SECOND AMENDMENT
TO
AMENDED AND RESTATED ACQUISITION AGREEMENT AMONG SGI
INTERNATIONAL, BLUEGRASS COAL DEVELOPMENT COMPANY AND
AMERICOAL DEVELOPMENT COMPANY
This Second Amendment to the Amended and Restated Acquisition Agreement Among
SGI International, Bluegrass Coal Development Company And Americoal Development
Company (the "Second Amendment"), is entered into by and between SGI
International ("SGI"), Bluegrass Coal Development Company ("Bluegrass") and
Americoal Development Company ("Americoal") effective as of June 30, 2000 (the
"Effective Date"). The Second Amendment amends in certain particulars the
Amended and Restated Acquisition Agreement Among SGI International, Bluegrass
Coal Development Company And Americoal Development Company (the "Acquisition
Agreement") that was entered into effective December 9, 1999. Bluegrass and
Americoal are hereafter referred to collectively as "Sellers".
RECITALS
A. The Acquisition Agreement originally provided Sellers with certain rights
and privileges in the event that certain conditions had not been satisfied by
Xxxxx 00, 0000; xxx,
X. XXX has not satisfied all of the conditions that were required to be
fulfilled by March 31, 2000, but has made significant progress toward their
being satisfied and the First Amendment extended that March 31 date to June 30,
2000.
C. Based on progress since March 31 it is the expectation of SGI and Sellers
that those conditions can be satisfied if an additional extension is granted SGI
from June 30, 2000 to September 30, 2000 in order to allow certain parties
interested in purchasing the ENCOAL plant from SGI and making modifications
thereto to complete due diligence and negotiations;
D. It is therefore the intent of the parties hereto to amend the March 31, 2000
date, as extended to June 30 by the First Amendment, contained in the
Acquisition Agreement, and Exhibits thereto, such that the "March 31, 2000" date
shall be restated to be "September 30, 2000" with all other terms and conditions
of the Acquisition Agreement to remain in full force and effect, subject to the
performance by SGI and Sellers of the terms and conditions of this Second
Amendment.
AGREEMENT
NOW THEREFORE, in consideration of the covenants and conditions of this Second
Amendment the parties do hereby agree as follows:
1. Extension. SGI and Sellers hereby agree that in consideration of the premises
contained herein and for other good and valuable consideration and in order to
provide SGI with an extension of time to satisfy certain terms and conditions of
the Acquisition Agreement as amended by the First Amendment, it shall be amended
as follows:
The date "March 31, 2000", referred to in the Acquisition Agreement in Sections
3.1.1 (c), 3.1.1(d), 3.1.2, 7.3, and 11.3(b) is hereby amended and replaced with
the date "September 30, 2000."
2. Note Amendment . The date "March 31, 2000" appears in the Secured
Non-Recourse Promissory Note dated December 9, 1999 referenced in a draft
depicted as Exhibit 3.1D to the Acquisition Agreement. The parties hereby agree
that the original Promissory Note (the "Note") of December 9, 1999 for the
Principal Sum of $193,078 is hereby amended as follows: The date "March 31,
2000" as it appears in the Note is hereby amended and restated to be September
30, 2000, and any and all amounts due and payable under the Note are now due and
payable on September 30, 2000. To the extent that the date "March 31, 2000" as
previously amended by the First Amendment to June 30, 2000, appears elsewhere in
the Acquisition Agreement or in instruments that were originally referenced as
exhibits to the Acquisition Agreement then that date shall also be amended and
restated to be "September 30, 2000" in the executed original instruments.
3. Consideration for Extension. SGI shall pay Bluegrass the sum of $50,000 for
the extension being provided for in this Second Amendment. That payment shall be
made as follows: $16,667 shall be paid to Bluegrass on July 1, 2000; $16,667
shall be paid to Bluegrass on August 1, 2000; and finally $16,666 shall be paid
to Bluegrass on September 1, 2000. The parties also acknowledge that as
additional consideration for the extension SGI shall obtain a written
acknowledgement (the "Written Acknowledgement") from Vulcan and/or Triton that
the $36,000,000 bond required under the Facility Use and Indemnity Agreement
(the "Indemnity Agreement") can be reduced to $10,000,000. SGI shall and is
authorized to act on behalf of Sellers to obtain the Written Acknowledgement.
SGI hereby waives any claim against AEI for the $15,000 paid by Xxxxxxx Coal to
TEK-KOL for a Phase I study, which might have been retained by AEI. In return,
except as set forth in Section 4 below, AEI agrees that SGI does not owe it for
any bond premiums for coverage through June 30, 2000 beyond the payments already
made by SGI for $10,000,000 in bonding as required by the First Amendment.
4. Bond Costs. This extension of time provided herein is granted on the further
condition that SGI pay the cost for coverage through September 30, 2000 of the
bond obtained by Sellers pursuant to the Indemnity Agreement. The costs for the
bond for $10,000,000 are approximately $12,500 for the period July 1, 2000
through September 30, 2000. Therefore, SGI shall reimburse Bluegrass for the
premium for such bond by paying it the sum of $12,500 as follows: $4,167 shall
be paid to Bluegrass on July 1, 2000, $4,167 shall be paid to Bluegrass on
August 1, 2000, and finally $4,166 shall be paid to Bluegrass on September 1,
2000.
5. No other Amendments. Except as stated herein, no other term or condition of
the Acquisition Agreement or Exhibits thereto shall be amended and all other
terms and conditions contained in the Acquisition Agreement shall continue in
full force and effect.
IN WITNESS WHEREOF the parties have executed this Second Amendment by their duly
authorized signatories as of the day and year first written above.
SGI INTERNATIONAL, INC. BLUEGRASS COAL DEVELOPMENT CO.
/s/ XXXXX X. XXXXXX /s/ ART XXXXXX
By: Xxxxx X. Xxxxxx By: Art Xxxxxx
Title: Executive Vice President Title: Attorney in Fact
AMERICOAL DEVELOPMENT CO.
/s/ ART XXXXXX
By: Art Xxxxxx
Title: Attorney in Fact
To the extent the rights of Wyoming Coal Technology ("WCT") and AEI Resources
("AEI") are affected by this Second Amendment, WCT and AEI represent that they
have each reviewed this Second Amendment and consent to the terms and conditions
set forth herein.
WYOMING COAL TECHNOLOGY, INC. AEI RESOURCES, INC.
/s/ ART XXXXXX /s/ ART XXXXXX
By: Art Xxxxxx By: Art Xxxxxx
Title: Attorney in Fact Title: Attorney in Fact
