RESTATED AND AMENDED COAL LEASE
THIS RESTATED AND AMENDED COAL LEASE, made and entered into this 15th day
of May, 1987, by and between SIBONEY COAL COMPANY, INC., a Kentucky corporation
with a principal address and mailing address of X.X. Xxx 00000, Xxxxxxx,
Xxxxxxxx 00000 (hereinafter called "LESSOR"), and MOUNTAINEER LAND COMPANY, a
Delaware corporation, with an office at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxx
Xxxxxxxx, and a mailing address of X.X. Xxx 0000, Xxxxxxxxxx, Xxxx Xxxxxxxx
00000 (hereinafter called "LESSEE").
WITNESSETH:
WHEREAS, LESSOR and LESSEE entered into that certain Coal Lease dated
November 15, 1978, as amended by Amendment No. 1 to Coal Lease dated January 2,
1980 (as so amended, the "1978 Coal Lease") covering tracts of land situate in
Xxxxxxx and Xxxxxx Counties, Kentucky, as more particularly described in Exhibit
A attached hereto and made a part hereof; and,
WHEREAS, the parties hereto desire to amend the 1978 Coal Lease in certain
respects and restate the 1978 Coal Lease as so amended.
NOW, THEREFORE, for and in consideration of the mutual benefit to be
derived therefrom, the mutual agreements herein contained, and in further
consideration of the payment of the monies hereinafter set forth, the adequacy
of all of which is hereby acknowledged, the parties hereto do hereby restate the
1978 Coal Lease as amended by this Restated and Amended Coal Lease, and LESSOR,
subject to all the terms and conditions of this Restated and Amended Coal Lease,
does demise and lease to LESSEE, its successors and assigns, all the coal in, on
or under (i) all those certain tracts of land situate in Xxxxxxx and Xxxxxx
Counties, Commonwealth of Kentucky, and being more particularly described in
Section 1 of Exhibit A attached hereto and made a part hereof, (said tracts of
land are hereinafter referred to as the "Fee Tracts"), and (ii) all those
certain tracts or parcels of land located in Xxxxxxx and Xxxxxx Counties,
Kentucky, and being more particularly described in Section 2 of Exhibit A
attached hereto and made a part hereof (said tracts of land are hereinafter
referred to as the "Coal Tracts") (the Fee Tracts and the Coal Tracts are
sometimes collectively referred to as the "Property"), and grants exclusively
unto LESSEE, subject to all the terms and conditions of this Restated and
Amended Coal Lease, its successors and assigns, the rights set forth in ARTICLE
ONE hereof.
LESSOR and LESSEE covenant and agree as follows:
ARTICLE ONE. RIGHTS.
1.1 During the Mining Term (as hereinafter defined), LESSEE shall have the
right to mine all the coal in, on or under the Property by the deep, strip,
auger and any other legal method of mining now or hereafter in existence,
together with all necessary and appurtenant privileges with respect thereto,
including, but not limited to, the right to use the sand, water and gravel on
the Fee Tracts, and use of the surface of the Fee Tracts for the purpose of
constructing and operating thereon tramways, roadways, haulways, water drainage
courses, side tracks, switches, substations, buildings, processing plants,
tipples and any other improvements or structures convenient for the mining,
storing, processing, handling and shipping of coal on or from the Property,
together with the right to cut and use for LESSEE's coal mining operations on
the Property the timber and trees standing or fallen on the Fee Tracts, as well
as the exclusive right to haul without additional charge, rent or royalty, coal,
men, supplies, equipment and machinery over, under and through the Fee Tracts
and under and through the Coal Tracts, and to make such other use of the
Property as shall be convenient for the mining of coal from the Property and any
other properties owned, leased or controlled by LESSEE and the dumping on the
Fee Tracts of refuse from any coal mined by LESSEE from the Property or any
other properties owned, leased or controlled by LESSEE, all without any
liability for damages to the surface thereof. LESSOR recognizes the Property is,
or may be in the future, one of several contiguous or adjacent parcels from
which coal may be extracted by LESSEE, and LESSOR specifically waives the
prohibition against mining within any specified minimum distance of any boundary
line between the Property and any adjoining lands owned, controlled or leased by
LESSEE, and waives the maintenance of barrier pillars between the Property and
any adjacent or contiguous property owned, leased or controlled by LESSEE, it
being specifically understood and agreed by the parties hereto that the Property
may be used in conjunction with other properties owned or leased by LESSEE
contained in mining plans of LESSEE, its successors or assigns, of which the
Property is a part. To the extent LESSOR has the right to grant such rights,
LESSOR grants to LESSEE the above rights with respect to the Coal Tracts.
1.2 During the Hauling Term (as hereinafter defined), if LESSEE pays the
rental called for in paragraph 9.2 below, LESSEE shall have the right to haul
without additional charge, rent or royalty, coal, men, supplies, equipment and
machinery over the Fee Tracts and the exclusive right under and through the Coal
Tracts and Fee Tracts.
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ARTICLE TWO. TERM.
2.1 The term of this Restated and Amended Coal Lease shall be as follows:
(a) The period commencing on May 15, 1987 and ending on the earlier of
(i) midnight, April 30, 2012, or (ii) the expiration of thirty (30) days
following the notice referred to in this paragraph 2.1(a) below shall be
known as the "Mining Term", and LESSEE shall have the rights set forth in
paragraph 1.1 above and elsewhere in this Restated and Amended Coal Lease
as rights of LESSEE during the Mining Term. At any time following May 15,
1987, LESSEE shall have the right to surrender this Restated and Amended
Coal Lease by giving written notice to LESSOR, and at LESSEE's option, such
surrender may be with respect to either (A) only the mining rights granted
by paragraph 1.1, or (B) this entire Restated and Amended Coal Lease except
for LESSEE's rights set forth in paragraph 2.2 and ARTICLE TWELVE.
(b) The period commencing with the date upon which LESSEE gives the
notice referred to in the clause (A) of the last sentence of paragraph
2.1(a) above and ending upon the earlier of (i) midnight, April 30, 2017,
or (ii) the expiration of thirty (30) days following the notice referred to
in this paragraph 2.1(b) below shall be known as the "Hauling Term", and
LESSEE shall have the rights set forth in paragraph 1.2 above and elsewhere
in this Restated and Amended Coal Lease as rights of LESSEE during the
Hauling Term. At any time following commencement of the Hauling Term,
LESSEE shall have the right to surrender this Restated and Amended Coal
Lease with respect to the hauling rights granted by paragraph 1.2, except
for LESSEE's rights set forth in paragraph 2.2 and ARTICLE TWELVE. If this
Restated and Amended Coal Lease continues in effect for the Hauling Term
and there is more than one road on the Property, LESSOR shall have the
right to designate the road over which such men, materials, supplies and
coal shall be hauled so long as LESSOR does not designate a road which
unreasonably interferes with LESSEE's operations or increases the cost
thereof. In the event LESSOR desires to relocate any road located on the
Property which is used by LESSEE as herein provided, LESSOR may do so at
its sole cost and expense; provided, however, that such road as relocated
shall not unreasonably interfere with LESSEE's operations or increases the
cost thereof.
(c) Upon surrender of this entire Restated and Amended Coal Lease
pursuant to paragraph 2.1 or the hauling rights pursuant to paragraph 2.1,
LESSEE shall be released from all of its obligations arising from and after
the date of such surrender by LESSEE; provided, however, if such surrender
is at any time other than the end of a lease year, LESSOR shall not be
obligated to refund any of the Minimum Annual Royalty or the Annual Rental
paid for such lease year, as the case may be, or refund any of the monies
referred to in paragraph 6.2.
2.2 LESSEE shall continue to have the right after surrender, termination,
cancellation or forfeiture of this Restated and Amended Coal Lease for any
reason to reenter the Property to reclaim all or any portion thereof required by
any governmental entity to so be reclaimed without any obligations to LESSOR.
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ARTICLE THREE. TONNAGE ROYALTY.
3.1 LESSEE covenants and agrees to pay to LESSOR during the Mining Term of
this Restated and Amended Coal Lease, without demand therefor, a tonnage royalty
(the "Tonnage Royalty") on each ton of 2,000 pounds of coal mined, removed and
sold from the Property as follows: (i) for all coal mined and removed by any
method other than the deep or underground method of mining (a) eight percent
(8%) of the gross selling price of the coal or Two Dollars ($2.00), whichever is
greater, if LESSOR owns both the coal in, on or under the Property and the
surface thereof, or (b) six percent (6%) of the gross selling price of the coal
or One Dollar and Sixty Cents ($1.60), whichever is greater, if LESSOR owns only
the coal in, on or under the Property, or (c) two percent (2%) of the gross
selling price of the coal or Forty Cents ($0.40), whichever is greater, if
LESSOR owns only the surface of the Property, and (ii) for all coal mined,
removed and sold by the deep or underground method of mining six percent (6%) of
the gross selling price of the coal or One Dollar and Sixty Cents ($1.60),
whichever is greater, regardless of whether LESSOR owns only the coal in, on or
under the Property, or both the surface of the Property and said coal; PROVIDED,
that payment pursuant to each of the subdivisions of this ARTICLE 3.1 shall be
mutually exclusive and LESSOR shall only be paid pursuant to one of such
subdivisions for each ton of coal mined and removed and subsequently sold by
LESSEE; and PROVIDED FURTHER, that no payment shall be made to LESSOR pursuant
to subdivision (ii) if LESSOR owns only the surface of the Property. On or
before the 30th day of each calendar month, LESSEE shall account to LESSOR for
all the coal mined, removed and sold from the Property during the preceding
calendar month, and LESSEE shall pay to LESSOR the Tonnage Royalty thus found to
be due for such preceding calendar month, subject to recoupment as provided for
in ARTICLE SIX.
3.2 As used in this Restated and Amended Coal Lease, the term "gross
selling price" shall mean the price received by LESSEE, or any affiliate
thereof, in a bona fide arms' length transaction less all of the following costs
actually incurred by LESSEE or its affiliates, (i) all transportation costs from
the mine to the customer, (ii) all tippling, processing or cleaning costs, (iii)
severance taxes, (iv) any tax imposed by the Black Lung Benefits Revenue Act of
1977, as now in existence or as it may be hereafter amended, (v) the Reclamation
Fee payable under the Surface Mining Control and Reclamation Act of 1977, as now
in existence or as it may be hereafter amended and/or (vi) any similar
reclamation fee imposed by the Commonwealth of Kentucky, (vii) and any
governmental impositions which may hereafter be imposed on the privilege of
mining coal.
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ARTICLE FOUR. MINIMUM ANNUAL ROYALTY; ANNUAL RENTAL.
4.1 LESSEE agrees to pay in advance on or before the first day of each May
(except for the first payment which shall be made concurrently with the
execution of this instrument by LESSOR) during the Mining Term of this Restated
and Amended Coal Lease the sum of Thirty Thousand and no/100 Dollars
($30,000.00) (the "Minimum Annual Royalty"), which shall be fully recoupable as
provided for in ARTICLE SIX below.
4.2 LESSEE agrees to pay in advance on or before the first day of each May
during the Hauling Term of this Restated and Amended Coal Lease the sum of
Fifteen Thousand and no/100 Dollars ($15,000.00) (the "Annual Rental") which
shall not be recoupable. The first payment with respect to the Hauling Term
shall be made on or before the first day of May following the end of the Mining
Term. The last payment of Minimum Annual Royalty made for the last lease year of
the Mining Term shall cover the period from the end of the Mining Term until the
following May 1st when the first payment of Annual Rental is due and payable.
ARTICLE FIVE. RECOUPABLE AMOUNT.
5.1 Simultaneously with the execution of the 1978 Coal Lease by LESSEE,
LESSEE paid to LESSOR an advance royalty (the "Advance Royalty"). Of One Hundred
Thirty Thousand and no/100 Dollars ($130,000.00), and since November 15, 1978,
LESSEE has paid to LESSOR other monies required to be paid under the 1978 Coal
Lease, has taken recoupment as provided for in the 1978 Coal Lease, and as of
the date hereof, has the right to fully recoup, as provided for in ARTICLE SIX
hereof, the sum of $907,622.37 (the "Recoupable Amount").
ARTICLE SIX. RECOUPMENT.
6.1 For coal mined during any calendar month of the Mining Term, LESSEE
shall have the right to recoup and credit against the Recoupable Amount and all
Minimum Annual Royalty fifty percent (50%) of the Tonnage Royalty payable
hereunder, so long as any portion of the Recoupable Amount or Minimum Annual
Royalty remains unrecouped as a result thereof. That is to say, for example, if
LESSEE mines, removes and sells with respect to a particular month a quantity of
coal on which the Tonnage Royalty payable to LESSOR would be $40,000 but for
such recoupment and credit, LESSOR shall recoup and credit $20,000 and pay
LESSOR $20,000.
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6.2 Upon cancellation, termination, forfeiture or surrender of this
Restated and Amended Coal Lease with respect to the rights granted by paragraph
1.1, any of the Recoupable Amount and the Minimum Annual Royalty which has not
been recouped shall remain the property of LESSOR, and LESSOR shall not be
required to reimburse or refund all or any portion thereof to LESSEE.
ARTICLE SEVEN. PAYMENTS.
7.1 All payments of any kind required to be made by LESSEE to LESSOR
pursuant to this Restated and Amended Coal Lease shall be mailed to LESSOR at
the mailing address set forth on Page 1 hereof to the attention of the
President. LESSOR may change the address to which such payments shall be mailed
by notice in writing of such change.
ARTICLE EIGHT. DEVELOPMENT OF THE PROPERTY.
8.1 It is agreed and understood by the parties hereto that LESSEE shall
have the right to commence operations or to resume said operations should they
be halted or suspended subsequent to the commencement thereof, at any such time
as LESSEE may elect at its sole discretion. It is further agreed and understood
by the parties that LESSEE shall not be required or obligated to mine, remove
and sell any specified amount or quantity of coal.
8.2 LESSEE agrees to keep true and faithful accounts of all coal mined,
removed and sold by it from the Property and to render to LESSOR on or before
the 30th day of each calendar month a statement showing the number of tons mined
from the Property during the preceding calendar month and the method by which it
was mined, LESSOR's authorized representative shall have the right, after notice
to LESSEE, to inspect the books, records and papers of LESSEE relating to the
mining and sale of coal from the Property, and LESSEE's maps thereof, but all
such inspection shall be during LESSEE's normal business hours and in such a
manner as not to unreasonably interfere with the operations of LESSEE. Payments
of Tonnage Royalty for coal mined, removed and sold from the Property may be
based, at LESSEE's option, upon the same quantity of coal as is delivered to
LESSEE's customers.
8.3 Every six (6) months during periods when LESSEE is mining and removing
coal from the Property, LESSEE shall furnish to LESSOR progress maps showing the
current mining operations on the Property and approximate areas of the Property
mined during the period of time since the last such progress map was furnished
to LESSOR and the approximate extent of such mining. Such maps shall be of the
kind and type and shall show the same information as the progress maps which
LESSEE prepares for its own use.
ARTICLE NINE. MINING OPERATIONS.
9.1 LESSEE agrees that its mining operations on, in or under the Property
shall be conducted in a practical, skillful and workmanlike manner in accordance
with generally accepted practices and uses in the coal field in which the
Property is located and in accordance with all laws, rules and regulations.
Nothing contained herein shall require LESSEE to mine any specific quantity of
coal. LESSEE shall reclaim any areas of the Property disturbed by it in its
operations pursuant to this Restated and Amended Coal Lease in accordance with
all applicable laws, rules and regulations. Upon LESSEE's failure to comply with
all laws, rules or regulations, either with respect to its mining operations or
its reclamation activities, LESSOR shall not have the right to terminate or
cancel this Restated and Amended Coal Lease or seek a forfeiture thereof;
however, LESSEE hereby agrees to indemnify LESSOR and to hold LESSOR harmless
from any and all fines, expenses and costs caused by LESSEE's failure to comply
with such laws, rules or regulations; however, LESSEE agrees not to do any act
or fail to do any act which might result in criminal sanctions against the
officers or directors of LESSOR.
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9.2 LESSEE shall have the right, in case of underground or deep mining, to
leave such pillars of coal as are necessary to facilitate mining of other tracts
or properties by LESSEE contained in a mining plan. Upon completion of such
mining, LESSEE shall pull such pillars to the extent permitted by law and to the
extent that same can be done in a safe and prudent manner.
9.3 It is understood and agreed between the parties hereto that in the
event oil or gas pipelines or any other pipelines of any kind, or any utility
lines or easements or rights of way located in, under or upon the Property must
be moved or relocated to permit the mining of any area of the coal in, under, on
or within the Property, LESSEE, at its sole option, may either (a) move or
relocate said pipelines, utility lines, or easements or rights of way at its own
cost and expense, or (b) bypass so much of the coal as cannot be mined without
removing or relocating said pipelines, utility lines, easements or rights of way
without liability to the LESSOR for failure to mine said coal. In addition, the
rights granted to LESSEE pursuant to this Restated and Amended Coal Lease shall
be paramount to any rights granted to any party subsequent to this Restated and
Amended Coal Lease for the recovery of any minerals of any kind from the
Property, or otherwise, and such party's rights shall be subordinate to LESSEE's
rights hereunder.
9.4 LESSOR hereby gives its consent to the use of Property as
hayland-pastureland following cessation of mining on the Property, and LESSOR
agrees that neither it, nor anyone claiming through it, will disturb any areas
of the Property which LESSEE has reclaimed until after LESSEE's bonds with
respect to such area have been released. LESSEE agrees to use good faith efforts
to obtain such releases as soon as reasonably possible under applicable law.
9.5 LESSEE hereby agrees to indemnify LESSOR and to hold LESSOR harmless
from any and all claims or causes of actions resulting from personal injury,
wrongful death or any property damage occurring on the Property and caused by
LESSEE's operations thereon.
9.6 LESSOR's authorized representatives shall have the right to enter the
property and inspect LESSEE's operations thereon during LESSEE's normal working
hours; provided, however, that such entry and inspection shall be at the sole
risk of LESSOR and/or its authorized representatives and LESSEE shall not be
liable for injury, death or property damage suffered by LESSOR or its authorized
representatives; and, provided further, that LESSOR or such authorized
representatives shall notify LESSEE prior to any proposed entry on the property
and inspection. The terms of Paragraph 9.5 shall not apply with respect to any
such entry or inspection, unless such injury, death or property damage shall be
caused by the willful or intentional acts of LESSEE.
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ARTICLE TEN. TIMBER.
10.1 In the event there is merchantable timber growing on the Property in
any area to be affected by LESSEE's operations, which timber LESSEE will not
need in connection with its operations, LESSEE shall give LESSOR notice of the
area to be affected by its operations, together with notice of its plan of
operations, and with such notice advise LESSOR of what LESSEE believes to be the
"fair market value" of the timber to be affected. If LESSOR agrees with LESSEE
as to the fair market value of such timber, then LESSEE shall pay to LESSOR such
amount and LESSEE may dispose of such timber in any manner which it chooses. If
LESSEE fails to give such notice before such timber is destroyed or disposed of,
LESSEE shall not be deemed to be in default of this Restated and Amended Coal
Lease for which forfeiture may be had, but LESSEE shall pay LESSOR one hundred
twenty percent (120%) of the fair market value of the timber so destroyed, which
value may be determined pursuant to paragraph 10.2 below.
10.2 The fair market value of timber destroyed or to be destroyed shall be
determined at LESSEE's option either by (a) the highest of three (3) bona fide
bids obtained by or offered to LESSEE for the harvesting of such timber, or (b)
by an appraiser, mutually selected by LESSOR and LESSEE and experienced in
harvesting timber in the area, who shall determine the fair market value of such
timber, and with which determination both LESSOR and LESSEE shall be bound; and
if LESSOR and LESSEE cannot agree on the appraiser who will make such
determination, each party hereto shall appoint one such experienced appraiser as
its representative, and those two appraisers shall choose a third appraiser, and
those three appraisers shall determine the fair market value of the timber
destroyed or to be destroyed by LESSEE.
10.3 If LESSEE disposes of the timber in a manner by which it receives more
money than already paid to LESSOR or to be paid to LESSOR pursuant to this
ARTICLE TEN, LESSEE shall pay to LESSOR the difference between what it receives
and what it paid to LESSOR, if LESSOR has already been paid, or pay over to
LESSOR what LESSEE does receive if LESSOR has not already been paid.
ARTICLE ELEVEN. TAXES.
11.1 LESSEE covenants and agrees that it shall pay all sales, use and
property taxes which may be assessed on or with respect to the improvements,
machinery, and equipment placed on the Property by LESSEE and all severance
taxes applicable to and assessed against coal severed from the Property by
LESSEE. LESSOR covenants and agrees that it shall timely pay all other taxes of
whatever kind assessed on or with respect to the Property and the coal in, on or
under the Property. In the event LESSOR does not pay any taxes, the
responsibility for the payment of which is LESSOR'S, LESSEE shall have the
right, but not the obligation, to pay such taxes and offset such sums so paid
against any sums of money due and owing by LESSEE to LESSOR hereunder.
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ARTICLE TWELVE. REMOVAL OF IMPROVEMENTS ON TERMINATION.
12.1 At the termination of this Restated and Amended Coal Lease, whether by
surrender, forfeiture, expiration or otherwise, LESSEE shall have, for a period
of twelve (12) months thereafter, the right and privilege of removing all of the
personal property, machinery, equipment and improvements placed by LESSEE in,
under or upon the Property. If LESSEE should fail to remove any such personal
property, machinery, equipment and improvements within said twelve (12) months,
all rights of LESSEE in respect to same shall cease and terminate.
ARTICLE THIRTEEN. TITLE.
13.1 In the event LESSOR does not own all or any portion of the Property or
fails to own 100% undivided interest in all or any portion of the Property,
LESSEE shall only be obligated to pay to LESSOR that portion of the Tonnage
Royalty equal to the undivided interest which LESSOR owns in the portion of the
Property from which such coal is mined. In the event LESSOR does not have good
title to the entire Property, all of the Recoupable Amount, Minimum Annual
Royalty, Tonnage Royalty and Annual Rental shall be refunded to LESSEE. In the
event LESSOR has good title to a portion of the Property but not all of it, at
LESSEE's option, LESSOR shall either refund to LESSEE that portion of the
Recoupable Amount, Minimum Annual Royalty, Annual Rental and/or Tonnage Royalty
paid to LESSOR and to which LESSOR is not entitled, or LESSEE shall deduct such
portion from any payments otherwise due and payable to LESSOR.
ARTICLE FOURTEEN. FORFEITURE.
14.1 In case LESSEE shall fail to pay any Minimum Annual Royalty, Tonnage
Royalty or Annual Rental due and payable hereunder within thirty (30) days after
written notice from LESSOR of its failure to do so, or in case LESSEE should
fail in the performance or observance of any of the other terms, conditions,
covenants or agreements herein contained to be performed or observed by it, and
such failure should continue and LESSEE should fail to proceed diligently to
remedy such condition for a period of ninety (90) days after written notice by
LESSOR of such failure (an "event of default"), then subject to the terms and
provisions of paragraph 14.2, at the election of LESSOR in either such case,
this Restated and Amended Coal Lease and the leasehold estate hereby created and
all rights of LESSEE under this Restated and Amended Coal Lease shall become
forfeited and cease and terminate, and LESSOR shall have the right, without
further notice, to reenter the Property and to exclude the LESSEE therefrom,
except for the purpose of removal of LESSEE's property as authorized under
ARTICLE TWELVE, and to hold and possess the Property as of its former estate
therein. So long as the Minimum Annual Royalty and all Tonnage Royalty due and
payable hereunder are paid as herein provided, it is agreed that the failure of
performance or observance of any of the other terms, conditions, covenants or
conditions herein contained caused by the failure of a sublessee shall not
constitute an event of default so long as LESSEE uses its best efforts
diligently to remedy such condition by whatever action is appropriate, including
but not limited to, terminating the sublease with such sublessee. A waiver of
any particular cause of forfeiture or reentry shall not prevent the forfeiture
or cancellation of this Restated and Amended Coal Lease for any other cause of
forfeiture or for the same cause occurring at any other time.
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14.2 In the event of a failure which could give rise to an event of default
as defined in paragraph 14.1, LESSOR agrees that it will give notice to any
sublessee of LESSEE (of which LESSOR has been notified) of such failure at the
same time as notice is given to LESSEE, and if LESSEE does not cure such
failure, LESSOR shall give any such sublessee at least an additional ten (10)
days to cure such failure. If such failure is cured by any sublessee of LESSEE,
the effect thereof shall be the same as if cured by LESSEE pursuant to paragraph
14.1. If such failure is not cured, LESSOR may terminate all of LESSEE's rights
hereunder. If LESSOR terminates LESSEE's right hereunder because of an event of
default, this Restated and Amended Coal Lease shall nevertheless continue in
effect with any sublessee, as lessee hereunder, who has not caused the failure
leading to such event of default, so long as sublessee pays to LESSOR when due
all royalties which would be due and payable to LESSEE under the terms of the
sublease entered into between LESSEE and such sublessee in lieu of the royalties
due under this Restated and Amended Coal Lease (however, if any such sublease
covers coal or other leases of LESSEE, then in such event the monies payable to
LESSOR by any such sublessee with respect to the coal covered by this Restated
and Amended Coal Lease which is included in such sublease shall be prorated on
some reasonable basis, but in no event shall the amount of money to be paid to
LESSOR be less than the amount to be paid pursuant to this Restated and Amended
Coal Lease), and so long as such sublessee performs and observes all other
covenants, terms and conditions of this Restated and Amended Coal Lease;
provided, that no such sublessee shall have the right to recoup any of the
Recoupable Amount or the Minimum Annual Royalty which has not been recouped by
LESSEE at the time of termination with respect to LESSEE.
ARTICLE FIFTEEN. FORCE MAJEURE.
15.1 Neither party hereto shall be liable to the other for failure or delay
of performance of this Restated and Amended Coal Lease, where such failure or
delay results from or arises out of any act, omission or circumstance beyond its
reasonable control, including but not being limited to acts of God, the elements
or actions or inaction of the government or any agency, bureau, department or
subdivision thereof. A failure to prevent, settle or compromise any strike or
other controversy with employees or anyone purporting to represent employees
shall not be considered to be a matter within the control of the party claiming
force majeure. This paragraph 15.1 shall not apply to the obligation of either
party to pay money to the other.
ARTICLE SIXTEEN. SURFACE OF THE COAL TRACTS.
16.1 LESSEE shall use reasonable efforts to acquire the consent of the
owners of the surface of the Coal Tracts for the surface mining of coal
therefrom; provided, however, that any acquisition of such consent shall be in
accordance with LESSEE's usual business practices and LESSEE shall in no way be
liable to LESSOR for the failure to acquire such consent.
ARTICLE SEVENTEEN. OTHER MINERALS.
17.1 LESSOR does hereby demise and lease unto LESSEE all clay, shale and/or
limestone on, in, under or within the Property, together with the exclusive
right to mine, remove and sell same. For all clay, shale or limestone so mined,
removed and sold from the Property, LESSEE shall pay LESSOR the sum of ten cents
($0.10) per ton (of 2,000 pounds). All of the rights hereinabove granted to
LESSEE with respect to mining, removing and selling coal, and all such rights
which may be vested in LESSEE by operation of law, shall apply, as far as
practical, to the mining, removing and selling of clay, shale and/or limestone.
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ARTICLE EIGHTEEN. NOTICES.
18.1 Any notice which LESSOR may desire to serve upon LESSEE may be made by
mailing the same postage prepaid by registered or certified mail, return receipt
requested, addressed to LESSEE at X.X. Xxx 0000, Xxxxxxxxxx, Xxxx Xxxxxxxx
00000, Attention: Vice President - Law. Any notice which LESSEE may desire to
serve upon LESSOR may be made by mailing the same postage prepaid by registered
or certified mail, return receipt requested, addressed to LESSOR at X.X. Xxx
00000, Xxxxxxx, Xxxxxxxx 00000, Attention: President. Either party may change
such address by notice in writing to the other party hereto.
ARTICLE NINETEEN. MISCELLANEOUS.
19.1 The captions of this Restated and Amended Coal Lease are for the
purpose of convenience only and in no way define, limit or describe the scope or
intent of this Restated and Amended Coal Lease, or in any way affect or alter
any of the provisions hereof.
19.2 This Restated and Amended Coal Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument.
19.3 All representations, negotiations and discussions between the parties
hereto with respect to the subject matter of this Restated and Amended Coal
Lease are integrated herein.
19.4 The term "lease year" as used in this Restated and Amended Coal Lease
shall mean the period of May 1 through the next succeeding April 30, except for
the first lease year, which shall commence on May 15, 1987 and end at midnight,
April 30, 1988.
19.5 LESSEE shall have the right to assign, in whole or in part, this
Restated and Amended Coal Lease and sublet, in whole or in part, the Property
without the prior written consent of LESSOR; provided, however, in the event of
any assignment or sublease, LESSEE shall remain fully responsible for the
performance of all of the terms and provisions of this Restated and Amended Coal
Lease by any such assignee or sublessee; and provided further, there is
specifically excepted from this paragraph 19.5 the sublease proposed to be
entered into by and between LESSEE and Beech Fork Processing, Inc. with respect
to the Coalburg, Stockton and Five Block Seams of coal, which can be mined by
the deep mining method. Each sublease of any part of the Property made by LESSEE
shall contain a provision imposing upon the sublessee the requirement to comply
with all of the terms and provisions of this Restated and Amended Coal Lease,
except that covenants relating to the amount of royalty to be paid by any
sublessee shall be at the discretion of LESSEE.
11
19.6 This Restated and Amended Coal Lease shall be governed by and be
construed and interpreted in accordance with the laws of the Commonwealth of
Kentucky.
IN TESTIMONY WHEREOF, witness the execution of the parties hereto as of the
day and year first above written.
SIBONEY COAL COMPANY, INC,
By:
President
MOUNTAINEER LAND COMPANY
By:
Vice President
12
STATE OF MISSOURI )
) SS:
COUNTY OF ST. LOUIS )
The foregoing instrument was acknowledged before me this ______ day of
__________________, 1987, by Xxxxxxx X. Xxxxxxx, President of SIBONEY COAL
COMPANY, INC., a Kentucky corporation, on behalf of the corporation.
My commission expires: .
--------------------------------
Notary Public
STATE OF WEST VIRGINIA )
) SS:
COUNTY OF XXXXXX )
The foregoing instrument was acknowledged before me this ______ day of
__________________, 1987, by __________________, Vice President of MOUNTAINEER
LAND COMPANY, a Delaware corporation, on behalf of the corporation.
My commission expires: .
-------------------------------
Notary Public
This Instrument Prepared By:
----------------------------------
Xxx X. Xxxxxx, Attorney
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000
and
---------------------------------
Xxxxxx Xxxxx, Attorney
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
