxxxxx Xxxxxx Creek Mine 042 064 101.90
Xxxxxxxxx Xxxxxx Air Shaft 043 014 5.00
Xxxxxxxxx Xxxxx Complex 043 017,034,009,010 713.28
Jefferson Behind Wal-Mart 015 019 5.30
Xxxxxxxxx Xxx Mine 024 018 38.00
Jefferson Friends Xxxxxxx Xxxx 000 059.01 7.00
Xxxxxxxxx Xxxxx Air Shaft 041 011 22.00
Xxxxxxxxx Xxxxx Air Shaft 043 022 2.30
Jefferson #5 Air Shaft 044 006.01 34.00
SUB-TOTAL JEFFERSON COUNTY 1,002.98
Xxxx Xxxxx Mine 043 22.02 138.13
Xxxx Sand Plant Lane 042 ? 5.00
SUB-TOTAL XXXX COUNTY 143.13
Xxxxxxxx Xxxxxxxx Xxxx Xxxx 000 006.01 9.40
Xxxxxxxx Xxxxxxxx Xxxx Xxxx 000 006.01 1.00
Xxxxxxxx Xxxxxxxx Xxxx Xxxx 000 005.0 1.00
SUB-TOTAL GRAINGER COUNTY 11.40
TMD TOTAL 1,157.51
MINERAL RIGHTS
AREA ACRES
-------------- ---------
Xxxx County 3,634.49
Jefferson County 23,418.92
Grainger County 1,457.05
TOTAL MIN RIGHTS 28,510.46
TOTAL 966.68
-2-
ASARCO FEE SIMPLE LAND - ROARING RIVER PROJECT
TOTAL
REAPRAISAL LAND MKT IMPROVEMENT TOTAL MKT DEED CALC LAND
COUNTY MAP PARCEL YEAR VALUE VALUE APPRAISAL ASSMT % ASSMT ACRES ACRES UNITS
------ --- ------ ---------- -------- ----------- --------- ------- ------- ------ ------ ------
Xxxxxxx 029 015.00 1999 $ 29,700 $ 0 $ 29,700 25 $ 7,425 50.00 0.00 50.00
Xxxxxxx 029 027.00 1999 $ 43,100 $2,300 $ 45,400 25 $11,350 100.00 118.00 118.00
Xxxxxxx 033 001.03 1999 $ 25,000 $ 0 $ 25,000 25 $ 6,250 37.50 0.00 37.50
Xxxxxxx 030 011.00 1999 $ 27,800 $ 0 $ 27,800 25 $ 6,950 0.00 59.00 59.00
Xxxxxxx 059 005.00 1998 $179,100 $ 0 $179,100 25 $44,775 313.08 0.00 313.08
TOTAL $304,700 $2,300 $307,000 $76,750 500.58 177.00 577.58
-3-
Active Mineral Lease Summary, Middle Tennessee
XXXXXXX COUNTY, TN
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
ML-T-JA-004 Xxxxxxx 6/23/1987 205.661
ML-T-JA-008 Xxxxxxx 12/3/1969 105
ML-T-JA-018 Xxxxxxx 6/6/1987 222
ML-T-JA-020 Xxxxxxx 2/28/1969 500
ML-T-JA-022 Xxxxxxx 6/30/1989 91
ML-T-JA-023 Xxxxxxx 5/31/1989 308
ML-T-JA-025 Xxxxxxx 9/4/1969 75
ML-T-JA-035 Xxxxxxx 5/28/1989 353.16
ML-T-JA-036 Xxxxxxx 1/17/1969 25
ML-T-JA-040 Xxxxxxx 3/6/1970 14
ML-T-JA-048 Xxxxxxx 10/4/1973 160
ML-T-JA-049 Xxxxxxx 6/20/1989 20
ML-T-JA-053 Xxxxxxx 7/3/1987 40
ML-T-JA-060 Xxxxxxx 5/8/2000 910
ML-T-JA-061A Xxxxxxx 5/21/2000 250
ML-T-JA-061 Xxxxxxx 5/21/2000 250
ML-T-JA-062 Xxxxxxx 5/27/2000 75
6702 Xxxxxxx 6/15/1973 99
6710 Xxxxxxx 6/22/1973 122.7
6742 (A-G) Xxxxxxx 7/9/1973 254.4
6773A Xxxxxxx 7/9/1973 107
6773B Xxxxxxx 7/9/1973 130
6876 Xxxxxxx 4/17/1974 170
6936, C, & X Xxxxxxx 1/24/1975 50
7308 Xxxxxxx 10/20/1977 200
7309 Xxxxxxx 10/24/1977 79.5
TN-RR-2 Jackson 6/16/1989 221
TN-RR-4 Jackson 6/5/1989 99
TN-RR-6, x-x Xxxxxxx 8/20/1989 119
TN-RR-7 Jackson 6/5/1989 166
TN-RR-13 Jackson 11/27/1996 61.75
TN-RR-14, X-X Xxxxxxx 11/27/1996 185.5
MT-GB-1A Jackson 4/22/2000 122
MT-GB-1B Xxxxxxx 6/1/2000 128
MT-GB-2 Xxxxxxx 4/23/2000 38
MT-GB-3 Xxxxxxx 4/23/2000 296
MT-GB-4 Xxxxxxx 4/27/2000 127
MT-GB-5 Xxxxxxx 5/10/2000 55.5
MT-GB-6 Xxxxxxx 5/9/2000 10
MT-GB-7 Xxxxxxx 5/9/2000 208
MT-GB-8 Xxxxxxx 5/9/2000 52.5
MT-GB-9 Xxxxxxx 5/9/2000 40
-4-
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
MT-GB-10 Xxxxxxx 5/12/2000 250
MT-GB-11 Xxxxxxx 5/16/2000 121
MT-GB-12 Xxxxxxx 5/12/2000 96
MT-GB-13 Xxxxxxx 5/18/2000 40
MT-GB-14 Xxxxxxx 5/19/2000 11
MT-GB-15 Xxxxxxx 5/25/2000 7
MT-GB-16 Xxxxxxx 5/24/2000 79
MT-GB-17 Xxxxxxx 5/26/2000 25
MT-GB-19 Xxxxxxx 6/24/2000 44
MT-GB-20 Xxxxxxx 6/16/2000 79
MT-GB-21 Xxxxxxx 6/16/2000 6
MT-GB-22 Xxxxxxx 7/1/2000 151
MT-GB-23 Xxxxxxx 7/1/2000 12
MT-GB-24 Xxxxxxx 6/10/2000 5
MT-GB-25 Jackson 6/10/2000 5
TN-BF-1 Jackson 2/17/1989 56
TN-BF-2 Jackson 2/8/1989 42
TN-BF-3 Jackson 2/9/1989 90
TN-BF-4 Jackson 2/9/1989 42
TN-BF-5 Jackson 2/22/1989 40
TN-BF-6A Jackson 2/6/1989 16.19
TN-BF-6B Jackson 2/6/1989 9.19
TN-BF-6C Jackson 2/6/1989 16.09
TN-BF-6D Jackson 2/6/1989 21.65
TN-BF-6E Jackson 2/6/1989 15.58
TN-BF-6F Jackson 2/6/1989 20.41
TN-BF-6G Jackson 2/6/1989 12.09
TN-BF-7 Jackson 2/21/1989 93.5
TN-BF-7A Jackson 2/21/1989 1.5
TN-BF-8 Jackson 2/15/1989 63
TN-BF-12 Jackson 2/22/1989 97
TN-BF-13 Jackson 2/8/1989 210
TN-BF-14 Jackson 2/24/1989 95
TN-BF-15 Jackson 3/13/1989 42
TN-BF-16 Xxxxxxx 2/9/1989 352
TN-BF-18 Xxxxxxx 2/23/1989 100
TOTAL 9,112
XXXXXXX COUNTY, TN
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
MT-1-RF-18AB Xxxxxxx 3/14/1970 175
MT-1-RF-37AB Xxxxxxx 3/26/1970 129.5
MT-1-RF-37CD Xxxxxxx 8/10/1976 388.5
MT-1-RF-40AB Xxxxxxx 4/3/1970 67.5
-5-
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
MT-1-RF-40E Xxxxxxx 4/3/1970 2.7
MT-1-RF-40F Xxxxxxx 4/3/1970 10
MT-1-RF-41AB Xxxxxxx 3/31/1970 10
MT-1-RF-41C Xxxxxxx 3/31/1970 1.38
MT-1-RF-41D Xxxxxxx 3/31/1970 2.5
MT-1-RF-41E Xxxxxxx 3/31/1970 2.2
MT-1-RE-104AB Xxxxxxx 10/30/1971 290
MT-1-RE-104AC Xxxxxxx 10/30/1971 290
MT-1-RF-110AB Xxxxxxx 8/10/1972 380
MT-1-RF-155AB Xxxxxxx 4/23/1975 206
MT-1-RF-156AB Xxxxxxx 5/14/1975 15
MT-1-RF-156C Xxxxxxx 5/14/1975 3
MT-1-RF-161AB Xxxxxxx 10/23/1975 40
MT-1-RE-163D Xxxxxxx 8/6/1976 7.2
MT-1-RF-163E Xxxxxxx 8/6/1976 2
MT-1-RF-209AB Xxxxxxx 3/31/1970 1
TOTAL 2,023
XXXXXXXX COUNTY, TN
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
302-522-142-061 Xxxxxxxx 12/5/1973 135
302-522-142-077 Xxxxxxxx 2/10/1976 250
302-522-142-210 Xxxxxxxx 2/6/1979 93
302-522-142-211 Xxxxxxxx 2/13/1979 243
302-522-142-214 Xxxxxxxx 2/6/1979 322
302-522-142-216 Xxxxxxxx 3/14/1980 47
302-522-142-216A Xxxxxxxx 3/14/1980 3
TOTAL 1,093
XXXXX COUNTY, TN
CONTRACT COUNTY LEASE DATE ACRES
-------- -------- ---------- -------
ML-T-SM-015 Xxxxx 9/2/1975 61
SCHEDULE 1.29
EXCLUDED ASSETS
Any interest in or right to use the names "ASARCO", "ASARCO Tennessee Mines
Division" or the respective logos, names, trademarks, trade names or the like of
Seller.
Subject to Section 5.5(b), all prepaid Taxes, Tax refunds, Tax credits, and
other Tax assets.
Intercompany accounts (except accounts receivable and payable in the Ordinary
Course).
All rights under insurance policies in force prior to or at the Effective Time.
All historical tailings generated prior to closing which have been sold to Mossy
Creek pursuant to a contract dated August 13, 2002
EXCLUDED LIABILITIES
Agreement by and among Asarco Incorporated, Tennessee Mines Division and
American Limestone Company, Inc., dated May 23, 2000.
Labor Agreement by and among Asarco Incorporated, Tennessee Mines Division Local
Union 700-C of the International Chemical Workers' Union Council of the United
Food Commercial Workers' International Union,
SCHEDULE 2.3
ALLOCATION OF PURCHASE PRICE AND CONSIDERATION
[To Be Completed by the Parties Prior to Closing]
SCHEDULE 3.5
PROPERTIES AND ROYALTIES
XXXXX
CONTRACT
NUMBERS CONTRACT WITH COVERS
-------- ------------------ --------------
TMD-3-12 State of Tennessee Lease Agreement
MIDDLE TENNESSEE
CONTRACT # OWNER
---------- -----
ML-T-JA-018 Xxxxx and Xxxxx Xxxxxx
ML-T-JA-018 Xxxxxxxx X. Xxx Estate - Xxxxxx and Xxxx Xxxx, Ex.
ML-T-JA-020 Xxxxx Xxx
ML-T-JA-020 XXXXX X. XXXXXXX C/O XXXXX XXX
ML-T-JA-020 Xxxxx Xxxxxx c/o Xxxxx Xxx
ML-T-JA-022 Xxxxx and Xxxxxx Xxxxxx
ML-T-JA-023 Xxxxxx Xxxxxx
ML-T-JA-025 XXXXXXXX X. XXXXXX (NEW OWNER - XXXXX XXX)
ML-T-JA-025 XXXXX X. XXXXXX (NEW OWNER - XXXXX XXX)
ML-T-JA-035 Xxxxxxx and Xxxxxxx x/x Xxxx Xxxxxxx
XX-X-XX-000 Xxxxxxx and Xxxxx Xxxxxxx c/x Xxxxxxx Cnty. Bank
ML-T-JA-040 Xxxxx and Xxxxx Xxxxxxx
ML-T-JA-048 Clay and Xxxxxx Xxxxxx
ML-T-JA-049 Xxxx and Xxxxxx Xxxxxx c/o Xxxxxxx and Xxxxx Xxxxx
ML-T-JA-049 Xxxxxxx and Xxxxx Xxxxx
ML-T-JA-053 Xxxx Yankee (Estate of Woodford Yankee)
ML-T-JA-060 Xxxxxxx Xxxxxxxxxx and Xxx X. Xxxxxxxxxx
ML-T-JA-061 XXXX XXXXX (NEW OWNER - WIMBERLEY)
ML-T-JA-061A XXXXX AND XXXXX XXXXX (NEW OWNER - WIMBERELY)
ML-T-JA-062 Xx. X. X. Xxxxxxx
ML-T-JA-008 Xxxxx and Xxxx Xxxxxxx
ML-T-JA-008 Xxxxx Xxxxxxx
ML-T-JA-004 Xxxx and Xxxxxx Xxxxxx
ML-T-JA-004 Xxxxx Xxx
ML-T-JA-004 Xxxxxx Xxxxxx, Xxxxxxxxxxx Xxxxx
ML-T-JA-023 Xxxxxxx Xxxx
ML-T-JA-023 Xxxxx Xxxxxxxx et vir Xxxxx Xxxxxxxx
ML-T-JA-023 Xxxxx Xxxxxxx et ux Xxxxx Xxxxxxx
ML-T-JA-023 Xxxxxxxx Xxxxxxxx
-2-
CONTRACT # OWNER
---------- -----
6702 Xxxxx Xxxxxxx
6710 Xxxxx and Xxxxxx Xxxxxxxxx
6710 Xxxxx and Xxxxxx Xxxxx
6742-A Xxx Xxxxxxxxx
6742-B Xxxxx Xxxxxxxxx
6742-C Xxxxxxx and Xxxx Xxxxxx
6742-X Xxxxxx and Xxxxxx Xxxxxx
6742-E Xxxxxx and Xxxxxx Xxxxxx
6742-F Xxx Xxxxx and Xxx Xxxxxxxxx
6742-G Xxxxxx Xxxxxxx
6773-A Xxx and Xxxxx Xxxxxxx
6773-B Xxxx X. Xxxxxx
6876 Xxxxxx Xxxxx
6936 Xxxxx Xxxxxxxxx, et ux
6936-C Xxxxxxxxx Xxxxxxx
6936-D Xxxxxxxxx Xxxxxxx
7308-A Xxxxxx Xxxxxx
7309-A Xxxxxx Xxxxxx
7308-A Xxx X. Xxxxxx
7309-A Xxx X. Xxxxxx
7308-A Xxxxxxxx X. XxXxxxxxx
7309-A Xxxxxxxx X. XxXxxxxxx
0000-X Xxxxxxx Xxxxxx Xxxxx
0000-X Xxxxxxx Xxxxxx Xxxxx
7308-A Xxxxxxx Xxxxxx Xxxxxxx
7309-A Xxxxxxx Xxxxxx Xxxxxxx
7308-A Xxxx Xxxxxx
7309-A Xxxx Xxxxxx
TN-RR-2 Xxxxxx and Xxxxx Xxxxx
TN-RR-4 Xxxxx Xxxxxxx
TN-RR-6a Xxxxxxx Xxxx
TN-RR-6b Xxx and Xxxxxxxx Xxxxxxx
TN-RR-6c Xxxx Xxxxxxxx
TN-RR-6c Xxxxx Xxx Xxxxxxx
TN-RR-6c Xxxxxxx Xxxx
TN-RR-6c Xxxxxxx Xxxx
TN-RR-6d Xxxxxx and Xxxxxx Xxxxxx
TN-RR-6e Xxxxxx and Xxxxxx Xxxxxx
TN-RR-7 XXXXXXX PROPERTIES, L.P. X/X XXX XXXXXXXXX XXX XXXX XXXXXXXXXX
XX-XX-00 Xxxxxx Xxxxx
TN-RR-14 Xxxx X. Xxxxx
TN-RR-14B Xxx and Xxxxxxx Xxxxxx
TN-RR-14A Xxxxx Xxxxxxx
MT-GB-1A Xxxxxx X. and Xxxxxx X. Xxxxx
MT-GB-1B Xxxxxxx Xxxxx Heirs c/o Xxx Xxxxx Xxxxx
-3-
CONTRACT # OWNER
---------- -----
MT-GB-2 Xxxxx and Xxxxx Xxxxxx
MT-GB-3 Xxxx Xxxxxx
MT-GB-4 Xxxxx and Xxxxxxxx Xxxxxxx
MT-GB-5 Xxxxx and Xxxxxx Xxxxxxxxx
MT-GB-6 Xxxx X. Xxxxxxxxx
MT-GB-7 Xxxxx and Xxxxxx Xxxxxxx
MT-GB-8 Xxxxxx X. and Xxxxxx Xxxxxx
MT-GB-9 Xxxx and Xxxxxx Xxxxxxx
MT-GB-10 Xxxxxxx Xxxxx
MT-GB-11 Xxxx Xxxxxx
MT-GB-12 Xxxxxx and Xxxxx Xxxxx
MT-GB-13 Xxxxx and Xxxxxx Xxxxx
MT-GB-14 Xxxxx, Jr. and Xxxxxx Xxxx Xxxxxx
MT-GB-15 Xxxx Xxxxxx
MT-GB-16 Xxxxxx X. and Xxxxxxx Xxxx
MT-GB-17 Xxxxx Xxxxxxxx and Xxx Xxxxxxxx
MT-GB-19 Xxxx and Shelby Xxxx Xxxxxxxx
MT-GB-20 Xxxxxx Xxxxxx
MT-GB-21 Xxxxxx Xxxxxx
MT-GB-22 Xxxxx and Xxxxx Xxxxx
MT-GB-22 Xxxxxxx Xxxxx
MT-GB-23 Xxxxx and Xxxxx Xxxxx
MT-GB-23 Xxxxxxx Xxxxx
MT-GB-24 Xxxxx and Xxxxx Xxxxx
MT-GB-25 Xxxxx and Xxxxx Xxxxx
TN-BF-1 Xxxxx and Xxxxxx Xxxx
TN-BF-2 Xxxxxxx and Xxxxxx Xxxxxxx
TN-BF-3 Xxxxxx and Xxxxx Xxxxxxx
TN-BF-4 Xxxxxx and Xxxxx Xxxxxxx
TN-BF-5 Xxxxxx Xxxxxxx
TN-BF-6a Xxxxx X. and Xxxxx X. Xxxx
TN-BF-6b Xxxxx X. and Xxxxx X. Xxxx
TN-BF-6C XXXX XXXXXX
TN-BF-6d Xxx X. and Xxxxxx Xxxxx
TN-BF-6e Xxxx X. and Xxxxx X. Xxxx
TN-BF-6f Xxxxx and Xxxx Xxxx Xxxxxxx
TN-BF-6g Xxxxxx Xxxxx
TN-BF-7 Xxxxx and Xxxxxxx Xxxxxxxx
TN-BF-7a Xxxxx X. Xxxxxx
TN-BF-8 Xxxxxxxx Xxxxxx
TN-BF-12 Xxxxxx Xxxxx
TN-BF-13 Xxxxx Xxxxx Xxxxx
TN-BF-14 Xxxxxx and Xxxxx Xxxxxx
TN-BF-15 Xxxxx Xxxx Xxxxx
TN-BF-16 Estate of Xxxxxxx Xxxxx c/o Xxxxx Xxxxx Xxxxx
-4-
CONTRACT # OWNER
---------- -----
TN-BF-18 Eligh Xxxxxxx Xxxxxx, et al
MT-1-RF-18AB Xxxxx Xxxxxxx
MT-1-RF-37AB Wm. X. Xxxxxxxx Estate c/o Jan Xxxxx Xxxxxxxx
MT-1-RF-37CD Xxxxxxx Xxxx, M.D.
MT-1-RF-37CD Xxxx Xxxxxx Xxxx
MT-1-RF-40AB Mr. and Xxx. Xxxxxx Xxxxxx
MT-1-RF-40AB Xxxxxxx Xxx Xxxxxx
MT-1-RF-40AB Xxxxx Xxxx Xxxxxx
MT-1-RF-40E Xxx Xxx Xxxxxxx
MT-1-RF-40F Xxxxx Xxxxxxx
MT-1-RF-41AB Jearls P. and Xxxxx Xxxxxxxx
MT-1-RF-41AB Xxxx and Xxxxxx Xxxxx
MT-1-RF-41C Xxxxx Xxxxxxx Masters
MT-1-RF-41D Mr. and Xxx. Xxxxxxx Xxxxxxx
MT-1-RF-41E Mr. and Xxx. Xxxxx X. Xxxxxxxx
MT-1-RF-104AB Xxxxx Xxxxxxxx
MT-1-RF-104AC Xxxxx Xxxxxxxx
MT-1-RF-104AC Xxxxxx X. Xxxxxxxx
MT-1-RF-104AC Xxxx Xxxxxxxx Bedford
MT-1-RF-110AB Xxxxxx X. and Xxxxxx X. Xxxxxxxx
MT-1-RF-110AB Xxxxxxx and Xxxxx Xxxxxxx
MT-1-RF-155AB Mr. and Xxx. Xxxxxx Xxxxxxxx
MT-1-RF-156AB Xxxxx Xxxxxxxx
MT-1-RF-156C Mr. and Xxx. Xxxxx Xxxxxx
MT-1-RF-161AB Xx. Xxxxxxx Xxxxxxxx
MT-1-RF-209AB Xxxxx Xxxxxxx Masters
MT-1-RF-163E Xxxxxxx X. Xxxxxx c/o Xxxxxx Xxxxxx
MT-1-RF-163D Xxxxxxx Xxxxxxxx
MT-1-RF-163D Xxxxxx Xxxxxxx
MT-1-RF-163D Xxxxxx Xxxxxx
302-552-142-061 Xxxxx X. Xxxxxx Estate
302-552-142-077 Xxxxxxx Xxxxx Xxxxxx
302-552-142-077 Xxxxxx Xxxxxx
302-552-142-210 Xxxxx Xxxxx
302-552-142-211 Xxxxxxx and Xxxxxxx Xxxxxx, Xx.
302-552-142-214 Xxxxxx X. Xxxxxx
302-552-142-214 Xxxxx Xxx Xxxxxxxx
302-552-142-214 Xxxxxx Xxxxxxxxxx
302-552-142-214 Xxxxx X. Xxxxxx
302-552-142-214 Xxxx X. Xxxxxx
302-552-142-214 Xxxxxxx X. Xxxxx
302-552-142-214 Xxxxxxx and Xxxxxxx Xxxxxx, Xx.
302-552-142-216 Xxxxxxx Xxxx c/o Xxxxxx Xxxxx
302-552-142-216A Xxxxx X. Long
ML-T-JA-023 Xxxxxxx Xxxx
-5-
CONTRACT # OWNER
----------- -----
ML-T-JA-023 Xxxxx Xxxxxxxx et vir Xxxxx Xxxxxxxx
ML-T-JA-023 Xxxxx Xxxxxxx et ux Xxxxx Xxxxxxx
ML-T-JA-023 Xxxxxxxx Xxxxxxxx
SCHEDULE 3.7
COMPLIANCE WITH LAWS, PERMITS AND LICENSES
None.
SCHEDULE 3.8
MATERIAL CONTRACTS
MATERIAL CONTRACTS CONVEYED TO AND ASSUMED BY BUYER
POWER
CONTRACT
NUMBERS CONTRACT WITH COVERS
--------- --------------------------------- --------------------------------
TMD-1P-1 Appalachian Elec. Coop. Power Xxxxxxxx
Xxxxx # 0-0000-0
XX-00000X (Acct. #2930)
TMD-1P-2 Appalachian Elec. Coop. Power Xxxxxxxx
Xxxxx # 0-0000-0
XX-00000X (Acct. #3093)
TMD-1P-2A Appalachian Elec. Coop. Power Xxxxxxxx
Xxxxx # 0-0000-0
XX-00000X (Acct. #40780)
TMD-1P-7A Appalachian Elec. Coop. Power Contract
Acct. No. 1-7175-0
(Acct. #2929)
TMD-1P-8 Knoxville Utilities Board Agreement for Electric Service
TMD-1P-8A Knoxville Utilities Board Impulse/Load Control Contract
TMD-1P-9 Knoxville Utilities Board Agreement for Electric Service
TMD-1P-9A Knoxville Utilities Board Impulse/Load Control Contract
TMD-1P-10 Appalachian Elec. Coop. Power Contract
Acct. No. 1-7250-0
TMD-1P-11 Appalachian Elec. Coop. Power Contract
TMD-1P-12 Knoxville Utilities Board Power Contract
TMD-1P-13 Appalachian Elec. Coop, Power Xxxxxxxx
Xxxxx #0-0000-0
Xxxx. #117383
-2-
SERVICES
CONTRACT
NUMBERS CONTRACT WITH COVERS
--------- --------------------------------- --------------------------------
TMD-1S-31 Sonitrol Sec. Systems Agreement
# S 090742
TMD-1S-37 Sonitrol Sec. Systems Agreement
# D 24586
TMD-1S-40 Business Machines Company of East Total Copy Coverage Maintenance
Tennessee, Inc. Agreement
AGRICULTURE LEASES
DATE
CONTRACT WITH COVERS EFFECTIVE EXPIRES
------------------------------ -------------------------------- -----------------
Xxxx Xxxx Agricultural Lease 1/1/95
Xxxxxx Xxxxxx Agricultural Lease 1/1/95
Xxxxxxx Xxxxxx Agricultural Lease 1/1/1999
Xxx Xxxxx Agricultural Lease 1/1/95
Xxxxx Xxxxxxx Agricultural Lease 1/1/95
Xxxxxxx Xxxxx Agricultural Lease 1/1/95
Xxxxxxx Xxxxxx Xxxx Residential & Agricultural Lease 10/16/97
Loudon County Dive Rescue Team Ground Lease 5/3/2000
Xxx Xxxxxxx Agricultural Lease 1/1/1995
Xxxxx Xxxxxx Agricultural Lease 4/30/99
Xxxxx Xxxxxxx Agricultural Lease 04/01/97
Xxx X. Xxxxxx Agricultural Lease 0/0/00
Xxxxxx Xxxxx Xxxxxxxxxxxx Lease 0/0/00
Xxxxxx Xxxxx Xxxxxxxxxxxx Lease 1/1/96
Xxxx Xxxxxx Agricultural Lease 1/1/1999
-3-
GENERAL
Young Mine Tailings and Access Easement Agreement dated August 13, 2002 by and
among Asarco Incorporated and Mossy Creek Mining Company, LLC
Mossy Creek Waiver of Option to Purchase dated October 4, 2004
Extension of Mossy Creek Waiver of Option to Purchase dated March 1, 2005
All Mineral Leases set forth in Schedule 3.5
Lease between Xxxxxxxx X. Xxxx and Asarco dated February 1, 1996 granting Asarco
a lease for a portion of the building located at 000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxx
MATERIAL CONTRACTS RETAINED BY SELLER
LABOR
CONTRACT
NUMBERS CONTRACT WITH COVERS
-------- ------------------------------------------------- -----------------
TMD 1U-1 International Chemical Workers' Union Council of Employees Union
the United Food Commercial Workers' International
Union and its Local Union 700-C
GENERAL
Agreement between Asarco Incorporated, Tennessee Mines Division and American
Limestone Company, Inc., dated May 23, 2000
SCHEDULE 3.10
ENVIRONMENTAL MATTERS
XXX MINE
Xxx Supplemental Environmental Plan ("SEP")--part of a previous Consent Decree
between Asarco and the US DOJ; Asarco to retain liability and responsibility
Bio-monitoring for zinc and organics (NOV)
XXXXX MINE
Retro-filled transformer removed from underground requires disposal
Retro-filled transformer located on 554 level pump station requires removal and
disposal
YOUNG MINE
Possible removal of UG gasoline tank at warehouse
A dump area for mine waste products is located north and adjacent to the east
end of the rail spur. The area contains waste cardboard explosive boxes, ANFO
bags, hydraulic hoses, engine filters and rags. During the mid 1980s the dump
area was compacted, covered with clay soil and seeded with grass.
Nuclear sources are in storage in an explosives magazine east of Young Mine. A
list of the sources is as follows: On Stream Analyzer Sources -- Nuclide CM-244,
Activity 0.20, S/N 1902 and Nuclide CM-244, Activity 0.10, S/N 1800, Density
Gage Sources -- Nuclide CS-137, Activity 0.05, S/N M2962, Nuclide CS-137,
Activity 0.08, S/N 63060 and Nuclide CS-137, Activity 0.08, S/N M3575.
YOUNG MILL
Main tails embankment issue--gravel layer across dam must be considered when
designing next dam lift.
Two asbestos cement pipelines have been abandoned and remain buried in place.
The pipelines extend from the process water tank located near the top of the
xxxx south of Young Mine to the concentrator building. The approximate length of
8 inch and 12 inch diameter asbestos cement pipe, class 150 lb is 2,070 feet of
each pipe size. During the 2000 the pipelines were replaced with poly pipe.
SCHEDULE 3.14
DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; KNOWLEDGE; DISCLOSURE
KNOWLEDGE GROUP
Xxx Xxxxxxxxx, ______________
Will Begg, ______________
Xxx Xxxxx, ________________
EXHIBIT A
[to be delivered within ten (10) days of this signing of this Agreement]
