AMENDMENT NO. 2 TO THE PURCHASE AND SALE AGREEMENT
EXHIBIT 10.52
AMENDMENT NO. 2 TO THE
THIS
AMENDMENT NO. 2 (this “Amendment”) to that Purchase and Sale Agreement
dated December 31, 2005 by and between the parties hereto (the
“Agreement”) is made
and entered into on the 27th day of April, 2006, by and among Arch Coal, Inc., a
Delaware corporation (“Arch”) and Magnum Coal Company, a Delaware corporation
(“Magnum”).
RECITALS
WHEREAS, on December 31, 2005, Arch and Magnum entered into the Agreement;
WHEREAS, on February 7, 2006, the parties entered into Amendment Number 1 to the
Agreement; and
WHEREAS, Arch and Magnum desire to further amend the Agreement as set forth
below;
NOW, THEREFORE, the parties to this Amendment undertake and agree as follows:
1. | DEFINITIONS |
1.1 Terms capitalized but not defined herein have the meaning set forth in the Agreement.
2. | PERMITS |
2.1 The text contained in Section 6.1(c), as amended, shall be deleted in its entirety and replaced
with the following text:
“At the Closing or as soon as reasonably possible thereafter, (i) Arch shall assign
or cause the assignment of all rights in and to, and the Company shall assume all
obligations under, all Permits listed on Schedule 4.2.19(l) that are not listed as
owned by one of the Arch Companies, in each case, pursuant to a Permit Assignment and
Assumption Agreement, and (ii) the Company shall cooperate and shall cause the Arch
Companies, as applicable, to cooperate, in good faith with Arch in connection with the
filings that were made by Arch or one of its Affiliates prior the Closing with respect to
those permits set forth on Schedule 6.1(c) in order to assign such permits to Arch or one
of its Affiliates.”
2.2 A new Section 6.3(e) shall be added as follows:
“Magnum hereby grants, and agrees to cause the Arch Companies to grant, as
necessary, to each of Arch and Ark Land a right-of-entry and right to access and
use all of the properties owned or leased by any of the Arch Companies (the “Arch
Companies Properties”) for the purpose of performing any required
reclamation activities (including, without limitation, inspections, testing, grading,
filling, revegetation and making other improvements and storing equipment) on
such properties and permitting inspections and site visits by officials, employees
and authorized representatives of the Department of Environmental Protection
related to obtaining the release of any bonds posted in connection with any of the
permits listed on Schedule 6.3(e), together with ingress and egress rights for
pedestrian, vehicular and truck traffic over the Arch Companies Properties in
connection therewith. This right-of-entry and other rights granted herein may be
used by Arch and/or Ark Land and any of its representatives, agents, contractors,
subcontractors and assigns. Magnum hereby covenants and agrees to execute and
deliver any and all documents and take any and all further actions (and/or to cause the
Arch Companies and any other parties with any interest in the Arch
Companies Properties to do the same), as may be reasonably requested by Arch
and/or Ark Land, as necessary to effectuate the grant of rights contemplated and
the intentions of the parties expressed herein. The rights granted herein shall
extend until such time as all of the bonds issued pursuant to any of the permits set
forth on Schedule 6.3(e) are released and shall run with the land and be binding
on and shall inure to the benefit of the parties named herein and their respective
successors and assigns and succesors in interest in and to the Arch Companies
Properties. Upon request, Magnum agrees to execute and deliver, or cause the
execution and delivery, to Arch and Ark Land a memorandum of the rights
granted herein, in recordable form, which Arch and/or Ark Land, at their
respective expense and option, may cause to be recorded in the applicable real
estate records.”
2.3 A new Section 6.3(f) shall as follows:
“(i) With respect to permits set forth on Schedule 6.3(f)(i), as soon as
practicable, Magnum shall transfer or cause to be transferred any liabilities that
arise as a result of such permits to one or more existing permits held by Hobet Mining,
LLC and/or Apogee Coal Company, LLC pursuant to an incidental boundary revision (“IBR”).
For clarification purposes, Arch shall not perform or be responsible for the performance
of any reclamation activies with respect to the permits set forth on Schedule 6.3(f).
(ii) With respect to the permit set forth on Schedule 6.3(f)(ii), Magnum shall take all
necessary and appropriate action or shall cause such appropriate and necessary action to
be taken in order to obtain the release of the permit listed thereon.”
3. | MISCELLANEOUS |
3.1 Sections 11.4, 11.6, 11.7, 11.8 and 11.9 shall be applicable to the terms of this
Amendment and are hereby incorporated by reference; provided that (a) any reference to
“this Agreement” in such provisions of the Agreement shall be deemed for purposes of
this Amendment to be a reference to “this Amendment” and (b) any other necessary
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changes relating to syntax, section or article references and other similar matters shall be
deemed made.
3.2 The representations of the Company contained in Section 4.1 and of Arch
contained in Section 4.2.2 shall be applicable to this Amendment and are hereby
incorporated by reference, provided that (a) any reference to “this Agreement” in such
provisions of the Agreement shall be deemed for purposes of this Amendment to be a
reference to “this Amendment” and (b) any other necessary changes relating to syntax,
section or article references and other similar matters shall be deemed made.
3.3 The Agreement, this Amendment and the Ancillary Documents (and any
schedules, exhibits or annexes thereto), contain the entire agreement and understanding
among the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter. Neither Party shall be
liable or bound to the other Party in any manner by any representations, warranties or
covenants relating to such subject matter except as specifically set forth herein or therein.
3.4 Except as set forth herein, the terms and provisions of the Agreement shall be
unchanged by this Amendment and shall remain in full force and effect.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of this
27th day of April, 2006.
Arch Coal, Inc. | ||||||
By: | /s/ Xxxxxx X. Xxxxx | |||||
Name: | Xxxxxx X. Xxxxx | |||||
Title: | Vice President — Law | |||||
Magnum Coal Company | ||||||
By: | /s/ Xxxx X. Xxxxxx | |||||
Name: | Xxxx X. Xxxxxx | |||||
Title: | President and Chief Executive Officer |
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