Exhibit 2.9
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT dated as of February 26, 2003 (the
"Agreement"), is made and entered into as of January 31, 2003 by and among (1)
ALPHA LAND AND RESERVES, LLC, a Delaware limited liability company (the
"Seller"); and (2) CSTL LLC, a Delaware limited liability company (the "Buyer").
Each of Buyer and Seller are referred to in this Agreement as a "Party" and
together as the "Parties".
WHEREAS, Seller owns an overriding royalty interest (the "Overriding
Royalty Interest") in certain real property, which real property and Overriding
Royalty Interest are described in those deeds listed on Exhibit A attached
hereto, which Overriding Royalty Interest was acquired by Seller pursuant to the
assignments listed on Exhibit A; and
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the
Overriding Royalty Interest on the terms and subject to the conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby agree as
follows:
ARTICLE I
DEFINITIONS AND INTERPRETATIONS
1.1 Definitions. Unless otherwise provided to the contrary in this
Agreement, capitalized terms in this Agreement shall have the meanings set forth
below.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, Liabilities, obligations, Taxes, liens, losses,
expenses, and fees, including court costs and attorneys' fees and expenses, but
excluding lost profits, punitive, exemplary, special or consequential damages.
"Basis" means any past or present fact, situation, circumstance,
status, condition, activity, practice, plan, occurrence, event, incident,
action, failure to act, or transaction that forms or would be reasonably likely
to form the basis for any specified consequence.
"Encumbrance" means any mortgage, pledge, lien, encumbrance, charge,
restriction on transfer, or other security interest.
"Governmental Authority" means any governmental, judicial,
legislative, executive, administrative or regulatory authority of the United
States, or of any foreign, state or local government or any subdivision, agency,
commission, office, authority or bureau thereof or any quasi-governmental entity
or authority of any nature.
"Law" means any statute, code, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any applicable
Governmental Authority.
"Liability" means any duty, liability or obligation (whether vested
or unvested, whether known or unknown, whether asserted or unasserted, whether
absolute or contingent, whether accrued or unaccrued, whether liquidated or
unliquidated, whether contractual, statutory or otherwise and whether due or to
become due), including any liability for Taxes.
"Ordinary Course of Business" means the ordinary course of business
in all material respects consistent with the affected party's past custom and
practice (including with respect to quantity and frequency).
"Permitted Encumbrances" means any of the following: (i) any liens
for Taxes and assessments not yet delinquent or, if delinquent, that are being
contested in good faith in the Ordinary Course of Business; or (ii) any
obligations or duties reserved to or vested in any municipality or other
Governmental Authority to regulate the Overriding Royalty Interest in any manner
including all applicable Laws.
"Person" means an individual or entity, including, without
limitation, Seller, corporation, association, joint stock company, trust, joint
venture, limited liability company, unincorporated organization, or governmental
entity (or any department, agency or political subdivision thereof).
"Taxes" means any federal, state, local, indian or foreign income,
gross receipts, license, payroll, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Section 59A), custom duties, capital stock, franchise, profits, withholding,
social security (or similar excises), unemployment, disability, ad valorem, real
property, personal property, sales, use, transfer, registration, value added,
alternative or add-on minimum, estimated, unmined minerals or other tax of any
kind whatsoever, including any interest, penalty or addition thereto, whether
disputed or not.
1.2 Interpretations. Unless expressly provided to the contrary in this
Agreement, this Agreement shall be interpreted as follows.
(a) Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine, or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa.
(b) The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
(c) All references in this Agreement to articles, sections or
subdivisions thereof shall refer to the corresponding article, section or
subdivision thereof of this Agreement unless specific reference is made to such
articles, sections, or subdivisions of another document
or instrument.
(d) A reference to any agreement or document (including without
limitation a reference to this Agreement) is to the agreement or document as
amended, varied, supplemented, novated or replaced, except to the extent
prohibited by this Agreement or that other agreement or document.
(e) No waiver by either Party of any default by the other Party in
the performance of any provision, condition or requirement herein shall be
deemed to be a waiver of, or in any manner release the other Party from,
performance of any other provision, condition or requirement herein, nor shall
such waiver be deemed to be a waiver of, or in any manner a release of, the
other Party from future performance of the same provision, condition or
requirement. Any delay or omission of either Party to exercise any right
hereunder shall not impair the exercise of any such right, or any like right,
accruing to it thereafter. The failure of either Party to perform its
obligations hereunder shall not release the other Party from the performance of
such obligations.
(f) A reference to any party to this Agreement or another
agreement or document includes the party's successors and assigns.
(g) A reference to a writing includes a facsimile transmission of
it and any means of reproducing of its words in a tangible and permanently
visible form.
(h) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
(i) The word "including" shall mean including without limitation.
(j) The Exhibits identified in this Agreement are incorporated
herein by reference and made a part of this Agreement.
(k) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
ARTICLE II
PURCHASE AND SALE OF OVERRIDING ROYALTY INTEREST
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, (a) Seller hereby sells to Buyer, and Buyer hereby purchases from
Seller, all of Seller's right, title
and interest in and to the Overriding Royalty Interest.
2.2 Purchase Price. The purchase price hereby paid by Buyer to Seller
(or its designee) in consideration for the sale of the Overriding Royalty
Interest is US$11,850,000 (the "Purchase Price").payable by wire transfer of
immediately available funds to the following account:
Bank of America
Abingdon, VA
ABA#: 000000000
Account to Credit: 004118612438
Account Name: Alpha Natural Resources, LLC
Such payment to the account of Alpha Natural Resources, LLC, the ultimate parent
of Seller, shall constitute the receipt by Seller of the Purchase Price.
2.3 The Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place via facsimile delivery of documents
and receipt of documents previously sent by overnight courier service commencing
at 10:00 a.m. Mountain Standard Time on the date of this Agreement (the "Closing
Date"). All of the deliveries of documents that are contemplated by this
Agreement to be made at the Closing shall be delivered to the applicable Party
or Parties by (i) overnight courier service for delivery on the Closing Date or
(ii), if delivery by overnight courier service on the Closing Date is not
practicable, then by facsimile on the Closing Date, with original executed
documents delivered on the next succeeding business day. Any documents to be
delivered to a Party on the Closing Date will be delivered and held in escrow
until the Parties communicate via telephone to confirm delivery of all documents
and consummation of all other actions contemplated by this Article II.
2.4 Deliveries at Closing. Seller herewith executes and delivers to
Buyer the Overriding Royalty Interest Assignment Agreements substantially in the
forms collectively attached as Exhibit B (the "Overriding Royalty Interest
Assignment Agreements"), and (b) Buyer herewith pays the Purchase Price.
Concurrently herewith Seller and Buyer have each exchanged certificates of
organization and as to the due authorization hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Seller. Seller represents and
warrants to Buyer as follows:
(a) Organization of Seller. Seller is a limited liability company
duly organized, validly existing, and in good standing under the Laws of the
state of Delaware.
(b) Authorization of Transaction. Seller has the power and
authority to execute, deliver and perform its obligations under this Agreement.
Seller's execution, delivery
and performance of this Agreement and the transactions contemplated under this
Agreement have been duly authorized by all requisite action on the part of
Seller. This Agreement and all other agreements or instruments executed and
delivered by Seller in connection with this Agreement have been duly executed
and delivered by Seller. This Agreement and all other agreements or instruments
executed and delivered by Seller pursuant to this Agreement constitute the
legal, valid and binding obligation of Seller, enforceable in accordance with
their respective terms and conditions, subject, however, to the effects of
bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting
creditors' rights generally, and to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(c) Noncontravention. Neither the execution, delivery or
performance of this Agreement by Seller, nor the consummation of the
transactions contemplated hereby, will (i) violate any Law to which Seller is
subject or any provision of its limited liability company organizational
agreement, (ii) contravene, conflict with or result in a material violation of
any of the terms or requirements of, or give any Governmental Authority the
right to revoke, withdraw, suspend, cancel or terminate any material
authorization or Permit issued by a Governmental Authority that is held by
Seller or that otherwise relates to the Overriding Royalty Interest, (iii) give
any Governmental Authority or other Person the right to challenge any material
portion of the transactions contemplated under this Agreement or exercise any
remedy or obtain any relief that is material to the Overriding Royalty Interest
under any Law to which Seller is subject, or (iv) conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, cancel or exercise any
material remedy or loss of rights, or result in the creation of any Encumbrance
(other than Permitted Encumbrances), or require any notice (in all such cases
with or without the giving of notice and/or the passage of time) under any
material agreement, contract, lease, license, instrument, or other arrangement
to which Seller is a party or by which it is bound or to which any of its assets
is subject.
(d) Brokers' Fees. Seller has no Liability or obligation to pay
any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Buyer could become liable
or obligated.
(e) Title. Seller owns good and transferable title to the
Overriding Royalty Interest free and clear of all Encumbrances (other than
Permitted Encumbrances).
(f) No Adverse Interest. Seller has not, directly or indirectly,
voluntarily or involuntarily, transferred, conveyed, sold, assigned, pledged, or
encumbered all or any part of the Overriding Royalty Interest.
3.2 Representations and Warranties of Buyer. Buyer represents and
warrants to Seller as follows:
(a) Organization of Buyer. Buyer is a limited liability company
duly organized, validly existing, and in good standing under the Laws of the
state of Delaware.
(b) Authorization of Transaction. Buyer has the power and
authority to execute, deliver and perform its obligations under this Agreement.
Buyer's execution, delivery and performance of this Agreement and the
transactions contemplated under this Agreement have been duly authorized by all
requisite action on the part of Buyer. This Agreement and all other agreements
or instruments executed and delivered by Buyer in connection with this Agreement
have been duly executed and delivered by Buyer. This Agreement and all other
agreements or instruments executed and delivered by Buyer pursuant to this
Agreement constitute the legal, valid and binding obligation of Buyer,
enforceable in accordance with their respective terms and conditions, subject,
however, to the effects of bankruptcy, insolvency, reorganization, moratorium or
similar Laws affecting creditors' rights generally, and to general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(c) Noncontravention. Neither the execution, delivery or
performance of this Agreement by Buyer, nor the consummation of the transactions
contemplated hereby, will (i) violate any Law to which Buyer is subject or any
provision of its limited liability company organizational agreement, (ii)
contravene, conflict with or result in a material violation of any of the terms
or requirements of, or give any Governmental Authority the right to revoke,
withdraw, suspend, cancel or terminate any material authorization or Permit
issued by a Governmental Authority that is held by Buyer or that otherwise
relates to the Overriding Royalty Interest, (iii) give any Governmental
Authority or other Person the right to challenge any material portion of the
transactions contemplated under this Agreement or exercise any remedy or obtain
any relief that is material to the Overriding Royalty Interest under any Law to
which Buyer is subject, or (iv) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, cancel or exercise any material remedy or loss of
rights, or result in the creation of any Encumbrance (other than Permitted
Encumbrances), or require any notice (in all such cases with or without the
giving of notice and/or the passage of time) under any material agreement,
contract, lease, license, instrument, or other arrangement to which any of Buyer
is a party or by which it is bound or to which any of its assets is subject.
(d) Brokers' Fees. Buyer has no Liability or obligation to pay any
fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated by this Agreement for which Seller could become liable
or obligated.
ARTICLE IV
REMEDIES FOR BREACHES OF AGREEMENT
4.1 Survival of Representations and Warranties. All of the
representations and warranties of Buyer and Seller in this Agreement and, with
respect to Seller, in the assignment documents transferring to Buyer Seller's
interest in the Overriding Royalty Interest, shall survive the Closing (unless
the damaged Party knew or had reason to know of any misrepresentation or breach
of warranty at the time of Closing) and continue in full force until the close
of business on July 31, 2004, at which time such representations and warranties
shall be null and void and cease to be of any effect whatsoever.
4.2 Indemnification Provisions for Benefit of Buyer.
(a) Subject to the limitations contained in Section 4.2(b), in the
event Seller breaches any of its representations in this Agreement or in the
assignment documents transferring to Buyer Seller's interest in the Overriding
Royalty Interest, Seller agrees to indemnify Buyer from and against any Adverse
Consequences Buyer shall suffer through and after the date of the claim for
indemnification caused proximately by the breach, provided however, that the
indemnity in this Section 4.2(a) shall not apply at all to matters which Buyer
knew or had reason to know at the time of the Closing, to matters for which
Buyer is indemnifying Seller as provided in this Agreement or to any claims
arising after Seller's representations and warranties become null and void.
(b) Seller's indemnification obligation to Buyer pursuant to
Section 4.2(a) shall not exceed US$1,777,500 in the aggregate. Buyer agrees that
it will not seek indemnification for any claim under Section 4.2(a) unless such
claim has a value greater than $20,000. Buyer agrees that it will not seek
indemnification for any claim under Section 4.2(a) unless the aggregate of all
claims under Section 4.2(a) will result in loss to Buyer in excess of
US$118,500, after which, the Buyer will be entitled to recover all amounts to
which it is entitled as indemnification under this Agreement to the extent such
Adverse Consequences exceed US$118,500. Notwithstanding the above, in no event
shall the limitations set forth in this Section 4.2(b) apply with respect to
losses resulting from fraud or intentional misrepresentation by the Seller.
4.3 Indemnification Provisions for Benefit of Seller.
(a) Subject to the limitations contained in Section 4.3(b), in the
event Buyer breaches any of its representations in this Agreement, Buyer agrees
to indemnify Seller from and against any Adverse Consequences Seller shall
suffer through and after the date of the claim for indemnification caused
proximately by the breach.
(b) Buyer's indemnification obligation to Seller pursuant to
Section 4.3(a) shall not exceed US$1,777,500 in the aggregate. Seller agrees
that it will not seek indemnification for any claim under Section 4.3(a) unless
such claim has a value greater than $20,000. Seller agrees that it will not seek
indemnification for any claim under Section 4.3(a) unless the aggregate of all
claims under Section 4.3(a) will result in loss to Seller in excess of
US$118,500 in the aggregate, after which, the Buyer will be entitled to recover
all amounts to which it is entitled as indemnification under this Agreement to
the extent such Adverse Consequences exceed $118,500 in the aggregate.
Notwithstanding the above, in no event shall the limitations set forth in this
Section 4.3(b) apply with respect to losses resulting from fraud or intentional
misrepresentation by the Buyer.
4.4 Matters Involving Third Parties.
(a) If any third party shall notify any Party (the "Indemnified
Party") with respect to any matter (a "Third Party Claim") which may give rise
to a claim for indemnification
against the other Party (the "Indemnifying Party") under this Article IV, then
the Indemnified Party shall promptly (and in any event within ten (10) business
days after receiving notice of the Third Party Claim) notify the Indemnifying
Party thereof in writing.
(b) The Indemnifying Party will have the right to assume and
thereafter conduct the defense of the Third Party Claim with counsel of its
choice; provided, however, that the Indemnifying Party will not consent to the
entry of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnified Party (not to
be withheld unreasonably) unless the judgment or proposed settlement involves
only the payment of money damages and does not impose an injunction or other
equitable relief upon the Indemnified Party.
(c) Unless and until the Indemnifying Party assumes the defense of
the Third Party Claim as provided in Section 4.4(b) however, the Indemnified
Party may defend against the Third Party Claim in any manner it reasonably may
deem appropriate.
(d) In no event will the Indemnified Party consent to the entry of
any judgment or enter into any settlement with respect to the Third Party Claim
without the prior written consent of the Indemnifying Party.
4.5 Determination of Adverse Consequences. The Parties shall make
appropriate adjustments for tax benefits and insurance coverage and take into
account the time cost of money (using a discount rate of 8%) in determining
Adverse Consequences for purposes of this Article IV. All indemnification
payments under this Article IV shall be deemed adjustments to the Purchase
Price.
4.6 Other Indemnification Provisions. The indemnification provisions in
this Article IV are the sole remedy any Party may have for breach of
representation, warranty, or covenant.
ARTICLE V
MISCELLANEOUS
5.1 Press Releases and Public Announcements. No Party shall issue any
press release or make any public announcement relating to the subject matter of
this Agreement without the prior written approval of the other Parties; provided
that any Party may make any public disclosure it believes in good faith is
required by applicable Law or any listing or trading agreement concerning its
publicly traded securities (in which case the disclosing Party will advise and
consult with the other Party before making the disclosure).
5.2 No Third Party Beneficiaries. This Agreement shall not confer any
rights or remedies upon any Person other than the Parties and their respective
successors and permitted assigns.
5.3 Succession and Assignment.This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and
permitted assigns. No Party may assign either this Agreement or any of its
rights, interests or obligations hereunder without the
prior written approval of the other Party.
5.4 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original but which together will constitute one and
the same instrument.
5.6 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given two business days
after it is sent by registered or certified mail, return receipt requested,
postage prepaid, and addressed to the intended recipient as set forth below:
If Buyer: CSTL LLC
x/x Xxxxxxx Xxxxxxxx Xxxxxxxx X.X.
Xxxxx 000, 0000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Tel: (000) 000-0000
Fax (000) 000 0000
With copy to: CSTL LLC
x/x Xxxxxxx Xxxxxxxx Xxxxxxxx X.X.
Xxxxx 0000
60 0 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Seller: Alpha Land and Reserves, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
With a copy to: First Reserve Corporation
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
First Reserve Corporation
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Bartlit Xxxx Xxxxxx Xxxxxxxxx & Xxxxx
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the addresses set forth above using any
other means (including personal delivery, expedited courier, messenger service,
telecopy, ordinary mail, or electronic mail), but no such notice, request,
demand, claim, or other communication shall be deemed to have been duly given
unless and until it actually is received by the intended recipient. Any Party
may change the address to which notices, requests, demands, claims, and other
communications hereunder are to be delivered by giving the other Party notice in
the manner herein set forth.
5.7 Governing Law. This Agreement shall be governed by and construed in
accordance with the domestic Laws of the state of Delaware without giving effect
to any choice or conflict of law provision or rule (whether of the state of
Delaware or any other jurisdiction) that would cause the application of the Laws
of any jurisdiction other than the state of Delaware.
5.8 Entire Agreement. This Agreement (including the documents referred
to in this Agreement) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they have related in any way to the
subject matter of this Agreement. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by Buyer
and Seller.
5.9 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
5.10 Transaction Expenses. Each of Buyer and Seller will bear its own
costs and expenses (including legal fees and expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
5.11 Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement (a "Dispute"), shall be settled by binding
arbitration in accordance with the commercial arbitration rules of the American
Arbitration Association. Any such Dispute shall be arbitrated on an individual
basis, and shall not be consolidated in any arbitration with any dispute, claim
or controversy of any other party. The arbitration shall be conducted in
Wilmington, Delaware and any court having jurisdiction thereof may immediately
issue judgment on the arbitration award. The parties agree that the arbitration
provided for in this Section 5.11 shall be the exclusive means to resolve all
Disputes.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly
executed as of February 26, 2003.
ALPHA LAND AND RESERVES, LLC
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President & Manager
CSTL LLC
By NRP (Operating) LLC, its sole managing member
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President & COO
Natural Resource Partners L.P., a Delaware limited partnership, hereby
(i) unconditionally and irrevocably agrees with Seller to perform, when due, all
of Buyer's obligations pursuant to the Purchase Agreement, (ii) agrees to be
fully bound and obligated by the terms hereof to the same extent as is Buyer,
(iii) waives all defenses as a surety including notice, (iv) agrees that its
obligations under this paragraph shall not be impaired, diminished or discharged
by any extension of time granted by Seller, by any course of dealing between
Seller and Buyer, or by any event or circumstance which might operate to
discharge a guarantor and (v) covenants to take any and all actions and execute
and deliver further documents reasonably requested by Seller to implement and
enforce such foregoing obligations.
NATURAL RESOURCE PARTNERS L.P.
By NRP (GP) LP, its General Partner
By GP Natural Resource Partners LLC, its general
partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: President and Chief Operating Officer
