1
EXHIBIT 10.2
INDEMNITY AGREEMENT
THIS IS AN INDEMNITY AGREEMENT dated as of January 14, 1994, among
XXXXXXXXX RESOURCES, INC. ("ARI"), XXXXXXXXX HOLDING COMPANY, INC. ("Xxxxxxxxx
Holding"), PITTSTON MINERALS GROUP INC. ("PMGI") and PITTSTON ACQUISITION
COMPANY ("PAC") (PMGI, together with PAC, collectively "Pittston").
Recitals
Reference is hereby made to the obligations of Xxxxxxxxx, Inc. set
forth in (i) the Lease Agreement dated February 13, 1975 by and between Xxxx
Xxxxxxxx, et al. and King Coal Company, as amended and supplemented and assigned
or sub-leased, and (ii) the Lease Agreement dated March 1, 1988 between
Xxxxxxxxx, Inc. and South Mississippi Electric Power Association, as amended and
supplemented and assigned or sub-leased, (collectively the "Xxxxxxxxx Leases").
Reference is made to that certain Stock Purchase Agreement (the "Stock
Purchase Agreement") dated September 24, 1993, between PAC and Xxxxxxxxx Holding
pursuant to which Xxxxxxxxx Holding sold to PAC all of the issued and
outstanding stock of certain subsidiaries, including Xxxxxxxxx, Inc.
In connection with the transactions contemplated by the Stock Purchase
Agreement, ARI and Xxxxxxxxx Holding have agreed to execute and deliver this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties to this
Agreement, the parties agree as follows:
WITNESSETH:
1. Each of ARI and Xxxxxxxxx Holding, jointly and severally, (each an
"Indemnitor", and collectively, the "Indemnitors") hereby agrees to indemnify,
defend and hold Pittston and its or their respective agents, directors,
officers, attorneys and affiliates (individually, and "Indemnified Party" and
collectively, the "Indemnified Parties") harmless from and against any loss,
liability, claim, damage and expense (including reasonable legal fees and
expenses) suffered or incurred by an Indemnified Party under the Xxxxxxxxx
Leases.
2. In order for an Indemnified Party to be entitled to any
indemnification provided for under this Agreement arising out of or involving a
claim or demand made by any person, firm, governmental authority or corporation
against the Indemnified Party (a "Third Party Claim"), such Indemnified Party
must notify the Indemnitors in writing, and in reasonable detail, of the Third
Party Claim within 10 business days after receipt by such
2
Indemnified Party of written notice of the Third Party Claim; provided, however,
that failure to give such notification shall not affect the Indemnification
provided hereunder except and unless to the extent the Indemnitors shall have
been actually prejudiced as a result of such failure (the Indemnitors shall not
be liable for any expenses incurred during the period in which the Indemnified
Party failed to give such notice). Thereafter, the Indemnified Party shall
deliver to the Indemnitors, within five business days after the Indemnified
Party's receipt thereof, copies of all notices and documents (including court
papers) received by the Indemnified Party relating to the Third Party Claim.
3. If a Third Party Claim is made against an Indemnified Party, the
Indemnitors will be entitled to participate in the defense thereof and, if it so
chooses, to assume the defense thereof with counsel selected by the Indemnitors
and reasonably satisfactory to the Indemnified Party. Should the Indemnitors so
elect to assume the defense of a Third Party Claim, the Indemnitors will not be
liable to the Indemnified Party for legal expenses subsequently incurred by the
indemnified party in connection with the defense thereof. If the Indemnitors
assume such defense, the Indemnified Party shall have the right to participate
in the defense thereof and to employ counsel, at its own expense, separate from
the counsel employed by the Indemnitors, it being understood that the
Indemnitors shall control such defense. The Indemnitors shall be liable for the
fees and expenses of counsel employed by the Indemnified Party for any period
during which the Indemnitors have not assumed the defense thereof (other than
during any period in which the Indemnified Party shall have failed to give
notice of the Third Party Claim as provided above). If the Indemnitors choose to
defend or prosecute any Third Party Claim, all of the parties hereto shall
cooperate in the defense or prosecution thereof. Such cooperation shall include
the retention and (upon the Indemnitors' request) the provision to the
Indemnitors of records and information which are reasonably relevant to such
Third Party Claim, and making employees available on a mutually convenient and
reasonable basis to provide additional information and explanation of any
material provided hereunder. Whether or not the Indemnitors shall have assumed
the defense of a Third Party Claim, the Indemnified Party shall not admit any
liability with respect to, or settle, compromise or discharge, such Third Party
Claim without the Indemnitors' prior written consent (which consent shall not be
unreasonably withheld).
4. Should any litigation be commenced concerning this Agreement or the
rights and duties of any party with respect to it, the party prevailing shall be
entitled, in addition to such other relief as may be granted, to a reasonable
sum for such party's attorney's fees and expenses determined by the court in
such litigation or in a separate action brought for that purpose.
- 2 -
3
5. No amendment to this Agreement shall be effective unless it shall be
in writing and signed by both parties hereto. Each party acknowledges that no
officer, employee, agent or other representative of the other party has
authority, actual or apparent, to bind such other party to any amendment or
other modification of this Agreement, except pursuant to a written document
properly executed by an authorized representative of such other party.
6. This Agreement constitutes the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. No representation, promise or statement of intention has been made by
either party that is not embodied herein, and neither party shall be bound by or
liable for any alleged representation, promise or statement of intention not so
set forth.
7. If any provision of this Agreement or the application of any such
provision to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
hereof.
8. Each of the parties to this Agreement irrevocably submits to the
exclusive jurisdiction of (a) the Circuit Court of Xxxx County, Kentucky, and
(b) the United States District Court for the Eastern District of Kentucky, for
the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby. Each of the parties to this
Agreement agrees to commence any action, suit or proceeding relating hereto
either in the United States District Court for the Eastern District of Kentucky
or, if, for jurisdictional reasons, such suit, action or other proceeding may
not be brought in such court, in the Circuit Court of Xxxx County, Kentucky.
Each of the parties to this Agreement further agrees that service of any
process, summons, notice or document by U.S. registered mail to such party's
respective address as provided in paragraph 10 below shall be effective service
of process for any action, suit or proceeding in Kentucky with respect to any
matters to which it has submitted to jurisdiction as set forth above in the
immediately preceding sentence. Each of the parties to this Agreement
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement or the transactions
contemplated hereby in (a) the Circuit Court of Xxxx County, Kentucky, or (b)
the United States District Court for the Eastern District of Kentucky, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
- 3 -
4
9. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Kentucky, without regard to its conflicts
of law rules.
10. All notice or communications under this Agreement shall be in
writing and shall be (1) mailed by registered or certified mail, return receipt
requested, (2) hand delivered, or (3) delivered by overnight carrier, to the
parties at the addresses set forth below their names on the signature page(s) to
this Agreement, and any notice so addressed and mailed or delivered to and/or
deposited with such carrier, freight prepaid, shall be deemed to have been given
when so mailed if mailed; or delivered if hand-delivered; or delivered to such
overnight courier if delivered by overnight courier. The parties hereto may at
any time, and from time to time, change the address(es) to which notice shall be
mailed, transmitted or otherwise delivered by written notice setting forth the
changed address(es).
11. Nothing in this Agreement shall affect the rights and obligations
of the parties to the Stock Purchase Agreement.
IN WITNESS WHEREOF, the parties have executed this as of the date set
out on the preamble hereto, but actually on the date(s) set forth below.
XXXXXXXXX RESOURCES, INC.
By /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Title: Vice President
---------------------------
Date: 1/14/94
----------------------------
Address:
0000 X.X. Xxxxx 00
Xxxxxxx, Xxxxxxxx 00000
Attn: President
- 4-
5
XXXXXXXXX HOLDING COMPANY, INC.
By /s/ Xxxxxx Xxxxxxxxx
-------------------------------
Title: Vice President
---------------------------
Date: 1/14/94
----------------------------
Address:
0000 X.X. Xxxxx 00
Xxxxxxx, Xxxxxxxx 00000
Attn: President
PITTSTON MINERALS GROUP INC.
By /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Vice President
---------------------------
Date: 1/14/94
----------------------------
Address:
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
PITTSTON ACQUSITION COMPANY
By /s/ Xxxx X. Xxxxxx
-------------------------------
Title: Executive Vice President
---------------------------
Date: 1/14/94
----------------------------
Address:
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn: President
- 5 -
