Exhibit 2.4
ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PITTSTON COAL COMPANY
AND
ALPHA COAL SALES CO., LLC
October 29, 2002
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS............................................................ 1
1.1. Affiliate............................................................... 1
1.2. Agreement............................................................... 2
1.3. Asset Sale Companies.................................................... 2
1.4. Assignment and Assumption Agreements.................................... 2
1.5. Assumed Liabilities..................................................... 2
1.6. Business................................................................ 2
1.7. Buyer................................................................... 2
1.8. Buyer Closing Certificate............................................... 3
1.9. Buyer's Parent.......................................................... 3
1.10. Closing................................................................. 3
1.11. Closing Date............................................................ 3
1.12. Coal Act................................................................ 3
1.13. Code.................................................................... 3
1.14. Contracts............................................................... 3
1.15. Dispute................................................................. 4
1.16. Governmental Authority.................................................. 4
1.17. Indemnification and Guaranty Agreement.................................. 4
1.18. Knowledge of PCC........................................................ 4
1.19. Law..................................................................... 4
1.20. Lien.................................................................... 4
1.21. Liability............................................................... 5
1.22. Material Adverse Effect................................................. 5
1.23. Ordinary Course of Business............................................. 5
1.24. PCC..................................................................... 5
1.25. PCC Closing Certificate................................................. 5
1.26. PCC Group............................................................... 5
1.27. PCC Parent.............................................................. 5
1.28. Permitted Liens......................................................... 6
1.29. Person.................................................................. 6
1.30. Pre-Closing Periods..................................................... 6
1.31. Purchase Price.......................................................... 6
1.32. Purchased Assets........................................................ 6
1.33. Related Persons......................................................... 6
1.34. Retained Liabilities.................................................... 6
1.35. Tax..................................................................... 7
1.36. Tax Return.............................................................. 8
ARTICLE II PURCHASE AND SALE OF ASSETS.......................................... 8
2.1. Transfer of Assets...................................................... 8
2.2. Assignment and Assumption Agreements and Other Documents................ 8
2.3. Assumption of Liabilities............................................... 9
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TABLE OF CONTENTS
(continued)
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2.4. Proration of Liabilities; Payment Reimbursement......................... 9
2.5. Indemnification and Guaranty Agreement.................................. 9
2.6. Additional Documents.................................................... 9
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PCC............................... 10
3.1. Incorporation........................................................... 10
3.2. Execution, Delivery and Performance..................................... 10
3.3. Authorization........................................................... 11
3.4. Contracts............................................................... 12
3.5. Litigation; Claims...................................................... 13
3.6. No Broker............................................................... 13
3.7. Undisclosed Liabilities................................................. 13
3.8. Legal Compliance........................................................ 14
3.9. Transactions with Affiliates............................................ 14
3.10. Disclosure.............................................................. 14
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER.............................. 14
4.1. Organization............................................................ 15
4.2. Execution, Delivery and Performance..................................... 15
4.3. Authorization........................................................... 15
4.4. No Broker............................................................... 16
4.5. Financing............................................................... 16
4.6. Disclosure.............................................................. 16
ARTICLE V CERTAIN COVENANTS..................................................... 16
5.1. Operation in Ordinary Course............................................ 16
5.2. Compliance with Law..................................................... 17
5.3. Cooperation............................................................. 17
5.4. Notices and Consents.................................................... 18
5.5. Publicity............................................................... 18
5.6. Exclusivity............................................................. 19
5.7. Access.................................................................. 19
5.8. Notice of Developments.................................................. 20
5.9. Further Assurances...................................................... 20
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING...................................... 20
6.1. Conditions Precedent to Each Party's Obligations........................ 20
6.2. Conditions Precedent to Obligations of Buyer............................ 22
6.3. Conditions Precedent to Obligations of PCC.............................. 23
ARTICLE VII TERMINATION......................................................... 25
7.1. Termination............................................................. 25
7.2. Effect of Termination................................................... 26
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TABLE OF CONTENTS
(continued)
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ARTICLE VIII MISCELLANEOUS...................................................... 27
8.1. Entire Agreement........................................................ 27
8.2. Amendment............................................................... 27
8.3. Extension; Waiver....................................................... 27
8.4. Expenses................................................................ 28
8.5. Bulk Sales Waiver....................................................... 28
8.6. Governing Law........................................................... 28
8.7. Assignment.............................................................. 28
8.8. Notices................................................................. 28
8.9. Counterparts; Headings.................................................. 30
8.10. Interpretation; Construction............................................ 30
8.11. Severability............................................................ 30
8.12. No Reliance............................................................. 30
8.13. Retention of and Access to Records...................................... 31
8.14. Arbitration............................................................. 31
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EXHIBITS
Exhibit A Assignment and Assumption Agreements
Exhibit B Buyer Closing Certificate
Exhibit C Indemnification and Guaranty Agreement
Exhibit D PCC Closing Certificate
Exhibit E Opinion of Counsel to PCC
Exhibit F Opinion of Counsel to Buyer
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SCHEDULES
Schedule 1.3 Asset Sale Companies
Schedule 1.14 Contracts of Asset Sale Companies
Schedule 1.18 Knowledge of PCC
Schedule 1.28 Permitted Liens
Schedule 1.34(c) Excluded Contracts
Schedule 3.1 Foreign States
Schedule 3.2 Conflicts
Schedule 3.4(b) Contract Exceptions
Schedule 3.4(c) Consents
Schedule 3.5 Litigation; Claims
Schedule 3.9 Transactions with Affiliates
Schedule 5.4(a) PCC Consents
Schedule 5.4(b) Buyer Consents
Schedule 6.1(e)(i) PCC Material Consents
Schedule 6.1(e)(ii) Buyer Material Consents
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ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made as of the 29th day of October, 2002,
by and between PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), and ALPHA
COAL SALES CO., LLC, a Delaware limited liability company ("Buyer").
RECITALS
WHEREAS, PCC owns, directly or indirectly, all of the outstanding capital
stock of the corporations listed on Schedule 1.3 (the "Asset Sale Companies");
WHEREAS, PCC desires to cause to be sold and assigned, and Buyer desires
to purchase and assume, certain of the assets and certain of the Liabilities (as
hereinafter defined) of the Asset Sale Companies;
WHEREAS, PCC desires to cause the Asset Sale Companies to retain certain
assets and certain Liabilities;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, PCC and Buyer agree
that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified:
1.1. Affiliate.
"Affiliate" shall mean, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise. For
purposes of this Agreement, none of Dominion Terminal Associates or any of its
partners, other than Pittston Coal Terminal Corporation, shall be deemed an
Affiliate of PCC or any of its Affiliates.
1.2. Agreement.
"Agreement" shall mean this Asset Purchase Agreement, together with
the Exhibits and Schedules attached hereto, which are incorporated into this
Asset Purchase Agreement by this reference, as the same may be amended from time
to time in accordance with the terms hereof.
1.3. Asset Sale Companies.
"Asset Sale Companies" shall have the meaning given to it in the
Recitals to this Agreement. The term "Asset Sale Company" shall mean one of the
Asset Sale Companies.
1.4. Assignment and Assumption Agreements.
"Assignment and Assumption Agreements" shall mean the assignment and
assumption agreements substantially in the form of Exhibit A attached hereto.
1.5. Assumed Liabilities.
"Assumed Liabilities" shall mean the performance of any and all
obligations required to be performed under the Contracts by Buyer from and after
the Closing other than any Retained Liabilities.
1.6. Business.
"Business" shall mean the coal sale business conducted by the Asset
Sale Companies using the Purchased Assets.
1.7. Buyer.
"Buyer" shall have the meaning given to it in the preamble of this
Agreement.
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1.8. Buyer Closing Certificate.
"Buyer Closing Certificate" shall mean the certificate of Buyer
substantially in the form of Exhibit B attached hereto.
1.9. Buyer's Parent.
"Buyer's Parent" shall mean Alpha Natural Resources, LLC, a Delaware
limited liability company.
1.10. Closing.
"Closing" shall mean the closing of the transactions contemplated by
this Agreement beginning at 10:00 a.m., local time, on the Closing Date, at the
offices of Hunton & Xxxxxxxx, Riverfront Plaza, East Tower, 000 Xxxx Xxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000.
1.11. Closing Date.
"Closing Date" shall mean November 30, 2002 or such other date as
the parties may mutually agree in writing.
1.12. Coal Act.
"Coal Act" shall mean the Coal Industry Retiree Health Benefit Act
of 1992 as amended through the Closing Date (codified at Subtitle J of the
Code).
1.13. Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended,
and, where appropriate, any predecessor or successor provisions of Law, and all
regulations thereunder.
1.14. Contracts.
"Contracts" shall mean the contracts, agreements, relationships and
commitments, written or oral, of the Asset Sale Companies listed on Schedule
1.14.
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1.15. Dispute.
"Dispute" shall have the meaning set forth in Section 8.14 hereof.
1.16. Governmental Authority.
"Governmental Authority" shall mean 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.
1.17. Indemnification and Guaranty Agreement.
"Indemnification and Guaranty Agreement" shall mean the agreement by
and among PCC Parent, PCC, Buyer and Buyer's Parent substantially in the form of
Exhibit C attached hereto.
1.18. Knowledge of PCC.
"Knowledge of PCC" shall mean, for the individuals listed on
Schedule 1.18, any such individual's actual knowledge and what any such
individual should have known after reasonable inquiry within the scope of that
individual's job responsibilities.
1.19. Law.
"Law" and "Laws" shall mean any applicable United States or foreign,
federal, state, local or other law or governmental requirement of any kind, and
the rules, regulations and orders promulgated thereunder.
1.20. Lien.
"Lien" shall mean any lien, encumbrance, mortgage, charge, claim,
restriction, pledge, security interest or imposition of any kind.
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1.21. Liability.
"Liability" shall mean any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), including any
liability for Taxes. Liabilities shall mean one or more items of Liability.
1.22. Material Adverse Effect.
"Material Adverse Effect" shall mean any event, change or occurrence
that individually, or together with any other event, change or occurrence, has a
material adverse impact on the Business, taken as a whole, without regard to the
duration of such material adverse impact.
1.23. Ordinary Course of Business.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
1.24. PCC.
"PCC" shall have the meaning given to it in the preamble to this
Agreement.
1.25. PCC Closing Certificate.
"PCC Closing Certificate" shall mean the certificate of PCC
substantially in the form of Exhibit D attached hereto.
1.26. PCC Group.
"PCC Group" shall have the meaning given to it in Section 1.34.
1.27. PCC Parent.
"PCC Parent" shall mean The Pittston Company, a Virginia
corporation.
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1.28. Permitted Liens.
"Permitted Liens" shall mean those Liens affecting the Purchased
Assets that are listed on Schedule 1.28.
1.29. Person.
"Person" shall mean any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union or other entity or Governmental
Authority.
1.30. Pre-Closing Periods.
"Pre-Closing Periods" shall mean any taxable period ending on or
before the Closing Date.
1.31. Purchase Price.
"Purchase Price" shall mean $2,000,000.
1.32. Purchased Assets.
"Purchased Assets" shall mean the rights of the Asset Sale Companies
with respect to the Contracts, other than the rights to payment for any coal
that has been delivered or shipped prior to Closing Date to any customer,
whether or not invoiced.
1.33. Related Persons.
"Related Persons" shall mean related persons as that term is defined
in Section 9701(c)(2) of the Coal Act, except that it shall not include
successors in interest.
1.34. Retained Liabilities.
"Retained Liabilities" shall mean (a) all Liability of each Asset
Sale Company for any coal that has been shipped or delivered prior to Closing
Date to any customer, whether or not invoiced, (b) (1) all Liabilities, if any,
of the Asset Sale Companies and its Related Persons
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(collectively, the "PCC Group") under the Coal Act, and (2) all Liabilities, if
any, of the PCC Group under any post-Closing amendments to the Coal Act for (i)
beneficiaries eligible under the Coal Act who are assigned to a member of the
PCC Group or for whom a member of the PCC Group is required to provide or pay
for medical benefits pursuant to Sections 9711 or 9712 of the Coal Act or (ii)
death benefit premiums or unassigned beneficiary premiums (as those terms are
used in Sections 9704(c) and 9704(d) of the Coal Act) for beneficiaries eligible
under the Coal Act, that are assessed against any member of the PCC Group;
provided, for the avoidance of doubt, that the Liabilities retained pursuant to
(b)(1) and (b)(2) above shall not be affected by Buyer or any of its Affiliates
being identified under the Coal Act or any post-Closing amendments thereto as a
successor, successor in interest or "Related person" under the Coal Act or any
post-Closing amendments thereto to any member of the PCC Group solely as a
result of Buyer's purchase of the Purchased Assets and (c) all Liabilities under
the contracts, agreements, personal and real property leases, relationships and
commitments of the Asset Sale Companies listed on Schedule 1.34(c).
1.35. Tax.
"Tax" or "Taxes" mean any federal, state, local, 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), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated, reclamation fees or other tax of any kind whatsoever,
including any interest, penalty, or addition thereto, whether disputed or not,
but shall not include, for purposes of this Agreement only, Liabilities under
the Coal Act, of whatever nature and regardless of how denominated.
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1.36. Tax Return.
"Tax Return" shall mean any original or amended report, return,
declaration, claim for refund, statement, document, schedule, attachment or
other information supplied or required to be supplied to a Governmental
Authority with respect to Taxes, including any return of an affiliated, combined
or unitary group.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1. Transfer of Assets.
On the Closing Date, PCC (on behalf of the Asset Sale Companies)
shall cause to be sold, conveyed, transferred, assigned, and delivered to Buyer,
and Buyer shall acquire, the Purchased Assets. At the Closing, subject to the
terms and conditions of this Agreement, PCC agrees to: (i) cause all rights in
the Purchased Assets to be transferred and delivered to Buyer; and (ii) perform
its obligations under this Agreement to be performed at or before Closing. In
full payment for the Purchased Assets, Buyer shall: (i) assume the Assumed
Liabilities; (ii) pay to PCC (which shall receive such amounts on behalf of the
Asset Sale Companies) the Purchase Price by wire transfer of cash or other
immediately available funds; and (iii) perform its obligations under this
Agreement to be performed at or before Closing. Buyer shall not assume or have
any responsibility with respect to any Liability of PCC Parent, PCC or the Asset
Sale Companies that is not an Assumed Liability.
2.2. Assignment and Assumption Agreements and Other Documents.
At the Closing, PCC shall cause each of the Asset Sale Companies to:
(i) execute and deliver to Buyer the Assignment and Assumption Agreements and
such other documents as may be necessary to convey to Buyer the Purchased
Assets; and (ii) perform its obligations under the Agreement to be performed at
or before the Closing.
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2.3. Assumption of Liabilities.
At the Closing, Buyer shall execute and deliver to PCC the
Assignment and Assumption Agreements and such other documents and instruments as
may be necessary for Buyer to assume all of the Assumed Liabilities. Buyer shall
not assume or have any responsibility, however, with respect to any Liability of
PCC Parent, PCC or the Asset Sale Companies that is not an Assumed Liability.
2.4. Proration of Liabilities; Payment Reimbursement.
PCC and Buyer shall cooperate with each other to provide for
payments due with respect to the Assumed Liabilities. If, following the Closing,
Buyer or any of its post-Closing Affiliates receives any payment in any form
with respect to any Asset Sale Company (other than the Purchased Assets) that
should have been paid to PCC or its Affiliates, Buyer shall forward, or shall
cause such post-Closing Affiliate to forward, such payment to PCC within five
business days of receipt. If, following the Closing, PCC or any of its
post-Closing Affiliates receives any payment in any form with respect to the
Purchased Assets that should have been paid to Buyer or its Affiliates, PCC
shall forward, or shall cause such post-Closing Affiliate to forward, such
payment to Buyer within five business days of receipt.
2.5. Indemnification and Guaranty Agreement.
At the Closing, PCC, PCC Parent, Buyer's Parent and Buyer shall
execute and deliver the Indemnification and Guaranty Agreement.
2.6. Additional Documents.
At the Closing, PCC and Buyer shall, and PCC shall cause the Asset
Sale Companies to, execute and deliver all such other documents or instruments
necessary or
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appropriate to effect the transactions contemplated by this Agreement, including
the documents provided in this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PCC
PCC hereby represents and warrants to Buyer that the statements
contained in this Article III are correct and complete, except as set forth in
the Schedules delivered by PCC to Buyer in connection with this Agreement. The
Schedules are arranged in paragraphs corresponding to the lettered and numbered
paragraphs contained in this Article III.
3.1. Incorporation.
PCC and each of the Asset Sale Companies are corporations duly
organized, validly existing and in good standing under the Laws of the
respective state or commonwealth of each such company's incorporation. PCC and
each of the Asset Sale Companies that is not a corporation incorporated under
the Laws of Virginia are duly qualified or licensed to transact business as a
foreign corporation in Virginia and are in good standing under the Laws of
Virginia. Set forth on Schedule 3.1 is the name of each state or other
jurisdiction in which each such company has either paid taxes or had an office
in the three years prior to the date of this Agreement.
3.2. Execution, Delivery and Performance.
The execution, delivery and performance by PCC of this Agreement and
by PCC and the applicable Asset Sale Company of each other agreement or
instrument to which it is a party executed in connection herewith or delivered
pursuant hereto and the consummation of the transactions contemplated herein and
therein will not, with or without the giving of notice or the passage of time,
or both: (i) conflict with, or result in a violation or breach of, or a default,
right to accelerate, right to exercise any remedy or loss of rights under, or
result in the creation of any
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Lien (other than Permitted Liens) under or pursuant to, any provision of PCC's
or any Asset Sale Company's Articles of Incorporation or Bylaws or of any
material franchise, mortgage, deed of trust, Lien, lease, license, instrument,
agreement, consent, approval, waiver or understanding to which PCC or any Asset
Sale Company is a party or by which any Asset Sale Company is bound, or any Law
or any order, judgment, writ, injunction or decree to which PCC or any Asset
Sale Company is a party or by which PCC, any Asset Sale Company or the Purchased
Assets may be bound or affected; (ii) require the approval, consent or
authorization of, prior notice to, or filing or registration with any
Governmental Authority or contravene, conflict with or result in a violation of
any of the terms or requirements of, or give any Governmental Authority the
right to revoke, withdraw, suspend, cancel or terminate any authorization issued
by a Governmental Authority that is held by PCC or the Asset Sale Companies or
that otherwise relates to the Purchased Assets; or (iii) give any Governmental
Authority or other Person the right to challenge any of the transactions
contemplated hereunder or exercise any remedy or obtain any relief under any Law
to which PCC or any Asset Sale Company is subject.
3.3. Authorization.
PCC has full power and authority to enter into and deliver this
Agreement and to perform its obligations hereunder and each of PCC and the Asset
Sale Companies has full power and authority to enter into and deliver each other
agreement or instrument to which it is a party executed in connection herewith
and delivered pursuant hereto and to perform its obligations thereunder. PCC's
execution, delivery and performance of this Agreement and the execution,
delivery and performance of all other agreements and instruments by PCC and each
of the Asset Sale Companies in connection herewith and delivered pursuant hereto
and the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of
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PCC and each of the Asset Sale Companies. This Agreement and all other
agreements or instruments executed by PCC or any of the Asset Sale Companies in
connection herewith and delivered by PCC or any of the Asset Sale Companies
pursuant hereto have been duly executed and delivered by PCC or such Asset Sale
Companies and this Agreement and all other agreements and instruments executed
by PCC or any of the Asset Sale Companies in connection herewith and delivered
by PCC or any of the Asset Sale Companies pursuant hereto constitute the legal,
valid and binding obligation of PCC or such Asset Sale Company, as the case may
be, enforceable in accordance with their respective terms (subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
Laws affecting generally the enforcement of creditors' rights).
3.4. Contracts.
(a) PCC has made available to Buyer copies of all of the written
Contracts, or a written summary setting forth the terms and conditions
where no copies exist, including all amendments, modifications, waivers
and elections applicable thereto.
(b) As to the Asset Sale Companies party thereto: (i) the Contracts
are valid and binding, enforceable in accordance with their respective
terms (subject to any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar Laws affecting generally the enforcement of
creditors' rights), and are in full force and effect; (ii) the
consummation of the transactions contemplated herein will not, with or
without the giving of notice or the passage of time, or both, conflict
with, or result in a violation or breach of, or a default, right to
accelerate, right to exercise any remedy or loss of rights under the
Contracts; (iii) no Asset Sale Company, nor to the Knowledge of PCC, any
other party is in material breach or default, and no event has occurred
that, with notice or
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lapse of time, would constitute a breach or default, or permit
termination, modification or acceleration, under the Contracts; and (iv)
no Asset Sale Company, nor to the Knowledge of PCC, any other party has
repudiated any provision of the Contracts.
(c) Schedule 3.4(c) sets forth the consents and approvals of third
parties and Governmental Authorities required to be obtained as a result
of the transactions contemplated by this Agreement.
3.5. Litigation; Claims.
Schedule 3.5 lists all claims, legal actions, suits, litigation,
arbitrations, disputes, investigations, proceedings by or before any
Governmental Authority involving more than $100,000 and all orders, decrees or
judgments, now pending or in effect, or, to the Knowledge of PCC, threatened or
contemplated, against or affecting the Asset Sale Companies, the Purchased
Assets, or the consummation of the transactions contemplated by this Agreement,
except to the extent involving Taxes for Pre-Closing Periods.
3.6. No Broker.
None of the Asset Sale Companies, PCC or the PCC Parent has had any
dealings, negotiations or communications with or retained any broker or other
intermediary in connection with the transactions contemplated by this Agreement
and none of the foregoing is committed to any Liability for any brokers' or
finders' fees or any similar fees in connection with the transactions
contemplated hereby, other than Rothschild Inc., who shall be compensated solely
by PCC or an Affiliate of PCC.
3.7. Undisclosed Liabilities.
As it may affect the Purchased Assets, none of the Asset Sale
Companies has any material Liability (and there is no basis for any present or
future action, suit, proceeding, hearing,
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investigation, charge, complaint, claim, or demand against any of them giving
rise to any Liability), except for the Liabilities represented by the Contracts.
3.8. Legal Compliance.
As it may affect the Purchased Assets, each of the Asset Sale
Companies and their respective predecessors and Affiliates has complied in all
material respects with all Laws (including rules, regulations, codes, plans,
injunctions, judgments, orders, decrees, rulings and charges thereunder) of
federal, state, local and foreign governments (and all agencies thereof) and no
material action, suit, proceeding, hearing, investigation, charge, complaint,
claim, demand or notice has been filed or commenced against any of them alleging
any failure so to comply.
3.9. Transactions with Affiliates.
The Contracts do not include any Liability between any Asset Sale
Company and any Affiliate of such Asset Sale Company.
3.10. Disclosure.
The representations and warranties contained in this Article III do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Article III not misleading.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to PCC that:
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4.1. Organization.
Buyer is a duly formed limited liability company, validly existing
and in good standing under the Laws of the State of Delaware.
4.2. Execution, Delivery and Performance.
The execution, delivery and performance of this Agreement and each
other agreement or instrument executed in connection herewith or delivered
pursuant hereto and the consummation of the transactions contemplated herein and
therein will not, with or without the giving of notice or the passage of time,
or both, (i) conflict with, or result in a violation or breach of, or a default,
right to accelerate or loss of rights under, or result in the creation of any
Lien, under or pursuant to, any provision of Buyer's organizational documents or
of any franchise, mortgage, deed of trust, lease, license, instrument,
agreement, consent, approval, waiver or understanding, any Law, or any finding,
order, judgment, writ, injunction or decree to which Buyer is a party or by
which Buyer or its respective assets may be bound or affected; or (ii) require
the approval, consent or authorization of, or prior notice to, filing with or
registration with, any Governmental Authority, or any other Person or entity.
4.3. Authorization.
Buyer has full power and authority to enter into and deliver this
Agreement, and each other agreement or instrument (to which it is a party)
executed in connection herewith or delivered pursuant hereto and to perform its
obligations hereunder and thereunder. Buyer's execution, delivery and
performance of this Agreement and all other agreements and instruments executed
in connection herewith or delivered pursuant hereto and the transactions
contemplated hereby have been duly authorized by all requisite action. This
Agreement and all other agreements or instruments executed by Buyer in
connection herewith or delivered by Buyer
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pursuant hereto have been duly executed and delivered by Buyer and this
Agreement and all other agreements and instruments executed by Buyer in
connection herewith or delivered by Buyer pursuant hereto constitute Buyer's
legal, valid and binding obligation, enforceable in accordance with their
respective terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally the
enforcement of creditors' rights).
4.4. No Broker.
Buyer has had no dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions contemplated by
this Agreement nor is it committed to any Liability for any brokers' or finders'
fees or any similar fees in connection with the transactions contemplated
hereby.
4.5. Financing.
Buyer will have available to it, at the Closing, financial resources
sufficient to consummate the transactions contemplated by this Agreement.
4.6. Disclosure.
The representations and warranties contained in this Article IV do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Article IV not misleading.
ARTICLE V
CERTAIN COVENANTS
5.1. Operation in Ordinary Course.
Except as provided in this Agreement, between the date of this
Agreement and the Closing, PCC shall cause each of the Asset Sale Companies, in
relation to the Purchased Assets, to: (i) carry on its business in the Ordinary
Course of Business; (ii) use commercially reasonable
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efforts to preserve intact its current business organization and properties
until the Closing Date, and maintain the relations and good will with its
suppliers, customers, landlords, creditors, agents, and others having business
relationships with such Asset Sale Company; (iii) not enter into any contract
modification or other obligation binding upon the Purchased Assets or an
expenditure, purchase, sale, cost or commitment in excess of $100,000, except
such coal sales agreements pursuant to which all obligations will be satisfied
prior to Closing; and (iv) report regularly to Buyer concerning the status of
the business and finances of such Asset Sale Company.
5.2. Compliance with Law.
Between the date of this Agreement and the Closing, each of the
Asset Sale Companies shall comply in all material respects with all Laws and
with all orders of any Governmental Authority.
5.3. Cooperation.
Subject to the terms and conditions herein provided, each of PCC and
Buyer agrees to use its commercially reasonable efforts to take, or cause to be
taken, all action, and to do, or cause to be done, all things necessary, proper
and advisable under Law, to consummate and make effective the transactions
contemplated by this Agreement. In case at any time after the Closing Date any
further action is necessary or desirable to carry out the purposes of this
Agreement, PCC and Buyer will, and PCC will cause the Asset Sale Companies to,
execute any additional instruments reasonably necessary to consummate the
transactions contemplated hereby.
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5.4. Notices and Consents.
PCC and Buyer each will use their commercially reasonable efforts to
obtain consents of all Governmental Authorities and other third parties
necessary to the consummation of the transactions contemplated by this
Agreement. PCC shall have responsibility for providing any notices to third
parties that may be required by the transactions contemplated by this Agreement
and for obtaining, or causing to be obtained, at its sole cost and expense, the
consents listed on Schedule 5.4(a) and Buyer shall have responsibility for
obtaining, at its sole cost and expense, all consents listed on Schedule 5.4(b),
with the other party in each case using its commercially reasonable efforts to
assist the responsible party in obtaining such consents.
5.5. Publicity.
All general notices, releases, statements and communications to any
employees, suppliers, distributors and customers of the Asset Sale Companies, to
the general public and to the press relating to the transactions contemplated by
this Agreement shall be made only at such times and in such manner as may be
mutually agreed upon by PCC and Buyer; provided, however, that either party
hereto (or, in the case of PCC, the PCC Parent) shall be entitled to make a
public announcement of the foregoing if: (a) in the opinion of its legal
counsel, such announcement is required to comply with Law or any listing
agreement with any national securities exchange or inter-dealer quotation
system; and (b) such disclosing party gives a reasonable period of notice and
opportunity to comment to the other party hereto of its intention to make such
public announcement; provided, that, failure to comment within 24 hours of
receipt of such notice shall be deemed a waiver of the opportunity to comment;
and provided, further, that nothing in this Section 5.5 shall operate to
prohibit any Asset Sale Company or Buyer from communicating, after the Closing
Date, with their respective suppliers, distributors, customers
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and Governmental Authorities the fact that the transaction has occurred or to
employees regarding their employment or the terms and conditions thereof, the
operation of the Purchased Assets or matters necessarily related thereto.
5.6. Exclusivity.
PCC will not (nor will it cause or permit any of the Asset Sale
Companies to) (i) solicit, initiate or encourage the submission of any proposal
or offer from any Person relating directly or indirectly to the acquisition of
the Purchased Assets, or any portion thereof, or (ii) participate in any
discussions or negotiations regarding, furnish any information with respect to,
assist or participate in, or facilitate in any other manner, any effort or
attempt by any Person to do or seek any of the foregoing. PCC will notify Buyer
immediately if any Person makes any proposal, offer, inquiry or contact with
respect to any of the foregoing.
5.7. Access.
At or prior to the Closing Date, PCC will permit (and will cause
each of the Asset Sale Companies to permit) representatives of Buyer to have
full access at all reasonable times, and in a manner so as not to interfere with
the normal business operations of the Asset Sale Companies, to all premises,
properties, personnel, books, records (including Tax records), contracts and
documents of or pertaining to each of the Asset Sale Companies as related to the
Purchased Assets. Copies of and access to accounting records, ledgers and other
pertinent documents or work papers related to the Purchased Assets will be made
available to Buyer at all reasonable times, and in a manner so as not to
interfere with the normal business operations of the Asset Sale Companies, upon
request.
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5.8. Notice of Developments.
Each party will give prompt written notice to the other party of any
material adverse development causing a breach of any of its own representations
and warranties in Article III and Article IV above. No disclosure by any party
pursuant to this Section 5.8, however, shall be deemed to amend or supplement
the Schedules to such representations and warranties or to prevent or cure any
misrepresentation, breach of warranty or breach of covenant.
5.9. Further Assurances.
The parties shall cooperate in a commercially reasonable manner with
each other and with their respective representatives in connection with any
steps required to be taken as part of their respective obligations under this
Agreement, and shall (a) furnish upon request to each other such further
information; (b) execute and deliver to each other such other documents; and (c)
do such other acts and things, all as the other party may reasonably request for
the purpose of carrying out the intent of this Agreement and the transactions
contemplated.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1. Conditions Precedent to Each Party's Obligations.
The respective obligations of each party to consummate the
transactions contemplated by this Agreement are subject to the satisfaction at
or prior to the Closing Date of the following conditions precedent:
(a) no action, suit, proceeding, order, decree or injunction shall
have been commenced, threatened or entered by or before any Governmental
Authority that remains in force and that (i) prohibits, seeks to prohibit,
or imposes or seeks substantial damages in connection with, the
consummation of the transactions contemplated by this
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Agreement, (ii) seeks or imposes relief that causes or would cause any of
the transactions contemplated by this Agreement to be rescinded following
consummation, or (iii) affects adversely the right of Buyer to own the
Purchased Assets or to operate the Business on or after the Closing Date;
(b) PCC Parent, PCC, Buyer and Buyer's Parent shall have executed
and delivered to each other party thereto the Indemnification and Guaranty
Agreement and any other documentation required by such agreement, in form
and substance as set forth in Exhibit C attached hereto and the same shall
be in full force and effect;
(c) all other transactions pursuant to which Buyer or any of its
Affiliates acquire assets related to the Business shall have been
consummated prior to or simultaneously with the transactions contemplated
by this Agreement;
(d) PCC and Buyer shall have executed and delivered to each other
all such other documents or instruments necessary or appropriate to effect
the transactions contemplated by this Agreement; and
(e) PCC shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(i) and PCC shall have provided such
payments as may be reasonably required to obtain all such consents. Buyer
shall have obtained, or caused to have been obtained, the consents listed
in Schedule 6.1(e)(ii) and Buyer shall have provided such payments,
guarantees and/or assurances as may be reasonably required to obtain all
such consents.
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6.2. Conditions Precedent to Obligations of Buyer.
The obligations of Buyer to consummate the transactions contemplated
by this Agreement are subject to the satisfaction or waiver at or prior to the
Closing Date of the following conditions precedent:
(a) all of the representations and warranties of PCC set forth in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, without regard to any qualification or limitation with respect to
materiality (whether by reference to "Material Adverse Effect" or
otherwise), shall be true and correct in all respects as of the date
hereof and at and as of the Closing Date with the same effect as though
such representations and warranties were made at and as of the Closing
unless the aggregate failure of such representations or warranties to be
true and correct does not have a Material Adverse Effect; provided that if
a representation or warranty is expressly made only as of a specific date,
it need only be true and correct in all respects as of such date, and
Buyer shall have received the PCC Closing Certificate required by Section
6.2(g) below dated as of the Closing Date executed by PCC to such effect;
(b) all of the covenants and obligations that PCC is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing Date shall have been duly performed and complied with in all
material respects;
(c) all proceedings and actions, corporate or other, to be taken by
PCC or the Asset Sale Companies in connection with the transactions
contemplated by this Agreement and all documents incident thereto,
including all actions necessary to authorize the execution, delivery and
performance of this Agreement and the transactions
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contemplated hereby, shall have been taken and shall be reasonably
satisfactory in form and substance to Buyer and Buyer's counsel;
(d) PCC shall have, and shall have caused the Asset Sale Companies
to have, executed and delivered the Assignment and Assumption Agreements
and such other documents as may be necessary to convey to Buyer the
Purchased Assets;
(e) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that, individually, or
together with any other change, event or occurrence, has had or could
reasonably be expected to have a Material Adverse Effect;
(f) Buyer shall have received an opinion of counsel to PCC addressed
to Buyer substantially in the form of Exhibit E; and
(g) Buyer shall have received an executed copy of the PCC Closing
Certificate.
6.3. Conditions Precedent to Obligations of PCC.
The obligation of PCC to consummate and cause the consummation of
the transactions contemplated by this Agreement is subject to the satisfaction
or waiver at or prior to the Closing Date of the following conditions precedent:
(a) all of the representations and warranties of Buyer set forth in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, without regard to any qualification or limitation with respect to
materiality, shall be true and correct in all respects as of the date
hereof and at and as of the Closing Date with the same effect as though
such representations and warranties were made at and as of the Closing
unless the aggregate failure of such representations or warranties to be
true and correct does not
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have a material adverse effect on Buyer's ability to consummate the
transactions contemplated by this Agreement or fulfill its post-Closing
obligations hereunder; provided that if a representation or warranty is
expressly made only as of a specific date, it need only be true and
correct in all respects as of such date, and PCC shall have received
Buyer's Closing Certificate required by Section 6.3(h) below dated as of
the Closing Date executed by Buyer to such effect;
(b) all of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing Date shall have been duly performed and complied with in all
material respects;
(c) all proceedings and actions, corporate or other, to be taken by
Buyer in connection with the transactions contemplated by this Agreement,
and all documents incident thereto, including all actions necessary to
authorize the execution, delivery and performance of this Agreement and
the transactions contemplated hereby, shall have been taken and shall be
reasonably satisfactory in form and substance to PCC and its counsel;
(d) PCC shall have received, on behalf of the Asset Sale Companies,
the Purchase Price by wire transfer of cash or other immediately available
funds;
(e) Buyer shall have executed and delivered the Assignment and
Assumption Agreements and such other documents as may be necessary for
Buyer to assume all of the Assumed Liabilities;
(f) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that, individually, or
together with any other change,
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event or occurrence, has had or could reasonably be expected to have a
Material Adverse Effect;
(g) PCC shall have received an opinion of counsel to Buyer addressed
to PCC substantially in the form of Exhibit F; and
(h) PCC shall have received an executed copy of Buyer's Closing
Certificate.
ARTICLE VII
TERMINATION
7.1. Termination.
This Agreement may be terminated prior to the Closing Date only as
follows:
(a) by mutual written consent of PCC and Buyer;
(b) by either PCC or Buyer, if the Closing Date shall not have
occurred prior to the close of business on December 31, 2002 or such later
date as the parties may agree in writing (provided, that the right to
terminate this Agreement under this Section 7.1(b) shall not be available
to any party whose failure to fulfill any obligation under this Agreement
has been the cause, in whole or in part, of, or has resulted in, the
failure of the conditions in Article VI to be satisfied and the Closing
Date to occur on or before such date);
(c) by PCC or Buyer if an action, suit, or proceeding, shall have
been commenced or threatened by or before any Governmental Authority, or
any order, decree or injunction shall have been entered therein, that (i)
prohibits, seeks to prohibit, or imposes or seeks substantial damages in
connection with, the consummation of the transactions contemplated by this
Agreement, (ii) seeks or imposes relief that causes or would cause any of
the transactions contemplated by this Agreement to be rescinded following
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consummation, or (iii) affects adversely the right of Buyer to own the
Purchased Assets or to operate the Business;
(d) by Buyer if (i) the representations of PCC contained in this
Agreement are not true and correct in all material respects as if made at
and as of that time, except for failures to be true and correct that are
capable of being and are cured within fifteen (15) days after written
notice from Buyer to PCC of such failure; or (ii) PCC has failed to comply
materially with its respective obligations under this Agreement, except
for failures to comply that are capable of being and are cured within
fifteen (15) days after written notice from Buyer to PCC of such failure;
or
(e) by PCC if (i) the representations of Buyer contained in this
Agreement are not true and correct in all material respects as if made at
and as of that time, except for failures to be true and correct that are
capable of being and are cured within fifteen (15) days after written
notice from PCC to Buyer of such failure; or (ii) Buyer has failed to
comply materially with its obligations under this Agreement, except for
failures to comply that are capable of being and are cured within fifteen
(15) days after written notice from the PCC to Buyer of such failure.
7.2. Effect of Termination.
If this Agreement is terminated pursuant to Article VII hereof, all
further obligations of the parties under or pursuant to this Agreement shall
terminate without further Liability of either party to the other except: (a) as
set forth in Section 8.4; and (b) for breaches of representations, warranties,
or covenants or for fraud. PCC and Buyer hereby agree that the provisions of
this Section 7.2 and of Section 8.4 shall survive any termination of this
Agreement pursuant to the provisions of this Article VII.
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ARTICLE VIII
MISCELLANEOUS
8.1. Entire Agreement.
This Agreement, the documents referred to herein and to be delivered
pursuant hereto and any other agreement entered into contemporaneously with this
Agreement among PCC, PCC Parent, Buyer and Buyer's Parent or the Affiliates of
any of them constitute the entire agreement between the parties pertaining to
the subject matter hereof, and supersede all prior agreements, understandings,
negotiations and discussions of the parties, whether oral or written, and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein or therein.
8.2. Amendment.
This Agreement may be amended by an instrument in writing and signed
on behalf of all of the parties hereto at any time.
8.3. Extension; Waiver.
At any time prior to the Closing Date, the parties may (i) extend
the time for the performance of any of the obligations or other acts of the
other parties hereto, (ii) waive any inaccuracies in the representations and
warranties contained herein or in any document, certificate or writing delivered
pursuant hereto or (iii) waive compliance with any of the agreements or
conditions contained herein, other than the conditions contained in Section
6.1(a) hereof as it relates to the entry of an order in any proceeding by or
before a Governmental Authority. Any agreement on the part of any party to any
such extension or waiver shall be valid only if set forth in an instrument in
writing and signed on behalf of such party.
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8.4. Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto shall pay the fees and expenses of their
respective counsel, investment bankers, financial advisors, accountants and
other experts and the other expenses incident to the negotiation and preparation
of this Agreement and consummation of the transactions contemplated hereby.
8.5. Bulk Sales Waiver.
Buyer hereby waives compliance with all applicable bulk sales Laws.
8.6. Governing Law.
This Agreement shall be construed and interpreted according to the
Laws of the Commonwealth of Virginia, without regard to the conflicts of Law
rules thereof.
8.7. Assignment.
This Agreement and each party's respective rights hereunder may not
be assigned at any time except as expressly set forth herein without the prior
written consent of the other party, provided that PCC may assign its rights
hereunder to any Affiliate of PCC after the Closing Date without the consent of
Buyer and Buyer may assign its rights hereunder to any Affiliate of Buyer prior
to, at or after the Closing Date without the consent of PCC and, further
provided, that nothing in this Agreement shall prevent a successor in interest
to either party from enforcing the provisions of this Agreement.
8.8. Notices.
All communications, notices and disclosures required or permitted by
this Agreement shall be in writing and shall be deemed to have been given when
delivered personally or by messenger or by overnight delivery service, or within
five days of being mailed by
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registered or certified United States mail, postage prepaid, return receipt
requested, in all cases addressed to the person for whom it is intended at his
address set forth below or to such other address as a party shall have
designated by notice in writing to the other party in the manner provided by
this Section 8.8:
If to PCC: Pittston Coal Company
000 X.X. Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: President
With a copy to: Pittston Coal Company
c/o The Pittston Company
0000 Xxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
And a copy to: Hunton & Xxxxxxxx
Riverfront Plaza, East Tower
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Heuhsen, Esq.
If to Buyer: Alpha Coal Sales Co., LLC
c/o Alpha Natural Resources, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Vice President
With a copy to: First Reserve Corporation
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
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.
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8.9. Counterparts; Headings.
This Agreement may be executed in several counterparts, each of
which shall be deemed an original, but such counterparts shall together
constitute but one and the same Agreement. The Table of Contents and Article and
Section headings in this Agreement are inserted for convenience of reference
only and shall not constitute a part hereof.
8.10. Interpretation; Construction.
(a) Unless the context requires otherwise, all words used in this
Agreement in the singular number shall extend to and include the plural,
all words in the plural number shall extend to and include the singular
and all words in any gender shall extend to and include all genders.
(b) This Agreement has been fully negotiated by the parties hereto
and shall not be construed by any Governmental Authority against either
party as the drafting party.
8.11. Severability.
If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force and
effect to the extent not held invalid or unenforceable.
8.12. No Reliance.
No third party is entitled to rely on any of the representations,
warranties and agreements contained in this Agreement and PCC and Buyer assume
no Liability to any third party because of any reliance on the representations,
warranties and agreements of PCC and
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Buyer contained in this Agreement, other than Section 5.5 hereof, which are
intended to be for the benefit of the Persons expressly covered thereby and may
be enforced by such Persons.
8.13. Retention of and Access to Records.
After the Closing Date, Buyer shall retain for a period consistent
with Buyer's record retention policies and practices those books and records
relating to the Asset Sale Companies delivered to Buyer. Buyer also shall
provide to PCC and its Affiliates reasonable access thereto, during normal
business hours and on at least three days' prior written notice, to enable them
to prepare financial statements or Tax Returns or deal with Tax audits or
litigation. Buyer shall deliver to PCC at least thirty days written notice prior
to the destruction or other disposal of any such books and records. PCC and its
Affiliates may elect to take delivery of any such books and records that Buyer
intends to destroy or otherwise dispose of and to copy any such books and
records that Buyer intends to keep, all at their own expense.
8.14. Arbitration.
Any dispute, controversy or claim arising out of or relating to this
Agreement (a "Dispute") shall be decided by binding arbitration in accordance
with the commercial arbitration rules of the American Arbitration Association.
PCC and Buyer shall jointly select one arbitrator. If the two parties shall fail
to select an arbitrator within fourteen calendar days after arbitration is
requested, then such arbitrator shall be selected by the American Arbitration
Association or any successor thereto upon application of either party. No
Dispute shall be consolidated in any arbitration with any dispute, claim or
controversy of any other party. The arbitration shall be conducted in Roanoke,
Virginia, 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 8.14 shall be the exclusive means to resolve all
Disputes.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
PITTSTON COAL COMPANY
By: _________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Development
and Technical Resources
ALPHA COAL SALES CO., LLC
By: _________________________________
Name: Xxxxx Xxxx
Title: President
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SCHEDULE 1.3
ASSET SALE COMPANIES
Clinchfield Coal Company, a Virginia corporation
Pittston Coal Sales Corp., a Virginia corporation
Motivation Coal Company, a Virginia corporation
PITTSTON COAL COMPANY
000 X. X. XXXX XXXXXX
XXXXXXX, XXXXXXXX 00000
December 13, 2002
Alpha Coal Sales Co., LLC
c/o Alpha Natural Resources, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Asset Purchase Agreement (the "Agreement"), dated as of
October 29, 2002, as amended to but not including the date hereof, by and
between Pittston Coal Company ("PCC") and Alpha Coal Sales Co., LLC ("Buyer").
Capitalized terms used herein without definition shall have the meanings
ascribed to them in the Agreement.
PCC and Buyer desire to amend certain provisions of the Agreement and, in
consideration of the mutual covenants, conditions and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Schedules to the Agreement are hereby amended and restated in
their entirety as attached hereto as Exhibit A.
2. Except as amended by this letter agreement, the Agreement shall
continue in full force and effect.
3. This letter agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Any executed
counterpart of this letter agreement or other signature hereto
delivered by a party by facsimile shall be deemed for all purposes
as being good and valid execution and delivery of this letter
agreement by such party.
Sincerely,
PITTSTON COAL COMPANY
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Development
and Technical Resources
ACKNOWLEDGED AND AGREED:
ALPHA COAL SALES CO., LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-fact
