EXHIBIT 10.8
DEED OF LEASE AND AGREEMENT
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JUNE 1, 1962
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Between
XXXXXXX-RUM COAL COMPANY
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and
AMHERST COAL COMPANY
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THIS DEED OF LEASE AND AGREEMENT, Made this 1st day of June, 1962, by
and between XXXXXXX-RUM COAL COMPANY, a West Virginia corporation, party of the
first part, sometimes hereinafter called "Lessor" or "Xxxxxxx-Rum", and AMHERST
COAL COMPANY, a West Virginia corporation, party of the second part, sometimes
hereinafter called "Lessee" or "Amherst";
WHEREAS, Amherst is a coal mining tenant of Xxxxxxx-Rum on certain lands
situate in Xxxxx and Triadelphia Districts, Xxxxx County, West Virginia, on the
waters of Rum Creek and Buffalo Creek, tributaries of the Guyandot River, under
two leases generally referred to as the "XxXxxxxx Lease" and the "Rum Creek
Lease", which said XxXxxxxx Lease was first made by Xxxxxxx-Rum Coal Company to
XxXxxxxx Coal Company by Deed of Lease and Agreement dated August 14, 1911, and
of record in the Office of the Clerk of the County Court of Xxxxx County, West
Virginia, in Deed Book 35 at Page 201, and which Rum Creek Lease was originally
made by Xxxxxxx-Rum Coal Company to Rum Creek Coal Company by Indenture of Lease
dated January 1, 1924, and of record in said Clerk's Office in Deed Book 74 at
Page 197, and which leases, as amended and supplemented from time to time, were
successively assigned to Xxxxx County Coal Corporation, sometimes herein called
"Xxxxx County", and the corporate name of Xxxxx County has been changed to the
corporate name "Amherst Coal Company", and said leases, as amended and
supplemented prior to their assignments to Xxxxx County by the agreements next
hereinafter recited and as further amended and supplemented by agreements
between Xxxxxxx-Rum and Xxxxx County and/or Amherst next hereinafter recited,
constitute the leases under which Amherst is now a coal mining tenant of
Xxxxxxx-Rum and describe the lands of which Amherst is the coal mining tenant
of Xxxxxxx-Rum:
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Reference is made to:
1. Deed dated October 8, 1926, between Xxxxxxx-Rum and Xxxxxx Heirs
Incorporated, parties of the first part, Xxxxx County, party of the second
part, Xxxxxxx Coal Land Company, party of the third part, and Buffalo Eagle
Collieries Company, party of the fourth part, recorded in said Clerk's
Office in Deed Book 88 at page 384. (Said deed being followed by exchange
of all coal in the five tracts described by virtue of the deed dated
December 23rd, 1927, between Xxxxxxx Coal Land Company and Buffalo Eagle
Collieries Company, parties of the first part, and Xxxxxxx-Rum and Xxxxxx
Heirs Incorporated, as parties of the second part, recorded in said Clerk's
Office in Deed Book 88, page 381, and of deed dated December 23rd, 1927,
between Xxxxxxx-Rum and Xxxxxx Heirs Incorporated, parties of the first
part, and Xxxxxxx Coal Land Company (party of the second part), recorded in
said Clerk's Office in Deed Book 283, at page 143, and also deed from
Xxxxxx Heirs Incorporated to Xxxxxxx-Rum, dated December 31, 1936, and of
record in said Clerk's Office in Deed Book 111, at page 305.)
2. Supplemental Indenture of Lease (relating to XxXxxxxx Lease) dated
as of January 1, 1937, between Xxxxxxx-Rum as Lessor and Xxxxx County as
Lessee, recorded in said Clerk's Office in Deed Book 115 at Page 37 et
seq., and the instruments and agreements therein mentioned (the deed of
October 12, 1914, from Xxxxxxx-Rum and XxXxxxxx Coal Company to Board of
Education, Xxxxx District, mentioned in said Supplemental Indenture, is
recorded in said Clerk's Office in Deed Book 43 at Page 299, and the Deed
from Xxxxxx Heirs Incorporated conveying two certain
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tracts of land to Lessor, also mentioned in said Supplemental Indenture, is
dated December 31, 1936, and is recorded in said Clerk's Office in Deed
Book 111 at page 305 et seq.). (The terms and conditions of the XxXxxxxx
Lease are superseded by this lease.)
3. Supplemental Indenture of Lease (relating to Rum Creek Lease) dated
as of January 1, 1937, between the same parties, recorded in said Clerk's
Office in Deed Book 115 at page 53, et seq., and the instruments and
agreements therein mentioned (the deed recited in Item 2 of the
Supplemental Indenture between Rum Creek Coal Company, The Pennsylvania
Company For Insurances On Lives And Granting Annuities, Trustee, and
Xxxxxxx-Rum, recorded in said Clerk's Office in Deed Book 94 at page 483,
is dated April 11, 1928, instead of April 12, 1928, as recited in said
Supplemental Indenture, and the Deed of Assignment from Rum Creek Coal
Company to Xxxxx County Coal Corporation mentioned as Item 4 in said
Supplemental Indenture is dated May 1, 1930, and is recorded in said
Clerk's Office in Deed Book 95 at page 257). (The terms and conditions of
the Rum Creek Lease are superseded by this lease.)
4. Agreement dated as of January 1, 1937, between Xxxxxxx-Rum as
Lessor and Xxxxx County as Lessee and The Pennsylvania Company For
Insurances On Lives And Granting Annuities, Trustee, and certain
Bondholders owning first mortgage sinking fund gold bonds, Series A, 7%,
due 1942 of Xxxxx County and certain Noteholders owning 3-year secured 7%
gold notes of Xxxxx County, recorded in said Clerk's Office in Deed Book
115 at page 62 et seq., said Agreement relating to XxXxxxxx Lease and to
Rum Creek Lease. (Said
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bonds and notes have been fully paid and the terms and conditions of said
Agreement are superseded by this lease.)
5. Deed between Xxxxx County Coal Corporation, Dingess-Rum, Xxxxx
County, West Virginia Gas Corporation and Guaranty Trust Company of New
York, dated January 15, 1938, recorded in said Clerk's Office in Deed Book
119 at page 318.
6. Deed and Agreement between Xxxxx County Coal Corporation, Xxxxxxx-
Rum, Xxxxxx Heirs Incorporated, Altizer Coal Land Company, Xxxxx County,
West Virginia Gas Corporation, Guaranty Trust Company of New York and The
Pennsylvania Company For Insurances On Lives And Granting Annuities, dated
August 31, 1940, and recorded in said Clerk's Office in Deed Book 137, page
265.
7. Supplemental Lease dated November 14, 1952, by Xxxxxxx-Rum to
Amherst, recorded in said Clerk's Office in Deed Book 223 at page 335.
8. Supplemental Lease dated February 25, 1953, from Xxxxxxx-Rum to
Amherst, recorded in said Clerk's Office in Deed Book 273 at page 58. (Said
Supplemental Lease is no longer effective as to the mining of coal, but is
to continue in effect insofar as the right of Amherst to move No.5 Block
coal over the leased premises and the premises included in said
supplemental lease is concerned.)
9. Deed between Xxxxxxx-Rum, Xxxxx County and the Board of Education
of the County of Xxxxx, dated May 29, 1941, recorded in said Clerk's Office
in Deed Book 143 at page 57.
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10. Deed between Xxxxxxx-Rum, The Chesapeake and Ohio Railway Company,
Xxxxx County and The Pennsylvania Company For Insurance On Lives And
Granting Annuities, dated September 2, 1942, recorded in said Clerk's
Office in Deed Book 145 at page 319.
11. Deed between Dingess-Rum, Appalachian Electric Power Company and
Xxxxx County dated March 12, 1946, recorded in said Clerk's Office in Deed
Book 171 at page 431.
12. Deed between Xxxxxxx-Rum, The Chesapeake and Ohio Railway Company
and Xxxxx County dated October 16, 1948, and recorded in said Clerk's
Office in Deed Book 200 at page 221.
13. Agreement between Xxxxxxx-Rum, Xxxxx County and Appalachian
Electric Power Company dated December 8, 1951, and recorded in said Clerk's
Office in Deed Book 27 at page 46.
14. Surrender Agreement between Xxxxxxx-Rum and Amherst dated February
25, 1953, and recorded in said Clerk's Office in Deed Book 224 at page 271.
(This Agreement remains in effect except as specifically modified by this
lease.)
15. Deed of Exchange between Xxxxxxx-Rum, The Chesapeake and Ohio
Railway Company and Amherst dated September 27, 1961, and recorded in said
Clerk's Office in Deed Book 282 at page 379.
16. Memorandum of Agreement dated December 30, 1941, between Xxxxxxx-
Rum and Xxxxx County, covering payment for
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certain areas of unmined Xxxxxxx seam of coal, not recorded. (Said
agreement is not superseded by this lease.)
17. Letter Agreements between Xxxxx County, Xxxxxxx-Rum and The
Youngstown Mines Corporation dated June 5, 1942, and June 13, 1942,
relating to the use of 2.2 acres of surface land at the mouth and to the
north of the second Right Hand Fork of Rum Creek for a refuse dump for
Xxxxx County, which Agreements are to continue effective according to their
terms.
18. Memorandum of Agreement between Xxxxxxx-Rum and Xxxxx County dated
January 5, 1944, and not recorded, granting wheelage rights with respect to
the No.5 Block seam of coal on the adjoining property of Xxxxx County Coal
Corporation and providing for the payment of wheelage as therein set forth.
(Said Agreement being fully covered by the provisions of this agreement is
hereby declared and agreed to be no longer effective.)
19. Letter Agreement between Xxxxxxx-Rum and Xxxxx County dated
February 11, 1946, not recorded, granting to Lessee the right to mine about
6 acres of coal on adjoining property of Xxxxxxx-Rum formerly leased to
Georges Creek Coal Company and also granting to Xxxxx County while mining
said area the right to haul coal from adjoining land of Xxxxx County Coal
Corporation to Xxxxx County's tipple at Xxxxxx on the leased premises (this
Agreement has expired and is no longer effective, the haulage rights with
respect to No.5 Block seam of coal from adjoining land of Xxxxx County Coal
Corporation being covered by the terms of this agreement).
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20. Agreement dated April 9, 1962, not recorded, between Xxxxxxx-Rum
and Amherst extending the terms of the XxXxxxxx and Rum Creek leases for
one additional year.
Nothing contained herein is intended to affect or modify such rights as may
be vested in Xxxxxx X. Xxxxxx et al or their heirs, lessees or assigns under
those certain Articles of Agreement dated October 2, 1911, between Xxxxxxx-Rum
and said Xxxxxx et al, recorded in said Clerk's Office in Deed Book 35 at page
327, with respect to certain transportation rights for coal and timber removed
from the 1450 acre Xxxxxxx Xxxxxx survey (situated on the divide between the
waters of Rum Creek and the waters of Spruce Fork of Coal River and adjoining
the lands of Xxxxxxx-Rum) over the land of Xxxxxxx-Rum to the railroad on Rum
Creek (said 1450 acre tract being now leased to Amherst for coal mining
purposes); and nothing contained herein is intended to affect or modify such
rights as may be vested in Xxxxxx Heirs Incorporated or in Amherst under a
certain coal mining lease from Xxxxxx Heirs Incorporated as lessor to Xxxxx
County as lessee, to which Xxxxxxx-Rum was a party, said lease being dated the
1st day of January 1931 and recorded in said Clerk's Office in Deed Book 263 at
page 274; and nothing contained in this paragraph is intended as an impairment
of Amherst's obligation herein contained to pay to Xxxxxxx-Rum 3c per gross ton
on coal from said 1450 acre tract brought by Amherst over Xxxxxxx-Rum's premises
hereby leased to the railroad on Rum Creek, it being understood that the
additional 1c per ton hereinafter provided is being paid by Amherst for other
considerations; and
WHEREAS, Amherst and its predecessor lessees have operated said lands for
coal mining purposes and Amherst is now so operating the same and has on the
property of Xxxxxxx-Rum extensive facilities for the mining, transporting,
cleaning, grad-
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ing, drying and otherwise processing, storing, and loading into railroad cars,
of coal, and for the disposal of mine rock, washing and other refuse, including,
but not exclusive of others, tipples, washers, driers, and aerial trams, houses,
shops, warehouses, stores and other accessory buildings, mine tracks, roads,
power lines, sub-stations, and other facilities used in and in connection with
its mining operations; and
WHEREAS, said XxXxxxxx and Rum-Creek leases, as amended and supplemented,
except for the aforesaid agreement between Xxxxxxx-Rum and Amherst dated April
9, 1962, extending the terms of said leases for one additional year, would have
expired and terminated on the 31st day of December, 1963, and now expire and
terminate after one additional year, unless renewed and extended, and under the
said XxXxxxxx and Rum Creek leases Amherst has the right to renew said leases
and to extend the leasehold estates now held by Amherst thereunder, and it is
the desire of Amherst to continue its coal mining operations and rights of coke
making thereafter on said Xxxxxxx-Rum lands and that said leasehold estates be
continued and extended, and it is the desire of Xxxxxxx-Rum that Amherst
continue its operations thereafter and that said leasehold estates be continued
and extended, and the parties agree that it is for the best interests of each
that the said leases as so amended and supplemented and the leasehold estates
existing thereunder be merged and consolidated to the end that the lands
comprised by the same shall hereafter constitute a single leasehold to be
operated hereafter under a single deed of lease and agreement, and that it is
for the best interests of each of the parties that the terms and conditions
under which Amherst shall hereafter hold and operate said merged, consolidated,
continued, and extended leasehold be embodied in a single and all-comprehensive
agreement, and that such single and all-comprehensive agreement merge,
consolidate, continue, and extend said
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leasehold estates and provide the terms and conditions under which Amherst shall
hereafter hold and operate said merged, consolidated, continued, and extended
leasehold estate, and fully supersede the terms and conditions under which
Amherst has heretofore held and operated the XxXxxxxx and the Rum Creek
leasehold estates, and fully supersede the said existing XxXxxxxx and Rum Creek
lease agreements as they have been supplemented and amended from time to time;
and the parties have, in consideration of the mutual covenants and provisions
herein contained, agreed upon the merger, consolidation, continuation, and
extension of said leasehold estates and the terms and conditions upon which the
lands embodied in the merged, consolidated, continued, and extended leasehold
estate shall be held and operated as herein set forth;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH:
I.
MERGER OF LEASES AND LEASEHOLD ESTATES
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Said XxXxxxxx lease and said Rum Creek lease, as each heretofore has been
supplemented and amended, and the leasehold estates existing thereunder, are
hereby merged and consolidated into one lease and one leasehold estate, and as a
merged and consolidated lease and leasehold estate are continued and extended by
this Deed of Lease and Agreement, which may be hereinbefore and hereafter
referred to as "this lease " or as the "Amherst Lease" or as "this agreement";
and which said leasehold estate so merged, consolidated, continued, and extended
may be hereafter referred to as "this leasehold" or the "Amherst Leasehold"; and
Amherst shall hold and operate said merged, consolidated, continued, and
extended leasehold estate upon the terms and conditions herein set forth, and
which terms and con-
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ditions shall constitute the full and complete agreement of the parties hereto
and shall fully supersede all the terms and conditions heretofore embodied in
the said XxXxxxxx lease and the said Rum Creek lease, as each has been
supplemented and amended heretofore, under which Amherst has heretofore held and
operated said XxXxxxxx and Rum Creek leasehold estates.
II.
PROPERTY
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In consideration of the terms, conditions, and covenants hereinafter set
out and to be kept and performed by the said Lessee, the said Lessor does hereby
demise, let, and lease unto the said Lessee, for coal mining and the making of
coke and other coal products, and including the right and privilege during the
term hereof to take, operate, transport, prepare, process, and dispose of, as
herein more fully set out, therefrom, all of the coal therein, thereon, and
thereunder, and subject to the exceptions, reservations, covenants, and
conditions hereinafter contained, all that certain tract of land situate and
located on the waters of Rum Creek and Buffalo Creek in Xxxxx and Triadelphia
Districts of Xxxxx County, West Virginia, which is bounded and described as
follows:
BEGINNING at a point on the left side of Rum Creek approximately 2,000'
above the mouth of the Second Right Hand Fork of Rum Creek, thence running up
said creek
1. N. 34 degrees 51' E 370.2' to a point; thence
2. N. 71 degrees 45' E 770' to a point; thence
3. N 36 degrees 46' E 836.3' to a point; thence
4. N 35 degrees 05' E 366.27' to a point; then crossing said Rum Creek at right
angles and up the North Mud Lick Branch
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5. S 50 degrees 39' E 702.32' to a point in said North Mud Lick; thence
leaving said North Mud Lick
6. N 2 degrees 40' W 736.84' to a point on the right side of Rum Creek; thence
up said Rum Creek
7. N 33 degrees 58' E 1,360' to a point; thence
8. N. 42 degrees 28' E 534.79' to a point; thence
9. N. 61 degrees 58' E 247.65' to a point; thence
10. N 61 degrees 58' E 680.0' to a point; thence
11. N 2 degrees 30' E 247.57' to a point near Rum Creek; thence
12. N 67 degrees 39' E 651.2' to a point; thence
13. N 78 degrees 16' E 273.11' to a point; then crossing Rum Creek
14. N 14 degrees 35' W 194.05' to a point; thence
15. N 89 degrees 58' E 634.6' to a point; thence
16. N 83 degrees 45' E 1,075.9' to a point; thence
17. S 34 degrees 5' E 333.6' to a point near Rum Creek; thence
18. S 74 degrees 35' E 840.55' to a point; thence
19. S 69 degrees 13' E 1,039.' to a point near the mouth of Cub Fork;
thence leaving Rum Creek and up the mountain
20. N 40 degrees 27' E 6,972.40' crossing the mountain and through the head of
Rock House Branch on Xxxxxxx Run to a double black pine corner on the main
ridge between Xxxxxxx Run and Spruce Fork; then
21. S 30 degrees 21' 6" E 255.7' to a set stone on said ridge; thence leaving
said ridge
22. S 54 degrees 9' 31" E 7,172.37' to a set stone in the Right Fork of Garland
Fork; thence back up Garland Fork
23. S 77 degrees 0' W 114.05 to a set stone with a double apple tree witness;
thence
24. N 78 degrees 17' 25 W 1,934.15' to a small maple with a walnut and gum
witness; thence
25. S 47 degrees 11' 20" W 1,214.4' to a chestnut oak on a ridge; thence
26. S 11 degrees 35' W 3,439.18' to a point on the main ridge; thence
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27. S 52 degrees 33' E 6,388.2' to a point; thence
28. S 86 degrees 41' E 1,433.2' to a stake; thence
29. S 5 degrees 13' 4" W 1,036.6' to a stake; thence
30. S 31 degrees 45 W 2,530.0' crossing Rum Creek near the head of the hollow
and up the mountain to a set "T" rail at a stone pile on a ridge; thence
31. S 43 degrees 8' 36" W 571.63' to a point; thence
32. N 46 degrees 51' W 150.0' to a point; thence
33. S 43 degrees 8' 36" W 4,145.04' to a stake; thence
34. S 79 degrees 10' 49" W 556.45' to a point witnessed on a black oak; thence
35. S 52 degrees 36' 04" W 454.71' to a point by a chestnut oak; thence
36. S 43 degrees 02' 30" W 2695.55' to a stake; thence
37. S 11 degrees 3' E 1,295.05' to a point above the fork of the Right Fork of
Xxxxxxxx Hollow; thence crossing said Right Fork
38. S 21 degrees 5' W 165.0' to a point in the fork of Right Fork of Xxxxxxxx
Hollow; thence down the right fork of said hollow
39. S 1 degrees 05' W 825.0' to a point; thence
40. S 39 degrees 47'40" W 2,013.96' and crossing Xxxxxxxx Hollow just below the
forks to a point on the mountain ridge to a hickory and chestnut oak;
thence down the ridge between Rum Creek and Buffalo Creek
41. S 79 degrees 22' W 331.37' to a stake; thence
42. N 71 degrees 0' W 300.0' to a stake; thence
43. N 69 degrees 57' 45" W 2,006.24' to a chestnut oak which is gone; still
following the ridge
44. N 83 degrees 15' 18" W 4,372.28' to a 30" chestnut at the ridge fork at the
head of Xxxxxxxx Hollow and head of First Right Fork of Rum Creek; thence
more or less with the main ridge
45. S 68 degrees 38' 22" W 2,842.14' to a stake on the ridge; thence
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46. N 82 degrees 57' 31" W 2,227.23' to a point making a common corner between
the Amherst and Youngstown Mines leases; thence leaving the main ridge and
with the Youngstown lines
47. N 39 degrees 57' E 12,639.65' to a point near the head of the Second Right
Fork of Rum Creek; thence down the Second Right Fork of Rum Creek
48. N 25 degrees 15' W 645.0'; thence
49. N 54 degrees 0' W 420.0'; thence
50. S 88 degrees 50' W 80'; thence
51. N 49 degrees 40' W 485'; thence
52. due W 180.0'; thence
53. N 46 degrees 05' W 200.0'; thence
54. N 7 degrees 15' W 280.0'; thence
55. N 24 degrees 0' W 290.0'; thence
56. N 15 degrees 0'E 130.0'; thence
57. N 19 degrees 30' W 220.0'; thence
58. N 3 degrees 40' W 345.0'; thence
59 N 37 degrees 0' W 198.0'; thence
60. N 24 degrees 30' W 400.0'; thence
61. N 45 degrees 0' W 400.0'; thence
62. N 60 degrees 0' W 200.0'; thence
63. N 84 degrees 35' W 380.0'; thence
64. S 68 degrees 10' W 785.0'; thence
65. S 80 degrees 15' W 820.0'; thence
66. N 83 degrees 0' W 740.0' to a point at the mouth of Buck Lick Branch;
thence
67. N 76 degrees 49' W 703.26' to a point; thence
68. N 66 degrees 22' W 1,702.5' to a point; thence
69. S 60 degrees 31' W 931.63' to a point; thence leaving the Second Right Fork
70. N 34 degrees 0' E 811.76' to a point on the mountain side; thence
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71. S 81 degrees 25' W 765.0' to a point; thence
72. N 10 degrees 23' E 970.0' to a point; thence down the mountain side
73. N 79 degrees 37' W 1,470.0' to a point on the Upper Island Creek outcrop on
the right side of Rum Creek at approximately 2,000' above the mouth of the
Second Right Fork of Rum Creek; thence with the Upper Island Creek crop
down Rum Creek and turning up the Second Right Hand Fork of Rum for a
distance of approximately 2750' to a point on the mountain on the left side
of the Second Right Fork; thence
74. S 41 degrees 8' W 260.0' to a point near the said Second Right Fork of Rum
Creek; thence up said Fork
75. N 72 degrees 13' 34" W 479.63' to a point near said creek; thence crossing
said creek
76. N. 13 degrees 40' E 265.0' to a point; thence back down said creek
77. S 62 degrees 20' E 487.0'; thence crossing said creek again
78. S 11 degrees 44' W 179.13' to a point near the creek; thence down said
creek
79. N 48 degrees 35' W 932.67' to a point near the said creek; thence
80. N 29 degrees 3' W 805.93' down said creek and crossing Rum Creek to a point
approximately 100' above the forks of Second Right Fork; thence up and
crossing Rum Creek
81. N 87 degrees 11' E 553.33' to a point; thence up and crossing said Rum
Creek again
82. N 40 degrees 44' E 1133.57' to a point on the left side of Rum Creek;
thence
83. N 56 degrees 7' E 245.61' to the POINT OF BEGINNING, and containing
6,163.563 acres, more or less.
Said tract of land is shown, bordered in red, as "Amherst Lease" on "MAP
SHOWING AMHERST COAL CO. LEASE FROM XXXXXXX RUM COAL CO. DEED OF LEASE AND
AGREEMENT DATED JUNE 1,1962", which map is hereto attached and made a part of
this Deed of Lease and Agreement.
Said tract of land, subject to the reservations and exceptions hereinafter
set forth, is sometimes hereinafter referred to
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as "said lands" or "the leased premises".
Included in said outer boundary are three parcels consisting of Tract No. 3
containing 1.20 acres, Tract No.4 containing 1.81 acres, and Tract No. 5
containing 11.98 acres, in which Lessor owns only the coal with certain mining
rights. Said three tracts are described in that certain deed dated December 23,
1927, between Xxxxxxx Coal Land Company and Buffalo Eagle Collieries Company,
parties of the first part, and Xxxxxxx-Rum Coal Company and Xxxxxx Heirs
Incorporated, parties of the second part, recorded in said Clerk's office in
Deed Book 88 at page 381; and also in that certain deed dated October 8, 1926,
between Xxxxxxx-Rum Coal Company and Xxxxxx Heirs Incorporated, parties of the
first part, Xxxxx County Coal Corporation, party of the second part, Xxxxxxx
Coal Land Company, party of the third part, and Buffalo Eagle Collieries
Company, party of the fourth part, recorded in said Clerk's Office in Deed Book
88 at page 384. In addition to such lands, there is intended to be included in
the leased premises Tract No. 1 containing 10.26 acres and Tract No. 2
containing 3.09 acres, both lying adjacent to and outside of said boundary and
both described in that certain deed bearing date the 23d day of December, 1927,
between Xxxxxxx-Rum Coal Company and Xxxxxx Heirs. Incorporated, parties of the
first part, and Xxxxxxx Coal Land Company, party of the second part, recorded in
said Clerk's office in Deed Book 283 at page 143. Said two tracts are also
described in the above mentioned deed recorded in said Clerk's Office in Deed
Book 88 at page 384. The interests of Lessor in said five tracts are included as
part of the leased premises. Said tracts are shown on the aforesaid map outlined
by red and blue lines.
Lessor also excepts and reserves to itself, its successors and assigns the
minerals under the surface tract added to the Rum Creek lease by Supplemental
Lease of April 11, 1928, from Dingess-
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Rum to Rum Creek Coal Company, recorded in said Clerk's Office in Deed Book 94
at page 497, which said tract is bounded and described as follows:
BEGINNING at a point approximately 1800' up the Second Right Fork of Rum
Creek, said point being near the said Creek and being a corner common to two of
the lines of the hereinafter described Xxxxxxx lease premises; thence up said
Creek
1. N 72 degrees 13' 34" w 479.63' to a point near said Creek; thence crossing
the Creek
2. N 13 degrees 40' E 265.0' to a point; thence down said Creek
3. S 62 degrees 20' E 487.0' to a point; thence crossing said Creek
4. S 11 degrees 44' W 179.13' to the beginning, containing 2.49 acres, more or
less.
Lessor also excepts and reserves to itself, its successors and assigns, the
No. 2 Gas or Eagle seam of coal surrendered by Amherst to Xxxxxxx-Rum by deed
dated February 25, 1953, and recorded in said Clerk's Office in Deed Book 224 at
page 271, and all rights and privileges likewise reserved and excepted therein
by Xxxxxxx-Rum, its successors and assigns (it being agreed between the parties
hereto that all such rights excepted and reserved by Xxxxxxx-Rum there-in are
preserved and are to remain in full force and effect except as such rights are
modified by any provisions hereof specifically relating to such rights), said
surrendered seam being contained in a tract shown on said map outlined in yellow
and being more particularly bounded and described as follows:
BEGINNING at a point approximately 700' up and in North Mud Lick Hollow of Rum
Creek thence leaving said North Mud Lick
1. N 2 degrees 40' W 736.84' to a point on the right side of Rum Creek;
thence up said Rum Creek
2. N 33 degrees 58' E 1,360' to a point; thence
3. N 42 degrees 28' E 534.79' to a point; thence
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4. N 61 degrees 58' E 247.65' to a paint; thence
5. N 61 degrees 58' E 680.0' to a point; thence
6. N 2 degrees 30' E 247.57' to a point near Rum Creek; thence
7. N 67 degrees 39' E 651.2' to a point; thence.
8. N 78 degrees 16' E 273.11' to a point; then crossing Rum Creek
9. N 14 degrees 35' W 194.05' to a point; thence
10. N 89 degrees 58' E 634.6' to a point; thence
11. N 83 degrees 45' E 1,075.9' to a point; thence
12. S 34 degrees 05'E 333.6' to a point near Rum Creek; thence
13. S 74 degrees 35' E 840.55' to a point; thence
14. S 69 degrees 13' E 1,039' to a point near the mouth of Cub Fork; thence
leaving Rum Creek and up the mountain
15. N 40 degrees 27' E 6,972.40' crossing the mountain and through the head of
Rock House Branch on Xxxxxxx Run to a double black pine corner on the main
ridge between Xxxxxxx Run and Spruce Fork; then
16. S 30 degrees 21' 6" E 255.7' to a set stone on said ridge; thence
leaving said ridge
17. S 54 degrees 9' 31" E 7,172.37' to a set stone in the Right Fork of Garland
Fork; thence back up Garland Fork
18. S 77 degrees 0' W 114.05' to a set stone with a double apple tree witness;
thence
19. N 78 degrees 17' 25" W 1,934.15' to a small maple with a walnut and gum
witness; thence
20. S 47 degrees 11' 20" W 1,214.4' to a chestnut oak on a ridge; thence
21. S 11 degrees 35' w 3,439.18' to a point on the main ridge; thence
22. S 52 degrees 33' E 6,388.2' to a point; thence leaving the outside boundary
of the Amherst lease but within the Amherst XxXxxxxx lease
23. S 85 degrees 42' E 8,115.29' to a point common to the XxXxxxxx and Paragon
leases thence with a line between said XxXxxxxx and
-17-
Paragon leases
24. S 39 degrees 57 w 4,170.0' to a point near the head of the Second Right
Fork of Rum Creek said point being on the Amherst lease line and with said
Amherst line down the Second Right Fork of Rum Creek
25. N 25 degrees 15' W 645.0'; thence
26. N 54 degrees 0' W 420.0'; thence
27. S 88 degrees 50' W 80'; thence
28. N 49 degrees 40' W 485'; thence (28a) due W 180.0'; thence
29. N 46 degrees 05' W 200.0'; thence
30. N 7 degrees 15' W 280.0'; thence
31. N 24 degrees 0' W 290.0'; thence
32. N 15 degrees 0' E 130.0'; thence
33. N 19 degrees 30' W 220.0'; thence
34. N 3 degrees 40' W 345.0'; thence
35. N 37 degrees 0' W 198.0'; thence
36. N 24 degrees 30' W 400.0'; thence
37. N 45 degrees 0' W 400.0'; thence
38. S 55 degrees 45' E 5,2l7.50' to a point; thence
39. S 86 degrees 55' E 285.90' to a point in North Mud Lick Hollow; thence down
the said hollow
40. S 59 degrees 52' E 935.51' to the Point of Beginning, containing 2709.877
acres, more or less.
Lessor excepts and reserves to itself, its successors and assigns from the
operation of this lease all seams of coal below water level on Rum Creek where
it runs along the front of the lands originally leased by Lessor to Xxxxxxx Coal
Company in the following described tract of land originally part of the premises
leased by Lessor to Xxxxxxx Coal Company, said seams below water level having
been originally excepted and reserved from the tract leased by Lessor to Xxxxxxx
Coal Company and being likewise excepted and reserved in
-18-
said Rum Creek lease, it being agreed that all seams exposed at any point above
Rum Creek along the frontage of the original Xxxxxxx premises on Rum Creek are
included as part of the leased premises. Said part of said Xxxxxxx lease
remaining in the leased premises after the surrender of a portion thereof by Rum
Creek Coal Company to Xxxxxxx-Rum Coal Company by deed of April 11, 1928, and
recorded in said Clerk's Office in Deed Book 94, page 483 (said deed being Item
2 referred to in the Supplemental Indenture of Lease from Xxxxxxx-Rum to Xxxxx
County, dated January 1, 1937, recorded in said Clerk's Office in Deed Dock 115,
at page 53, the date of April 12, 1928, referred to being erroneous, the correct
date being April 11, 1928), is shown on the map attached hereto outlined in
green lines and is bounded and described as follows:
BEGINNING at a large sycamore tree on the bank of Rum Creek about 2,000'
above the mouth of 2nd Right Hand Fork, said tree being a corner to what is
known as the Xxxxxxxxxx Tract and the X. X. Xxxxxxxx Tract, also the beginning
point of the Amherst lease; thence from said BEGINNING
1. N 34 degrees 51' E 370.2' to a stake corner to said X. X. Xxxxxxxx Tract;
and with the lines of the same and up Rum Creek
2. N 71 degrees 45' E 770.0' to a buckeye; thence
3. N 36 degrees 46' E 836.3' to a blackjack; thence leaving lines of said X.
X. Xxxxxxxx Tract and crossing said tract
4. N 35 degrees O5' E 366.27' to a rock corner to said X. X. Xxxxxxxx Tract;
thence crossing Rum Creek
5. S 50 degrees 39' E 702.32' to a stake corner to paid X. X. Xxxxxxxx Tract;
thence
6. S 59 degrees 52' E 935.51' to a beech, now gone; thence
7. S 86 degrees 55' E 285.9' to a sugar tree; thence
8. S 55 degrees 45' E 5,217.5' to a stake in the second Right Hand Fork of Rum
Creek; thence down the Fork with its meanders
-19-
9. N 60 degrees 0' W 200'; thence
10. N 84 degrees 3'5 W 380'; thence
11. S 68 degrees 10' W 785'; thence
12. S 80 degrees 15' W 820'; thence
13. N 83 degrees 00 W 740'; thence
14. N 76 degrees 49 W 703.26' to a beech corner to what is known as the X. X.
Xxxxxxxx 19 acre Tract and with the same
15. N 66 degrees 22' W 1702.5' to a beech; thence
16. S 60 degrees 31' W 931.63' to a point in the 2nd Right Hand Fork; thence
leaving said fork
17. S 34 degrees 00' E 811.76' to a point on the hillside; thence
18. S 81 degrees 25' W 765.0'; thence
19. N 10 degrees 23' E 970.0'; thence
20. N 79 degrees 37' W 1470.0' to a point on the Upper Island Creek outcrop on
the right side of Rum Creek at approximately 2000' above the mouth of the
2nd Right Fork of Rum Creek; thence with the Upper Island Creek crop down
Rum Creek and turning up the Right Hand Fork of Rum for a distance of
approximately 2750.' to a point on the mountain on the left side of the 2nd
Right Fork; thence
21. S 41 degrees 8' W 260' to a point near the said 2nd Right Fork of Rum
Creek; thence up said fork
22. N 72 degrees 13' 34" W 479.63' to a point near said creek; thence crossing
said creek
23. N 13 degrees 40' E 265' to a point; thence back down said creek
24. S 62 degrees 20' E 487'; thence crossing said creek again
25. S 11 degrees 44' W 179.13' to a point near the creek; thence down said
creek
26. N 48 degrees 35' W 932.67' to a point near the said creek; thence
27. N 29 degrees 3' W 805.93' down said creek and crossing Rum Creek to a point
approximately 100' above the forks of the 2nd Right
-20-
Hand Fork; thence up and crossing Rum Creek
28. N 87 degrees 11' E 553.33' to a point; thence up and crossing said
Rum Creek again
29. N. 40 degrees 44' E 1133.57' to a point on the left side of Rum Creek;
thence
30. N 56 degrees 7' E 245.61' to the point of BEGINNING and containing 323.529
acres, more or less.
This lease is made subject to the reservation of various rights by
Xxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, her husband, by that certain deed to
Lessor, dated July 29, 1909, recorded in said Clerk's Office in Deed Book No.
32, at page 268, in and to a tract of 93.97 acres, of which a portion,
containing 52.97 acres, lies within the Xxxxxxx lease premises and was described
in the Indenture of Lease dated July 14, 1916, between Lessor as lessor and
Orvi1le Coal Company as lessee, and recorded in said Clerk's Office in Deed
Book No.48 at page 201. Said portion is bounded and described as follows:
BEGINNING at the point of beginning in the foregoing description of
the Amherst lease premises, thence with the first, second, third, fourth, and
fifth lines of the said Amherst lease premises, thence leaving said fifth line
at the far end thereof
l. S 59 degrees 52' E 935.51' to a beech (now gone); thence
2. S 86 degrees 55' E 285.90' to a sugar tree; thence
3. S 4 degrees 6' E 553.21' to a point; thence
4. N 85 degrees 59' W 2465.30' to a point near Rum Creek, thence down said Rum
Creek
5. S 59 degrees 20' W 400.94' to a point near said Creek; thence crossing said
Creek
-21-
6. S 83 degrees 50' W 230.40' to a point; thence leaving said Creek
7. N 85 degrees 23' W 299.14' to the Beginning.
Reservations and Exceptions
---------------------------
There is excepted and reserved to the Lessor, its successors and
assigns:
All of the stone, timber, sand, water, oil, gas, and other minerals,
including such coal on the leased premises as is not leased to Amherst the
Lessee herein -- but excluding all such coal and products therein and thereof as
are leased to Amherst the Lessee herein -- for all purposes except those herein
expressly set forth as being demised to said Lessee, including the right and
privilege of searching for and mining and removing oil, gas, and any other
minerals or products, including, but subject to the provisions hereinafter
relating thereto, the right to mine and remove coal from the area of the No.2
Gas or Eagle seam which was released to the Lessor by the Lessee by Surrender
Agreement dated the 25th day of February, 1953 (but for so long as this lease
shall continue the Lessor will not operate, or permit to be operated by others,
for coal in any seam in any other area of the leased premises), and building
pipe lines and storage tanks, the right and privilege of draining water,
transmitting electrical energy and transporting products, minerals, and goods of
all kinds, over, across, or through the lands hereinabove described; the right
and privilege of using the stone, timber, sand, and water in and on said lands,
and of making excavations and of drilling oil, gas, and water xxxxx, and
erecting buildings, structures, machinery, and improvements, and of
constructing ditches, transmission lines, railroads and other roads, tramways,
tubing, pipe lines, or other means of drainage or transmission over or upon the
surface of said lands, and of selecting and granting rights of
-22-
way therefor, together with the full power of granting rights of ingress and
egress, and such full and free rights as may be necessary or convenient in the
proper development of the leased lands, or other lands, or in the proper
exercise of the rights and privileges hereby excepted and reserved, and the
right to grant and convey from time to time to any railroad or railway company
so much of the land herein described as may be required by such railroad or
railway company for rights of way, or other railroad or railway purposes, and
the right to use or occupy for any lawful purposes, not contrary to any
provision hereof, so much of the surface of said lands as of which the exclusive
use and occupancy by the Lessee is not necessary or needful to the Lessee in its
mining and incidental operations and in the exercise of the rights and
privileges of the Lessee hereunder, and any and all said rights and privileges
shall inure to the benefit of and may be exercised and enjoyed by the Lessor,
its successors and assigns; provided, however, that in the development and
operation of any or all of the interests reserved to the Lessor, including, but
not excluding others, the oil and gas, timber (subject to the Lessee's rights
therein), stone, sand, water, other minerals, and including such coal on the
leased premises as is not leased to the Lessee hereby, and in the exercise of
all other rights and privileges of the Lessor reserved, the Lessor shall, but
subject to the provisions hereinafter set forth relating to the area of the
Eagle or No .2 Gas seam of coal surrendered by the Lessee to the Lessor by
Agreement dated the 25th day of February, 1953, act with due regard for the
rights, requirements, convenience, and safety of the operations of the Lessee
hereunder and in such manner as to not unduly interfere with the mining and
coking and incidental operations of the Lessee and the structures, buildings,
machinery, and equipment of the Lessee; it being understood that the mining of
coal by the Lessee is the primary
23-
utilization of the leased premises; and, in the event of any such interference
between the operations of the Lessee and the operations in respect of the
interests and rights and privileges reserved by the Lessor, the Lessor, its
other lessees, or assigns, shall defer to the Lessee.
To the end that interference between the operations of the Lessee
("Lessee" including its successors and assigns) and the operations in respect
of the interests, rights, and privileges reserved by the Lessor may be
eliminated or reduced to a minimum, it is agreed that before the Lessor
("Lessor" including its successors and assigns) shall drill any oil or gas well
on the leased premises, the Lessor will submit to the Lessee the proposed
location thereof, and if an oil or gas well at such proposed location will not
unreasonably interfere with the existing or prospective operations of the
Lessee, the Lessee will agree to such location; or, if it appears that such
proposed location will probably interfere with the Lessee's operations, then
the Lessee and the Lessor will agree upon another location as near as is
practicable to the location proposed by the Lessor; and if and when any such
well be drilled and it produce oil or gas in commercial quantities, for so long
as said well shall be maintained and operated in accordance with the laws and
regulations of the State of West Virginia and of the United States, the Lessee
shall have no right to require that said well be plugged, abandoned, or
otherwise disposed of, even though its maintenance and operation may interfere
with some proper use of such location by the Lessee in its operations hereunder;
and before erecting any compressor or pumping station or any lumber mill or
establishing any transformer site or station or erecting any other substantial
building, structure, or installation, the Lessor will submit in writing to the
Lessee the general plans for such building, structure, or installation and the
proposed site or location thereof. If the Lessee is at the time making no use of
the
-24-
proposed site or location and does not reasonably foresee its need to use such
site or location in the future, and the proposed use will not unreasonably
interfere with the Lessee's operations, the Lessee will give its approval of and
consent to the proposed use of such site or location, reserving, however, to the
Lessee the right to move any such building, structure, or installation to
another site or location on the leased premises at the expense of the Lessee,
and without cost to the Lessor, if at any time thereafter the use of such site
or location be necessary to the Lessee for its exercise of its mining or
incidental operations on the leased premises. If at the time the Lessee is not
using such site or location but is of opinion that it will have need therefor in
the future, it may withhold its approval and consent or may qualify its approval
or consent to the end that, if such building, structure, or installation be
placed on such site or location, if and when the use of such location becomes
necessary to the operations of the Lessee, the Lessor will, at its own expense
and without cost or expense to the Lessee, remove such building, structure, or
installation. All installations of the general nature of pipe lines, electric
power lines, telephone and telegraph lines, and comparable installations built
or installed on the leased premises by the Lessor under any such qualified
approval by the Lessee shall be removed or relocated at the sole cost and
expense of the Lessor if at any time they or any of them unreasonably interfere
with the Lessee's mining and incidental operations. The Lessor, recognizing that
the mining of coal by the Lessee is the primary utilization of the leased
premises, and the Lessee, recognizing that the Lessor has reserved rights and
interests, each, will, to the fullest extent practicable, cooperate with the
other in harmonizing their respective uses of the leased premises and in saving
the other from unnecessary expense. But nothing in this paragraph shall apply
to, or limit, the exercise of any rights in the leased premises presently
outstanding in others
-25-
under agreements with, or deeds from, Lessor heretofore made, or to facilities
and installations now or hereafter installed on the leased premises pursuant to
such outstanding rights, but the Lessee shall have the benefit of all exceptions
and reservations with respect to such facilities and installations which have
been made by or for the Lessor in said agreements or deeds.
It is understood and agreed by and between the parties hereto,
however, that by Surrender Agreement dated the 25th day of February, 1953,
Lessee surrendered and yielded up to Lessor all of Lessee's rights and
privileges to mine and remove coal from the No. 2 Gas seam of coal (sometimes
called the Xxxxx Eagle seam) in all of the areas known as the Paragon tract and
the Cub Fork tract, and a part of the XxXxxxxx lease, as shown, bordered in
yellow, on the aforesaid map of the leased premises, and Lessor, its agents and
its other lessees (all sometimes hereinafter included within the word "Lessor"),
may mine and remove the coal from said No. 2 Gas seam on such released areas
whether or not Lessee shall have completed its mining operations in the other
seams of coal in said areas, and Lessor may mine and remove the coal from said
No. 2 Gas seam in said areas without providing or leaving support for any
overlying seam of coal, and Lessee shall not be accountable or responsible to
Lessor for any results, acts, or things which may occur to or in said No. 2 Gas
seam of coal or to Lessor's operations therein in any areas from, by reason, or
because of Lessee's mining operations in any seam or seams of coal overlying the
said No. 2 Gas seam. In, and in connection with, the mining operations of said
No. 2 Gas seam, the Lessor shall have no right to use the surface of said areas
or any of them for any purposes other than such as may be reasonably necessary
for power, drainage, ventilation, communications, and escapeways (but no portal,
tipple, cleaning plants, supply yards, shops, housing or office facilities, or
comparable installations), and if any such in-
-26-
stallation or installations be placed on any of said areas it or they shall be
so located as not to interfere unreasonably with Lessee's mining and incidental
operations in respect of any and all overlying seams of coal.
The Lessee shall have the right to take and use only for mining and
incidental operations on the leased premises such timber on the leased premises
measuring thirteen inches and under in diameter over the bark two feet from the
ground on the upper side of the tree at the time of cutting and now or hereafter
during the life of this lease standing upon said land, except poplar and black
walnut, but the Lessee shall not have the right to sell any such timber or
products thereof. There is reserved to the Lessor all other timber on the
demised premises, including all poplar and black walnut of any dimensions, but
the Lessor will not take or destroy timber (other than poplar and black walnut)
which at the time measures thirteen inches and under as aforesaid except as may
be reasonably incidental to the conduct of its timber operations or the exercise
of any of its other reserved rights, and will give reasonable advance notice to
Lessee of any such proposed taking or destruction by Lessor or by any person
claiming under Lessor by agreement hereafter made, and Lessor will not sell any
such timber so taken or destroyed unless Lessee shall fail to claim the same.
The Lessee shall not be held accountable for any damage to any timber, including
poplar and black walnut, on the leased premises which is occasioned by Lessee's
mining operations and other activities in connection therewith, including the
construction of roads, tramways, power lines, pipe lines, and any and all other
facilities of the Lessee used or useful in connection with its mining and
incidental operations or for any damage to any such timber by reason of the
location of or combustion of any refuse piles or dumps. At any time when the
Lessee is about to construct
-27-
any road, power line, or other facility which will necessitate the cutting of
timber, it will give the Lessor reasonable notice thereof to enable the Lessor
to promptly remove such timber to be cut, if the Lessor so desires. Or, if the
Lessor does not desire to remove such timber, then at the request of the Lessor,
the Lessee, in removing such timber, will leave the logs so that the Lessor may
recover the same if it so desires; but the Lessee shall be under no obligation
to provide roadways or other facilities by which the Lessor may recover any such
logs, though the Lessor may use the Lessee's roadways therefor; provided, the
Lessor's use shall not unreasonably interfere with the Lessee's use thereof.
The Lessor desires, by following good forestry practices, to develop the
property as a timber property insofar as such may be done without limiting or
interfering in any way with any of the rights of the Lessee hereunder; and the
Lessee is in sympathy with the Lessor's such desire and, to the end of
promoting the attainment of the Lessor's desire, the Lessee will cooperate with
the Lessor by avoiding injury, as far as is reasonably practicable, to the
Lessor's timber interests in the Lessee's exercise of its rights hereunder. This
statement of the Lessee's willingness to cooperate with the Lessor is a
statement of intent only and is not to be taken as any limitation or restriction
on the Lessee's rights to take timber hereunder.
The rights hereby let to the Lessee are subject to all easements,
exceptions, reservations, terms, conditions, and covenants now outstanding in
other persons, firms, and corporations and binding upon both the Lessor and the
Lessee. But, to the extent of the estates and privileges hereby leased to the
Lessee, the Lessee is hereby granted, and shall be entitled to exercise, the
rights, privileges, and estates, and the benefit of the same excepted or
reserved to the Lessor or to which the Lessor may be entitled with respect to
such exceptions and reservations.
-28-
III.
TERM
----
The term of this lease shall be for the period of one hundred (100)
years from the date hereof or until all of the mineable and marketable coal
leased to the Lessee hereby shall have been mined and removed from the leased
premises, whichever shall first occur, unless this lease shall be terminated
sooner pursuant to other provisions hereof.
Whenever all of the mineable and marketable coal leased to the Lessee
hereby shall have been mined and removed from the leased premises pursuant to
the provisions of this Agreement, then this lease shall cease and terminate,
whether or not the term of years of this lease shall have expired; and at the
expiration of one hundred (100) years after the date hereof this lease shall
cease and terminate even though all of such mineable and marketable coal shall
not have been mined and removed.
If there be disagreement between the Lessor and the Lessee as to
whether all of the mineable and marketable coal leased to the Lessee hereby has
been mined and removed from the leased premises pursuant to the provisions of
this Agreement, such disagreement shall be submitted to arbitration in the
manner provided by Article XVI hereof.
For the purposes of this Lease and Agreement, "mineable and marketable
coal" means coal which pursuant to a proper plan of development and in
accordance with good mining practices can be mined and marketed at a profit by
the use of such modern mining and preparation methods and machinery as are
reasonably adapted to the practical, efficient, and economical mining of such
coal. Except as otherwise
-29-
provided in Articles V and VII of this Lease and Agreement, the mineability and
marketability of coal in any area of any seam shall be determined when such area
is first reached in place pursuant to such plan and practices.
IV.
RIGHTS AND PRIVILEGES OF LESSEE
-------------------------------
The Lessor, for the duration of this lease, demises and lets unto the
Lessee all such mining rights and privileges in said premises as are vested in
or exercisable by the Lessor and which it has the lawful right to demise and let
to the Lessee, and, subject to the foregoing and the limitations in this lease
set forth (including those applicable to the Eagle or No. 2 Gas seam area
surrendered as aforesaid), the Lessee shall have the superior right to use so
much of the surface of the leased premises and any stratum thereof and of the
stone, the sand and water therein and thereon as may be necessary or convenient
in the exercise of the mining rights herein demised, and without limiting the
generality of the foregoing:
1. The right to use and occupy so much of the surface as Lessee deems
to be necessary or convenient for the erection, maintenance, and operation
thereon of plants, tipples, shops, storehouses, merchandise establishments,
warehouses, office buildings, dwelling houses for the housing of employees
employed in connection with coal mining operations of the Lessee as herein set
forth, and all other structures which Lessee may deem to be convenient in
Lessee's coal mining or other operations; and the Lessor shall not operate or
maintain or permit to be operated or maintained by any person, firm, or
corporation, except the Lessee, any merchandising business on the premises which
is competitive with any of Lessee's merchandising and
-30-
incidental commercial activities. (The selling on the leased premises of coal
mined on the leased premises from seams or areas of seams not leased to the
Lessee hereby, or of oil, gas, timber, lumber, or other products of or from the
lands embodying the leased premises, shall not for the purposes hereof be
considered a merchandising business prohibited to Lessor or its other lessees or
assigns.) Incidental commercial operations of any of Lessee's facilities
installed primarily for its own and/or its employees' use shall be considered to
be within such operations permitted to Lessee.
2. The right to have and use the surface for the construction, repair,
and maintenance of roads, tramroads, railroads, airways, bucketways, and other
transportation facilities necessary or useful in Lessee's mining and incidental
operations, with the right to change or have changed the location of any road or
transportation facility now or hereafter on the premises. In locating any such
road or transportation facility the Lessee will give reasonable consideration to
the reserved rights of the Lessor. The Lessee will use its best efforts to
preserve the private character of all roads and roadways which otherwise might
be used by other persons; but the Lessor will join with the Lessee in granting
to any proper public authority such rights of way as may be appropriate for the
establishment of any public way which may be of service to the Lessee and
others, upon such terms and conditions as in the Judgments of the Lessee and the
Lessor may protect their respective interests.
3. The right, to the extent of the Lessor's power to grant the same, to
change, increase, diminish, use, or destroy surface and underground waters; to
discharge upon the premises waters from its mining operations, and to construct,
repair, and maintain drains, drainage-ways, sediment basins, sanitary sewers and
disposal
-31-
plants as may be needed or useful in Lessee's coal mining and incidental
operations.
4. The right to construct, maintain, and operate such pipelines,
telephone lines, power lines, tanks, coal washers, and other similar facilities
as may be needed or useful in Lessees coal mining and incidental operations.
5. The right to deposit on the surface of the leased premises all refuse
and waste materials produced in connection with Lessee's coal mining operations;
provided, that before such deposits are made the situs or location thereof shall
be subject to the approval of Lessor. In the location and operation of refuse
piles or dumps, the Lessee shall take reasonable care that the streams or
accumulations of water capable of doing flood damage or causing slides or
explosions caused by the impounding of water, are not so obstructed as to create
such hazards, and, when reasonably necessary, will use reasonable care to
provide appropriate drainage. If the Lessee be of opinion that any drainage is
reasonably necessary, the Lessee shall submit to the Lessor plans for such
drainage at the same time that the Lessee advises the Lessor of a proposed situs
or location of any such pile or dump; and if, when proposing any such situs or
location, the Lessee does not present plans for drainage, and the Lessor be of
opinion that drainage is required, the Lessor and the Lessee will endeavor to
agree upon appropriate drainage. The Lessor shall not unreasonably withhold
approval of the situs or location of any such pile or dump, or of the plans for
drainage where reasonably necessary; and if the Lessee and the Lessor are unable
to agree either in respect of the situs or location of any such pile or dump or
of the necessity of drainage facilities or of the plans of such drainage
facilities where reasonably necessary, the matter shall be submitted to
arbitration as is provided by Article XVI hereof.
-32-
The Lessee may use such refuse and waste materials for the purpose of
building roads, ramps, or other facilities on the leased premises and on any
other properties operated by the Lessee In connection therewith; and the Lessor
may use such refuse and waste materials for its own purposes; but neither the
Lessee nor the Lessor, without the consent or the other, shall sell such refuse
and waste materials to others.
6. In connection with its operations on the leased premises and on other
properties operated by the Lessee in connection therewith, and not otherwise
(except that any tipple or cleaning plant on the leased premises may be used and
the incidental rights herein provided may be had and exercised on a temporary
basis for the processing and loading of coal ordinarily processed and loaded at
any plant of the Lessee elsewhere maintained and operated by the Lessee in the
event of any emergency relating to such other plant or the Lessee), the full and
unrestricted right to transport on, over, under, or through the leased premises
coal mined by the Lessee on lands not included within the leased premises and
mine rock, refuse from cleaning and processing coal, and other refuse, which is
produced by the Lessee in and about and incident to its mining operations on
such other lands; to wash, clean, dry, and otherwise process, load, and sell
such coal produced on other lands at, by, and in facilities of the Lessee on the
leased premises, and to store thereon such coal processed at such facilities;
and subject to the provisions of paragraph 5 of this Article IV, to dispose of
upon the leased premises mine rock and refuse from coal from other lands
processed by Lessee on the leased premises, and rock and refuse from other lands
which is not discarded at a tipple or cleaning plant located off the leased
premises, and to erect on the leased premises and elsewhere any and all such
facilities therefor as my be reasonably appropriate; to
-33-
haul and move mine supplies and materials and equipment over, across, through,
and under the leased premises to and from such other lands; and to transport to
and from such other lands over the leased premises, by any and all such means as
Lessee may find to be useful and convenient, employees and other persons going
to and from such other lands in connection with the Lessee's mining operations
thereon; and for all such purposes to use the demised premises and any part
thereof in connection with the Lessee's operations on such other lands in like
manner as if such other lands were a part of the leased premises. For such
uses of the leased premises in connection with the Lessee's mining operations on
other lands, the Lessee shall pay to the Lessor the amounts hereinafter provided
for by Article VI hereof. The mine rock and refuse from such other lands may be
commingled with mine rock and refuse from the leased premises and be disposed of
along with mine rock and refuse from the leased premises either on the leased
premises or other premises in respect of which the Lessee has such rights.
The Lessee shall have the right to move coal from places where mined on the
leased premises over other lands en route to Lessee's tipples and preparation
plants on Xxxxxxx-Rum land, but no haulage or wheelage charge shall be made by
Lessor in respect of any such coal mined on Xxxxxxx-Rum land by reason of the
fact that following a circuitous route from the place of mining to the place of
processing and/or loading on the leased premises said coal shall have moved over
lands other than those of the Lessor. Except as is hereinafter provided by
Article VII relating to Xxxxxxxx Hollow, all coal mined from the leased
premises, except such as is used by the Lessee on the leased premises or sold to
its employees for their domestic use, shall be processed by and shipped from
facilities on the leased premises; provided, however: in the event of any
emergency relating
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to such facilities on the leased premises, on a temporary basis, coal mined from
the leased premises may be processed by and shipped from facilities operated by
Lessee elsewhere.
7. The exercise and use of the rights and privileges granted to the
Lessee by this Article IV shall not be restricted to exercise and use by the
Lessee only in connection with the Lessee's mining and incidental operations on
the leased premises, but, subject to the other provisions of this Lease, shall
extend to, and not otherwise except the temporary exercise and use in an
emergency as hereinabove provided, the exercise and use by the Lessee in
connection with Lessee's mining operations on other lands operated by Lessee in
connection therewith and without charge to the Lessee by the Lessor, except as
is provided by Section 6 of this Article IV and Section 6 or Article VI hereof.
8. All of the uses, rights, and privileges of the Lessee over, in,
upon, and under the leased premises, except upon a temporary basis in cases of
emergency as herein provided, are only for the mining, hauling, processing, and
shipping of coal and coke from the leased premises and other lands operated for
such purposes by the Lessee in connection with the leased premises and any and
all operations thereof or incidental thereto; and if any disagreement shall
arise between the Lessor and the Lessee as to whether any particular use which
Lessee makes of the leased premises is permitted under the terms of this lease,
such disagreement shall be resolved by arbitration in the manner and with the
effect provided by Article XVI hereof.
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V.
METHODS, DEVELOPMENT AND WORK, AND RECOVERY OF COAL
---------------------------------------------------
1. It is recognized that mining operations have hereto-fore been
conducted on the leased premises by Lessee and its predecessor lessees and that
Lessee has fully accounted to the Lessor for all such coal mined, lost, or
abandoned prior to June 1, 1962.
The worked-out, lost, or abandoned areas in the Xxxxxxx seam, the coal
from or in which has been fully accounted for by the Lessee to the Lessor, and
the areas of coal in said seam heretofore surrendered by Lessee to Lessor, are
shown on the map attached hereto and made a part hereof, bearing the legend "Map
Showing Workings In The Xxxxxxx Seam On Amherst Lease, June 1, 1962."
The areas marked in red on said map and designated by the letters A,
B, C, and D have been paid for by the Lessee and are referred to as the
surrendered areas. The coal in such areas is excluded from this lease and
Lessee has no right hereunder to mine the same; it being contemplated that
Lessor and Lessee will enter into a supplemental agreement with respect thereto
at a later time, but the effectiveness of this lease is in no way conditioned
upon the making of such supplemental agreement. It is agreed that during the
period of this lease, Lessor has no right to mine such coal or to grant mining
rights with respect to such coal in said four areas to anyone other than Lessee.
The other areas shown in red and designated by the letters E, F, G, and H have
been paid for by Lessee but are included as coal subject to this lease. Lessee
is under no obligation to conduct mining operations in said Areas E, F, G, and
H, but if it does mine any coal from any of said areas the Lessee shall account
to the
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Lessor for the coal mined at the royalty rates applicable under this lease
taking credit for the full amount heretofore paid by the Lessee for the coal
left in such area and Lessee shall pay the Lessor royalties on coal hereafter
mined from each such area which are in excess of the royalties heretofore paid
for the coal in each such area; it being agreed that each area shall be treated
separately and that all four areas are not to be treated as a group.
Said map also shows colored in green and for the most part marked
"pillared" the areas of coal in the Xxxxxxx seam in which Lessee has completed
its mining operations and fully accounted for the coal therein. Lessee shall
have the right if it so desires to mine additional coal therefrom but shall not
be obligated so to do; and shall pay royalties at the rates herein provided for
such coal as may be hereafter mined from such worked-out areas.
Said map also shows colored in yellow the areas which Lessee and
Lessor have agreed do not contain mineable and marketable coal. Lessee shall
have the right but not the obligation to mine coal therefrom, and shall pay
royalties at the rates herein provided on any coal which it may hereafter mine
from any of such areas.
Said map also shows two areas of coal marked "questionable". Whether
such areas contain mineable and marketable coal will be determined by
prospecting to be done hereafter. Lessee agrees to pay the cost of such
prospecting.
A large uncolored area to the southwest on said map may in part or in
whole contain mineable and marketable coal and such prospecting as may be
required to determine the facts with reference
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to the Xxxxxxx seam in said area will be done at the joint expense of the
parties as elsewhere provided in this lease.
Also attached hereto and made a part hereof is another map showing the
workings of Lessee in the Island Creek seam on the leased premises. Said map
bears the following legend: "Map Showing Workings In The Island Creek Seam On
Amherst Lease, June 1, 1962."
The areas shown on said map colored in green and for the most part
marked "pillared" have been worked out and Lessee has accounted for the
royalties on the coal mined therefrom. Lessee shall have the right but not the
obligation hereafter to mine coal therefrom, and Lessee shall pay Lessor for any
such additional coal mined therefrom the royalties herein provided.
Also shown on said map is an area colored in red and designated by
the letter A. Such area contains unmined coal as indicated on the map for which
Lessee has fully accounted to Lessor for the royalties thereon. Lessee shall
have the right but not the obligation hereafter to mine coal from such area and
shall account to Lessor therefor at the royalty rates herein provided, but shall
be entitled to apply as a credit on such royalties the amount of money
heretofore paid by Lessee to Lessor with respect to the coal unmined in such
area.
Also shown on said map is an area colored in violet (also shown and so
colored on the "Amherst Lease map) which is a barrier pillar 225 feet in width
(except for the tapered portion) along the line adjoining the lands of Xxxxx-
Xxxxxxxx containing 6.503 acres. It is agreed by the parties hereto that the
coal in said barrier pillar is not to be mined by Lessee but is to be left as a
protection for main haulage ways on adjoining premises. Lessee has fully
accounted to Lessor for the coal in such barrier pillar.
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Lessee has also conducted mining operations in the No. 5 Block seam of coal
on the leased premises, and there are no areas of coal left unmined therein for
which Lessee has heretofore made payment. All the unmined coal contained in said
seam on the leased premises on the date of this lease is included in this lease.
This lease applies to all seams of coal and all areas thereof on the leased
premises which are not hereinbefore expressly excluded.
The Lessee covenants that it will diligently continue mining operations on
the leased premises so as to mine all the mineable and marketable coal thereon,
and will conduct all of its operations hereunder in a careful, skilful, and
workmanlike manner and in compliance with the present and any future laws of the
State of West Virginia or the United States and valid rules and regulations of
any subdivision, bureau, or agency thereof, and also according to the rules and
practices of good mining, and with due regard to the value of the leased
premises as a coal property.
It is fully understood by the Lessor that the Lessee owns or leases and
operates other coal properties, both in the vicinity of the leased premises and
elsewhere, and the development and working of the premises leased hereunder will
be considered to be done in keeping with the terms hereof, provided that, in the
mining and selling of coal from Lessee's coal mining operations as a whole,
the Lessee shall not discriminate against the leased premises, giving
appropriate consideration to the kinds and qualities of coal available on the
leased premises as compared with kinds and qualities of coal on other properties
and the then current market demands for coals of differing qualities and
constituents.
-39-
The Lessee shall have the exclusive right to physically sever from the
leased premises all of the coal thereon and therein by any and all means and
methods heretofore used, now in use, or hereafter developed and put into use,
and which at the time constitute good mining practices and will reasonably
result in the maximum practical physical recovery of mineable and marketable
coal as herein defined. This agreement does not contemplate or permit the
underground gasification or methods of removal of coal other than the physical
extraction and removal thereof.
The Lessee shall not be required to mine coal which can be mined only by
strip, auger, or other outside methods, but such coal lying along and near the
outcrop of a seam remaining in place after the completion of underground mining
in adjoining areas (underground mining involves the use of men underground) as
the Lessee may elect to mine, may be mined by Lessee by any such method of
physical extraction as Lessee may elect, upon the payment of the royalty
provided for such mining in Article VI hereof.
2. The Lessee shall work and mine the coal, including such coal as the
Lessee my elect to mine under the provisions of the last paragraph of Section 1
of this Article V hereof, in accordance with the plan of mining heretofore
adopted by it and approved by Lessor and in accordance with such further general
and detail maps and plans of mining and projections as may be prepared by the
Lessee and submitted by it to the Lessor, and which shall contain such other
data and information as may reasonably be required by the Lessor, and approved
in writing by the Lessor, and no operation shall be commenced or prosecuted
except pursuant to and in conformity with such maps, plans, and projections.
-40-
No material change in, modification of, or departure from any plans so
approved, shall be made in the development or operation of the mine or mines
except as requested in writing by the Lessee and agreed to and approved in
writing by the Lessor, such request to be accompanied by plans illustrating such
change, modification, or departure and a statement of the reasons therefor. If
the Lessor shall not approve or disapprove any plan, change, or modification
within fifteen (15) days after the submission of same shall have been made to an
officer or engineer of Lessor in person or by mailing to the Lessor at its
United States Post Office address provided for by Article XVII hereof, the
Lessee may again request approval by sending a telegram to Lessor at its said
office address, and which telegram need only call attention to the original
request, and if, after the expiration of five (5) days following the date on
which such telegram is sent, the Lessor shall not have disapproved the request
and shall not have given notice of such disapproval to the Lessee, then such
plan, change, or modification shall be deemed approved by the Lessor. The Lessor
shall not unreasonably withhold approval of any such plan, change, or
modification.
If, as the Lessee's workings progress, the Lessor believes that any change,
modification, or departure in, of, or from any plans and projections previously
approved should be made, the Lessor may by writing request the Lessee to agree
to such change, modification, or departure. The request shall be accompanied by
plans illustrating the proposed change, modification, or departure and a
statement of the reasons therefor. If the Lessee shall not approve or disapprove
of any such change, modification, or departure within fifteen (15) days after
the submission of the same shall have been made to an officer or engineer of
Lessee in person or by mailing to the Lessee at its United States Post Office
address provided for by Article XVII
-41-
hereof, the Lessor may again request approval by sending a telegram to Lessee at
its said office address, and which telegram need only call attention to the
original request, and if, after the expiration or five (5) days following the
date on which such telegram is sent, the Lessee shall not have disapproved the
request and shall not have given notice of such disapproval to the Lessor, then
such change, modification, or departure shall be deemed approved by the Lessee.
The Lessee shall not unreasonably withhold approval of any such change,
modification, or departure.
3. The Lessor, by and through experienced and competent agents and
engineers and at its and their own risk and expense, shall at all reasonable
times have the right to enter the leased premises and all mines and works,
whether below or on the surface of the ground, for all lawful purposes and to
inspect, examine, survey, and measure the leased premises and the mines and any
part thereof to determine whether all the terms of this lease are fully complied
with; and for those purposes to use freely the means of access and the Lessee's
transportation facilities on the leased premises, including the mines and the
workings thereof, without hindrance but at such times and in such manner as not
unreasonably to interfere with the Lessee's operations of the leased premises.
If requested by the Lessee, the Lessor shall give to the Lessee copies of such
surveys as may be made by the persons making such inspections, examinations,
surveys, and measurements for the Lessor. If the Lessor has any objections to or
criticism of Lessee's works or operations, the Lessor shall promptly notify
the Lessee thereof, and if it be found and be promptly reported to the Lessee in
writing that, in the belief of Lessor, in the progress of Lessee's operations
any areas of mineable and marketable coal and/or any pillars which should have
been mined at the time of any such inspection, examination, survey, or
measurement have, by the Lessee, been passed by, with the result that mineable
and marketable coal,
-42-
or pillars, which, under the provisions of this agreement should have then been
removed, have not been removed, it shall be the obligation of the Lessee to
return promptly to any such neglected area or neglected pillars and promptly
remove the coal therefrom; or, failing to do so within a reasonable time, Lessee
shall account for the mineable and marketable coal, or pillars, contained
therein and pay the royalty therefor in like manner as if such mineable and
marketable coal, or pillars, had been mined and removed. If the Lessor and
Lessee disagree in respect of the coal of any such area or areas or of the
conditions relating to the removal of pillars, the differences between Lessor
and the Lessee shall be submitted to arbitration in the manner provided by
Article XVI hereof.
If at any time hereafter the Lessee shall pay for any coal not mined from a
particular area of any seam, and Lessee shall thereafter mine such coal, the
Lessee shall account for royalties on the coal so mined at the rates and amounts
in effect at time of mining but shall be entitled to credit on such royalties
the total amount of royalties previously paid on the coal in such area until
such amount so paid in advance is so recouped; and royalties on coal mined from
such area in excess of such credit shall be paid by the Lessee to Lessor. Areas
of coal on which the royalty has been so paid shall be identified on a map
attached to a written agreement to be signed by Lessor and Lessee setting out
the quantities of coal involved and the royalties thereon. Lessee shall notify
Lessor in writing in advance of its removal of coal from any such area.
4. The obligation of the Lessee to mine and remove the coal from the
leased premises shall be to obtain the maximum practical recovery of all of the
mineable and marketable coal on the leased premises. But the Lessee shall not be
required to develop any portion or area of any seam of coal if, based upon the
results of reasonable
-43-
prospecting by Lessee or by Lessor, such portion or area appears not to contain
a sufficient tonnage of mineable and marketable coal to warrant the development
thereof. And if, in the progress of its mining operations hereunder, the Lessee
encounters an area or areas of any seam of coal which the Lessee believes to be
not mineable and marketable, the Lessee shall promptly notify the Lessor and
request an inspection, and the Lessor shall promptly make such inspection if
access thereto be available. If the Lessor and the Lessee agree that the coal in
any such area or areas is not then mineable and marketable, such area or areas
or such portion or portions thereof as it is so agreed need not be mined or paid
for by the Lessee unless the mining of said area or of a part thereof is
reasonably necessary to protect coal in an area which is mineable and
marketable. But if the Lessor so requests promptly, the Lessee shall leave
access to such area or areas or such portion or portions which the Lessor agrees
or the arbitrators determine need not be mined in the form of entries and air
courses protected by adequate barrier pillars, to the end that the coal in any
such area or areas may be mined and removed later by the Lessee or by others
after the expiration of this lease. The obligation of the Lessee to leave such
access to such areas shall be performed and discharged when the Lessee has left
therefor such timber and other supports as are then in place and adequate
barrier pillars, and the Lessee shall not be obligated to thereafter or
otherwise maintain such access. However, if so requested by Lessor, Lessee will
at Lessor's cost and expense, without profit to Lessee and without charge for
overhead, do such acts and things as Lessor shall direct for the purpose of
maintaining and protecting such access entries and any other access entries and
pillars left in place at request of Lessor. But Lessee shall not be responsible
for the success or failure of such acts and things in maintaining and protecting
such access entries if
-44-
Lessee adheres to the directions given by Lessor. Lessee's obligation to do such
acts and things for Lessor shall end in respect of any mine on the leased
premises when the lessee shall have completed its operations in such mine and
thereafter, but not before, the Lessor may maintain and protect such access by
the use of its own personnel and equipment. The lessee shall not be required to
pay for coal left in place in such barrier pillars at the request of the Lessor.
The obligation of the Lessee to mine and remove mineable and marketable
coal shall include the obligation to mine and remove pillars, including room,
chain, bleeder, and barrier pillars, which are hereafter or have been heretofore
created by the mining operations of the Lessee outside the areas fully accounted
for and shown on the maps referred to in Section 1 of this Article V, to the
extent that such pillars are not by law or lawful regulations, or by accepted
safety practices, including the maintenance of safeways, required to be left,
and to the extent that such pillars may be removed with reasonable safety and
such removal is not prevented or seriously obstructed by the buckling of the
mine floor, the fall of the mine roof or ceiling, or other conditions beyond the
reasonable control of the Lessee, provided the Lessee has adhered to projections
approved by the Lessor and the projections are such as to enable the prompt
recovery of pillars and pillar extraction is promptly prosecuted in accordance
with such projections; but the Lessee shall not be required to mine or pay for
such pillars as are required to be left or which, under the aforesaid
conditions, cannot reasonably be mined. If the Lessor and the Lessee shall be
unable to agree upon any matter in respect of any such area or the removal of
pillars, their differences shall be submitted to arbitration as provided for in
Article XVI hereof.
If, at any time prior to the expiration of this lease, the Lessee shall
desire to mine the coal from any such unmined area or
-45-
areas or pillars (other than pillars left at the request of the Lessor as
hereinbefore provided), whether or not the Lessee shall have paid the royalty
upon such unmined coal or pillars, the Lessee shall have such right, but,
subject to the provision hereinafter made in respect of coal not mineable and
marketable when reached but which may become mineable and marketable prior to
the termination of this lease, shall not be required, to do so; and if the
Lessee shall mine such areas or pillars in respect of which the Lessee shall not
have paid the tonnage royalties for coal left in place, the Lessee shall pay
such tonnage royalties when such coal is mined and removed but in respect of any
such unmined areas or pillars for which the Lessee shall have paid royalties on
coal not mined and removed, the Lessee shall account for royalties on the coal
so mined at the rates and amounts in effect at the time of the mining but shall
be entitled to credit on such royalties the total amount paid on the unmined
coal in such area until the full amount thereof is recouped; and royalties on
coal mined from such areas in excess of such credit shall be paid by the Lessee
to the Lessor; provided, however, if coal left in an area because not mineable
and marketable when first reached by the Lessee in the normal course of its
mining operations, by reason of developments in mining methods and machinery and
other applicable factors, becomes mineable and marketable, as defined in this
lease, prior to the termination of this lease, and the ways of access thereto
left in the manner herein provided remain usable or at reasonable expense may be
restored to a usable condition, or other access may be obtained at reasonable
cost, and such coal may be profitably mined and removed by the use of equipment
used or usable by the Lessee in its normal course of operations in other areas
of the leased premises (or if new or additional equipment is required for the
mining of such coal, the Lessee will acquire the requisite new or additional
-46-
machinery for the mining of such coal in such area, if the prospective tonnage
in the area, considering all other relevant factors, economically justifies the
investment in such new or additional machinery), the Lessee shall be obligated
to mine and remove such areas of coal as were, when first reached, left because
not then mineable and marketable as defined in this lease.
If at any time at the request of the Lessor, the Lessee shall have
left pillars to provide access to coal which Lessor and Lessee agree, or which a
board of arbitration determines, is not mineable and marketable or are required
to be left to support any overlying seam of coal, and thereafter the Lessor
shall conclude that it no longer desires that such pillars be left for the
purposes aforesaid or for any other purpose and shall so advise the Lessee in
writing, then the obligation of the Lessee to mine and remove such pillars shall
be determined by the same standards by which the obligation of the Lessee to
mine coal which was not mineable and marketable when first reached but
thereafter becomes mineable and marketable is determined, all in like manner as
is herein provided. If the Lessee mines and removes any such pillars to the
extent that the coal in such pillars shall not have theretofore been paid for by
the Lessee, the Lessee shall pay the royalty thereon at the rate applicable at
the time of the mining of such pillars.
5. The Lessee shall not have the right to mine any coal from any seam
within the statutory distance of any outside boundary of the leased premises
except where the Lessee owns or leases the coal in the came seam on the other
side of said boundary, or has the written consent of all persons in interest in
the same seam on the other side of said boundary.
Some properties adjoining the leased premises have heretofore been
operated for the mining of coal, some other proper-
-47-
ties adjoining the leased premises are now being operated for the mining of
coal, and still other properties adjoining the leased premises may be operated
for the mining of coal prior to the termination of this lease, and the statutory
boundary barriers will not in all such situations be sufficient to protect the
leased premises and the Lessee's operations thereon against waters from mine
workings on properties adjoining the leased premises. The Lessee may leave in
any and all seams of coal on the leased premises sufficient additional barriers
along said boundary lines as the Lessee may reasonably believe to be necessary
to protect the interests of the Lessor and the Lessee in the leased premises and
the Lessee's operations thereon and thereof; but the Lessee shall not leave on
the leased premises in any seam a total such barrier exceeding fifty (50) feet
in width (including the statutory barrier on the leased premises) without the
consent in writing of the Lessor, which consent in writing the Lessor will not
unreasonably withhold. If the Lessor and the Lessee do not agree that a barrier
exceeding fifty (50) feet in width is reasonably necessary for the purposes
aforesaid, then the matter of the necessity of any such additional width and the
extent thereof may be submitted to arbitration and determined in the manner
provided by Article XVI hereof. For such coal as is left by the Lessee to
provide such protective barriers, to the extent agreed to by the Lessor, or in
the event of arbitration to the extent determined thereby, the Lessee shall not
be required to pay royalty to the Lessor; and if the Lessee desires to leave a
barrier of coal exceeding fifty (50) feet in width in any seam along any
boundary and exceeding the barrier agreed to by the Lessor or determined by
arbitration, then the Lessee may leave such excess barrier but, to the extent of
the excess, the Lessee shall pay the Lessor the royalty thereon. This paragraph
shall not
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apply to that part of the Eagle seam as to which the maintenance or statutory
barriers has been waived in Section 1 of Article VII hereof.
At the written request of the Lessor, the Lessee will leave barriers
of additional width along such boundary lines of the leased premises in
locations at which the Lessor is of opinion that any such extra barrier is
necessary to protect the property of the Lessor; and the Lessee shall not be
required to pay for any coal left as such barrier at the written request of the
Lessor.
6. The Lessee shall so conduct its operations hereunder as not to violate
any rights of lateral or subjacent support, or other rights, not belonging to
any person, firm, or corporation, other than the Lessor or those claiming an
estate hereafter granted by Lessor, who may own the surface of or any other
interest in any part of the leased premises, or who may own adjoining lands or
be a lessee of adjoining lands for coal mining or other purposes; and if there
shall arise any question of damage to any such person, firm, or corporation, or
to any highway or railroad on the premises entitled to any such support, or on
adjoining lands, or to anyone traveling thereon, caused by operations of Lessee,
the Lessee shall end does hereby agree to indemnify and save harmless the Lessor
against all claims and actions for such damages and to assume all responsibility
without claim upon the Lessor except for cooperation in defense of all mining
rights covered by its titles, Lessee bearing all cost and expenses, legal and
otherwise, connected therewith.
7. The Lessee shall at all times have employed a competent and
experienced mining engineer, and such engineer shall prepare end keep up to date
a map, or keep up to date a map heretofore prepared, herein called a "surface
map", showing accurately and com-
-49-
pletely the boundaries of the leased premises, the locations of all railroad
tracks, rights of way, roads, power and pipe lines and similar installations and
buildings and improvements on the leased premises. The Lessee shall furnish the
Lessor annually a copy of such surface map upon a scale of 400 feet to the inch,
and during the year ensuing the last furnishing of a copy of such map, shall
furnish the Lessor, in writing, information of any material changes in the
surface map a copy of which was last furnished. Such engineer shall also prepare
and keep up to date a map, or keep up to date a map heretofore prepared, herein
called a "mine map" upon a scale of 200 feet to the inch, for each and every
seam or vein of coal on the leased premises being mined by the Lessee, and such
mine maps shall show the boundaries of the leased premises and all entries,
rooms, working places, shafts, drill holes, the heights of coal, rolls and
faults, prospective openings and operations, and such other information as may
be necessary for the safe and proper conduct of the Lessee's mining operations
hereunder, and such other information as may reasonably be required by Lessor.
The Lessee shall furnish the Lessor a copy of each such mine map complete upon a
scale of 200 feet to the inch, and upon request of the Lessor, not more
frequently than annually, shall furnish the Lessor a such copy of any such mine
map complete and brought up to the date of such request, and each and every six
months, without request, the Lessee shall furnish to the Lessor "take-up maps",
being sections of such mine maps, showing all of the Lessee's coal mining
operations and production for the six months' period immediately ensuing the
date of the respective mine maps or "take-up maps" last furnished. All of such
maps, surface and mine, shall at all reasonable times be subject to inspection
by the Lessor by any qualified and authorized agent.
8. In its mining operations, the Lessee shall be required to provide
support for unmined overlying seams of coal only as follows:
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In mining the Eagle or No. 2 Gas seam, the lessee shall not be required to
leave any coal to support any overlying seams of coal.
In mining the Cedar Grove or Island Creek seam, except as otherwise herein
provided, support for all of the overlying areas of mineable and marketable coal
of the Xxxxxxx seam shall be left until such time as the overlying areas of
mineable and marketable coal of the Xxxxxxx seam are severally and successively
mined and removed.
The Lessee, in mining the Cedar Grove or Island Creek seam, need not leave
coal to support the four areas of the Xxxxxxx seam surrendered by the Lessee to
the Lessor by Agreement dated December 30, 1941, and shown on the Xxxxxxx seam
map as Parcels A, B, C, and D , or the other four areas paid for and shown on
said Map as Parcels E, F, G, and H.
As lessee's mining operations in the Cedar Grove or Island Creek seam and
in the Xxxxxxx seam proceed, the Lessor and the Lessee will endeavor to agree in
respect of any other areas of the Xxxxxxx seam, if there be any such areas, from
which the coal has not been mined and in which the coal is not mineable and
marketable, and to that end may prospect the coal in the Xxxxxxx seam as is
hereinafter provided. In respect of any such other areas of the Xxxxxxx seam as
the Lessor and the Lessee agree that the Xxxxxxx seam does not contain mineable
and marketable coal, the Lessee may mine the Cedar Grove or Island Creek seam
without providing support for the Xxxxxxx seam.
If there are areas of the Xxxxxxx seam which, while not mineable and
marketable at the time reached by the Lessee's operations in due course, the
Lessor believes may become mineable
-51-
and marketable in the future, the Lessor may request the Lessee to leave Cedar
Grove or Island Creek coal to support the overlying Xxxxxxx seam in the area.
Upon such request of the Lessor, the Lessee shall, if Lessee agrees to Lessor's
request, leave such support of such areas of the Xxxxxxx seam; and if and when
the Lessee shall leave any Cedar Grove or Island Creek coal to support the
Xxxxxxx seam at the request of the Lessor, the Lessee shall not be liable to the
Lessor for royalty upon such coal of the Cedar Grove or Island Creek seam as may
be left to support the Xxxxxxx seam, or any part thereof. However, if the Lessee
shall not agree to the request of the Lessor that coal of the Cedar Grove or
Island Creek seam shall be left to support coal in the Xxxxxxx seam, then there
shall be submitted to arbitration the question of whether, taking into account
other developed areas of the Island Creek seam on the leased premises available
for mining by the Lessee and Lessee's market for Island Creek coal, the prospect
that the overlying area of Xxxxxxx coal may become mineable and marketable at
some future time economically justifies the leaving of mineable and marketable
coal in the Cedar Grove or Island Creek seam to support the overlying seam of
Xxxxxxx coal which is then not mineable and marketable. If the arbitrators
decide such issue in favor of Lessee, then the Lessee may mine and remove the
Cedar Grove or Island Creek coal without leaving support for the overlying
Xxxxxxx coal. If the arbitrators decide such issue in favor of Lessor, then the
Lessee shall leave such support and shall not be required to pay the Lessor for
the coal left in place to provide the same.
If the Lessee leaves coal of the Cedar Grove or Island Creek seam to
support coal of the overlying Xxxxxxx seam which is not mineable and marketable
when first reached by the Lessee in the normal course of its mining operations
in the Xxxxxxx seam, whether such coal in the Cedar Grove or Island Creek seam
be left at the request of the Lessor and agreement thereto by the Lessee or be
left in compliance
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with a decision of arbitrators, and thereafter, by reason of developments in
mining methods and machinery and other applicable factors, such Xxxxxxx seam
coal becomes mineable and marketable, as defined in this lease, prior to the
termination of this lease, then the obligation of the Lessee to mine and remove
the coal from such area of the Xxxxxxx seam and the coal from the Cedar Grove or
Island Creek seam which was left to support the Xxxxxxx seam shall be determined
by the standards provided by Section 4 of this Article V relating to coal not
mineable and marketable when first reached and to the mining of pillars left at
the request of the Lessor, and the Lessee shall account to the Lessor for the
coal mined at the royalty rates applicable at the time of mining, taking credit
for the full amount, if any, theretofore paid by the Lessee for coal in such
seam or area not mined at the time of payment and pay the Lessor such royalties
after the payments for the coal not mined at the time of payment shall have been
fully recouped.
In mining the Xxxxxxx seam, the Lessee shall not be required to leave any
coal to support any overlying seam.
The Lessee shall not be required to leave any coal in any seam to support
the No. 5 Block seam, but, in respect of the seams between the Xxxxxxx and the
No. 5 Block seams, the Lessee's mining operations shall be so conducted as to
protect unmined areas of the mineable and marketable coal of overlying seams
other than the No. 5 Block seam in like manner as, and to the extent as, is
provided in respect of the protection of the Xxxxxxx seam in the mining of the
Cedar Grove or Island Creek seam.
If, by methods of prospecting for coal other than by core drilling, the
Lessor and the Lessee shall be unable to determine and agree upon the areas, if
any, of the Xxxxxxx seam for which sup-
-53-
port by the Cedar Grove or Island Creek seam is to be provided in accordance
with the provisions hereof, then whenever it becomes material to determine
whether any such support for the Xxxxxxx seam or any area thereof is proper, the
Lessor and the Lessee, at their joint and equal expense, will do, or cause to be
done, such prospecting by core drilling, including such analyses as constitute
generally accepted methods of coal seam evaluation and such analyses of coal
cores, as reasonably may be required to produce information upon which a
determination may be made.
In like manner, whenever it becomes material to determine which seams or
areas of seams of coal, if any, between the Xxxxxxx seam and the No.5 Block seam
contain mineable and marketable coal and whether any such seams or areas of
seams require support by or from an underlying seam or underlying seams (other
than the Xxxxxxx seam in the mining of which the Lessee is not required to leave
support for any overlying seam), if the Lessor and the Lessee shall not be
satisfied by information developed by methods of prospecting for coal other than
by core drilling, the Lessor and the Lessee, at their joint and equal expense,
will do, or cause to be done, such prospecting by core drilling, including such
analyses as constitute generally accepted methods of coal seam evaluation and
such analyses of coal cores, as reasonably may be required to produce
information upon which the determination of all such questions in respect of any
and all seams of coal between the Xxxxxxx and the No.5 Block seams may be made.
If the Lessor and the Lessee shall be unable to agree upon the need, the
manner, or extent of any such core drilling, including such analyses as
constitute generally accepted methods of coal seam evaluation and such analyses
of coal cores, to be done at their joint expense, or the results of prospecting,
including such core drilling
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as may have been done, then either party, at its own immediate expense, may do
or cause to be done such core drilling or such further core drilling as it may
consider to be reasonably necessary to produce information upon which to
determine whether support of an overlying seam is required under any of the
provisions of this lease; and if, after such core drilling or further core
drilling be done by one of the parties, the other party declines to reimburse
the party causing the core drilling to be done one-half of the expense thereof,
then the party causing the core drilling to be done may submit to arbitration
the responsibility of the other party for one-half of the expense thereof, and
for so much of said core drilling as the arbitrators decide to have been
reasonably necessary to obtain such information, the other party shall reimburse
the party causing the drilling to be done one-half of the cost thereof; or the
party desiring core drilling or further core drilling, as the case may be, may
submit to arbitration the need therefor, and such core drilling or further core
drilling as the arbitrators decide to be proper to be done to obtain such
information, shall be done at the joint and equal expense of the parties.
9. In any case where it becomes material to determine in advance of
mining whether any seam of coal or area thereof on the leased premises contains
mineable and marketable coal, the prospecting procedures set out in Section 8 of
this Article V shall be followed.
10. If the Lessor and the Lessee disagree in respect of any matter arising
under this Article V hereof, whether or not arbitration in respect thereof is
specially mentioned in connection therewith, the disagreement between the Lessor
and the Lessee shall be submitted to arbitration in the manner and with the
effect provided for by Article XVI hereof.
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VI.
RENTAL, ROYALTIES, AND WHEELAGE AND PROCESSING PAYMENTS
-------------------------------------------------------
l. The Lessee covenants to pay to the Lessor as rent, without demand, at
the Lessor's offices in Huntington, West Virginia, a base tonnage royalty of
thirteen cents (l3c) for each and every net ton of two thousand pounds of clean
coal mined from any seam of coal on the leased premises, other than the Eagle or
No.2 Gas seam, by underground mining methods, and a base tonnage royalty of
fifteen cents (l5c) for each and every net ton of two thousand pounds of clean
coal mined from the Eagle or No.2 Gas seam on the leased premises by underground
mining methods, and twenty-five cents (25c) per such ton of clean coal mined by
strip, auger, or comparable outside mining methods. If and when the average
selling price at the Lessee's loading plants for coal mined from the leased
premises by the Lessee under this Deed of Lease and Agreement shall exceed Five
Dollars and Fifty Cents ($5.50) per net ton of clean coal (meaning the selling
prices by the Lessee before deducting therefrom any selling expense or agents',
brokers', or middlemen's commissions or discounts, or other compensation;
provided that discounts to wholesalers, brokers, or middlemen who place the coal
on their docks or in their yards for re-sale may be deducted; and provided
further that if any coal produced hereunder shall be sold by Lessee to a buyer
who or which is controlled by the Lessee, or in which the Lessee owns as much as
fifty per cent (50%) of the capital stock or invested shares or which is under
common control with the Lessee by reason of ownership by the same person or
persons of as much as or more than one-half (1/2) of the voting stock of the
Lessee and such buyer, and the selling price is less than the fair market value
thereof at the Lessee's loading point at the time of shipment, then the selling
price for the purpose of computing the percentage of royalty thereon shall, at
the Lessor's
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option, be such fair market value thereof), then, in addition to such base
tonnage royalties, the Lessee will pay to the Lessor an additional tonnage
royalty equal to and in the amount of three per cent (3%) of the average selling
price by the Lessee over and above Five Dollars and Fifty Cents ($5.50) per net
ton of clean coal. The Lessor will accept as such average selling price by the
Lessee, such average price as shall be certified by a certified public
accountant selected and paid by the Lessee and acceptable to the Lessor; and the
Lessor shall not be entitled to inspect or audit the Lessee's contracts and
records relating to the sale of the Lessee's coal except in case of litigation
under usual court process. If, pursuant to any provision of this Deed of Lease
and Agreement, the Lessee is required to pay the Lessor for any coal not mined
by the Lessee payment shall be made upon the basis of the tonnage royalty rate
applicable at the time the obligation to pay for such unmined coal arises,
whether such tonnage royalty rate be a base rate as above provided or a base
rate plus three per cent (3%) of the excess of the average selling price by the
Lessee, for coal mined from the leased premises over and above Five Dollars and
Fifty Cents ($5.50) per net ton as aforesaid. Such tonnage royalty shall be paid
on or before the 25th day of each month for all coal mined from the leased
premises during the preceding calendar month, except that payment for coal mined
and stored on the premises may be made at the time as hereinafter provided.
"Clean coal" shall mean the coal loaded into railroad cars or other facilities
for shipment to market and coal used or coked by the Lessee on the premises and
coal sold by the Lessee to employees. A ton of coke sold and shipped, used by
the Lessee, or cold by the Lessee to employees shall be counted as one and one-
half (1-1/2) tons of coal; provided, however, that, if either the Lessor or the
Lessee shall prefer, the coal shall be "weighed or otherwise measured before
coking,
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then the tonnage royalty on coal coked shall be determined by the weight or
measure of the coal before coking. For the purpose of computing the percentage
royalty hereinabove provided, coal produced hereunder by the Lessee and used by
the Lessee on or off the leased premises, or shipped from the leased premises
without being sold, shall be accounted for as having been sold by the Lessee at
the fair market value thereof at the time of use on the leased premises or of
shipment therefrom or from Lessee's processing plant.
2. The Lessee further covenants that on or before the 2Oth day of each
calendar month it will furnish to the Lessor a report showing the total quantity
of clean coal taken from the demised premises during the preceding calendar
month, using the weights furnished by the company over whose railroad the coal
is shipped, for all coal so taken and shipped by rail. The quantity of coal
taken hereunder and made into coke or other products of coal upon the premises
shall be determined as hereinabove provided, and all coal used by the lessee in
the operation of its mines and in its operations incidental thereto, and all
coal sold by the Lessee to its employees, shall be ascertained in a reasonably
accurate manner. As a part of such reports, the Lessee will also show the
quantity of such coal brought by the Lessee on the leased premises from other
lands operated by the Lessee in connection therewith and the quantities of such
coal from such other lands commingled with coal produced by the Lessee from the
leased premises.
3. It is fully understood and agreed by and between the Lessor and the
Lessee that the Lessee may commingle with coal produced from the leased premises
coal produced by the Lessee from other properties; and the Lessee shall keep
clear and accurate records of the coal mined from the leased premises and of the
coal
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mined from other properties and commingled with the coal mined from the leased
premises in such manner that the quantity of clean coal mined from the leased
premises and the selling price thereof (for examination only by a certified
public accountant as provided by Section 1 of this Article VI) may be.
ascertained at all times, notwithstanding the commingling of such coal with coal
mined from other properties. For the purpose of computing royalty based on
selling price, the price per ton of coal mined hereunder and commingled with
coal mined from other properties shall be the selling price per ton of the
commingled coal.
4. The Lessee shall pay to the Lessor as a minimum annual rental for
coal mined on the leased premises the sum of $33,791.00 for each calendar year
until such time as such annual rental shall cease as is hereinafter provided.
Actual tonnage royalties paid by the Lessee to the Lessor upon coal mined by the
Lessee from the leased premises and payments made by the Lessee to the Lessor,
pursuant to the provisions hereof, for coal upon the leased premises not mined
by the Lessee at the time of such payments, shall be applied as a credit upon or
against such minimum annual rental, but payments made by the Lessee to the
Lessor in respect of coal mined by the Lessee from lands other than the leased
premises shall not be credited against such minimum annual rental.
If the tonnage royalties paid as hereinabove provided in any one
calendar year do not amount to as much as such minimum annual rental, then the
Lessee shall have the privilege of mining during the next two succeeding years,
but not thereafter, free from tonnage royalty, a sufficient amount of coal at
the royalties thereon herein provided above the amount necessary to produce the
minimum annual rental for such succeeding years to reimburse the Lessee for the
deficiency during the next preceding two years; but no payment
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of tonnage royalties in excess of the minimum annual rental for any one year
shall be credited against a deficiency occurring in any subsequent year.
Payment of the amount necessary to complete the minimum annual rental
for any one year shall be made on or before twenty-five (25) days after the end
of the year.
Provided, however, that in the event of unavoidable delay in operation
due to strikes of Lessee's employees, accidents, inadequate car supply, or other
causes not within the control of the Lessee, the Lessee shall be released from
the payment of an equitable proportion of the minimum annual rental. Lessee
shall not be entitled to release of any portion of the minimum annual rental for
strikes of its employees lasting thirty (30) days or less; but for strikes of
its employees lasting more than thirty (30) days and causing the complete
shutdown of its operations, the Lessee shall be entitled to a reduction equal to
one-twelfth (1/12) of the minimum annul rental for that year for every thirty
(30) days, and pro rata any fraction thereof, of such strike after the
expiration of the first thirty (30) days thereof. The Lessee shall not be
entitled to any releases from more than twenty-five per cent (25%) of said
minimum annual rental in any one year because of delay in operation due to
inadequate car supply, however caused. As a condition to such release of minimum
annual rental, the Lessee shall make all reasonable and proper efforts and
demands to procure the necessary transportation to convey from the leased
premises and to market sufficient coal to pay at least the said minimum annual
rental. Lack of market or low coal prices shall not be considered a cause not
within the control of the Lessee so far as the minimum annual rental is
concerned. In no event shall the Lessee be released in any one year for more
than fifty per cent (50%) of said minimum annual rental.
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5. Whenever the Lessee's mining operations shall have proceeded to the
point of exhaustion of the coal on the leased premises at which the quantity of
the mineable and marketable coal remaining unmined upon the leased premises is
such that the then rate of mining in keeping with good mining practices is
insufficient to produce in any year a total tonnage royalty equal to the stated
minimum annual rental, then at that time. such minimum annual rental shall
cease, and the Lessee shall be required to pay only the tonnage royalty on such
coal as it may thereafter mine and ship, sell or use.
If the Lessor and the Lessee shall be unable to agree upon the time at
which such minimum annual rental shall cease, the matter in difference shall be
submitted to and determined by arbitration in the manner and with effect as
provided by Article XVI hereof.
6. For the right and privilege of transporting coal and refuse produced
by the Lessee from lands other than the leased premises, the transportation of
equipment, supplies, and persons to and from properties operated by the Lessee
in conjunction with the leased premises, and cleaning, drying, processing,
storing, loading, and shipping on and from the leased premises coal mined by the
Lessee from other properties, and of disposing of refuse from such other
properties on lands of the Lessor, and for making all such uses of lands of the
Lessor in connection with the Lessee's operations of other lands as provided by
Section 6 of Article IV of this Deed of Lease and Agreement, and whether or not
specifically mentioned in said section or in this section, any and all uses of
every kind and character of the Lessor' s lands in conjunction with the Lessee's
mining and incidental operations on other lands operated in connection
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with the leased premises, the Lessee shall make to the Lessor payment for any
and all such uses and purposes, sometimes herein called "wheelage and processing
charges", at the respective rates per ton of clean coal:
Three Cents (3c) per gross ton of all
clean coal mined from the Xxxxxx lands;
Ten Cents (10c) per net ton or clean
No.5 Block coal mined from properties
other than the leased premises and the
Xxxxxx lands; and
Five Cents (5c) per net ton of clean coal
for any other coal brought on the Lessor's
lands from any other property or properties
operated by the Lessee.
7. In the event the Lessee shall store on the leased premises any coal
mined from the leased premises or mined by the Lessee from other properties,
instead of paying the tonnage royalties on coal mined from the leased premises
at the time the same is mined, or the wheelage and processing charges on coal
mined from other properties at the time or the bringing of such coal on to the
leased premises, the Lessee may pay therefor when such stored coal is shipped or
used, the tonnage royalty rate to be the tonnage royalty rate applicable at the
time the coal is mined and stored; but, in any event, such tonnage royalties and
wheelage and processing charges shall be paid within one (1) year after the time
when such payments would have been made had such coal not been stored. When coal
is stored, it shall be carefully measured in a reasonably accurate manner, and
the tonnage royalties and the wheelage and processing charges shall be paid upon
the basis of such measurement or upon the tonnage basis when shipped or used,
whichever shall be the greater. And if such royalties and charges for such coal
be paid prior to the time at which such coal is shipped or used, and when such
coal is shipped or used it appears that the payment upon the basis of
measurement is less than the payment which would have been due upon the basis
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of the tonnage shipped or used, the Lessee shall then pay to the Lessor the
difference between the amount paid upon the basis or measurement and the amount
payable upon the basis of tonnage shipped or used. In any event, if and when the
Lessee shall store coal, the Lessee shall be liable for the tonnage royalties
and wheelage and processing charges on all coal which is lost through fire or
which is washed away.
8. Unless otherwise expressly required by other provisions of this lease,
the Lessee shall not be required to pay for any coal left upon the leased
premises for the reason that it is not mineable and marketable at the time it is
reached in the course of the Lessee' s mining operations and which does not
during the life of this lease become mineable and marketable as elsewhere in
this Deed of Lease and Agreement is provided, or for any mineable and marketable
coal which is required by law to be left in place unmined, which is left in
place unmined at the request of the Lessor, which is left in place for subjacent
support where such subjacent support is required, or which is required to be
left in place and unmined for any other lawful and proper purpose, including the
maintenance of safeways.
9. If at any time hereafter the Lessee shall pay for any coal not mined
from a particular area of any seam, and Lessee shall thereafter mine such coal,
the Lessee shall account for royalties on the coal so mined at the rates and
amounts in effect at time of mining but shall be entitled to credit on such
royalties the total sent of royalties previously paid on the coal in such area
until such amount is so recouped; and royalties on coal mined from such area in
excess of such credit shall be paid by the Lessee to Lessor. Payments for coal
not mined may be credited upon minimum annual rental for the year in which paid
but shall not be credited upon the
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minimum annul rental for the year or years in which such coal thereafter may be
mined in whole or in part.
10. The Lessee shall keep books of account of the mining, using, and
shipping of coal mined from the leased premises hereunder, and of all coal mined
by the Lessee from other properties and brought on the leased premises for any
purposes as provided by this Deed of Lease and Agreement, and said books shall
be open at all reasonable times for inspection by the Lessor, its agents, and
attorneys and other persons in its behalf, for the purpose of verifying the
reports and statements rendered by the Lessee to the Lessor under the provisions
hereof or for obtaining information as to the mining, using, and shipping of any
of such coal during any such period.
11. If at any time the Lessor and the Lessee shall be unable to agree in
respect of the minimum annual rental, tonnage royalties, or wheelage and
processing charges to be paid and made by the Lessee to the Lessor, the matter
in dispute shall be submitted to arbitration in the manner provided by Article
XVI hereof.
VII.
XXXXXXXX HOLLOW
---------------
1. Amherst owns a tract of land adjoining the leased premises on the
southern boundary thereof and lying on the waters of Xxxxxxxx Hollow Creek
between said boundary and Buffalo Creek and beyond. The Eagle, sometimes called
the No.2 Gas, seam of coal on the leased premises lies below drainage but
outcrops on said tract of land owned by Amherst on Xxxxxxxx Hollow.
Notwithstanding anything to the contrary in this Deed of Lease and Agreement
contained, Amherst shall have the right and privilege of mining
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said Eagle seam of coal and any other seam of coal on and in Amherst's said
lands on Xxxxxxxx Hollow Creek and on and in the leased premises without regard
to said boundary, including the right to resolve all of the coal in any seam
without leaving any statutory boundary pillar on either side of the boundary
line, and including the right to remove and transport coal mined from said Eagle
and any other seam in the leased premises by way of said Xxxxxxxx Hollow and to
move therein and therefrom equipment and supplies and personnel.
Amherst shall have the right to remove coal from the Eagle seam and
any other seam on the leased premises by way of said Xxxxxxxx Hollow Creek and
to process and load the same at a point or points off the leased premises, in
which event Amherst shall cause the same to be weighed or measured in a
reasonably accurate manner; and Xxxxxxx-Rum shall have access to the plant or
plants at which such coal is weighed or otherwise measured and processed and the
right to inspect and check the facilities by which the coal is processed and
measured.
2. Amherst hereby grants to Xxxxxxx-Rum, its successors and assigns, a
permanent surface easement for the maintenance of a thirty (30) foot private
roadway for transporting persons and materials over Amherst' s lands on Xxxxxxxx
Hollow from the southeasterly boundary line of the leased premises to the public
highway along Buffalo Creek, to provide access to and from the lands of Xxxxxxx-
Rum adjoining said lands of Amherst from and to the public highway along Buffalo
Creek. The approximate location of said surface easement is shown on a map or
plat attached hereto and made a part hereof bearing the legend, "Map Showing
Xxxxxxxx Hollow Easements Referred To In Agreement Between Xxxxxxx Rum Coal
Company And Amherst Coal Company Dated June 1, 1962". If, when said surface
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easement is definitely located, it becomes necessary to move any of Amherst's
houses, Xxxxxxx-Rum, at its own expense, will relocate such houses on Amherst's
land if such be practicable; and if relocation be not practicable and it be
necessary to raze any of said houses, then Xxxxxxx-Rum will pay Amherst the
reasonable value thereof. Xxxxxxx-Rum may install and maintain on said easement,
but within such 30-foot roadway, telephone, telegraph, electric power lines and
pipe lines; and, upon the same terms and conditions as Xxxxxxx-Rum may use the
Xxxxxxxx Hollow Outlet Easements for the movement of coal as hereinafter
provided, Xxxxxxx-Rum may use this roadway as an outlet or a part of an outlet
for the movement of coal.
Amherst and its grantees, assigns, and licensees, shall have the right to
use said roadway along with Xxxxxxx-Rum and to install and maintain on said
easement telephone, telegraph, electric power lines and pipe lines, and to grant
to other persons, firms, and corporations easements over and under and across
said roadway, but such use and easements shall not unduly interfere with the use
thereof by Xxxxxxx-Rum and its grantees, assignees, and licensees. In the event
that Amherst shall exercise such right to use such roadway as aforesaid, it
shall bear a reasonable portion of the cost of the construction and maintenance
thereof. If at any time hereafter it should become necessary to the reasonable
utilization of Amherst's property and its coal mining operations on the leased
premises that Amherst occupy said roadway to the exclusion of Xxxxxxx-Rum, then
Amherst, at its own expense, shall relocate and build and construct a comparable
roadway in another location equally convenient for use by Xxxxxxx-Rum.
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3. Amherst hereby grants to Xxxxxxx-Rum, its successors and assigns, as
an outlet for the movement of coal, the following easements (sometimes herein
called "Xxxxxxxx Hollow Outlet Easements") in, over, and through Amherst's said
lands on and in the vicinity of Xxxxxxxx Hollow, such easements or outlets to be
used only at the time, for the term, and for the considerations, all as is
hereinafter set forth.
(a) An easement for the movement of coal and for the movement of
machinery, equipment, supplies, and personnel, underground from the outcrop of
the Eagle seam on Amherst's said land to the boundary line between the lands of
Amherst and Xxxxxxx-Rum; and this easement shall include the support and
protection of such haulage and passageways by the preservation of such pillars
and barriers of coal as they shall be established and maintained by Amherst in
its own mining operations as provided by Section 1 of this Article VII;
provided, however, that such support and protection shall be provided only if
and when Amherst be so requested by Xxxxxxx-Rum as is hereinafter provided. The
location and area at and within which this easement may be used and occupied is
shown as Parcel A on the map or plat hereinbefore referred to as "Xxxxxxxx
Hollow Easements", hereto attached and made a part hereof. To preserve to
Xxxxxxx-Rum the availability of the easement on Parcel A as shown on said map
and the necessary protection and support therefor, Amherst will not mine or
remove any coal from the Eagle seam, other than such as has heretofore been
mined and removed, from Parcel A, until Amherst shall have completed its mining
operations in that part of the Eagle seam on the leased premises which is
mineable and removable through Xxxxxxxx Hollow, and until Xxxxxxx-Rum has
indicated to Amherst that Xxxxxxx-Rum does not desire that such easement be
longer protected. When Amherst is of the opinion that its mining of such part of
the Eagle seam on
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the leased premises is within one (1) year of completion, Amherst shall so
notify Xxxxxxx-Rum in writing; and if, within sixty (60) days after the date on
which Amherst has given Xxxxxxx-Rum such notice, Xxxxxxx-Rum shall not have
requested in writing that Amherst protect such easement, Amherst shall not be
obligated further to protect such easement and may mine and remove all of the
coal from said Parcel A; provided, however, that Amherst may at any time mine
and remove such coal from the Eagle seam on said Parcel A as is reasonably
necessary incidental to Amherst's improvement of its haulageways from the
outcrop of the Eagle seam on Amherst's land to and through the property line
between the lands of the parties hereto and into the Eagle seam on the leased
premises. Before making any such improvement of such haulageways, Amherst shall
present the plan therefor to Xxxxxxx-Rum, and will not make such improvements
necessitating the mining and removal of coal incidental thereto until the plans
therefor are approved by Xxxxxxx-Rum. Xxxxxxx-Rum will not unreasonably withhold
approval of such plans as may be presented by Amherst; and if the parties are
unable to agree in respect thereof, the matter in difference shall be submitted
to and determined by arbitration in the manner and with the effect as is
provided by Article XVI hereof.
(b) A surface easement over Parcel A for the movement thereover of
coal from any seam overlying the Eagle seam which Xxxxxxx-Rum may desire to move
over the Xxxxxxxx Hollow Outlet Easements and for the movement thereover of
persons and materials.
(c) A surface easement for the installation, maintenance, and
operation, for all proper purposes incident to the mining of coal, of haulage
facilities on and over Parcel B as shown on said map, and for the installation
and operation on Parcel B of a tipple
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and conveyor or comparable facilities, and including facilities for cleaning,
drying, and otherwise preparing coal and for the disposal of mine rock and
refuse, loading facilities, railroad tracks, and other facilities incidental to
the establishment, operation, and maintenance of such facilities. Mine rock and
refuse may be moved over Parcel A and Parcel B and over the roadway provided for
by Section 2 of this Article VII, but no mine rock or refuse shall be piled or
dumped on any of Amherst's lands.
For so long as this lease shall continue in force and effect,
Xxxxxxx-Rum shall not use or occupy said Xxxxxxxx Hollow Outlet Easements (as
set forth in this Section 3 of this Article VII) or any of them; and whether or
not Xxxxxxx-Rum shall use or occupy said Xxxxxxxx Hollow Outlet Easements or any
of them, such Xxxxxxxx Hollow Outlet Easements and all use of them shall
terminate and end, and Xxxxxxx-Rum shall have no right to use or occupy the same
or any of them after the period of forty (40) years next immediately following
the date on which this lease ceases to be in force and effect.
When Xxxxxxx-Rum shall use and occupy said parcels of land or any
of them, such use and occupancy by Xxxxxxx-Rum shall not be exclusive of any
such rights of use or occupancy by Amherst as shall not unreasonably interfere
with the use and occupancy by Xxxxxxx-Rum; and Amherst may grant to other
persons, firms, and corporations rights of way and easements over, through, and
under said Parcels A and B for the construction, maintenance, and removal of
telephone lines, electric power lines and pipe lines, and for any other lawful
purpose or purposes, provided such easements and the use thereof do not unduly
interfere with Xxxxxxx-Rum's use and occupancy of said Xxxxxxxx Hollow Outlet
Easements, and provided further that no such installations be in or through the
No.2 Gas or Eagle seam
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of coal on said Parcel A. The lands of Amherst on which said Xxxxxxxx Hollow
Outlet Easements are located are under lease for the exploration for and
production of oil and gas, and one gas well, now producing, is located on
Parcel B, and said Xxxxxxxx Hollow Outlet Easements are granted subject thereto,
but Xxxxxxx-Rum may exercise all rights hereby granted to it to the extent that
such rights have been reserved to Amherst.
Xxxxxxx-Rum may use and occupy said easements, without charge to
Xxxxxxx-Rum, for the removal of any coal on the leased premises which Amherst
has not mined and removed.
If any of the Eagle seam of coal on the leased premises is not
mineable and marketable at the time it is first reached by Amherst in its
mining operations, and Xxxxxxx-Rum believes that it may be mineable and
marketable either before or after the expiration or termination of this lease,
then Amherst will, at the request of Xxxxxxx-Rum, leave upon the leased premises
such access, and in such manner, as is provided in Article V hereof, and Amherst
shall not be required to pay royalty for the coal left for the preservation of
such access at such request of Xxxxxxx-Rum. Provided, however, that if the coal
to which access has been preserved as herein provided shall become mineable and
marketable upon and under the terms and conditions set forth by section 4 of
Article V hereof prior to the termination of this lease, Amherst will mine and
remove the same in accordance with said provision, and Amherst shall not be
required to leave coal to further preserve such access unless Xxxxxxx-Rum
requests that such access be preserved for use by Xxxxxxx-Rum in removing coal
from lands of Xxxxxxx-Rum other than the leased premises as is hereinafter
provided. If Xxxxxxx-Rum
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requests that such access be left on the leased premises and also requests that
Amherst leave such access over and through the Eagle seam on Amherst's land on
Xxxxxxxx Hollow, Amherst will do so, and Xxxxxxx-Rum shall, after this lease
shall have ended, have the right to use and occupy the easements granted hereby
for the removal of such coal from the Eagle seam on the leased premises without
charge to Xxxxxxx-Rum; except, however, for such coal on Amherst's own land as
is left unmined at the request of Xxxxxxx-Rum to provide, preserve, and protect
such easement, Xxxxxxx-Rum shall pay Amherst tonnage royalty at the same rate
that Amherst is paying Xxxxxxx-Rum for coal mined by underground methods by
Amherst from the Eagle seam of coal on the leased premises; and Xxxxxxx-Rum
shall have the right, without further charge, to mine and remove from Amherst's
land the coal for which Xxxxxxx-Rum has so paid.
If, after the expiration or termination of this lease, Xxxxxxx-
Rum desires to bring out over Amherst's Xxxxxxxx Hollow lands coal from the
Eagle seam on lands of Xxxxxxx-Rum other than the leased premises, then, at the
request of Xxxxxxx-Rum made a reasonable time prior to the time at which Amherst
would otherwise mine and remove the coal necessary to preserve such access, upon
the same terms and conditions, Amherst will leave such access, and Xxxxxxx-Rum
may use and occupy such easements therefor; but, in addition to paying Amherst
for the coal left on Amherst's own land at Xxxxxxx-Rum's request to provide
Xxxxxxx-Rum such access and outlet, Xxxxxxx-Rum shall pay Amherst wheelage and
processing charges at the same rate per ton as is provided to be paid by Amherst
to Xxxxxxx-Rum in respect of coal of the Eagle seam from lands other than the
leased premises (and the Xxxxxx lands) under the provisions of Article VI
hereof; and if, after the expiration or termination of this lease,
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Xxxxxxx-Rum desires to bring out over Amherst's Xxxxxxxx Hollow lands coal from
any other seam or seams from lands of Xxxxxxx-Rum other than the leased
premises, Xxxxxxx-Rum may use the Xxxxxxxx Hollow Outlet Easements thereof or
upon payment of wheelage and processing charges at the same rate as Amherst pays
Xxxxxxx-Rum for coal from the same seam.
In any or all the foregoing circumstances, the obligation of
Amherst to leave protection and support for access entries on either the leased
premises or Amherst's own lands, shall be fully complied with and performed when
Amherst shall have left such barrier pillars and such timber and other supports
as are in place at the time Amherst ceases operations in the area; and Amherst
shall not be obligated to thereafter or otherwise maintain such access. However,
if so requested by Xxxxxxx-Rum, Amherst will at Xxxxxxx-Rum's cost and expense,
without profit to Amherst and without charge for overhead, do such acts and
things as Xxxxxxx-Rum shall direct for the purpose of maintaining and protecting
such access entries and any other access entries and pillars left in place at
request of Xxxxxxx-Rum. But Amherst shall not be responsible for the success or
failure of such acts and things in maintaining and protecting such access
entries if Amherst adheres to the directions given by Xxxxxxx-Rum. Amherst's
obligation to do such acts and things for Xxxxxxx-Rum shall end in respect of
any mine on the leased premises the coal from which is removed by way of said
Xxxxxxxx Hollow Creek as is provided by this Article VII when Amherst shall have
completed its operations in such mine, and thereafter, but not before, Xxxxxxx-
Rum may maintain and protect such access by the use of its own personnel and
equipment.
Xxxxxxx-Rum shall pay all taxes, governmental levies,
assessments, and charges assessed or imposed upon or in respect of all
buildings, structures, improvements, equipment, and
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all other property placed by Xxxxxxx-Rum, or left by Amherst for Xxxxxxx-Rum's
use, on Parcels A and B, or either of them, and Upon such coal as may be
produced by Xxxxxxx-Rum on said Parcel A; and Amherst, its successors and
assigns, shall pay the taxes on the land included within said Parcels A and B
and on the land occupied by the thirty (30) foot roadway.
Xxxxxxx-Rum shall have the right to remove from the Xxxxxxxx
Hollow Outlet Easements any and all buildings, installations, machinery,
equipment, and supplies which Xxxxxxx-Rum shall have placed upon said outlet
easements at any time.
VIII.
TAXES
-----
The Lessee shall, during the term hereof, pay all taxes, governmental
levies, assessments, and charges levied, assessed and/or imposed upon or in
respect of the lands hereby leased, upon the leasehold estate hereby created,
upon the buildings, structures, equipment, and other property erected, placed,
kept, or used on said land by the Lessee, upon the coal mined and coke or other
commodity manufactured or produced on said land, and/or upon any trade,
business, or occupation engaged in, conducted, or permitted on said premises by
the Lessee. All such taxes, governmental levies, assessments, and charges shall
be paid by the Lessee promptly when the same become due and payable, and a
duplicate receipt of payment of property taxes shall be furnished to the Lessor
within ten (10) days after the same is received by Lessee. If the Lessee at any
time believes that any such tax, levy, assessment, or charge is unjust, illegal,
or excessive, it shall have the right, and in the name of the Lessor if
necessary, but only after notice to the Lessor,
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to institute and prosecute such proceedings or take such other steps as it may
be advised, at its own cost and expense, to contest or reduce the same, provided
it act promptly; and it shall not permit a sale or forfeiture of said premises,
of the leasehold estate hereby created, of the improvements and property on said
leasehold, or of any part of said premises, leasehold, improvements, or property
on account of its failure to pay such tax, levy, assessment, and/or charge. In
the event the Lessee does not pay any such tax, levy, assessment, or charge
promptly when the same becomes due and payable, or when, if the Lessee takes
steps to contest or reduce the same, the final determination is made, the Lessor
may pay the same, and all amounts so paid by the Lessor shall be repaid to it by
the Lessee forthwith. If the oil and gas, or any other interest, other than coal
areas not leased to the Lessee hereby, in the leased premises shall be
separately assessed, the Lessee shall not be obligated to pay the taxes on any
such interest so separately assessed; or, if, though not separately assessed,
the assessed value of the leased premises shall be increased because of such oil
and gas or other interest, the Lessee, upon payment of the taxes on the leased
premises, shall be reimbursed by or on account of the Lessor for the taxes
attributable to such increase of the assessed value of the leased premises;
provided, however, that the Lessee shall be under no obligation to pay taxes on
any improvements added to the leased premises by the Lessor or by persons other
than the Lessee claiming by, through, or under the Lessor, or with respect to
any coal mined from the leased premises by the Lessor or any person other than
the Lessee claiming by, through, or under the Lessor; provided further, however,
that if mining operations shall be conducted by the Lessor or any lessee or
licensee of the Lessor, other than the Lessee, on the leased premises for the
production of coal not leased hereby to the Lessee, and, as a result thereof,
the
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leased premises, or any of them, shall be increased in valuation for tax
proposes, the Lessee shall be under no obligation to pay such taxes as are
attributable to such increase in valuation. The obligation of the Lessee to pay
such taxes shall include the taxes for the year in which this Deed of Lease and
Agreement is made and for all years prior thereto and subsequent to the year
1936, if any, for which such taxes have not heretofore been paid.
IX.
MAINTENANCE, REPAIR, AND USE
----------------------------
OF MINING PLANT AND EQUIPMENT
-----------------------------
Lessee covenants that it will at all times during the term of this
lease keep all buildings, tipples, structures, machinery, and equipment, as well
as its workings underground, in good order and repair and will, from time to
time, make such replacements, renewals, and additions as may be reasonably
necessary to enable the Lessee at all times to perform its obligations hereunder
in an economical manner according to the improvements made from time to time in
the art of coal mining and coal preparation. However, the Lessee shall not be
required to maintain and repair buildings, tipples, and structures which are no
longer needed by the Lessee to carry out its obligations under this Lease and
Agreement, and the such as are no longer useful the Lessee may raze and/or
remove. Likewise, the Lessee may raze and/or remove to another location on the
leased premises any building or structure constituting a part of Lessee's
facilities on the leased premises the removal of which is reasonably necessary
to enable the Lessee to locate or relocate other facilities reasonably necessary
or convenient for the Lessee's operations on the leased premises. And the Lessee
shall not be required to keep on the leased premises all machinery or equipment,
buildings, or structures which at any
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time may be used or erected thereon, it being understood that the Lessee may
dispose of any and all machinery and equipment, buildings or structures, and
other facilities which are obsolete or which are no longer needed and useful to
the Lessee in its performance of its obligations hereunder; may dispose of any
and all machinery and equipment which has been replaced by other machinery and
equipment calculated to serve the purpose of such machinery and equipment so
replaced; and the Lessee may, from time to time, remove machinery and equipment
from the leased premises for use, either temporarily or permanently, on other
properties owned or leased by the Lessee; provided, that the Lessee shall at all
times (except for such temporary periods as may be required for replacement in
case of loss or destruction) have and retain on the leased premises all such
tipples, cleaning plants, buildings, structures, and stationary machinery and
equipment, and on the leased premises and other lands operated by the Lessee in
conjunction with the leased premises all such equipment and supplies, including
mobile underground machinery and equipment used by the Lessee in mining coal
from the leased premises and other lands operated by the Lessee in conjunction
with the leased premises, but excluding mobile underground machinery and
equipment used by the Lessee exclusively for the mining of No.5 Block coal from
lands other than the leased premises, as may reasonably be required to mine and
remove from the leased premises and such other lands so operated by the Lessee
in conjunction with the leased premises and to prepare for market by sizing,
washing, and drying on the leased premises not less than three hundred (300)
tons of clean coal per working hour (a working hour as used herein shall mean an
hour of the shift during which coal production workers are considered as
employed, and not an hour of the time when coal production workers are actually
engaged in mining and loading coal); and, provided further that, beginning with
the calendar year 1964, in the operation of the tipples and cleaning plants on
the
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leased premises not less than 60% of the coal supplied to such plants--excluding
No. 5 Block coal from lands other than the leased premises -- shall, in any
calendar year, come from the leased premises and not more than 40% from other
lands operated by the Lessee in conjunction with the leased premises.
The Lessee has no present intention to raze, remove, or reduce the
capacity of the tipple, cleaning plant, and other facilities operated in
conjunction therewith on Rum Creek, collectively known as the Xxxxxx xxxxxx.
However, in the event of the destruction of said tipple or any major part
thereof by fire or other catastrophe, and as from time to time parts thereof
become unusable because of wear and tear or because outmoded by newer and more
efficient facilities performing the same functions, replacements need be only of
such capacity as the coal reserves remaining on the leased premises and the
general market for coal of the kind and quality on the leased premises make
economic the installation thereof; Provided, however, that until such time as
the mineable and marketable coal remaining unmined on the leased premises is so
limited by exhaustion that it is not practical, by good mining practices, to
mine and remove from the leased premises as much as two hundred (200) tons of
clean coal per working hour, the replacements shall be of a capacity of not less
than three hundred (300) tons per working hour; but the Lessee shall always
maintain on the leased premises such tipple or tipples and such cleaning plant
or plants and such facilities operated in conjunction therewith as to enable
Lessee to fully comply with and perform its obligations under this lease.
For the purposes hereof coal mined from the leased premises and
processed and shipped by and from a tipple or tipples of Amherst located
elsewhere than upon the leased premises, as provided by Article VII hereof
relating to Xxxxxxxx Hollow and as authorized upon a temporary and emergency
basis in section 6 of Article IV,
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shall be taken and considered as coal processed and shipped from facilities
located upon the leased premises, and the mobile machinery and equipment used by
the Lessee in mining such coal shall be included within such machinery and
equipment as is hereinabove provided to be had and maintained by the Lessee upon
the leased premises and other lands operated by the Lessee in conjunction
therewith.
If, in any calendar year, beginning with the calendar year 1964, less
than 60% of the coal supplied to such tipples and cleaning plants on the leased
premises, excluding the No. 5 Block coal from lands other than the leased
premises but including as coal supplied to such tipples and cleaning plants on
the leased premises the coal from the leased premises brought out of Xxxxxxxx
Hollow and processed and shipped by and from tipples and cleaning plants of
Amherst not located on the leased premises, shall have come from the leased
premises, then on or before the 25th day of January of the next ensuing year the
Lessee will pay to the Lessor, in addition to the minimum rent and tonnage
royalty provided to be paid by the Lessee to the Lessor by Article VI hereof, a
sum of money in amount equal to the additional amount of tonnage royalties which
would have been paid to the Lessor by the Lessee had the Lessee mined from the
leased premises such number of tons of clean coal , including the Xxxxxxxx
Hollow coal, as would have constituted 60% of such coal, excluding No.5 Block
coal from lands other than the leased premises, supplied to such tipples and
cleaning plants during such calendar year.
The Lessee further agrees that it will not, in any calendar year,
beginning with the calendar year 1964, mine and remove from the No.5 Block seam
on lands other than the leased premises more than 40% of the total of all coal
mined and removed from the leased
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premises and other lands operated by the Lessee in conjunction therewith and
processed on the leased premises, but including the Xxxxxxxx Hollow coal and
including all No. 5 Block coal; and if in any calendar year the Lessee shall
mine and remove from the No.5 Block seam on lands other than the leased premises
more than 40% of such total, then on or before the 25th day of January of the
next ensuing year the Lessee will pay to the Lessor, in addition to the minimum
rent and tonnage royalty provided to be paid by the Lessee to the Lessor by
Article VI hereof and in addition to such payments, if any, as the Lessee is
required to pay to the Lessor by reason of the Lessee's failure to mine and
remove from the leased premises not less than 60% of the coal supplied to the
tipples and cleaning plants as provided in the next preceding paragraph hereof,
a sum of money in amount equal to the additional amount of tonnage royalties
which would have been paid to the Lessor by the Lessee had the Lessee mined from
the leased premises and other lands operated by the Lessee in conjunction
therewith 60% of such total. The additional amount of tonnage royalties to be
paid to the Lessor by the Lessee as aforesaid shall be the same percentage of
the total deficiency that coal mined from the leased premises bears to the coal
mined from the leased premises and from lands other than the leased premises
operated in conjunction therewith, excluding No.5 Block coal mined from lands
other than the leased premises, during the year for which such deficiency
existed. If in any year any such deficiency in the production of coal from the
leased premises occurs and during such year the Lessee shall have mined from two
or more seams of coal for which the tonnage royalties are at different rates,
the weighted average royalty on the coal mined from the leased premises during
that year shall be the royalty rate by which the deficiency in tonnage shall be
converted into the sum of money to be paid.
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No such payment for failure to produce from the leased premises 60% of the
coal supplied to such tipples and cleaning plants, including Xxxxxxxx Hollow
coal but excluding the No.5 Block coal from lands other than the leased
premises, all as aforesaid, and no such payment for having produced from lands
other than the leased premises No.5 Block coal in excess of 40% of the total of
all coal mined and removed from the leased premises and other lands operated by
the Lessee in conjunction therewith, all as aforesaid, shall be credited to or
against the minimum rent or tonnage royalty provided to be paid by the Lessee to
the Lessor by Article VI hereof for such calendar year. But at any time within
the two calendar years next ensuing the year for which any such payment has been
made, if and when the actual tonnage royalties have been sufficient to pay the
minimum rent or tonnage royalty for the calendar year and the Lessee has mined
free of royalty all coal which it is entitled to mine free of royalty because of
the payment of the minimum rent or tonnage royalty when actual tonnage
royalties for the year were less than the minimum rent or tonnage royalties
provided by Article VI, then to the extent that coal mined from the leased
premises shall exceed 60% of the coal supplied to the tipples and cleaning
plants on the leased premises -- Xxxxxxxx Hollow coal being considered as coal
supplied to such tipples and cleaning plants but No.5 Block coal from lands
other than the leased premises being excluded -- during the said two-year
ensuing period any such payment made for that reason, to the amount thereof,
shall be considered as having been an advance payment of tonnage royalty and,
likewise, any such payment made for the reason that during any calendar year the
Lessee shall have mined and removed from lands other than the leased premises
No.5 Block coal in excess of 40% of the total of all coal mined and removed from
the leased premises and other lands operated
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by the Lessee in conjunction therewith, all as hereinabove provided, shall be
considered as having been an advance payment of tonnage royalty; and the Lessee
may mine from the leased premises free of royalty so much coal as at the royalty
rates then in effect would equal the amount of such advance payments for either
or both of such reasons and causes.
When, in the course of Lessee's mining operations, the mineable and
marketable coal remaining unmined on the leased premises is so limited by
exhaustion that it is not practical, by good mining practices, to mine and
remove from the leased premises as much as two hundred (200) tons of clean coal
per working hour, the Lessee shall be required to have and retain on the leased
premises and other lands operated in connection therewith in the manner above
provided only so much mobile equipment as is reasonably required to produce a
reasonable output of coal in keeping with the amount of mineable and marketable
coal on the leased premises available at the time.
In the event the Lessor and the Lessee shall be unable to agree on any
matter arising under the provisions of this Article IX, the matter upon which
they fail to agree will be submitted to and determined by arbitration as is
provided in Article XVI hereof.
Neither Section 13, Article 4, Chapter 36, nor Section 28, Article 6,
chapter 37 of the Code of West Virginia, nor any similar statute or law now in
effect or that may be hereafter in effect, shall be applicable to any of the
rights and obligations of the parties hereto as such rights and obligations are
herein set forth.
-8l-
x.
IMPROVEMENTS, MACHINERY, AND
---------------------------
EQUIPMENT AT TERMINATION
------------------------
Upon the termination of this lease otherwise than by forfeiture, and upon
the payment of all sums due the Lessor or payable to others for the benefit of
the Lessor, all machinery, equipment, supplies, tracks, wires, substations,
transformers, generator sets, fans, tipples, washers, driers, tramways, belts,
and all other property placed upon the leased premises by the Lessee and its
predecessors may be removed from the leased premises at any time within six
months after the date of termination; provided, however, that all houses and
other permanent buildings then upon the leased premises and so much of the water
and sewage systems and electrical facilities as serve such houses and permanent
buildings shall remain upon the leased premises and be the property of the
Lessor.
Notwithstanding the right of the Lessee, otherwise, to remove the aforesaid
property from the leased premises after the date of the termination of this
lease otherwise than by forfeiture, not less than six (6) months prior to the
time when the Lessee contemplates that this lease will be terminated by the
mining of all the mineable and marketable coal hereby leased to the Lessee on
the leased premises or prior to the expiration of the 100 year term hereof,
whichever shall first occur, the Lessee will give notice in writing to the
Lessor of such contemplated or actual termination. Within sixty (60) days after
the Lessee shall have given the Lessor such notice of either such termination,
the Lessor may, in writing, request of the Lessee that all, or any part, of such
property then on the leased premises (but not including houses and other
permanent buildings, water, sewage, and electrical facilities to be left upon
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the leased premises in any event) be appraised by two competent disinterested
mining and mechanical engineers, one of whom shall be chosen by each of the
parties hereto; and if such request be made, then such appraisal shall be made.
If the appraisers so chosen shall be unable to agree, they shall select a third
competent disinterested mining and mechanical engineer as umpire. The basis of
valuation shall be the value which the property would have if removed from the
leased premises to a location twenty-five (25) miles therefrom prior to any re-
erection, re-assembling, or re-installation thereof, less the cost of so
dismantling the improvements, installations, and steel rail tracks as to make
them movable, and less the cost of transporting the same to such new location.
And the value of such property as fixed by the two appraisers, or by one of such
appraisers and the umpire, upon such basis of value shall be the appraised value
of the property. A written report of such appraisal, and a certificate of the
costs and fees incident thereto, signed by said two appraisers if they agree,
and by one of said appraisers and said umpire if the two appraisers do not
agree, shall be promptly returned to each the Lessee and the Lessor; and the
Lessor, at any time within thirty (30) days from the date of said report of
appraisal, shall have the right and privilege of purchasing said property at the
appraised value thereof, with possession to be delivered at the termination of
this lease. The Lessor's right and privilege of purchasing said property is to
purchase all or so much thereof as it shall specify (but the right of the Lessor
to purchase less than all of such property shall not extend to the taking of
removable parts of any article or installation); and if purchase is made,
payment shall be made at the time possession of the leased premises is delivered
to the Lessor by the Lessee, subject to the right of
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the Lessee within the time hereinabove provided to remove from the leased
premises all such property of the Lessee as is not purchased by the Lessor.
If the Lessor shall not request such appraisal within sixty (60) days after
the Lessee shall have given the Lessor notice of the contemplated or actual
termination of this lease or shall not have within thirty (30) days from the
date of the report of appraisal given the Lessee notice in writing that the
Lessor is exercising its right to purchase all or so much of such appraised
property as the Lessor shall elect, the Lessee may remove all of said property,
or so much thereof as the Lessor shall not have elected to purchase, from the
leased premises within six (6) months after the date of termination as is
provided by the first paragraph of this Article x.
If this lease is terminated by forfeiture, then all property of the Lessee
at the time on the premises which was placed thereon by the Lessee or its
predecessors, other than property intended primarily for the personal use of
Lessee's officers, agents, and employees (such as, by way of illustration but
not exclusive of other property for personal use, automobiles, clothes,
bedclothes, tableware, kitchenware, radios, television sets, and property of any
and all kinds then belonging to employees), shall become and be the property of
the Lessor or its successors or assigns, absolutely and without any obligation
of the Lessor to compensate the Lessee therefor.
XI.
ASSIGNMENTS, SUBLETTING, AND MORTGAGING
---------------------------------------
The Lessee agrees that it will not voluntarily assign this leasehold
estate, either in whole or in part, or permit the same to
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be assigned by operation of law, or sublet the leased premises or any part
thereof, or create, suffer, or permit any lien or encumbrance upon its leasehold
estate, or upon any of its rights and privileges hereunder, or give or transfer
possession of the leased premises or any portion thereof to any other person,
firm, or corporation, except as herein provided, without the consent of the
Lessor in writing first had and obtained.
1. Assignments
-----------
But the Lessor covenants that it will give such consent to any such
assignment; provided, that the assignee be of such financial strength and have
such experience in coal mining or in related mining activities as to give
reasonable assurances that the premises leased hereby will continue to be
successfully operated, and such assignee shall enter into an agreement directly
with the Lessor agreeing to be bound by all of the terms and provisions of this
lease to the same extent as if it were the original lessee hereunder; and
provided, further, that the Lessor need not give such consent until the Lessee
shall have first discharged any and all obligations of the Lessee to the Lessor
then outstanding. In the event of any such assignment to which the Lessor shall
give its written consent, the Lessee shall be released from all liability
thereafter accruing to Lessor under this Deed of Lease and Agreement.
2. Mortgage or Merger
------------------
Lessee shall not be prohibited, without such consent, from executing
mortgages or deeds of trust upon its leasehold estate and upon all rights of
Lessee hereunder, subordinate, however, to all
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the liens, rights, and estates of Lessor, nor from suffering or permitting sale
or foreclosure under such mortgages or deeds of trust, provided that the
purchaser at such sale or foreclosure shall possess the same financial and
experience qualifications required of an assignee as aforesaid, and shall enter
into an agreement directly with the Lessor agreeing to be bound by all of the
terms and provisions of this Deed of Lease and Agreement to the same extent as
if such purchaser were the original lessee hereunder; nor shall Lessee be
prohibited, without such consent, from merging or consolidating with another
corporation by statutory merger or by sale and purchase whereby the continuing
corporation, if it be not the Lessee, acquires all or substantially all of the
Lessee's assets and assumes Lessee's obligations hereunder and if the
continuing corporation be qualified in like manner as is hereinabove provided in
respect of an assignee. In the event of any such merger or consolidation, if the
Lessee be not the continuing corporation, the Lessor will release the Lessee
from all of the Lessee's obligations to the Lessor which are assumed by the
continuing corporation by an agreement in writing directly with the Lessor.
3. Subletting
----------
The Lessee will not sublet the demised premises or any part thereof or any
of its rights or privileges hereunder without the written consent of the Lessor.
The Lessee shall not be relieved of any of its responsibilities to the Lessor in
respect of the leased premises or any part thereof or any of its rights or
privileges hereunder sublet by the Lessee except to the extent provided by such
consent of Lessor. The leasing by Lessee of houses to Lessee's employees shall
not be considered to be subletting within the meaning of this
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provision. The mining of coal by the Lessee through contractors shall not be
considered to be subletting by the Lessee within the meaning of this provision,
provided any such contractor be bound to mine in like manner as the Lessee is
required to mine hereunder and that, so far as the Lessor's rights and interests
are concerned, the obligations of the Lessee shall not be modified or
diminished.
XII.
RIGHTS-OF-WAY FOR RAILROAD
--------------------------
Lessor covenants and agrees that it will join with Lessee, when requested
so to do by Lessee, in conveying to The Chesapeake and Ohio Railway Company, its
successors, or such other railroad as may serve the leased premises or any other
lands which the Lessee may operate for production of coal in connection with the
leased premises, for a nominal consideration, such rights-of-way for such
railroad tracks, sidetracks, tail tracks, switches, and facilities as may be
reasonably required for the service by any such railroad of the leased premises
and other properties operated by the Lessee in connection therewith. Such
rights-of-way shall be of such estate or interest as the railroad shall require;
provided, however, that the conveyance shall reserve to the Lessor and the
Lessee, as their interests appear, all minerals underlying the surface of the
land to be occupied by the railroad right-of-way and such appropriate under-
ground, surface, and above-ground rights as will not interfere with or
jeopardize the railroad operations. The Lessor shall be a party to all trackage
agreements with any such railroad, and upon the termination of this lease shall
succeed to the Lessee's rights and interests thereunder; but during the
continuance of this lease the Lessor shall have no obligation to any such
railroad company in respect of any such trackage agreement.
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XIII.
INSURANCE AND FIRE CONTROL
--------------------------
1. The Lessee covenants that it will, during the continuance of this
lease, keep the following buildings, structures, and improvements situate upon
the leased premises insured by solvent fire insurance companies qualified to do
business in the State of West Virginia against loss or damage by fire or
lightning to the full extent of the insurable value thereof -- except, however,
that foundations need not be included or insured -- , with provision that
payment for any loss or damage be to and for the benefit of the Lessee and the
Lessor as their interests may appear:
All outside or above-ground buildings used or useful for
stores, offices, theaters, dwellings, garages, workshops,
and used or useful for other purposes incidental to the
Lessee's coal mining and incidental operations, and the
fixed or attached contents thereof, excluding, however, any
such structure having an insurable value of $1,000 or less,
and the contents thereof.
All fixed or stationary outside mining, transporting,
processing, loading, and refuse handling plants and
equipment (including moving parts thereof), including, but
not limited to:
All tipples, headhouses, and raw coal bins;
All cleaning plants and the appurtenances thereto, including
the washers, the driers, the screening plants, all conveyor
galleries and dumps, the coal and refuse silos, and all
other facilities physically connected with the cleaning
plants;
All substations;
All aerial tramway installations and appurtenant equipment;
All fan houses and all slope hoists and appurtenances.
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It is distinctly understood by and between the parties hereto, however,
that there is excluded from the property required to be insured as aforesaid,
all mobile, unattached, or portable machines, mine cars, mine motors, trucks,
automobiles, and other mobile unattached or portable machinery, equipment,
tools, and supplies, and all steel rails.
However, it is distinctly understood by and between the parties hereto
that, to the extent that any such insurance as is hereby provided to be carried
by the Lessee is not offered by as many as three solvent fire insurance
companies qualified to do business in the State of West Virginia, at rates not
in excess of those approved by the Insurance Commissioner of West Virginia, or
by such public officer or agency as hereafter may be constituted to perform
comparable functions, the Lessee shall be relieved of its obligation to insure.
If, however, the Lessee, though not obligated to do so, does procure insurance
covering said property, or any of it, against such risks, or any of them, from
any insurer, such insurance shall be for the benefit of the Lessee and the
Lessor as their interests may appear.
In case of loss or damage to property as hereinabove provided, the loss or
damage shall be adjusted by the Lessee; but when the loss or damage is estimated
to be in an amount in excess of $20,000, the Lessee will adjust such loss in
consultation with the Lessor.
2. The Lessee covenants that in case of destruction of or damage to any
of such insured property which is necessary to enable the Lessee to perform its
obligations hereunder, it will cause such destroyed or damaged property to be
replaced or repaired;
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and the Lessor covenants that if the Lessee be not in default in the payment of
any money owing by the Lessee to the Lessor and the Lessor has no reasonable
grounds to believe that the Lessee's financial condition is not such as to give
reasonable assurance of the Lessees ability to discharge all of its obligations
and liabilities to the Lessor, upon assurances in writing by the Lessee that the
Lessee will cause such destroyed or damaged property to be replaced or repaired,
the Lessor will promptly endorse or assign over to the Lessee all of the
Lessor's interest in any proceeds of any such insurance. If any such insured
property which is destroyed or damaged is not necessary to enable the Lessee to
perform its obligations hereunder, but the Lessee gives the Lessor assurances
that the Lessee will use the proceeds of such insurance in otherwise improving
the leased premises or the equipment thereon, then upon the same conditions the
Lessor will promptly endorse or assign over to the Lessee all of the Lessor's
interest in any proceeds of such insurance.
If, in either of the above circumstances, the Lessor has reasonable
grounds to believe that the Lessee's financial condition is not such as to give
reasonable assurance of the Lessee's ability to discharge all of its obligations
and liabilities to the Lessor, then the Lessor may retain with the Lessee joint
control of such proceeds of insurance for application to the replacement or
repair of such property necessary to enable the Lessee to perform its
obligations hereunder which shall have been destroyed or damaged, or for the
application of such proceeds of insurance to otherwise improving the leased
premises or the equipment thereon, as the case may be.
If the destroyed or damaged property is not necessary to enable the
Lessee to perform its obligations hereunder and there
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be no need for the use of proceeds of insurance to improve the leased premises
or the equipment thereon, then the proceeds of any such insurance shall be
divided between and paid out to the Lessee and the Lessor in equal shares.
3. If, at its sole option, the Lessee shall hereafter carry on the
property hereinabove specified, or any part thereof, any insurance coverage
extended beyond fire and lightning, such as, but not limited to, riot and civil
commotion, the Lessor shall be made a co-insured, and in case of destruction of
or damage to any such property so insured, the proceeds of such extended
insurance coverage shall be used or disposed of in like manner as is hereinabove
provided in respect of insurance against loss or damage by fire or lightning. If
the Lessee at its sole option shall at any time carry such extended coverage
insurance, the Lessee may at any time terminate any and all such extended
coverage.
4. The Lessee agrees that if at any time or times it shall fail to
procure and keep in force the insurance herein provided for, or to pay the
premiums thereon, the Lessor shall have the right to procure such insurance and
pay the premiums thereon or to pay the premium upon insurance obtained by the
Lessee but not paid for by it, and all amounts so expended by the Lessor shall
be repaid to the Lessor by the Lessee upon demand and shall be taken and treated
as rent; but nothing herein contained shall be construed as imposing any duty
upon the Lessor to obtain or to pay for any such insurance or as making the
Lessor responsible for any loss suffered because of failure to obtain adequate
insurance.
5. When the Lessee shall have, from time to time, procured the insurance
herein provided to be procured by the Lessee, the Lessee shall promptly give the
Lessor information of the property insured, either specifically or in general
terms, the risks
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insured against, and the valuation of the property insured, and, if so requested
in writing by the Lessor, copies of the insurance policies; and if the Lessor is
not satisfied that the insurance so procured by the Lessee complies with the
provisions of this article, the Lessor shall promptly give to the Lessee notice
of the respects in which the Lessor believes that such insurance so procured by
the Lessee does not comply with the provisions hereof; and if the Lessor shall
not promptly designate the matters in respect of which the Lessor contends that
the such insurance does not comply with the provisions hereof, the Lessor shall
be considered to have accepted the insurance procured by the Lessee as fully
complying with all of the provisions of this article. If, thereafter, there
shall occur any change of circumstance affecting the compliance of such
insurance with the provisions hereof, Lessor may give Lessee written notice
specifying the changes which Lessor believes to be required for compliance
herewith, and Lessor shall not be considered to have accepted for the future the
sufficiency of the insurance theretofore procured in so far as the
insufficiencies designated by the Lessor are concerned.
6. The Lessor may, but shall not be required to, waive any and all
requirements of such fire and lightning insurance, in respect of all or any of
the property hereinabove designated, if at any time the Lessee desires to become
a self-insurer in respect thereof.
7. The Lessee agrees that it will install and continuously maintain in
good working order on the leased premises and other premises operated by the
Lessee in connection therewith, such underground fire fighting equipment as the
Lessee reasonably believes to be adequate to control underground mine fires; and
that it will cause reasonably adequate personnel to be trained in the use and
operation of such equipment.
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8. If the Lessor and the Lessee are unable to agree in respect of any
question arising under the provisions of this Article XIII, with reference to
the property to be insured, the value there-of, the availability of insurance
therefor, the maintenance of fire fighting equipment, or the training of
personnel, the matters in difference shall be submitted to and determined by
arbitration in the manner and with the effect as is provided by Article XVI
hereof.
XIV.
LIENS FOR RENTS AND ROYALTIES
-----------------------------
All rents and royalties and other payments herein provided to be made by
the Lessee to, or for the benefit of, the Lessor shall be treated and considered
as rent reserved for the leased premises, and the Lessor shall have a first and
prior lien therefor upon the leasehold estate hereby created and upon all
improvements and property of the Lessee thereon (merchandise intended for resale
and coal loaded into railroad cars or trucks excepted), which lien shall
continue in full force, validity, and effect until discharged by payment,
irrespective of when such rents, royalties, or other payments accrued and became
due to be paid, and shall in no respect be limited to such rents, royalties, or
other payments as shall have accrued within one year. Whenever any such rent,
royalty, or other payment shall be due to, the Lessor and shall remain unpaid
for fifteen (15) days after written notice of default given by Lessor to Lessee,
the movable property of the Lessee upon the leased premises may be distrained
and sold to pay the same, irrespective of when such rent, royalty, or other
payment matured and became due to be paid, or, at the election of the Lessor,
said lien, with respect to the leasehold estate and the improvements thereon,
including movable property of the Lessee, may be enforced by suit or other
proceeding in any
-93-
court of competent jurisdiction, without any requirement of delay or notice,
other than legal process, irrespective of when such rent, royalty or other
payment accrued and became due to be paid; and this remedy of the Lessor shall
in no respect be limited to the recovery of such rents, royalties, or other
payments as shall have accrued within one (1) year or by reason of the fact
that any property of the Lessee on the leased premises be subject to any other
lien created after such property has been brought upon the leased premises. At
any sale made under this Article XIV, the Lessor may become the purchaser of the
property sold, free from any claim or claims of the Lessee. Nothing herein
contained shall prevent Lessee, when not in default in the payment of any sums
due to Lessor, from disposing of or removing from the leased premises worn or
obsolete property, or property not needed in the performance of its obligations
hereunder, or from moving from time to time mobile machinery or equipment on and
off the leased premises; provided there always shall be had on the leased
premises and other lands operated by the Lessee in connection therewith
machinery and equipment of the amount and capacity provided for by Article IX
hereof.
As of the date hereof, all buildings, machinery, and equipment, including
tipple, cleaning plant, steel rails, wiring, and other installations of every
kind and character attached to the soil, and including also, with a few
exceptions or negligible significance, all mobile and portable machinery and
equipment, on the leased premises used or for use by the Lessee in its
operations on the leased premises and on other lands operated in connection
therewith, are owned outright and fully paid for by the Lessee, free of all
liens, claims, and encumbrances in favor of any person, firm, or corporation
other than Lessor. The Lessee has no present plan or program contemplating the
acquisition of any building, machinery, or equipment on any
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other basis, and all such buildings, machinery, and equipment hereafter brought
on the leased premises by the Lessee for use in its operations hereunder, and
which shall be attached to the soil -- and whether or not of the nature of trade
fixtures -- shall be owned outright by the Lessee and free of liens in favor of
third persons; but this provision shall not preclude the Lessee's acquisition
thereof by contracts pursuant to which payment therefor may be extended over a
period of not to exceed five (5) years following the date of acquisition.
However, as renewals, replacements, and additions of and to mobile and portable
machinery and equipment become necessary, the Lessee may acquire, for use on the
leased premises and on other lands operated in connection therewith, mobile and
portable machinery and equipment by conditional sale, lease-purchase, simple
lease, or other contracts relating to payment and title, with regular suppliers
of such mobile and portable machinery and equipment, upon such terms and
conditions as to payment and title as are at the time in common use in the
bituminous coal mining industry. Provided, that all such contracts between the
suppliers of such mobile and portable machinery and equipment and the Lessee
shall specify that if at any time the Lessor shall become entitled to take
possession of the leasehold estate and of the Lessee's property thereon, and
the Lessor does take such possession, the Lessor shall have the right to succeed
to the rights and interests of the Lessee in such contracts and in the property
to which such contracts relate, and, subject to the rights and interests of the
suppliers of such machinery and equipment, the Lessor's lien provided for
hereby shall attach to such machinery and equipment pursuant to the provisions
of the preceding paragraph of this Article XIV.
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XV.
FORFEITURE OF LEASE
-------------------
1. It is covenanted and agreed and made a condition of this lease that
prompt payment or the rent reserved, including therein and as a part thereof
royalties and all sums of money provided to be paid by the Lessee for taxes,
levies, assessments, insurance premiums, and for any other purpose to or for the
benefit of the Lessor, at the time and place and in the manner in this lease
provided, is of the essence of this contract; that
If any such rent or royalty or other sum of money to be paid to or for
the benefit of Lessor by the Lessee ass aforesaid, or any part thereof, shall be
due and unpaid for thirty (30) days after any such payment shall become due and
written notice of default has been given to the Lessee by the Lessor; or
If the Lessee shall wilfully conduct its mining operations in such
manner as to cause waste to the leased premises of such character as not to be
readily remedied by the payment of money and such methods of mining or conduct
are continued for sixty (60) days after the Lessor has by writing demanded
correction thereof, or if money damages shall be agreed upon by Lessee and
Lessor and are not paid by the Lessee within sixty (60) days after the reaching
of such agreement; or
If the Lessee shall wilfully fail to give to Lessor such maps,
statements, or other information reasonably desired by the Lessor and provided
by this lease and agreement to be given by the Lessee to the Lessor, and shall
continue in such failure for thirty (30) days after the Lessor in writing has
requested the same to be furnished by the Lessee; or
If the Lessee shall assign or sublet this lease or any part thereof or
shall suffer the sale thereof under foreclosure or mortgage contrary to the
provisions of Article XI hereof; or
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If the Lessee shall fail to comply with and perform the requirements
of any award or arbitration made pursuant to the provisions of Article XVI
hereof in respect of any matter for which this lease and agreement provides for
such arbitration within thirty (30) days after such award or determination has
become final; or
If in respect of any dispute for which arbitration is provided by this
lease and agreement the Lessor shall demand arbitration and the Lessee shall
refuse to arbitrate or unreasonably fail to cooperate in bringing arbitration to
a conclusion, or if neither the Lessor nor the Lessee shall demand arbitration,
or if for any other reason, other than the fault of the Lessor, arbitration
shall not be entered into or an award shall not be made, and the Lessor resorts
to legal action and obtains a judgment for money or a decree (including a
declaration of rights in a declaratory judgment action) against the Lessee
requiring the Lessee to do or to refrain from doing any act or thing involved in
such dispute or determining the duties of the Lessee involved in such dispute,
then if the Lessee shall not pay or discharge the money judgment within thirty
(30) days from the time the same becomes appealable or shall not do or refrain
from doing the acts and things as ordered or declared by such judgment or
decree within sixty (60) days after the same becomes appealable, unless the
Lessee shall appeal from such judgment or decree and file a supersedes bond, and
in case of any such appeal, unless the Lessee shall do or refrain from doing the
acts and things as ordered or declared by the appellate court of last resort
within sixty (60) days after the entry by such appellate court of its judgment
or decree;
If, in respect of any of the foregoing grounds and conditions other than
those calling for the payment of money, full compliance within any time
specified shall be impractical, compliance shall mean the prompt beginning and
expeditious continuance of performance; or
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If the Lessee shall wilfully deny the Lessor or its agents access to
the leased premises and operations of the Lessee for the inspection thereof and
such denial shall continue for two (2) days after an executive officer of the
Lessor shall have made demand, either in writing or confirmed by writing, upon
an executive officer of the Lessee, then,
In any such event, the Lessor shall have the right at its option to
terminate and end this lease and the term hereby granted, as well as all of the
right, title, and interest of the Lessee hereunder, without further notice or
demand or legal procedures and to re-enter the leased premises, and the same to
have, repossess, and enjoy as of the Lessor's former estate, together with all
buildings, equipment, machinery, fixtures, tools, and other property of the
Lessee therein and thereon, other than property unrelated to the Lessee's mining
operations, anything herein to the contrary notwithstanding, and to terminate
this lease -- except as to Lessee's liability for sums of money due and owing to
or for the benefit of Lessor -- and all rights of Lessee hereunder, any former
indulgences of the Lessee by the Lessor to the contrary notwithstanding. And the
Lessor at all times shall have the right of distraint as in Article XIV of this
lease provided and the benefit of other proper proceedings in law or in equity
and all other remedies as now or hereafter provided by law for collection of
rents due and unpaid and for regaining possession of the leased premises. And
the Lessee hereby expressly waives any and all right to recover possession of
said premises, or to reinstate or to redeem or to avoid a forfeiture of this
lease, the rights and privileges herein granted, as permitted or provided under
any provision of the law of West Virginia now in effect or hereafter enacted, or
by any other law, ordinance, regulation, or court decision now or hereafter in
force
-98-
and effect. But nothing contained in the preceding parts of this Article, or
elsewhere in this lease, shall be construed to abridge or waive the right of the
Lessee to resort to appropriate judicial proceedings to test the right of the
Lessor to forfeit this lease.
A waiver by Lessor of any particular cause of forfeiture shall not prevent
forfeiture for any other cause, or for the same cause occurring at any other
time, nor shall the receipt by Lessor from Lessee, or from any other person,
after the occurrence of any cause of forfeiture of which notice has been given
by Lessor to Lessee, of any royalties, rentals, or other payments theretofore or
thereafter accruing to Lessor, or the continued recognition by Lessor of Lessee
ass its tenant after the occurrence of any cause of forfeiture of which notice
has been given by Lessor to Lessee, be deemed a waiver of Lessor's right to
enforce the forfeiture so long as the cause of forfeiture continues to exist.
2. If the Lessee, or any assignee of Lessee, in possession of the leased
premises shall be adjudicated a bankrupt, or shall file a voluntary petition in
bankruptcy, or shall make a general assignment for creditors, or shall be
adjudicated insolvent, or if a receiver shall be appointed for Lessee, or such
assignee, and not be discharged within sixty (60) days after the appointment, or
if proceedings for reorganization of Lessee or such assignee shall be instituted
under the bankruptcy laws of the United States by or against Lessee or such
assignee, Lessor may immediately and at once, without notice, declare the term
hereof at an end, with the same effect as is hereinabove provided.
XVI.
ARBITRATION
-----------
Any dispute, question, or controversy arising under this lease for which
arbitration is herein provided say be submitted to
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arbitration in the following manner: The party demanding arbitration shall give
to the other notice in writing of such demand, naming in such notice a person
selected as an arbitrator by the party giving such notice; the other party shall
within fifteen (15) days after receipt of such notice give notice in writing to
the party demanding such arbitration, naming a person as arbitrator selected by
it. If the party served with the original notice as hereinbefore provided shall
fail within fifteen (15) days to notify the other party of the arbitrator
selected by it, the party giving said original notice may, by notice in writing
served upon the other, request the Judge, or any Judge if more than one, of the
District Court of the United States for the Southern District of West Virginia,
or such tribunal as may at the time be the successor of such Court, to appoint a
second arbitrator, and such Judge may appoint such second arbitrator; the two
arbitrators selected as aforesaid shall within fifteen (15) days after the
appointment of the second arbitrator meet and select a disinterested mining
engineer experienced in coal mining in the general area of the leased premises
and competent to make such examinations and inspections as may be appropriate,
to serve as third arbitrator and fix a time and place for hearing the matter in
dispute, which shall be within fifteen (15) days from the time the third
arbitrator is selected. If the two arbitrators chosen as aforesaid cannot agree
upon the third arbitrator, said Judge may, upon request of the said two
arbitrators or of either of them, appoint the third arbitrator, qualified as
aforesaid. Failing such appointment, the third arbitrator, qualified as
aforesaid, my be appointed, upon the request of the two arbitrators chosen or
upon the request of either of them, by the Judge of the Circuit Court in and for
Xxxxx County, West Virginia. In case, pending any arbitration' under this lease,
any arbitrator,
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or successor, or substitute arbitrator, shall die, or for any reason be unable
or unwilling to act, his successor shall be appointed as he was appointed, and
such successor or substitute arbitrator, as to all matters then pending, shall
act the same as if he had been originally appointed as an arbitrator and if he
deems it necessary to the proper discharge of his responsibilities he examine or
re-examine any witness who may have theretofore been examined. The award of any
two of the three arbitrators so chosen shall be final and binding upon both
parties. Each party shall bear the expense of preparing and presenting its own
case and the expense of its own arbitrator, and shall pay one-half of the
expense of the third arbitrator. The Lessor and the Lessee covenant that they
will fully cooperate and do all that they reasonably can, respectively to
expedite the decision or award of the arbitrators, to the end that, if
reasonably possible, such award or decision may be made within sixty (60) days
after the appointment of the third arbitrator.
In respect of matters for which arbitration is herein provided, the
foregoing provisions for arbitration shall be irrevocable, and arbitration and
award hereunder, if demanded by either party, shall be a condition precedent to
the right to maintain any action or suit based upon such matter or matters in
dispute, question, or controversy, unless arbitration fail because of the
inability to obtain a board of arbitration in the manner hereinabove provided,
or, having obtained such board, the board fails to reach a decision or award.
-101-
XVII.
WARRANTY
--------
The coal rights and interests herein leased are limited to such as the
Lessor possesses and has the lawful right to lease, and Lessor's warranties,
whether express or implied, are limited to such title ass Lessor owns, and,
subject to this limitation and all the rights herein expressly reserved unto the
Lessor otherwise, Lessor warrants that neither it nor any of its officers or
directors has any knowledge or information of any claim adverse to the coal
rights and interests herein leased by the Lessor to the Lessee and that the
Lessee, complying with and keeping and performing the terms, conditions, and
covenants of the lease, by it to be kept and performed, shall have quiet use,
possession, and enjoyment of the said lands for the time and purposes aforesaid;
and that all covenant and conditions herein shall run with the land and be and
remain, for the term of this lease, binding upon the parties hereto, their
successors and assigns. Lessor's liability under this Article shall be limited
as hereinafter in this Article set out. If the title of the Lessor to any part
of the leased premises, or to any of the rights and privileges hereby leased,
shall be lost to the holder of a superior title, by reason whereof any of the
coal which Lessee is required or permitted to mine is lost to Lessee, and the
same (if contested) is so adjudged by the highest court which will accept
jurisdiction to settle the controversy, no royalty shall thereafter be paid to
Lessor by Lessee on account of the coal so lost, and in the event royalty on the
coal so lost has been paid by Lessee to Lessor, Lessor shall repay to Lessee,
without interest, the royalty on the coal so lost to Lessee by reason of such
outstanding superior title, and the minimum annual rental shall be
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reduced from the beginning of this lease in the proportion which the area of the
mineable and marketable coal so lost bears to the total area of mineable and
marketable coal on the leased premises at the date hereof, and any payment of
unrecouped minimum annual rental required to reflect such reduction shall
promptly be made by Lessor to Lessee, and Lessor shall refund to Lessee, with
interest at six per cent (6%) per annum, any taxes which Lessee may have paid
after the date of this Deed of lease and Agreement on the land containing the
coal so lost. Lessor shall have the right, within three (3) months after the
final order in such litigation, to purchase the coal in place so lost, and if so
purchased by Lessor it shall thereupon become a part of the leased premises with
the same effect as if now owned by Lessor in perfect title if, but only if,
Lessee has not completed its mining operations in the immediate vicinity thereof
to such extent that it would be impracticable to mine the same; but should
Lessor elect not to purchase the same or fail within the said three (3) months'
period to purchase the same, Lessee shall have the right to purchase such coal
and to mine the same free of all royalty and wheelage. If neither party
purchases such coal, the Lessor shall indemnify the Lessee against all damages
to others for which the Lessee may be answerable for mining operations conducted
by the Lessee on the disputed premises prior to Lessee's knowledge of such
dispute.
It is further understood and agreed that the Lessor, at its own expense,
will defend all suits or proceedings whatever, instituted against the Lessor or
Lessee herein, involving the title to the premises hereby leased or any part
thereof.
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XVIII.
NOTICES
-------
The giving of any notice or the making of any demand on the Lessee under
the provisions hereof, shall be sufficient, if in writing, addressed to the
Lessee at Port Amherst 1, Charleston, Kanawha County, Xxxx Xxxxxxx, or such
other address as Lessee may hereafter designate in writing, and mailed by
postpaid United States mail. The delivery of any maps, plans, or projections to
the Lessor, and the giving of any notice to Lessor, the making of any demand on
Lessor under the provisions hereof, or the payment of any royalties, rents, or
other sums due hereunder, shall be sufficient if made to Lessor and mailed by
postpaid United States mail addressed to Lessor at 1111 First Huntington
National Bank Building, Huntingtion, West Virginia, or such other address as
Lessor may hereafter designate in writing.
XIX.
In this Deed of Lease and Agreement all rights and privileges and
responsibilities and liabilities of Xxxxxxx-Rum, the Lessor, and of Amherst, the
Lessee, respectively, shall inure to the benefit of or be binding upon their
respective successors and assigns and any and all others in any manner
succeeding to their' respective rights and privileges and responsibilities and
liabilities; provided that nothing in this Article XIX shall waive compliance
by Lessee, its assignees, mortgagees, or sublessees with the provisions of
Article XI hereof relating to assignments, mortgages, mergers, and subletting.
IN WITTINESS WHEREOF, the said XXXXXXX-RUM COAL COMPANY has caused its
corporate name to be signed to two counterpart copies
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hereof by XXXXX X. XXXXXXXX, its President, and X. X. XXXXXXXX XxXXXXXX, its
Vice President, and its corporate seal to be affixed thereto by Xxxxx X. Xxxxx
III, its Secretary, all thereunto duly authorized; and the said AMHERST COAL
COMPANY has caused its corporate name to be signed to said two counterpart
copies by XXXXXXX X. XXXXX, XX., its President, and its corporate seal to be
affixed thereto by X. X. XXXXXX, its SECRETARY both thereunto duly authorized;
all as of the day and year first hereinabove written.
Xxxxxxx Rum Corporate Seal
XXXXXXX-RUM COAL COMPANY
By /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx,
Its President, and
Attest: /s/ Xxxxx X Xxxxx III
----------------------
Its Secretary /s/ X. X. Xxxxxxxx XxXxxxxx
----------------- ----------------------------------
X. X. Xxxxxxxx XxXxxxxx
Its Vice President.
AMHERST COAL COMPANY,
By: /s/ Xxxxxxx X. Xxxxx, Xx.,
----------------------------------
Xxxxxxx X. Xxxxx, Xx.,
Its President.
Amherst Rum Corporate Seal
Attest: X. X. Xxxxxx
-------------------
Its Secretary
---------------
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STATE OF WEST VIRGINIA
COUNTY OF XXXXXX To-wit:
I, [SIGNATURE APPEARS HERE] a Notary Public of the said County or Xxxxxx,
do certify that XXXXX X. XXXXXXXX, who as President signed the writing hereto
annexed bearing date the 1st day of June, 1962, for XXXXXXX-RUM COAL COMPANY, a
corporation, has this day in my said county, before me, acknowledged the said
writing to be the act and deed of said corporation.
My commission expires July 10, 1972
Given under my hand and official notorial seal this
4th day of September, 1962.
Notary Seal
/s/ [SIGNATURE APPEARS HERE]
----------------------------------
Notary Public for Xxxxxx County
West Virginia.
STATE OF TEXAS,
COUNTY OF JEFFERSON, To-wit:
I, Xxxxxxxx Xxxxxxxxxx, a Notary Public of the said County of Jefferson, do
certify that X. X. XXXXXXXX XxXXXXXX, who as Vice President signed the writing
hereto annexed bearing date the 1st day of June, 1962, for XXXXXXX-RUM COAL
COMPANY, a corporation, has this day in my said county, before me, acknowledged
the said writing to be the act and deed of said corporation.
My commission expires June 1, 1963.
-----------------------
Given under my hand and official notarial seal this 30th day of August,
1962.
Notary Seal
/s/ Xxxxxxxx Xxxxxxxxxx
---------------------------------------
Notary Public for Jefferson County,
Texas.
-106-
STATE OF WEST VIRGINIA
COUNTY OF Kanawha To-wit:
I, Xxxxxx Xxxxxxxx a Notary Public of the said County of Kanawha, do
certify that XXXXXXX X. XXXXX, XX., who as President signed the writing hereto
annexed bearing date the 1st day of June, 1962, for AMHERST COAL COMPANY, a
corporation, has this day in my said county, before me, acknowledged the said
writing to be the act of said corporation.
My commission expires March 31, 1970.
Given under my hand and official notarial seal this 15th day of August,
1962.
Notarial Seal
/s/ Xxxxxx Xxxxxxxx
---------------------------------
Notary Public for Kanawha County,
Xxxx Xxxxxxxx
XXXXX XX XXXX XXXXXXXX XXXXXX OF XXXXX TO Wit:
IN THE OFFICE OF THE CLERK OF THE COUNTY COURT:
The foregoing paper was this the 5th day of September 1962 at 1:26PM, presented
to me in my office, and thereupon, together with a certificate thereunto is
admitted to record.
53.75
21.50 Map Teste LUTHER MOUNT CLERK
-----
Recording Fee $ 75.25 Pd. By: /s/ Xxxxxx Xxxxx, Deputy
-----------------
This Supplemental Deed of Lease and Agreement made this first day of
January 1968 by and between Xxxxxxx-Rum Coal Company, a West Virginia
corporation, party of the first part, hereinafter called "D-R", and Amherst Coal
Company, a West Virginia corporation, party of the second part, hereinafter
called "Amherst ":
Reference is here made to that certain Deed of Lease and Agreement
(hereinafter referred to as "said lease") dated June 1, 1962 by and between D-R
and Amherst, which is of record in the office of the clerk of the County Court
of Xxxxx County, West Virginia in Deed Book 287, at page 404 et seq., whereby
certain lands of D-R situate on the waters of Rum Creek and Buffalo Creek in
Xxxxx County, West Virginia were leased to Amherst for coal mining purposes for
the time and on the terms and provisions therein set out; and
Whereas, Amherst desires to add to the coal deposits leased by it under
said lease the Cedar Grove or Island Creek seam (hereinafter called Cedar Grove)
of coal in a tract of 527.78 acres more or less (hereinafter called "said
tract") on said Rum Creek, binding on premises of D-R leased to Amherst under
said lease, and being part of D-R's lands known as its Argyle premises and as
its Georges Creek premises; and D-R is willing to lease such coal on the terms
and conditions herein set out; and
Whereas, Amherst has conducted mining operations in the Cedar Grove seam
held by it under said lease up to the boundary line between said tract and the
adjoining lands of D-R held by Amherst under said lease, and Amherst has
underground access to the Cedar Grove seam in said tract by extending its said
workings or new workings in said seam in the Paragon Lease premises across said
boundary line, and will not need to provide access
to the Cedar Grove seam on said tract by means of vertical shafts or slopes on
said tract from which coal would be brought to the surface on said tract.
Now, therefore, in consideration of the premises and of the mutual promises
--- ---------
herein contained, and of the sum of One Hundred Dollars cash in hand paid by
Amherst to D-R, the receipt of which is hereby acknowledged
THIS SUPPLEMENTAL DEED OF LEASE AND AGREEMENT WITNESSETH:
---------------------------------------------------------
The parties hereto have agreed, and do hereby agree, as follows:
ARTICLE I - Additional Property Lease
D-R does hereby demise, let and lease to Amherst, for the mining of coal
from the Cedar Grove seam only, that certain tract of land situate and located
on the waters of Rum Creek in Xxxxx County, West Virginia, which is bounded and
described as follows:
Beginning at a double black pine corner, said corner common to Amherst Coal
Company's Cub Fork lease and the northeast corner of the old Georges Creek lease
and being N 30 degrees 21' 06" W 255.70 feet from a set stone, said stone
coordinate values are S 8,913.39 and E 20,703.53 and witness by a locust and
sassafras; thence from said beginning point
1. N 39 degrees 17' 20" W 1655.00 feet to a 12 inch black oak with two chestnut
and a black oak witness;
2. N 68 degrees 17' 40" W 1144.55 feet to a set stone with two chestnut
witnesses;
3. N 33 degrees 09' 45" 453.93 feet to a set stone with a hickory and two
locust witnesses;
4. S 38 degrees 04' 37" W 8434.96 feet to a point where a beech once stood on
the north bank of Rum Creek; thence up said Creek and on left side thereof
- 2 -
5. N 83 degrees 45' E 1075.90 feet to a white oak in a small hollow;
6. S 34 degrees OS' E 333.60 feet to where a pine stood on the north bank of
Rum Creek;
7. S 74 degrees 35' E 840.55 feet to a point where a beech once stood on the
north bank of said Creek;
8. S 69 degrees 13' E 1039.00 feet to a stake near the mouth of Cub Fork;
thence leaving said Rum Creek and up the mountain
9. N 40 degrees 27' E 6972.40 feet to a place of Beginning, and containing
527.78 acres, more or less.
Said tract is shown on a map attached hereto and made a part hereof,
bearing the following legend:
Map showing tract of land containing 527.78 acres on Rum Creek, Xxxxx
County, West Virginia, the Cedar Grove seam of coal in which is leased by
Xxxxxxx-Rum Coal Company to Amherst Coal Company
Xxxxxxx X. Xxxx, Chief Engineer
December 7, 1967
ARTICLE II - General Provisions of Said Lease Apply
Subject to the special provisions set out in Article III hereof, this
Supplemental Deed of Lease and Agreement (hereinafter referred to as "this
lease") is subject to all the terms, exceptions, reservations, covenants,
conditions, and restrictions set out in said lease to the same extent as if the
coal and tract of land described in Article I hereof had been included in said
lease. In case any conflict shall arise between the provisions of this lease
and those of said lease, the provisions of this lease shall govern.
ARTICLE III - Special Provisions
1. It is mutually agreed that Amherst will mine said Cedar Grove seam in
said tract by means of entries and air-
- 3 -
courses now or hereafter existing in said seam on adjoining lands of D-R held by
Amherst under said lease and that the coal so mined will be taken to Amherst's
tipple or tipples on lands leased by D-R to Amherst under said lease for
processing; that Amherst shall not be obligated to pay any wheelage or
transportation or dumping charge on such coal; that D-R consents to the crossing
in said Cedar Grove seam of the boundary line between said tract and such
adjoining lands; that D-R waives the maintenance by Amherst in said seam of any
barrier pillar along either side of said boundary line; and that Amherst shall
not have the right under this lease to mine coal from any seam in said tract
other than the Cedar Grove seam.
2. A persistent parting of slate or bone in said Cedar Grove seam in said
tract is known to exist and said parting becomes thicker proceeding in a
northwesterly direction from the boundary line between said tract and adjacent
lands of D-R leased to Amherst under said lease toward the headwaters of Dingess
Run. D-R agrees that Amherst shall not be obligated to mine beyond the line at
which said parting measures as much as twelve inches (12 in.) in thickness into
areas where said parting exceeds twelve inches (12 in.) in thickness; but if
Amherst desires to mine beyond such line into areas where said parting is in
excess of twelve inches (12 in.), Amherst shall have the optional right to do so
subject to the advance written approval of D-R's Chief Engineer of its
projections covering its mining beyond said line, as more fully set out in said
lease. But nothing in this paragraph 2 shall require Amherst to mine coal from
said seam in said tract which is not mineable and marketable as defined in said
lease.
3. Amherst agrees to pay to D-R the same tonnage and percentage royalties
on and for each and every ton of coal mined by it from said Cedar Grove seam on
said tract as are provided
- 4 -
by Article VI of said lease to be paid by Amherst on and for coal mined from the
Eagle or No. 2 Gas seam; but the minimum annual rental provided in paragraph
numbered 4 of said Article VI shall remain unchanged because of anything
contained in this lease.
4. Taxes on said tract for 1968 (assessed as of July 1, 1967) and for
subsequent years during which this lease shall remain in effect shall be paid by
Amherst; provided that in the event other seam or seams of coal on said tract
shall be leased to a lessee other than Amherst and coal shall be produced from
such other seam or seams, then Amherst shall pay such portion of the taxes on
the lands common to this lease and such other lease for any year as the
production of coal by Amherst in tons during such year bears to the total
production of coal in tons from such common lands, such apportionment to be made
by D-R's Chief Engineer and certified to Amherst with the data on which it is
made.
5. D-R, its lessees, successors, and assigns shall have the right to
remove all or part of the coal from seams in said tract which lie above and/or
below said Cedar Grove seam without regard to the direct effect thereof on
Amherst's mining operations in said Cedar Grove seam and without liability for
any damage which may be caused by the extraction of coal from such other seam or
seams to Amherst's operations in said seam or to its machinery, equipment or
other property on, above, or below the surface of said tract. But if D-R, its
lessees, successors, or assigns, shall remove all or any part of the coal from
another seam or seams of coal in said tract and such removal causes coal in the
Cedar Grove seam in said tract which otherwise would have been mineable and
marketable no longer to be mineable and marketable, then Amherst shall not be
obligated to mine and remove such coal.
- 5 -
6. Amherst shall not have any right to use the surface of the said tract
except for the drilling and maintenance of vertical holes from the surface to
the Cedar Grove seam for carrying electric power lines from the surface to its
workings in said seam and for removing water from said seam, and except for the
maintenance on said surface of necessary electric transmission lines carrying
electric power to said holes or hole and telephone lines with poles and
transformers and of necessary pumps, pipes, water lines, and power lines or
engines serving such pumps, and except for ingress and egress to and from such
holes and other installations mentioned in this paragraph; and all such holes
and other equipment shall be located only at points having the prior written
approval of D-R's Chief Engineer in order to assure that such surface use by
Amherst will interfere as little as reasonably possible with other uses which D-
R might wish to make of such surface or of the seams of coal thereunder other
than the Cedar Grove seam, and when so located, D-R and its lessees shall not
thereafter make any use of the surface of said tract which will unreasonably
interfere with the use of said holes and other equipment by Amherst.
7. Amherst shall not have the right to cut or remove any timber growing
on the surface of said tract except as may be necessary in exercising the
surface rights mentioned in paragraph 6 of this Article III; and all timber so
cut by Amherst shall be sawed in usual lengths and placed by Amherst in piles at
points convenient for removal by D-R, to whom such timber, and the logs
therefrom, belong.
8. Amherst shall have the right, prior to the end of the term of said
lease, to surrender all of its rights under this lease with respect to said
tract and to said Cedar Grove seam of coal therein only when and after it has
mined and removed
- 6 -
all of the mineable and marketable coal from said seam (except such coal as
Amherst may be excused from mining by paragraphs 2 and 5 of this Article III)
and paid all royalties, taxes and other sums due or accrued to D-R with respect
thereto and has duly performed all of its other obligations hereunder, and
thereafter shall be relieved from paying taxes on said tract which have not been
assessed prior to such surrender and shall likewise thereafter be relieved of
all of its duties and obligations with respect to said tract and the said Cedar
Grove seam therein; provided, however, that within three months after such
surrender, but not thereafter, Amherst may remove from said tract and from the
Cedar Grove seam therein, all machinery, equipment and other property which it
may have brought on or installed on said tract or in said seam therein.
9. This lease is made expressly subject to the pipeline easement across
said tract held by Hope Natural Gas Company and to the rights and interests of
other persons outstanding on the date of this lease in persons claiming by,
through, or under D-R.
Witness the following signatures and seals of the parties hereto affixed by
their respective corporate officers thereunto duly authorized, in duplicate
originals, this the year and date above set out.
XXXXXXX-RUM COAL COMPANY
(Xxxxxxx-Rum) by /s/ Xxxxx X. Xxxxxxxx
----------------------------
(Corporate Seal) Its President
Attest:
/s/ Xxxxx X. Xxxxx III
---------------------------
Its Secretary
AMHERST COAL COMPANY
(Amherst) by /s/ Xxxxxxx X. Xxxxx, Xx.
----------------------------
(Corporate Seal) Its President
Attest:
/s/ [SIGNATURE APPEARS HERE]
---------------------------
Its Secretary
- 0-
XXXXX XX XXXXXXX
XXXXXX XX XXXX XXXXX, to-wit:
I, Xxxx X. Xxxxxxx, a Notary Public of said County of Palm Beach, do
certify that XXXXX X. XXXXXXXX, who as President signed the writing hereto
annexed bearing date the first day of January, 1968 for XXXXXXX-RUM COAL
COMPANY, a corporation, has this day in my said county, before me, acknowledged
the said writing to be the act and deed of said corporation.
Given under my hand and official notarial seal this 18 day of March,
1968
My commission expires June 5, 1971
(Notarial Seal)
/s/ Xxxx X. Xxxxxxx
------------------------------------
Notary Public for Xxxx Xxxxx Xxxxxx
Xxxxxxx
XXXXX XX XXXX XXXXXXXX,
XXXXXX OF KANAWHA, to-wit:
I, Xxxxxx Xxxxxxxx, a Notary Public of the said County of Kanawha, do
certify that XXXXXXX X. XXXXX, XX., who as President signed the writing hereto
annexed bearing date the first day of January, 1968 for AMHERST COAL COMPANY, a
corporation, has this day in my said county, before me, acknowledged the said
writing to be the act and deed of said corporation.
Given under my hand and official notarial seal this 12th day of March,
1968
My commission expires March 31, 1970
(Notarial Seal)
/s/ Xxxxxx Xxxxxxxx
----------------------------------
Notary Public for Kanawha County,
West Virginia
-8-
[MAP APPEARS HERE]
Map showing tract of land containing 527.78 acres on Rum Creek, Xxxxx County,
West Virginia, the Cedar Grove seam of coal in which is leased by Xxxxxxx-Rum
Coal Company to Amherst Coal Company.
Wm. R. Long, Chief Eng. December 7, 0000
XXXXX XX XXXX XXXXXXXX, XXXXXX OF XXXXX, TO-WIT:
IN THE OFFICE OF THE CLERK OF COUNTY COURT:
The foregoing paper was this the 1st day of April 1968, at 9:43 AM, presented to
me in my office, and thereupon, together with a certificate thereunto annexed is
admitted to record.
Recording Fee $ 4.25 Teste: Xxxxxxx Xxxxxx, Clerk
------------
1.00 (Map) By: /s/ Xxxx X. Xxxx, Deputy
------------ ------------------
$ 5.25 Pd.
This supplemental Deed of Lease and Agreement made this first day of June
1973 by and between Xxxxxxx-Rum Coal Company, a West Virginia corporation, party
or the first part, hereinafter called "D-R", and Amherst Coal Company, a West
Virginia corporation, party or the second part, hereinafter called "Amherst".
Reference is here made to that certain Deed of Lease and Agreement
(hereinafter referred to as "said lease") dated June 1, 1962 by and between D-R
as lessor and Amherst as lessee, which is of record in the office of the Clerk
of the County Court of Xxxxx County, West Virginia, in Deed Book 287, at page
404 et seq. whereby certain lands of D-R situate on the waters of Rum Creek and
Buffalo Creek in said Xxxxx County were leased to Amherst for coal mining
purposes for the time and on the provisions therein set out; and
Whereas, Amherst desires to add to the coal deposits leased by it under
said lease the Xxxxxxx seam of coal in a tract of 352.85 acres, more or less
(hereinafter called "said tract"), on said Rum Creek, binding on premises of D-R
leased to Amherst under said lease, and being part of D-R's lands known as its
Dehue premises; and D-R is willing to lease such coal on the terms and
conditions herein set out; and
Whereas, Amherst has conducted mining operations in said Xxxxxxx seam held
by it under said lease and desires to extend the same towards Guyandotte River
but is unable through old entries to reach the unmined reserves held under said
lease and desires to reach the same by entries driven from the outcrop near the
head of the Second Right Hand Fork of Rum Creek (hereinafter called "said Fork")
through the said seam on said tract, and to mine such unmined reserves along
with the Xxxxxxx seam coal in said tract,
SCHEDULE OF COAL LEASES
EXHIBIT 3
Now, Therefore, in consideration of the premises and of the mutual promises
herein contained and of the sum of One Hundred Dollars cash in hand paid by
Amherst to D-R, the receipt of which is hereby acknowledged by D-R,
THIS SUPPLEMENTAL DEED OF LEASE AND AGREEMENT WITNESSETH:
ARTICLE 1. Additional Property Lease
D-R does hereby demise, let and lease to Amherst, for the mining of the
Xxxxxxx seam of coal only, that certain tract of land situate on the waters of
Rum Creek, in said Xxxxx County, which is bounded and described as follows:
Beginning at a stake at the mouth of Buck Lick Hollow on the
Second Right Hand Fork of Rum Creek, Xxxxx County, West Virginia,
thence up said Second Right Hand Fork with the Amherst Coal
Company calls
66. S 83 degrees 00' E 740 feet
65. N 80 degrees 15' E 820 feet
64. N 68 degrees 10' E 785 feet
63. S 84 degrees 35' E 380 feet
62. S 60 degrees 00' E 200 feet
61. S 45 degrees 00' E 400 feet
60. S 24 degrees 30' E 400 feet
59. S 37 degrees 00' E 198 feet
58. S 3 degrees 40' E 345 feet
57. S 19 degrees 30' E 220 feet
56. S 15 degrees 00' E 130 feet
55. S 24 degrees 00' E 290 feet
54. S 7 degrees 15' E 280 feet
53. S 46 degrees 05' E 200 feet
52. Due East 180 feet
51. S 49 degrees 40' E 485 feet
50. N 88 degrees 50' E 80 feet
49. S 54 degrees 00' E 420 feet
48. S 25 degrees 15' E 645 feet to a point near the head of the
Second Right Hand Fork thence
leaving said Fork and angling up
the right side of mountain,
looking up the hollow
47A. S 39 57' W 2360 feet to a gap on the top of the ridge between
the Second Right Hand Fork and
Boardtree Run thence
47B. N 50 degrees 45' W 5037.32 feet up and over the Amherst Coal
Company old #39-A 5 Block mine
and down Buck Lick thence
47C. N 13 degrees 11' E 1770 feet down the hillside to the place
of beginning and containing
352.85 acres, more or less.
-2-
Said tract is shown on a map attached hereto and made a part hereof,
bearing the following legend:
"Map showing tract of land containing 352.85 acres on Second
Right Hand Fork of Rum Creek, Xxxxx County, West Virginia, the
Xxxxxxx seam of coal in which is leased by Xxxxxxx-Rum Coal
Company to Amherst Coal Company.
Scale - 1" - 1,0008 File A501-6CO
Date - May 18, 1973 Ser. No. 3055"
ARTICLE II. General Provisions of Said Lease Apply, Except as Noted
Subject to the special provisions set out in Article III hereof, this
Supplemental Lease and Agreement (hereinafter referred to as "this lease"), is
subject to all of the terms, exceptions, reservations, covenants, conditions and
restrictions set out in said lease to the same extent as if the Xxxxxxx seam of
coal in said tract, and said tract described in Article I hereof, had been
included in said lease. In case any conrlict shall arise between the provisions
of this lease and those of said lease, the provisions of this lease shall
govern.
ARTICLE III. Special Provisions
1. It is mutually agreed that Amherst will mine said Xxxxxxx seam of coal
in said tract by making entries and haulways from the outcrop or said Xxxxxxx
seam near the head of said Fork, to reach and mine the coal in said tract as
well as to reach and mine the coal in said seam in the premises included in said
lease (locally known as the XxXxxxxx premises), and the raw coal will be hauled
by truck down the Second Right Hand Fork of Rum Creek and thence up Rum Creek to
its Xxxxxx xxxxxx and cleaning plant; and, if Amherst can later activate and
re-establish the underground haulways in said seam in the XxXxxxxx premises it
may, at its option, use the same for ingress to and egress from the unmined coal
in said seam on the XxXxxxxx premises as well as in said seam on said tract. D-R
-3-
hereby consents to Amherst's extending its workings across the boundary line
between said premises and said tract and hereby waives the maintenance of a
barrier pillar on either side of said line, and agrees that Amherst shall not be
obligated to pay any wheelage or transportation or dumping charge on coal mined
from the Xxxxxxx seam in said premises or in said tract and taken to the Xxxxxx
xxxxxx either overland by truck or underground by belts or mine cars.
D-R also agrees that Amherst may establish and operate a haulage road down
said Second Right Hand Fork far hauling Xxxxxxx seam coal to the hard road along
Rum Creek subject to the approval of D-R's Chief Engineer as to location,
protection and maintenance thereof.
2. Amherst agrees to pay to D-R a tonnage royalty on each and every ton of
coal mined by it from said Xxxxxxx seam on said tract equal to four percent (4%)
of the selling price thereof (but in no event less than thirteen cents (13
cents) per ton). D-R and Amherst agree that except for the rate of percentage
royalty, all other provisions of Article VI of said lease relating to tonnage
and percentage royalties shall be applicable to the royalties payable under this
lease; and that the minimum annual rental provided in paragraph numbered 4 of
said Article VI shall remain unchanged because of anything contained in this
lease.
3. Taxes on said tract for 1974 (assessed as of July 1, 1973) and for
subsequent years during which this lease shall remain in effect shall be paid
by Amherst; provided that in the event other seam or seams or coal an said tract
shall be under lease to a lessee other than Amherst and coal shall be produced
from such other seam or seams in any calendar year, then Amherst shall pay such
portion of the taxes on the lands common to this lease and such
-4-
other lease or leases for such year as the production of coal by Amherst bears
to the total production of coal in tons from such common lands, such
apportionment to be made by D-R's Chief Engineer and certified to Amherst with
the date on which it is made; provided, that if The Youngstown Mines Corporation
or successor shall pay all of the property taxes assessed against said tract,
Amherst shall be excused from paying any tax thereon for such year.
4. D-R, its lessee, successors, end assigns shall have the right to
remove all or part of the coal from seams in said tract which lie above or below
said Xxxxxxx seam without regard to the direct effect thereof on Amherst's
mining operations in said Xxxxxxx seam and without liability for damage which
may be caused by the extraction of coal from such other seam or seams to
Amherst's operations in said seam or to its machinery, equipment, or other
property on, above, or below the surface of said tract. But if D-R, its lessees,
successors or assigns shall hereafter remove all or any part of the coal from
another seam or seams of coal in said tract and such removal causes coal in the
Xxxxxxx seam in said tract which otherwise would have been mineable and
marketable no longer to be mineable and marketable, then Amherst shall no longer
be obligated to mine and remove such coal.
5. Except as provided in paragraph 1 of this Article III with respect to
outcrop openings into the Xxxxxxx seam, and haulage roads down the said Fork,
Amherst shall not have the right to use the surface of said tract except for the
drilling and maintenance of vertical holes from the surface to the Xxxxxxx seam
for carrying electric power lines from the surface to its workings in said seam
and for removing water from said seam, and except for the maintenance on said
surface of necessary electric transmission lines carrying electric power to said
holes or hole and telephone
-5-
lines with pole and transformers and of necessary pumps, pipes, water lines, and
power lines or engines serving such pumps, and except for ingress and egress to
and from such holes and other installations mentioned in this paragraph's and
all such holes and other equipment shall be located only at points having the
prior written approval of D-R's Chief Engineer in order to assure that such
surface use by Amherst will interfere as little as reasonably possible with
other uses which D-R or its lessees might wish to make of such surface or of the
seams of coal thereunder other than the Xxxxxxx seam, and when so located, D-R
and its lessees shall not thereafter make any use of the surface of said tract
which will unreasonsbly interfere with the use of said holes and other equipment
by Amherst.
6. Amherst shall not have the right to cut or remove any timber growing on
the surface of said tract except as may be necessary in exercising the surface
rights mentioned in paragraphs 1 and 5 of this Article III; and all timber so
cut by Amherst shall be sawed in usual lengths and placed by Amherst in piles at
points convenient for removal by D-R, to whom such timber, and logs therefrom,
belong.
7. Amherst shall have the right, prior to the end of the term of said
lease, to surrender all of its rights under this lesse with respect to said
tract and to said Xxxxxxx Seam of coal therein only when and after it has mined
and removed all of the mineable and marketable coal from said seam (except such
coal as Amherst may be excused from mining by paragraphs 2 and 5 of this Article
III) and paid all royalties, taxes and other sums due or accrued to D-R with
respect thereto and has duly performed all of its other obligations hereunder,
and thereafter shall be relieved from paying taxes on said tract which have not
been assessed prior to such surrender and shall likewise thereafter be relieved
of all of its
-6-
duties and obligations with respect to said tract and the said Xxxxxxx seam
therein; provided, however, that within three months after such surrender, but
not thereafter, Amherst may remove from said tract and from the Xxxxxxx seam
therein, all machinery, equipment and other property which it my have brought on
or installed on said tract or in said seam therein.
8. This lease is made expressly subject to all rights and interests of
other xxxxxxx in said tract outstanding on the date of this lease claiming by,
through, or under D-R and to the right of D-R hereafter to make similar leases,
grants, and agreements with other persons in lieu of or in addition to those now
outstanding, to which this lease shall likewise be subject.
9. Witness the following signatures and seals of the parties hereto
affixed by their respective corporate officers, thereunto duly authorized, in
duplicate originals, this the year and date first above set out.
XXXXXXX-RUM COAL COMPANY
Attest:
by /s/ Xxxxx X. Xxxxxxxx
-------------------------
Its President
/s/ Xxxxx X. Xxxxx III
-------------------------
Secretary
AMHERST COAL COMPANY
Attest:
By /s/ H. E. Xxxxx, Xx.
-------------------------
/s/ [SIGNATURE APPEARS HERE] Its President
-----------------------------
Secretary
-7-
STATE OF WEST VIRGINIA
COUNTY OF XXXXXX, to-wit:
I, Xxxx X Xxxx, a Notary Public of said County of Xxxxxx, do certify
that Xxxxx X Xxxxxxxx who signed the writing hereto annexed bearing date the
first day of June l973 for XXXXXXX-RUM COAL COMPANY, a corporation, has this day
in my said county, before me, acknowledged the said writing to be the act and
deed of said corporation.
Given under my hand and official notarial seal this 19 day of November,
1973.
My commision expires June 6 1977.
/s/ Xxxx X. Xxxx
---------------------------
Notary Public
STATE OF WEST VIRGINIA
COUNTY OF KANAWHA, to-wit:
I, Xxxxx X. Xxxxxx, a Notary Public of said County of Kanawha, do certify
that H. E. Xxxxx. Jr., who signed the writing hereto annexed bearing date the
first day of June l973 for AMHERST COAL COMPANY, a corporation, has this day in
my said county, before me, acknowledged the said writing to be the act and deed
of said corporation.
Given under my hand and official notarial seal this 8th day of November,
1973.
My commission expires May 29, 1979.
/s/ Xxxxx X. Xxxxxx
---------------------------
Notary Public
-8-
[MAP APPEARS HERE]
MAP SHOWING TRACT OF LAND CONTAINING 352.85 AC. ON SECOND RIGHT HAND FORK OF RUM
CREEK, XXXXX COUNTY, WEST VIRGINIA, THE XXXXXXX SEAM OF COAL IN WHICH IS LEASED
BY XXXXXXX RUM COAL CO. TO AMHERST COAL CO.
Scale -1"=1,000 File A 501-600
Date 5-18-73 SER NO. 3055
This Supplemental Deed of Lease and Agreement made this first day of July,
1974, by and between XXXXXXX-RUM COAL COMPANY, a West Virginia corporation,
party of the first party, hereinafter called "D-R", and AMHERST COAL COMPANY, a
West Virginia corporation, party of the second part, hereinafter called
"Amherst".
Reference is here made to that certain deed of lease and agreement
(hereinafter referred to as "said lease",) dated June 1, 1962, by and between D-
R as lessor and Amherst as lessee, which is of record in the office of the Clerk
of the County Court of Xxxxx County, West Virginia in Deed Book 287, at page 404
et seq., whereby certain lands of D-R situate on the waters or Rum Creek and of
Buffalo Creek in said Xxxxx County were leased to Amherst for coal mining
purposes for the time and on the provisions therein set out, and to various
agreements supplementary to said lease; and
Whereas, Amherst has by deed dated June 18, 1974, made by Xxxxx X. Xxxxxxxx
and Xxxxxxxxx X. Xxxxxxxx, his wife, to Amherst, which is recorded in said
Clerk's office in Deed Book 361, at page 134, purchased the surface of a tract
of land containing about 5.4 acres located on said Rum Creek, the coal in which
is owned by D.R. and, with certain exceptions, is leased to Amherst under said
1ease; and
Whereas, Amherst desires to add to said lease the Upper Cedar Grove seam of
coal under an adjacent tract of 4.515 acres or land owned by D-R, the coal in
which is not included in said lease, in order to provide access through said
Upper Cedar Grove seam to the outside for its underground workings in said seam,
and has agreed to grant to D-R certain easements over the surface of said 5.4
acre tract.
Now, therefore, in consideration of the premises and of the mutual promises
and grants herein contained,
This Supplemental Deed of Lease and Agreement witnesseth:
ARTICLE I. Additional Property Leased by D-R to Amherst
D-R does hereby demise, let, and lease to Amherst the coal only in the
Upper Cedar Grove seam in that certain tract of land situate on said Rum Creek
which is bounded and described as follows:
Beginning at a rock corner on the north side of Rum Creek about 4050'
upstream from the mouth of the Second Right Hand Fork of Rum Creek, said
corner being a corner to the X. X. Xxxxxxxx 93.97 Acre tract;
Thence N. 60 degrees - 17' E, 585.36' to a point on the south side of
Rum Creek, said point also being a corner to the Paragon lease;
Thence with the Paragon lease S. 2 degrees - 40' E. 736.84' to a
point approximately 700' up in North Mud Lick Hollow;
Thence leaving said Paragon lease and down North Mud Lick Hollow with
a line common to the X. X. Xxxxxxxx 93.97 Acre tract and the Xxxxxxx lease
N. 50 degrees -39' W. 702.32' to the BEGINNING, containing 4.515 Acres.
Said tract outlined in yellow line is shown on a map attached hereto and
made a part hereof, bearing the following 1egend:
"Map showing in yellow lines tract of 4.515 acres of land
owned by Xxxxxxx-Rum Coal Company, the Upper Cedar Grove
seam in which is leased to Amherst Coal Company, and showing
in red lines a tract of 5.4 acres of surface land owned by
Amherst Coal Company over which certain easement are
conveyed by Amherst Coal Company to Xxxxxxx-Rum Coal
Company, being located on Rum Creek In Xxxxx County, West
Virginia.
Scale: 1" = 1000' Xxxxxxx X. Xxxx, Chief
July 1, 1974 Engineer, Xxxxxxx Rum Coal
Company, Stollings, W. Va."
Subject to the special provisions set out in Article III hereof, this
Supplemental Lease and Agreement is made subject to
- 2 -
all the terms, exceptions, reservations, covenants, conditions, and restrictions
set out in said lease (but only prospectively) to the same extent as if the
aforesaid area to Upper Cedar Grove seam of coal had been originally included in
said lease; it being agreed that in case any conflict shall arise between the
provisions of this Supplemental Deed of Lease and Agreement and those of said
lease, the provisions to this lease shall1 govern.
ARTICLE II. Outstanding Interests
The lease hereby made of said Upper Cedar Grove seam or coal in said tract
of 4.515 acres is subject to the rights of the public in the paved highway
running along Rum Creek, to the rights of the Chesapeake and Ohio Railway
Company in the branch railroad running along Rum Creek, and to all other
outstanding rights of others.
ARTICLE III. Easements Granted by Amherst to D-R
In further consideration of the aforesaid lease of the Upper Cedar Grove
seam in said tract of 4.515 acres, Amherst does hereby grant and convey to D-R,
its successors and assigns, easements for the laying, maintaining, and removal
of pipes to carry gas, water and other liquids, and wires carrying telephone,
telegraph, and electric power (with supporting po1es or towers) and for roads on
and across the aforesaid tract of 5.4 acres at such places as mutually agreed
to between the parties; it being understood that such easements shall not
materially interfere with Amherst's coal operations on the surface of the
aforesaid 5.4 acre tract, which tract is shown on said map in red lines,
reference being made to said deed of June 18, 1974, for a metes and bounds
description thereof. If, after the location of any such easement and the
construction or installation of facilities or improvements thereon, Amherst
determines that said easements or any part thereof materially interfere with its
prospective coal operations, D-R (or its successors and assigns) shall re-
- 4 -
move and relocate the same at its sole expense to such other 1ocation on said
tract as shall not materially interfere with such operations.
IN WITNESS WHEREOF the parties hereto have caused this Supplemental Deed of
Lease and Agreement to be signed by its corporate officials thereunto duly
authorized and their corporate seals to be attached, in duplicate originals, as
of the day and year first above mentioned.
XXXXXXX-RUM COAL COMPANY
by: /s/ Rolla. X. Xxxxxxxx
-------------------------------
President
[SEAL]
Attest:
/s/ Xxxxx X. Xxxxx III
------------------------
Secretary
AMHERST COAL COMPANY
ATTEST:
by /s/ H. E. Xxxxx Jr.
------------------------
President
/s/ [SIGNATURE APPEARS HERE]
------------------------------
Secretary
[SEAL]
- 4 -
STATE OF WEST VIRGINIA
COUNTY OF XXXXXX, to-wit:
I, Xxxx X Xxxx, a Notary Public of said County, do hereby certify that
Rolla. X. Xxxxxxxx, who signed the writing above, bearing date the first day of
July, 1974, for XXXXXXX-RUM COAL COMPANY, has this day in my said County, before
me, acknowledged the said writing to be the act and deed of said corporation.
Given under my hand and notarial seal this 18 day of November, 1974.
My commission expires June 6 1977.
/s/ Xxxx X. Xxxx
-----------------------
Notary Public
[SEAL]
STATE OF WEST VIRGINIA
COUNTY OF KANAWHA, to-wit:
I, Xxxxx X. Xxxxxx, a Notary Public of said County, do hereby certify
that H. E. Xxxxx Xx., who signed the writing above, bearing date the first day
of July, 1974, for AMHERST COAL COMPANY, has this day in my said County, before
me, acknowledged the said writing to be the act and deed of said corporation.
Given under my hand and notarial seal this 5th day of November, 1974.
My commission expires May 29, 1979.
/s/ Xxxxx X. Xxxxxx
------------------------
Notary Public
THIS DOCUMENT WAS
PREPARED BY XXXXX X.
XXXXXXXX, ATTORNEY AT
LAW
- 5 -
THIS LEASE EXCHANGE AGREEMENT, made this 2nd day of July, 1979,
between AMHERST COAL COMPANY, a West Virginia corporation, hereinafter referred
to as "Amherst", ELKAY MINING COMPANY, a West Virginia corporation, hereinafter
referred to as "Elkay", and XXXXXXX-RUM COAL COMPANY, a West Virginia
corporation hereinafter referred to as "Xxxxxxx-Rum".
WHEREAS, under and pursuant to the terms of that certain lease
agreement dated June 1, 1962, of record in the office of the Clerk of the County
Commission of Xxxxx County, West Virginia, in Deed Book No. 287, at page 404,
hereinafter referred to as the "Amherst Lease", Amherst is Lessee and Xxxxxxx-
Rum is Lessor of the coal in the Coalburg and Stockton seams and in any and all
seams of coal situated above said Coalburg and Stockton seams, in that certain
outcrop area A designated "Area 2" on that certain map of Elkay entitled "Map
Showing Data Pertaining To Proposed Lease Area Exchange Between The Elkay
Mining Company And Amherst Coal Company" dated 5-7-79, hereinafter referred to
as the "Elkay Map", a copy of which said map is attached hereto as a part of
this agreement, and
WHEREAS, under and pursuant to the terms of that certain supplemental
lease agreement dated September 17, 1977, of record in said Clerk's Office in
Deed Book No. 390, at page 656, and all other lease agreements referred to
therein, hereinafter referred to as the "Amended Xxxx Lease", Elkay is Lessee
and Xxxxxxx-Rum is Lessor of the coal in the Coalburg and Stockton seams and in
any and all seams situated above said Coalburg and Stockton seams in those
certain outcrop areas A and B designated "Area 1" on the aforementioned Elkay
map, and
WHEREAS, said Area 1 and Area 2 are located on the division line
between said Amherst Lease and said amended Xxxx Lease, and
WHEREAS, Amherst and Elkay have determined that it would be to the
best interest of all parties hereto that Amherst and Elkay exchange said Areas 1
and 2, and Xxxxxxx-Rum has agreed to consent to such exchange.
NOW, THEREFORE, THIS AGREEMENT WITNESSETH: That for and in
consideration of the premises and the rights, benefits and obligations of the
parties hereto, the receipt and sufficiency of all of which is hereby
acknowledged, the parties hereto agree, subject to the terms and provisions
hereof as follows:
1. Elkay and Xxxxxxx-Rum agree that the coal in the Coalburg and
Stockton seams and in any and all seams of coal located at an elevation above
same, in the aforementioned outcrop Area A and B of Area 1 is hereby deleted
from the aforementioned amended Xxxx Lease, and that all coal within said seams
of coal in the aforementioned outcrop area A in said Area 2 is hereby included
in and as a part of said amended Xxxx Lease, all as of the date of this
agreement to the same extent and effect as if said Area 1 had never been
included in said amended Xxxx Lease and as if said Area 2 had at all times been
included in as a part of said amended Xxxx Lease; and that said amended Xxxx
Lease shall otherwise remain in full force and effect and, as so amended, is
hereby in all respects approved, ratified and confirmed.
2. Amherst and Xxxxxxx-Rum agree that the coal in the Coalburg and
Stockton seams and in any and all seams of coal located at an elevation above
same in said outcrop Area A of said Area 2 is hereby deleted from said Amherst
Lease and that all coal within said seams in said outcrop Areas A and B of said
Area 1 is hereby included in and as a part of said Amherst Lease, all as of the
date of this agreement, to the same extent
- 2 -
and effect as if said Area 2 had never been included in said Amherst Lease and
as if said Area 1 had at all times been included in and as a part of said
Amherst Lease; and that said Amherst Lease shall otherwise remain in full force
and effect, and, as so amended, is hereby approved, ratified and confirmed.
IN WITNESS WHEREOF, said parties have hereunto caused their respective
corporate names to be signed hereto and their respective corporate seals to be
hereunto affixed by their respective officers duly authorized so to do all as of
the date first hereinbefore written.
AMHERST COAL COMPANY,
a corporation as aforesaid
BY: /s/ H. E. Xxxxx Jr.
------------------------------------
Its: President
----------------------------------
ELKAY MINING COMPANY,
a corporation as aforesaid
BY: /s/ [SIGNATURE APPEARS HERE]
-----------------------------------
Its: Vice President
---------------------------------
XXXXXXX-RUM COAL COMPANY
a corporation as a foresaid
BY: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Its: President
---------------------------------
[SEAL]
- 3 -
STATE OF WEST VIRGINIA,
COUNTY OF KANAWHA, TO-WIT:
I, Xxxxx X. Xxxxxx, a Notary Public in and for the county and state
aforesaid do hereby certify that H. E. Xxxxx, Xx. who signed the writing hereto
annexed, bearing date the 2nd day of July, 1979, for AMHERST COAL COMPANY, a
corporation, has this day before me in my said county and state acknowledged the
said writing to be the act and deed of said corporation.
Given under my hand this 19th day of July, 1979.
My commission expires May 3, 1989.
/s/ Xxxxx X. Xxxxxx
--------------------------
Notary Public
STATE OF VIRGINIA,
COUNTY OF XXXXXXX, TO-WIT:
I, Xxxxx X. Xxxxxx, a Notary Public in and for the county and state
aforesaid do hereby certify that [NAME APPEARS HERE] who signed the writing
hereto annexed, bearing date the 2nd day of July, 1979, for ELKAY MINING
COMPANY, a corporation, has this day before me in my said county, and state
acknowledged the said writing to be the act and deed of said corporation.
Given under my hand and NOTARIAL SEAL this 2nd day of July, 1979.
My commission expires Sept. 22, 1980.
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
- 4 -
STATE OF WEST VIRGINIA,
COUNTY OF XXXXXX, TO-WIT:
I, Xxxx X. Xxxx, a Notary Public in and for the county and state aforesaid,
do hereby certify that Xxxxx X. Xxxxxxxx, who signed the writing hereto annexed
bearing date the 2nd day of July, 1979, for XXXXXXX RUM COAL COMPANY, a
corporation, has this day before me in my said county and state acknowledged the
said writing to be the act and deed of said corporation.
Given under my hand this 20th day of July, 1979.
My commission expires June 6, 1987.
/s/ Xxxx X. Xxxx
-------------------------------
Notary Public
This instrument prepared by:
XXXX X. XXXXXXXXX, Xxxxxxxx
Xxx 000
Xxxxx, Xxxx Xxxxxxxx 00000
CML 0000 XXX XXX XXX
000000 XXX (XXX0)
AMENDMENT OF LEASE
------------------
THIS AMENDMENT OF LEASE, effective as of the 1st day of January, 1984,
("Effective Date") and executed on the dates hereinafter set forth is by and
between XXXXXXX-RUM COAL COMPANY, a West Virginia corporation, whose address is
Post Xxxxxx Xxx 000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000, hereinafter called
"Lessor", and AMHERST COAL COMPANY, a West Virginia corporatiqn, whose address
is Xxxxxxx, Xxxx Xxxxxxxx 00000, hereinafter called "Lessee."
WHEREAS, by an instrument entitled "Deed of Lease and Agreement" dated the
1st day of June, 1962, Lessor and Lessee merged, consolidated and extended what
was therein described as the "XxXxxxxx Lease" and the "Rum Creek Lease", as each
had theretofore been supplemented and amended, and the leasehold estates
existing thereunder, which instrument was supplemented by an instrument entitled
"Supplemental Deed of Lease and Agreement" dated January 1, 1968, between the
same parties, and was further supplemented by an instrument entitled
"Supplemental Deed of Lease and Agreement" dated the 1st day of June, 1973,
between the same parties, and as supplemented will be hereinafter referred to as
the "Amherst Lease."
WITNESSETH:
-----------
NOW, THEREFORE, for and in consideration of the premises herein and of the
covenants, terms and conditions of the Amherst Lease to be kept and performed by
the Lessee and Lessor, the parties hereto do hereby supplement and amend the
Amherst Lease as follows:
1. Article II of the Amherst Lease, entitled "Property" is hereby amended
by striking the first full paragraph appearing on page 27 and continuing on page
28 in its entirety and substituting therefor the following paragraph:
"The Lessee shall have the right during the term of this lease to take and
use only for mining and incidental operations on the leased premises such timber
except poplar and black walnut measuring thirteen inches and under in diameter
over the bark two feet from the ground on the upper side of the tree at the time
of cutting. Lessee shall not have the right to sell any such timber or products
thereof. Lessor reserves the right to take or destroy all timber on the demised
premises, as may be reasonably incidental to the conduct of its timber
operations or the exercise of any of its other reserved rights, and will give
reasonable advance notice to Lessee of any such proposed taking or destruction
by Lessor or by any person claiming under Lessor. The Lessee shall not be held
accountable for any damage to any timber, including poplar and black walnut, on
the leased premises which is occasioned by Lessee's mining operations and other
activities in connection therewith on the leased premises or on other properties
or lands operated in connection therewith,
1
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
including the construction of roads, valley fills, drainage facilities,
trainways, power lines, pipe lines, and any and all other facilities of the
Lessee used or useful in connection with its mining and incidental operations on
the leased premises or on other properties or lands operated in connection
therewith or for any damage to any such timber by reason of the location of or
combustion of any refuse piles or dumps if the notice hereinafter reguired is
given to Lessor and such operations and activities are conducted in accordance
with good mining practices. At any time when the Lessee is about to conduct any
mining operation (surface or deep), construction, or build any structure or
facility which will necessitate the cutting of timber, Lessee will give to the
Lessor at least six (6) months written notice of major areas where the timber
thereon must be removed. If Lessor fails to remove the timber from such areas
within six (6) months after such notice is given, the Lessee shall thereafter
have the right to cut and burn or remove such timber without being obligated to
pay for it. Lessee is under no obligation to provide roadways or other
facilities by which the Lessor may recover any such logs, though the Lessor may
use the Lessee's roadways therefor. Lessor's use of Lessee's roadways shall not
unreasonably interfere with the Lessee's use thereof. The Lessor desires, by
following good forestry practices, to develop the property as a timber property
insofar as such may be done without unreasonably limiting or interfering with
any of the rights of the Lessee hereunder. Lessee is in sympathy with the
Lessor's such desire and, to the end of promoting the attainment of the Lessor's
desire, the Lessee will cooperate with the Lessor by avoiding injury, as far as
is reasonably practicable, to the Lessor's timber interests in the Lessee:s
exercise of its rights hereunder. This statement of the Lessee's willingness
to cooperate with the Lessor is a statement of intent only and is not to be
taken as any limitation or restriction on the Lessee's rights to conduct mining
operations (surface or deep) or to take timber hereunder."
2. Article III of the Amherst Lease, entitled "Term" appearing on page
29, is hereby amended by adding to the end of the first paragraph thereof the
words, "..., but such termination shall not relieve Lessee of its obligations
arising as a result of its operations hereunder."
Furthermore, said Article III is hereby amended by striking the words
"...to arbitration..." appearing in the fifth line of the third full paragraph
thereof on page 29 of the Amherst Lease and substituting therefor the words
"... for resolution..."
3. Article IV of the Amherst Lease, entitled "Rights and Privileges of
Lessee" appearing on page 30, is hereby amended by striking the first paragraph
thereof in its entirety and substituting therefor the following paragraph:
"The Lessor, for the duration of this lease, demises and lets unto the
Lessee all such mining rights and privileges in the leased premises as are
vested in or
2
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
exercisable by the Lessor and which it has the lawful right to demise and
let to the Lessee, and, subject to the foregoing and the limitations in
this lease set forth (including those applicable to the Eagle or No. 2 Gas
seam area surrendered as aforesaid), the Lessee shall have the superior
right to use free of charge so much of the surface of the leased premises
(subject to the provisions of Article V, Section 2 and Article VI, Section
6 hereof), the stone, the sand and water therein and thereon as may be
necessary or convenient in the exercise of the mining rights herein demised
in connection with the Lessee's operations on the leased premises and on
other properties or lands operated in connection therewith (in this lease
such other properties or lands shall include lands in Xxxxx and Wyoming
Counties, West Virginia which the Lessee now owns, leases or controls, or
which the Lessee may hereafter own, lease or control through purchase,
lease or otherwise) and without limiting the generality of the foregoing:"
4. Section 5 of said Article IV, is hereby amended by striking the words
"...to arbitration..." appearing in the last line of the first paragraph of
said section on page 32 of the Amherst Lease and substituting therefor the words
"...for resolution..."
5. Section 6 of said Article IV, is hereby amended by striking from the
first paragraph of said section the following language appearing on page 33 of
the Amherst Lease:
"...and not otherwise (except that any tipple or cleaning plant on the
leased premises may be used and the incidental rights herein provided may
be had and exercised on a temporary basis for the processing and loading of
coal ordinarily processed and loaded at any plant of the Lessee elsewhere
maintained and operated by the Lessee in the event of any emergency
relating to such other plant of the Lessee) ..."
Furthermore, Section 6 of said Article IV is hereby amended by striking the
second paragraph appearing on pages 34 and 35 of said section in its entirety
and substituting therefor the following paragraph:
"The Lessee shall have the right to move coal from places where mined
on the leased premises over other lands en route to Lessee's tipples and
preparation plants, but no wheelage and processing charges shall be made by
Lessor for any such coal mined on Xxxxxxx-Rum lands by reason of the fact
that following a circuitous route from the place of mining to the place of
processing and/or loading said coal shall have moved over lands other than
those of the Lessor.
6. Section 7 of said Article IV, appearing on page 35, is hereby amended
by striking said section in its entirety and substituting therefor the following
Section 7:
3
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
"7. The exercise and use of the rights and privileges granted to the
Lessee by this Article IV shall not be restricted to exercise and use by
the Lessee only in connection with the Lessee's mining and incidental
operations on the leased premises, but (subject to the provisions of this
lease) shall extend to the exercise and use by the Lessee in connection
with Lessee's mining operations on other lands operated by Lessee in
connection therewith and without charge to the Lessee by the Lessor, except
as may be provided in this lease."
7. Section 8 of said Article IV, appearing on page 35, is hereby amended
by striking from said section beginning on line two thereof the following
language:
"... except upon a temporary basis in cases of emergency as herein
provided,..."
8. Section 8 of said Article IV is hereby further amended by striking from
said section the words "...resolved by arbitration..." appearing in lines 10
and 11 on page 35 of the Amherst Lease and substituting therefor the words
"...submitted for resolution... "
9. There is hereby added to the Amherst Lease a Section 9 to Article IV as
follows:
"9. Lessee shall have the full and unrestricted right as necessary and
convenient for its coal mining operations on the leased premises and other
properties operated in connection therewith to enter upon and use the
surface of the leased premises to construct and operate drains, drainways,
valley fills, silt ponds and to store and place overburden thereon. Any
such proposed use of the surface of the leased premises shall become part
of Lessee's mining plans, subject to the provisions of Section 2 of
Article V of this lease. In disposing of any such refuse or overburden on
the leased premises as permitted in this Article IV, Lessee shall comply
with all laws, rules and regulations promulgated by any governmental
authority, State or Federal, and shall indemnify Lessor from all claims of
any third party for damages resulting therefrom and shall, during the term
of this lease and at all times thereafter, be fully and completely
responsible for the alteration, modification and/or removal of such
deposits which shall be required by any governmental agency, including but
not limited to, the elimination of any fires, drainage or ecological
problems or other environmental hazards."
10. The first paragraph of Section 1 of Article V, entitled "Methods,
Development and Work, and Recovery of Coal" appearing on page 36 of the Amherst
Lease is hereby stricken in its entirety and there is substituted in lieu
thereof the following paragraph:
4
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
"It is recognized that mining operations have heretofore been
conducted on the leased premises by Lessee and its predecessor lessees and
that Lessee has fully accounted to the Lessor for all such coal mined,
lost, or abandoned prior to January 1, 1984, (the Effective Date of the
Amendment of Lease), except for the coal in Lessee's Paragon Mine about
which the parties acknowledge that there is a dispute between them
regarding Lessee's obligation to mine the coal remaining therein."
11. Said Section 1 of Article V is hereby further amended by striking in
their entirety the third and fourth paragraphs thereof appearing on page 39 and
substituting the following paragraphs:
"The Lessee covenants that it will diligently conduct and develop its
mining operations so as to mine all of the mineable and marketable coal
from the leased premises during the term hereof as is practicable
considering Lessee's overall mining plans for the leased premises and other
properties operated in connection therewith. Lessee shall conduct all of
its mining operations hereunder in a careful, skillful and workmanlike
manner according to the rules and practices of good mining and with due
regard to the value of the leased premises as a coal property. Lessee in
conducting its coal mining operations on the leased premises shall comply
with the present and any future laws and regulations of the United States,
the State of West Virginia and its political subdivisions. Lessee shall
have the right to contest the validity and enforceability of such laws and
regulations and any alleged violation thereof without violating the
provisions of this lease or forfeiting any rights or privileges it may have
hereunder.
With regard to coal mined from the leased premises or other lands
operated in connection therewith, Lessee shall have the right to size,
process, clean, ship and/or load such coal from points (including points
other than on Lessor's property) as Lessee in its sole discretion shall
determine as necessary or convenient consistent with its mining plans and
marketing opportunities.
Consistent with its mining plans and marketing opportunities, the Lessee
covenants that it will employ and maintain in good order and repair such
plants, tipples, loading facilities, machinery and equipment in conjunction
with its operations on the leased premises and on other lands operated in
connection therewith to allow for the proper and full development of the
leased premises so as to enable the Lessee to comply with and perform its
obligations under this lease. Subject to its obligations set forth in this
lease, Lessee may make such replacements, renewals and additions as Lessee may
determine and Lessee may, during the term of this lease, erect, place,
dismantle or remove any
5
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
such plant and equipment on the leased premises or on its other properties
operated in connection therewith.
The parties hereto recognize that Lessee may, from time to time, during the term
of this lease be mining on the leased premises or on other lands operated in
connection therewith and there may be times when the Lessee may not be mining on
the leased premises. Lessee shall have the right to plan its mining operations
on the leased premises and on other lands operated in connection therewith in
such manner as may seem most practical and economical to it consistent with its
mining obligations hereunder. Lessee shall determine the order in which it will
mine seams of coal on the leased premises and the methods by which such coal
will be mined. The parties hereto realize that it is in the best interests of
both to obtain from the leased premises the greatest recovery of coal that is
consistent with good mining practices and the market opportunities for such
coal, and that in order to do so the leased premises should be mined so as not
to unreasonably damage or unreasonably make unmineable any seam or part thereof.
Accordingly, Lessee covenants and agrees to develop the leased premises and the
seams thereunder in such a manner as will produce the highest practicable
recovery of coal consistent with economic mining practices and the market for
such coal and that each seam underlying the leased premises will be mined and
operated so as to avoid all unnecessary or unreasonable damage to other seams of
coal thereunder. Lessee shall have the sole discretion to determine from time
to time the timing of operations hereunder in the mining and selling of coal
from Lessee's coal mining operations on the leased premises and other properties
operated in connection therewith. Nothing contained herein however shall permit
the Lessee to discriminate against the leased premises in the mining and selling
of coal from the leased premises and other properties operated in connection
therewith. Lessee shall give appropriate consideration to the kinds and
qualities of coal available on the leased premises as compared with kinds and
qualities of coal on Lessee's other properties operated in connection therewith
and the Lessee's economic, mining and marketing plans. The minimum annual
royalties provided in Article VI hereof shall compensate the Lessor for the
periods during which no mining is being conducted by the Lessee on the leased
premises, provided Lessee is otherwise in compliance with its mining obligations
hereunder."
12. Section 1 of Article V, is hereby further amended by striking in its
entirety the second full paragraph appearing on page 40 of the Amherst Lease.
13. Section 2 of said Article V is hereby amended by striking the second
paragraph thereof appearing on page 41 in its entirety and substituting therefor
the following paragraph:
6
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
"No material change in, modification of, or departure from any plans
so approved, shall be made in the development or operation of any mine
(other than changes required in the event of an emergency, of which Lessee
shall immediately notify Lessor) except as requested in writing by the
Lessee and agreed to and approved in writing by the Lessor, such request to
be accompanied by plans illustrating such change, modification, or
departure and a statement of the reasons therefor. If the Lessor shall not
approve or disapprove any plan, change, or modification within fifteen (15)
days after the submission of same shall have been made to an officer or
engineer of Lessor in person or by mailing to the Lessor at its United
States Post Office address provided for by Article XVIII hereof, the Lessee
may again request approval by sending a telegram to Lessor at its said
office address, and which telegram need only call attention to the original
request, and if, after the expiration of five (5) days following the date
on which such telegram is sent, the Lessor shall not have disapproved the
request and shall not have given notice of such disapproval to the Lessee,
then such plan, change, or modification shall be deemed approved by the
Lessor. The Lessor shall not unreasonably withhold approval of any such
plan, change, or modification. The approval of Lessee's mining plans shall
not impose on Lessor any liability with respect to Lessee's operations
pursuant thereto."
14. Section 3 of said Article V is hereby amended by adding after the
first sentence of the first paragraph appearing on page 42 of the Amherst Lease,
the following language:
"Lessor shall give Lessee reasonable notice of its intent to make such
inspection, examination, survey or measurements of the leased premises.
Lessee shall have the opportunity to have its agent or engineer accompany
Lessor's representatives. Lessor shall assume all responsibilities for any
injury, to any of its agents, engineers, or other persons in its behalf who
may enter the mines or works of Lessee, or otherwise as a result of its
rights under this paragraph, unless such injury is caused by the negligence
of Lessee."
15. Section 3 of said Article V is hereby further amended by striking
from said section the words "...to arbitration..." appearing on lines 11
and 12 on page 43 of the Amherst Lease and substituting therefor the words
"...for resolution..."
16. Section 4 of said Article V is hereby amended as follows:
i) by striking from said section the words "...the arbitrators
determine..." appearing in lines 15 and 16 on page 44 of the Amherst Lease
and substituting therefor the words "...as may be determined as provided in
Article XVI hereof... ";
7
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121884 RWC (MSC1)
ii) by striking from said section the words "...to arbitration..."
appearing in line 21 of the first full paragraph on page 45 of the Amherst
Lease and substituting therefor the words "...for resolution..."; and
iii) by striking from said section the words "...or which a board of
arbitration determines... appearing in line 3 of the first full paragraph
on page 47 of the Amherst Lease and substituting therefor the words "...or
which is determined pursuant to Article XVI hereof..."
17. Section 5 of said Article V is hereby amended as follows:
i) by striking from said section the words "...to arbitration..." appearing
in line 20 on page 48 of the Amherst Lease and substituting therefor the
words "...for resolution...";
ii) by striking from said section the words "...in the event of arbitration
to the extent determined thereby..." appearing in lines 22 and 23 on page
48 of the Amherst Lease and substituting therefor the words "...as may be
determined as provided in Article XVI hereof..."; and
iii) by striking from said section the words "...determined by
arbitration..." appearing in line 27 on page 48 of the Amherst Lease and
substituting therefor the words "...as may be determined as provided in
Article XVI hereof...".
18. Section 8 of said Article V is hereby amended as follows:
i) by striking from said section the words "to arbitration... appearing
in line 13 on page 52 of the Amherst Lease and substituting therefor the
words "...for resolution as provided in Article XVI hereof ...";
ii) by striking from said section the words "...the arbitrators decide such
issue..." appearing in lines 20 and 21 on page 52 of the Amherst Lease and
substituting therefor the words "...such issue is resolved as provided in
Article XVI hereof...";
iii) by striking from said section the words "...the arbitrators decide
such issue..." appearing in lines 23 and 24 on page 52 of the Amherst Lease
and substituting therefor the words "...such issue is resolved as provided
in Article XVI hereof... ";
iv) by striking from said section the words "...of arbitrators..."
appearing in line 1 on page 53 of the Amherst Lease and substituting
therefor the words "...rendered pursuant to Article XVI hereof, ...";
and
8
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121884 RWC (MSC1)
v) by striking from said section lines 9 through 19 appearing on page 55 of
the Amherst Lease and substituting therefor the following language:
"...thereof, then the party causing the core drilling to be done may
submit for resolution as provided in Article XVI hereof the issue of
the responsibility of the other party for one-half of the expenses
thereof, and for so much of said core drilling as may be decided
pursuant to such resolution process to have been reasonably necessary
to obtain such information, the other party shall reimburse the party
causing the drilling to be done one-half of the cost thereof; or the
party desiring core drilling or further core drilling, as the case may
be, may submit for resolution as provided in Article XVI hereof the
need therefor, and such core drilling or further core drilling as may
be decided pursuant to such resolution process to be proper to be done
to obtain such information, shall be done at the joint and equal
expense of the parties."
19. Section 10 of said Article V appearing on page 55 of the Amherst Lease
is hereby amended by striking said section in its entirety and substituting
therefor the following Section 10:
"10. If the Lessor and the Lessee disagree with respect to any matter
arising under this Article V hereof, whether or not a resolution process is
specifically mentioned in connection therewith, the disagreement between
the Lessor and the Lessee shall be submitted for resolution in the manner
and with the effect provided for by Article XVI hereof."
20. Section 1 of Article VI, entitled "Rental, Royalties, and Wheelage and
Processing Payments" appearing on pages 56, 57, and 58 of the Amherst Lease is
hereby stricken in its entirety and there is substituted in lieu thereof the
following Section 1:
"1. From and after the Effective Date of the Amendment of Lease,
Lessee covenants and agrees to pay to Lessor, without demand, for each ton
of 2,000 pounds of coal mined and sold hereunder from the leased premises,
a tonnage royalty in an amount equal to,
i) the greater of three and one-half percent (3 1/2%) of the average
selling price of such coal or $1.25 per ton of such coal;
ii) commencing January 1, 1985, the greater of four percent (4%) of the
average selling price of such coal or $1.25 per ton of such coal;
iii) commencing January 1, 1990, the greater of five percent (5%) of the
average selling price of such coal or $1.25 per ton of such coal; and
9
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
iv) commencing January 1, 2000 and thereafter, the greater of six percent
(6%) of the average selling price of such coal or $1.25 per ton of such
coal, so long as this lease remains in effect.
The sum of $1.25 per ton minimum tonnage royalty shall not be adjusted during
-------
the term of this lease. The sum of $1.25 regarding minimum annual royalties
------
shall be adjusted as provided in Section 4 of Article VI hereof.
All tonnage royalty shall be based on the actual weight of such coal as
shipped and sold. In the event such coal is sized, processed and/or cleaned for
market, then the actual weight of such coal shall be the weight of such coal
after sizing, processing and/or cleaning for market by Lessee. Such weight is to
be determined by any reasonably accurate method by a system selected by the
Lessee, subject to inspection by Lessor. Lessee is not obligated or required to
size, process and/or clean such coal. Coal sold which is shipped by rail or
water transportation shall be paid for by Lessee on the basis of railroad or
barge weights as the case may be. The weight of coal sold which is shipped by
truck or conveyor or by other than rail or water transportation, or used by
Lessee for its own purposes, shall be determined in a manner commonly used in
the coal mining industry.
The term "average selling price" shall be the actual dollar amount charged
by the Lessee for such coal f.o.b. Lessee's loading points without deduction for
selling expense or agents', brokers', or middlemen's commissions or discounts,
or other deductions of any kind, but reduced by a sum determined by multiplying
the applicable percentage tonnage royalty rate by a fraction, the numerator of
which shall be the price per ton charged by Lessee as provided above and the
denominator shall be one (1) plus the applicable percentage tonnage royalty
rate. For example, assume a tonnage royalty rate of 5% and a price per ton
charged by Lessee of $35.00, the average selling price would be $33.33 derived
as follows:
$35.00-[0.05[$35.00 divided by (1.00 + 0.05)]] = $33.33
Furthermore, it is specifically understood and agreed, however, that upon any
sale by Lessee to a domestic non-user of coal, which domestic non-user does not
break bulk or take physical delivery of the coal, the average selling price of
such coal shall be increased by an amount equal to five percent (5%) of such
average selling price, provided, however, such increase shall not apply to any
coal sold by Lessee for export beyond the continental limits of the United
States of America.
In case any of the coal mined from the leased premises shall be sold by
Lessee at other than arms-length, the average selling price shall be calculated
as provided above on the price actually charged by other operator's in arms-
length transactions in the area of the leased premises producing and selling
coal of similar
10
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121884 RWC (MSC1)
quality and quantities under similar circumstances, as determined from the most
accurate and reliable information available.
The average selling price per ton for coal mined from the leased premises
which is consumed on or off the leased premises by the Lessee in any calendar
month shall be the average price per ton of all coal mined from the leased
premises and sold during such calendar month calculated by dividing the total
dollar sales for all coal sold from the leased premises during such calendar
month by the total number of tons of such coal sold during that calendar month,
but reduced by a sum as determined above.
The existence of a dispute as to any amount of tonnage royalty due Lessor
shall not relieve Lessee from paying when due the amount not in dispute, and the
receipt of such amount shall not be treated as a waiver by Lessor of any of its
claims with respect to any amounts in dispute.
If, pursuant to any provisions of this lease, Lessee is required to pay
Lessor for any coal not mined by Lessee, payment shall be made upon the basis of
the tonnage royalty rate applicable during the calendar month the obligation to
pay for such unmined coal arises applied against the weighted average of the
average selling price in effect for such month. Such average selling price shall
be based on the average selling price of coal mined and sold from the leased
premises. If coal is not being mined and sold, such average selling price shall
be based on coal being sold by other operators, as provided above."
21. Section 2 of said Article VI is hereby stricken in its entirety and
there is substituted in lieu thereof the following Section 2:
"2. Lessee shall submit payment to Lessor on or before the 25th day
of the month, for tonnage royalties and wheelage and processing charges
which accrued during the preceding calendar month. At the time of such
payment, Lessee shall provide to Lessor a written statement showing for
such month the following information:
a) the quantity and average selling price of the coal sold which had
been produced from the leased premises;
b) the amount of tonnage royalty accrued;
c) the amount of minimum annual royalties paid but not yet recouped;
d) the amount of penalty payments recouped;
e) the amount of tonnage royalty payable;
f) the number of tons of coal brought onto the leased premises
subject to a wheelage and processing charge;
11
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
g) the amount of wheelage and processing charges payable;
h) the number of tons of coal mined from the leased premises which
were consumed by the Lessee and the average selling price of such
consumed coal;
i) identification of the mine and coal seam from which coal is
produced on the leased premises;
j) tons of coal produced from the leased premises;
k) tonnage royalty rate applicable;
l) applicable tonnage royalties per ton;
m) a summary of coal produced from the leased premises categorized by
tract identification numbers from tax maps to be supplied by Lessor;
and
n) a list of railroad weights and car numbers applicable to coal
produced from the leased premises.
Lessee shall keep accurate and correct books and records of such information for
no less than five (5) years. Upon reasonable notice the Lessor shall, at
reasonable times, have access to such books and records for the purpose of
copying and verifying the statements rendered by Lessee to the Lessor under this
provision.
22. Section 3 of said Article VI, is hereby amended by striking said
section in its entirety and substituting therefor the following Section 3:
"3. In the process of cleaning, preparing, loading, shipping and
marketing coal mined from the leased premises, the Lessee shall have the
right to mix and commingle coal mined from the leased premises with coal
not mined from the leased premises, but in order that the coal mined from
the leased premises may be properly accounted for and the tonnage royalty
thereon properly paid to the Lessor, the Lessee shall adopt and follow a
plan for that purpose which is generally accepted and followed by the coal
mining industry in like or similar situations which plan shall be approved
in writing by Lessor's chief engineer, which approval shall not be
unreasonably withheld. For the purpose of computing tonnage royalty based
on the average selling price, the price per ton of coal sold hereunder and
commingled with coal sold from other properties shall be the average
selling price (as determined above) per ton of the commingled coal. If
either party hereto has reason to believe that the price per ton of
commingled coal which contains coal from the leased premises is sold at a
price significantly greater or less than the true fair market value of the
coal from the leased premises which is
12
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
commingled, the party having such belief may request the other party to
confer with it in good faith in an effort to determine whether or not the
tonnage royalty paid on the coal from the leased premises which was
commingled was significantly different from the tonnage royalty which would
have been paid on the coal from the leased premises commingled had such
coal sold at what such party believed to be its true fair market value,
viewed in light of the method used to determine such tonnage royalty and
Lessee's market opportunities. If the parties hereto determine
appropriate, based upon the review described above, an adjustment in the
tonnage royalty paid shall be made."
23. The first paragraph of Section 4 of said Article VI, appearing on page
59 of the Amherst Lease, is hereby stricken in its entirety and there is
substituted in lieu thereof the following language:
"4. Lessee shall pay to Lessor a minimum annual royalty (or rental)
until such time as such minimum annual royalty shall cease as is
hereinafter provided, as follows:
i) For each of the calendar years 1984 and 1985, a sum equal to the
product of $1.25 per ton multiplied by 320,000 tons.
ii) For the calendar year 1986 and each calendar year thereafter, a sum
equal to the product of $1.25 per ton (as such sum of $1.25 per ton may be
increased or decreased as provided below) multiplied by 400,000 tons.
Beginning with the calendar year 1987 and for each calendar year
thereafter during the term of this lease for the purpose of computing
minimum annual royalty, said amount of $1.25 shall be increased or
decreased to an amount equal to $1.25 multiplied by a fraction, the
numerator of which shall be the "Consumer Price Index, All Urban Consumers,
1967=100", compiled by the Bureau of Labor Statistics, as of December 31 of
the preceding year and the denominator of which shall be the CPI-U as of
December 31, 1985. If for any reason the CPI-U is discontinued, then the
parties hereto shall select an appropriate substitute therefor. Any
adjustment made to the said sum of $1.25 under the provisions of this
paragraph shall only effect minimum annual royalties and shall not affect
------
the sum of $1.25 per ton minimum tonnage royalty provided in Section 1 of
-------
Article VI."
24. The second paragraph of Section 4 of said Article VI, appearing on
pages 59 and 60 of the Amherst Lease, is hereby stricken in its entirety and
there is substituted in lieu thereof the following paragraph:
"If the tonnage royalties paid as hereinabove provided in any one
calendar year do not amount to as much as the
13
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
minimum annual royalty for such year, then the Lessee shall have the right
of mining during any one or more of the next five succeeding calendar
years, but not thereafter, free from tonnage royalty, a sufficient amount
of coal at the tonnage royalty rates herein provided above the amount
necessary to produce the minimum annual royalty for each of such succeeding
years to reimburse the Lessee for the deficiency between the tonnage
royalty and the minimum annual royalty paid during that calendar year. No
payment of tonnage royalties in excess of the minimum annual royalty for
any one year shall be credited against a deficiency occurring in any
subsequent year."
25. The fourth paragraph of said Section 4 appearing on page 60 of the
Amherst Lease, is hereby stricken in its entirety and there is substituted in
lieu thereof the following paragraph:
"During any calendar year that this lease is in effect, if the Lessee
is prevented for a period of thirty (30) days or more from carrying on its
mining operations upon the leased premises because of an event or
occurrence beyond the control of the Lessee such as, without limiting the
generality of the foregoing, an act of God, war, insurrection, riot, strike
or other labor disturbance, accident to plant and equipment, unavoidable
casualty or incident, flood, interruption to transportation, inability to
obtain or retain a necessary permit, act or order of civil or military
authority, legislation, regulation or administrative ruling, (any such
event or events hereinafter referred to as "force majeure", provided,
however, that lack of market or low coal prices shall not be considered an
event of force majeure), it shall be relieved from the payment of the
minimum annual royalty for such calendar year by an amount equal to the
minimum annual royalty due for such calendar year multiplied by a fraction
the numerator of which is the number of calendar days during which
operations are prevented because of force majeure, less thirty (30) days,
(provided such force majeure occurred for thirty (30) or more consecutive
calendar days) and the denominator of which shall be 365 days, provided,
furthermore however, in any event the minimum annual royalty due in any
calendar year shall not be reduced by more than fifty percent (50%)."
26. Section 5 of said Article VI appearing on page 61 of the Amherst
Lease, is hereby amended by striking said section in its entirety and
substituting in lieu thereof the following new Section 5:
"5. Whenever the Lessee's mining operations shall have proceeded to
the point of exhaustion of the coal on the leased premises at which the
quantity of the mineable and marketable coal remaining unmined upon the
leased premises is such that the then rate of mining in keeping with good
mining practices is insufficient to produce in any calendar year a total
tonnage royalty equal to the minimum annual
14
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
royalty, then at that time such minimum annual royalty shall cease, and the
Lessee shall be required to pay only the tonnage royalty on such coal as it
may thereafter sell or use. Furthermore, whenever the total unrecouped
minimum annual royalties and/or penalties shall amount to a sum of money
which equals the tonnage royalty on all of the remaining mineable and
marketable coal in the leased premises and for which payment has not been
made, (such sum computed at the average tonnage royalty rates for the
calendar year prior to such determination), Lessee shall not thereafter be
required to pay any further minimum annual royalty, but may mine such
remaining coal free of tonnage royalty until it shall have mined sufficient
coal as will, at the tonnage royalty rates in effect at the time the coal
is mined, reimburse it for the sum of such accumulated unrecouped minimum
annual royalties and/or penalties as permitted and limited in Section 4 of
Article VI and Article XXI respectively of this lease.
If the Lessor and the Lessee shall be unable to agree upon the time at
which such minimum annual royalty shall cease, the matter in difference
shall be submitted for resolution in the manner and with effect as provided
by Article XVI hereof."
27. Section 6 of said Article VI, appearing on page 61 and page 62 of the
Amherst Lease is hereby amended by striking from said section the language
beginning on the third line on page 62 through the end of said section and
substituting therefor the following language:
"..."wheelage and processing charges," for each ton of raw or clean coal
shipped which is transported, processed or loaded on the leased premises,
at the following respective rates per ton for such coal:
i) three cents (3 cents) per ton of such coal mined from the Xxxxxx
lands (i.e. the 1450 acre tract described on page 7 of this lease);
ii) ten cents (10 cents) per ton of such coal mined from the No. 5
Block seam of coal on properties other than the leased premises and
the Xxxxxx lands; and
iii) 1/2 of 1% of the average selling price (to be not less than 5
cents per ton nor more than 25 cents per ton) of any such other coal
mined or purchased from any property other than the leased premises,
provided, however, that no charge shall be made for a) any coal which
is mined or purchased from any property owned by the Lessor or b) any
coal mined from the property controlled by the Lessee under that
certain lease effective January 1, 1984, by and between Xxxxx-Xxxxxxxx
Land Company and Lessee, containing approximately 747 acres more or
less, which is transported over or under the leased
15
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
premises to Buffalo Creek, Xxxxx County, West Virginia, but not
processed or loaded on the leased premises."
28. Section 7 of said Article VI, appearing on page 62 and page 63 of the
Amherst Lease is hereby amended by striking said section in its entirety and
substituting therefore the following Section 7:
"7. In the event the Lessee shall store on the leased premises any
coal mined from the leased premises or brought onto the leased premises by
the Lessee from other properties, instead of paying the tonnage royalties
on such coal mined from the leased premises at the time of storage, or the
wheelage and processing charges on coal mined from other properties at the
time of the bringing of such coal onto the leased premises, the Lessee may
pay therefor when such stored coal is sold or used by the Lessee, the
tonnage royalty rate to be the average tonnage royalty rate applicable
during the month the coal is stored; but, in any event, such tonnage
royalties and wheelage and processing charges shall be paid within six (6)
months after the time when such payments would have been made had such coal
not been stored, but had been sold. When coal is stored for six (6) months
or more, it shall be carefully measured in a reasonably accurate manner,
and the tonnage royalties and the wheelage and processing charges shall be
paid upon the basis of such measurement. When such coal is sold,
adjustments (if necessary) in tonnage royalties therefor paid for such coal
shall be made to reflect the true tonnage royalties due on such coal based
on its actual weight and the average selling price thereof. Such
adjustments shall be applied as appropriate to future rent and royalty
payments which may become due and owing. If no such payments are to become
due and payable within three (3) months of the last such payment made, any
payment or refund which may be due either party hereto shall be promptly
paid by the party owing the same."
29. Section 9 of said Article VI, appearing on pages 63 and 64 of the
Amherst Lease is hereby amended by striking the same in its entirety and
substituting in lieu thereof the following Section 9:
"9. If at any time hereafter the Lessee shall pay for any coal not
mined from a particular area of any seam on the leased premises, and Lessee
shall thereafter mine such coal, the Lessee shall account for the tonnage
royalties on the coal so mined at the tonnage royalty rates in effect at
the time such coal is sold but shall be entitled to a full credit on such
royalties in the total amount of payment previously made on the coal in
such area until such amount is so recoupede Royalties on coal mined from
such area in excess of such credit shall be paid by the Lessee to Lessor.
Lessee may credit such royalties against minimum annual royalties and
penalties as provided in Article VI and
16
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
Article XXI of this lease. Payments for coal not mined may be credited
upon minimum annual royalties and penalties as provided in Article VI and
Article XXI of this lease, but shall not be credited upon the minimum
annual royalty for the year or years in which such coal thereafter may be
mined in whole or in part."
30. Section 10 of said Article VI, appearing on page 64 of the Amherst
Lease is hereby stricken in its entirety.
31. Section 11 of said Article VI, appearing on page 64 of the Amherst
Lease is hereby stricken in its entirety.
32. Article VII entitled "Xxxxxxxx Hollow", of the Amherst Lease is hereby
amended by striking in its entirety Section 1 appearing on pages 64 and 65
thereof.
33. Section 3(a) of said Article VII, is hereby amended by striking from
said section the words "...to and determined by arbitration..." appearing in
lines 19 and 20 on page 68 of the Amherst Lease and substituting therefor the
words "...for resolution..."
34. Article IX, entitled "Maintenance, Repair, and Use of Mining Plant and
Equipment", appearing on page 75 through page 81 of the Amherst Lease is hereby
stricken in its entirety.
35. Article XIII, entitled "Insurance and Fire Control" appearing on page
88 through page 93 of the Amherst Lease is hereby stricken in its entirety and
substituted therefor is a new Article XIII as follows:
"XIII. INSURANCE
---------
Lessee carries and maintains combined public liability and property
damage insurance as of January 1, 1984 in an amount equal to at least
$20,000,000.00 combined single limit insurance (which is currently subject
to a self-insured retention (i.e. deductible) of $1,000,000.00). The limits
of such insurance shall not be altered except upon ten (10) days notice to
Lessor."
36. Article XIV, entitled "Liens for Rents and Royalties" appearing on
pages 93 through 95 is hereby stricken in its entirety and substituted therefor
is a new Article XIV as follows:
"XIV. LIENS FOR RENTS AND ROYALTIES
-----------------------------
All rents and royalties and other payments herein provided to be made
by the Lessee to, or for the benefit of, the Lessor shall be treated and
considered as rent reserved for the leased premises, and the Lessor shall
have a first and prior lien therefor upon the leasehold estate hereby
created, and a lien upon all improvements and property of
17
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
the Lessee thereon which lien shall continue in full force, validity, and
effect until discharged by payment, irrespective of when such rents,
royalties, or other payments accrued and became due to be paid, and shall
in no respect be limited to such rents, royalties, or other payments as
shall have accrued within one year. Whenever any such rent, royalty, or
other payment shall be due to the Lessor and shall remain unpaid for
fifteen (15) days after written notice of default given by Lessor to
Lessee, the Lessor may institute legal proceedings in any court of
competent jurisdiction for the collection of such sums by a sale of the
movable property of the Lessee on the leased premises, without any
requirement of delay or notice, other than legal process, irrespective of
when such rent, royalty or other payment accrued and became due to be paid.
This remedy of the Lessor shall in no respect be limited to the recovery of
such rents, royalties, or other payments as shall have accrued within one
(1) year or by reason of the fact that any property of the Lessee on the
leased premises be subject to any other lien created after such property
has been brought upon the leased premises. At any sale made under this
Article XIV, the Lessor may become the purchaser of the property sold, free
from any claim or claims of the Lessee. Nothing herein contained shall
prevent Lessee from disposing of or removing from the leased premises any
of its property."
37. Section 1 of Article XV, entitled "Forfeiture of Lease" appearing on
page 96 through page 99 of the Amherst Lease is hereby stricken in its entirety
and substituted therefor is a new Section 1 as follows:
"1. It is covenated and agreed and made a condition of this lease
that prompt payment of the royalties and other sums of money to be paid by
the Lessee on behalf of the Lessor in the manner provided herein is of the
essence to this lease.
If any such royalties or other sums of money to be paid to or for the
benefit of the Lessor by the Lessee as provided in this lease shall be due
and unpaid for thirty (30) days after any such payment shall become due and
written notice of default has been received by the Lessee; or
If the Lessee shall willfully conduct its mining operations in such
manner as to cause waste to the leased premises of such character as not to
be readily remedied by the payment of money and such methods of mining or
conduct are continued for sixty (60) days after the Lessee has received
written demand regarding correction thereof, or if money damages shall be
agreed upon by Lessee and Lessor and are not paid by the Lessee within
sixty (60) days after the reaching of such agreement; or
18
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
If the Lessee shall willfully fail to give to Lessor maps, statements, or
other information as may be provided herein to be given by the Lessee to the
Lessor, and shall continue in such failure for thirty (30) days after the Lessee
has received a written request for the same from the Lessor; or
If the Lessee shall assign or sublet this lease or any part thereof or
shall suffer the sale thereof under foreclosure or mortgage contrary to the
provisions of Article XI hereof; or
If, in respect of any of the foregoing grounds and conditions other than
those calling for the payment of money, full compliance within any time
specified shall be impractical, compliance shall mean the prompt beginning and
expeditious continuance of performance; then
In any such event, the Lessor shall have the right to terminate this lease
and the interest of the Lessee hereunder, without further notice or demand or
legal procedures, together with the right to re-enter the leased premises, and
repossess and enjoy the Lessor's former estate, together with all improvements
owned by the Lessee and located thereon, anything herein to the contrary
notwithstanding except as to Lessee's liability for sums of money due and owing
to or for the benefit of Lessor, any former indulgences of the Lessee by the
Lessor to the contrary notwithstanding. And the Lessor at all times shall have
the right of distraint as provided in Article XIV hereof and the benefit of
other proper proceedings in law or in equity and all other remedies as now or
hereafter provided by law for collection of rents due and unpaid and for
regaining possession of the leased premises. And the Lessee hereby expressly
waives any and all right to recover possession of the leased premises, or to
reinstate or to redeem or to avoid a forfeiture of this lease, the rights and
privileges herein granted, as permitted or provided under any provision of the
law of West Virginia now in effect or hereafter enacted, or by any other law,
ordinance, regulation, or court decision now or hereafter in force and effect.
But nothing contained in the preceding parts of this Article XV, or elsewhere in
this lease, shall be construed to abridge or waive the right of the Lessee to
resort to appropriate judicial proceedings to test the right of the Lessor to
forfeit this lease.
A waiver by Lessor of any particular cause of forfeiture shall not prevent
forfeiture for any other cause, or for the same cause occurring at any other
time, nor shall the receipt by Lessor from Lessee, or from any other person,
after the occurrence of any cause of forfeiture of which notice has been given
by Lessor to Lessee, of any royalties, rentals, or other payments theretofore or
thereafter accruing to Lessor, or the continued recognition by Lessor
19
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
of Lessee as its tenant after the occurrence of any cause of forfeiture of
which notice has been given by Lessor to Lessee, be deemed a waiver of
Lessor's right to enforce the forfeiture so long as the cause of forfeiture
continues to exist."
38. Article XVI, entitled "Arbitration" appearing on pages 99 through 101
of the Amherst Lease is hereby stricken in its entirety. It is the agreement and
intention of the parties hereto to strike all references to the arbitration
process contained in the Amherst Lease. The parties have attempted to delete all
such references in this Amendment of Lease. Furthermore, there is hereby
substituted for said Article XVI the following new Article XVI to be entitled
"Resolution of Selected Disputes" which shall read as follows:
"If a dispute arises between the parties regarding the Lessee's mining
and engineering practices, mine plans, requirement to mine any area of coal
or any other issue identified in this lease which is to be resolved under
this Article XVI, then the parties shall submit such dispute for resolution
to an independent mining engineering consulting firm acceptable to each
party which is well recognized and established in the Appalachian Coal
Fields within thirty (30) days after either of them so requests. Notice
given of such disputes shall state in reasonable detail the issues in
dispute. The cost of employing such engineering firm shall be borne equally
by Lessor and Lessee. If the parties hereto are unable to agree on such an
engineering firm, either party may proceed with the matter in dispute
before a court of competent jurisdiction.
Such engineering firm shall make any inspections and examinations of
the leased premises it determines appropriate. The parties shall cooperate
with said engineering firm in its investigation and shall supply such
information and data as it may reasonably request. Said engineering firm
shall, within thirty (30) days of completing its investigation, submit to
the parties its written recommendations and opinions with regard to the
matter in dispute. The parties shall follow such recommendations and
opinions without delay, unless they should agree otherwise."
39. Article XVIII, entitled "Notices" appearing on page 104 of the
Amherst Lease is hereby amended by striking said article in its entirety and
substituting in lieu thereof a new Article XVIII to also be entitled "Notices",
which shall read as follows:
"All requests, statements, notices and demands to Lessee under this
lease shall be deemed to be sufficiently given and served if sent by
certified mail, return receipt requested, to Lessee at Amherst Coal
Company, Xxxxxxx, Xxxx Xxxxxxxx 00000, with a copy sent by certified mail,
return receipt requested, to Lessee at 1200 First Security Plaza,
20
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
Xxxxxxxxx, Xxxxxxxx 00000, or at such other address(es) as Lessee from
time to time shall designate in a written notice to Lessor.
The delivery of any maps, plans, or projections to the Lessor, and the
giving of any requests, statements, notices, and demands to Lessor under
the provisions hereof, or the payment of any royalties, rents, or other
sums due hereunder, shall be sufficient if made to Lessor by post-paid
United States mail addressed to Lessor at Xxxx Xxxxxx Xxx 000, Xxxxxxxxxx,
Xxxx Xxxxxxxx 00000, or such other address(es) as Lessor from time to time
shall designate in a written notice to Lessee."
40. There is hereby added to the Amherst Lease an article to be known as
Article XX entitled "Black Lung-Workmen's Compensation" which shall read as
follows:
"XX BLACK LUNG-WORKMEN'S COMPENSATION
---------------------------------
"Lessee agrees that it will at all times comply with the provisions of
state and federal laws, rules and regulations thereunder providing black lung
benefits to its existing, past or future employees and their respective
dependents or members of their respective families or households or descendants
or other persons who may have a claim for such benefits arising out of an
employee's employment with Lessee, including, but not limited to, the terms and
provisions of the Federal Coal Mine Health and Safety Act of 1969 (30 U.S. Code
Section 901, et seq.), as now or hereafter from time to time amended, said Act
as so amended being hereinafter referred to as "the Act,"
As between Lessor and Lessee, Lessee shall be the operator of all coal
mines located on or in the Leased Premises and be considered the "responsible
operator" with respect to any claim for black lung benefits ("benefits") filed
by or on account of any one of its employees or former employees under the Act,
provided, however, that the agreement contained in this sentence is not for the
benefit of, and shall not create any rights, in, any such employees or any
persons or entities not parties to this lease. Lessor acknowledges that Lessee
may, from time to time, employ contract mine operators to develop this lease and
mine the coal thereunder and Lessee shall require said contract miners to abide
by all federal, state and local laws pertaining to the mining of coal. Lessee
shall secure or shall require any other person or entity who operates, controls
or supervises a coal mine or performs services or construction at any time on
the Leased Premises or who otherwise may be liable for the payment of benefits
to secure the payment of benefits to or on account of employees or former
employees under the Act in accordance with applicable laws and regulations and
shall provide Lessor upon request, with appropriate certification that Lessee
and each of such other persons or entities has provided security in compliance
with the Act for the payment of benefits. Lessee
21
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
shall notify Lessor immediately in writing of any change or alteration in the
Lessee's status of any such security.
Lessee hereby agrees to indemnify and save harmless Lessor from any loss,
claims or damage, including reasonable attorney's fees and expenses, which
Lessor may suffer, directly or indirectly, as a result of failure of Lessee or
others who are required to secure the payment of such benefits as required by
this Article to make any payments of benefits, medical benefits and attorneys'
fees under the provisions of the Act.
Lessee, upon the request of Lessor, shall furnish to Lessor, within a
reasonable time, certifications establishing Lessee's compliance with the terms
and provisions of the Act and the Black Lung Benefits Reform Act of 1977
("Benefits Act"), as from time to time amended.
Lessee shall pay, when due, all lawful federal excise taxes assessed
against Lessee under the provisions of the Black Lung Benefits Revenue Act of
1981, (26 U.S. Code, Section 4121), as from time to time amended.
The parties hereto acknowledge that Lessor has reserved certain rights and
has imposed certain requirements with respect to the method of mining of coal
under the terms of this lease solely for the purpose of assuring that all
mineable and merchantable coal is recovered in a lawful and workmanlike manner.
Notwithstanding such reservations and restrictions, it is agreed that, unless
the conduct of Lessee, its agents or employees constitutes a breach of the terms
and conditions of this lease, Lessor shall have no right to operate, control or
supervise the actual extraction and preparation of coal from the leased premises
by Lessee, its agents and/or employees, and Lessor shall have no right to
operate, control or supervise any independent contractor of Lessee performing
services or construction for Lessee upon the leased premises.
Nothing contained herein shall be construed to shift the liability for any
claim for black lung benefits of Lessor's officers, agents or employees from the
Lessor to the Lessee."
41. There is hereby added to the Amherst Lease an Article XXI, entitled
"Recoupment of Penalties", which shall read as follows:
"XXI RECOUPMENT OF PENALTIES
-----------------------
Lessee paid to Lessor penalties in the amount of $422,071.00 for the years
1982 and 1983, and $269,242.00 for the years 1980 and 1981, under the provisions
of Article IX which were deleted from this lease by the Amendment of Lease. It
is the desire of the parties hereto to provide for the recoupment of such
penalties. Accordingly, Lessee shall have the right, in any calendar year to
fully recoup without interest, through calendar year 1994, such sum of
$422,071.00 against tonnage royalties,
22
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
i) in an amount equal to fifty percent (50%) of the tonnage royalties due
in such calendar year in excess of an amount which is equal to the minimum
annual royalty due for such year, provided, however,
ii) in the calendar year 1985 only, Lessee shall not be entitled to any
recoupment in respect to said sum of $422,071.00 on tonnage royalties in such
year in excess of $500,000, but less than $550,001.00.
Likewise, Lessee shall have the right, in any calendar year which it mines
1,000,000 tons of coal or more from the leased premises, to fully recoup without
interest, through calendar year 1994, such sum of $269,242.00 against any
tonnage royalty thereafter becoming due in any such year in an amount equal to
fifty percent (50%) of such tonnage royalties."
42. There is hereby added to the Amherst Lease an Article XXII, entitled
"Monuments", which shall read as follows:
"XXII. MONUMENTS
---------
In connection with its mining operations, Lessee may destroy survey
markers, naturally occurring physical features showing survey lines and
other monuments. Lessee agrees to place temporary markers identifying the
property lines during its mining operations and upon completion of
reclamation in each area to replace all such markers, physical features and
monuments with permanent markers."
43. There is hereby added to the Amherst Lease an Article XXIII, entitled
"Contract Miners", which shall read as follows:
"XXIII. CONTRACT MINERS
---- ---------------
Lessor recognizes the right of Lessee to employ contract miners in
connection with its mining operations under this lease. Lessee covenants
and agrees that it will ensure the operations of such contract miners to
the end that such contract miners will comply with all the terms and
provisions of this lease. Lessee shall ensure that any such contract miner
will mine only in accordance with approved plans and projections, and not
deviate therefrom without the written approval of Lessor's chief engineer.
Prior to any such contract miner obtaining any environmental (including
reclamation) permit relating to its operation on the leased premises, the
Lessee shall discuss with Lessor's chief engineer the idea of Lessee
obtaining such permits in the Lessee's name. Lessee is not obligated or
required to obtain such permits in its name, and may require any such
contractor to obtain such permits. If any such contractor is allowed to
obtain any permit in its own name, the Lessee, in any contract between the
Lessee and such contractor, will use its best efforts to have inserted in
such contract a provision requiring such contractor to transfer or
23
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
relinquish such permits to Lessee, upon request, at the termination of the
contract.
Lessee shall furnish Lessor with a copy of all contracts in respect to
all contract miners, such contracts to be subject to a confidentiality
agreement between the parties. Lessor shall have the right at all
reasonable times to inspect the books and records of all contract miners in
the same manner and for the same purposes that the Lessor has the right to
inspect Lessee's books and records as provided in Section 2 of Article VI
of this lease."
44. There is hereby added to the Amherst Lease an Article XXIV, entitled
"Indemnity", which shall read as follows:
"XXIV. INDEMNITY
---- ---------
Lessee shall fully protect, indemnify and save harmless Lessor and its
directors, officers, agents and employees, from any and all claims,
demands, damages, liabilities, penalties, fines, costs and expenses
(including reasonable attorney fees) arising out of or in connection with
any act or omission relating to the operations or other activities of the
Lessee hereunder, its agents, employees, contractors, sublessees or such
sublessees' agents, employees or contractors. This indemnity shall not be
extended to cover any act or omission to act required by Lessor under this
lease, unless such act or omission to act is the result of the negligence
of Lessee or a breach by Lessee of the provisions hereunder. This indemnity
shall survive the termination of this lease."
45. A controversy has heretofore developed between Lessee and Lessor
concerning the payment of tonnage royalties in prior years. The parties have
and do hereby settle such controversy and Lessee will, upon the execution of
this Amendment of Lease, pay to Lessor the sum of $15,000 and Lessor does hereby
release any claims which it may have for unpaid royalties and rents for any year
prior to the Effective Date hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused its corporate
name to be affixed by an officer duly authorized, all in duplicate, on the date
set out below, effective as of the day and year first above written.
ATTEST: XXXXXXX-RUM COAL COMPANY
/s/ Xxxxx X. Xxxxx III By: /s/ Xxxxx X. Xxxxxxxx
----------------------------- ------------------------------
Secretary
Title: President
---------------------------
Date: Dec 28, 1984
---------------------------
24
CML 0334 AMA RUM AMA
121884 RWC (MSC1)
ATTEST AMHERST COAL COMPANY
/s/ [SIGNATURE APPEARS HERE]
------------------------------ By: Xxxxxxx Xxxxxxx
Assistant Secretary -------------------------
Title: Vice President
----------------------
Date: December 18, 1984
-----------------------
STATE OF FLORIDA )
------------
COUNTY of PALM BEACH )
--------
The foregoing instrument was acknowledged before me this 28th day of
December, 1984, by Xxxxx X. Xxxxxxxx, as President of Xxxxxxx-Rum Coal Company,
a West Virginia corporation, on behalf of the corporation.
/s/ [SIGNATURE APPEARS HERE]
----------------------------------
Notary Public
My Commission Expires: [NOTARY STAMP APPEARS HERE]
STATE OF Kentucky )
COUNTY OF Fayette )
The foregoing instrument was acknowledged before me this 18th day of
December, 1984, by Xxxxxxx Xxxxxxx, as Vice President of Amherst Coal Company,
a West Virginia corporation, on behalf of the corporation.
/s/ [SIGNATURE APPEARS HERE]
-----------------------------------------
Notary Public, State of Ky at Large
My Commission Expires: 8 June 1988
This instrument prepared by:
Xxxxxxx X. Xxxxxx
Attorney at Law
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
25
THIS 1987 SUPPLEMENTAL LEASE AGREEMENT, made as of the 12th day of
November, 1987, by and between XXXXXXX-RUM COAL COMPANY, a West Virginia
corporation, (herein referred to as "Xxxxxxx-Rum"), Lessor, and ARCH OF WEST
VIRGINIA, INC., a West Virginia Corporation, (herein referred to as "Arch").
RECITALS
--------
Arch (formerly Amherst Coal Company) is the Lessee of certain coal reserves
(hereinafter referred to as the "Arch Reserves") in Xxxxx County, West Virginia
pursuant to certain agreements with Xxxxxxx-Rum. These agreements consist of:
(1) "Deed of Lease Agreement" dated June 1, 1962, (2) "Supplemental Deed of
Lease and Agreement" dated January 1, 1968, (3) "Amendment" dated June 1, 1973,
(4) "Amendment" dated June 1, 1974, and (5) "Amendment of Lease" dated January
1, 1984. By Amended Certificate of Authority for Name Change issued by the
Secretary of State of the State of West Virginia on June 2, 1987, the name of
Amherst Coal Company was changed to Arch of West Virginia, Inc.
Arch wishes to surrender to Xxxxxxx-Rum such portions of the Arch Reserves
as are specified on the map attached hereto and entitled "Map showing coal in
Lower Coalburg seam and all seams above within area outlined in red which is to
be added to the Amended Xxxx Lease and deleted from the Arch Reserves" so that
the same will be available for lease by Xxxxxxx-Rum to Elkay Mining Company.
Arch desires to add to the Arch Reserves under the above-referenced Agreements
certain coal reserves previously
held by Elkay Mining Company under a lease with Xxxxxxx-Rum, such reserves
having been surrendered by Elkay Mining Company by a Supplemental Lease
Agreement of even date herewith.
NOW, THEREFORE, in consideration of the mutual covenants contained herein, and
for other good and valuable consideration, the receipt and sufficiency of all of
which is hereby acknowledged, the parties, intending to be legally bound, agree
as follows:
1. The parties agree that the coal reserves described on the map entitled
"Map showing coal in Lower Coalburg seam and all seams above within area
outlined in red which is to be added to the Amended Xxxx Lease and deleted from
the Arch Reserves," attached hereto and made a part of this Agreement, are
hereby deleted from the Arch Reserves and that the coal reserves identified on
the map entitled "Map showing coal in Upper Cedar Grove Seam outlined in red
which is to be deleted from the Amended Lyburn Lease and added to the Arch
Reserve," attached hereto and made a part of this Agreement, are hereby added to
and included in and as a part of the Arch Reserves and said Deed of Lease
Agreement dated June 1, 1962, as amended by the agreements heretofore recited,
all as of the date of this Agreement to the same extent and effect as if the
coal identified on the map entitled "Map showing coal in Lower Coalburg seam and
all seams above within area outlined in red which is to be added to the Amended
Xxxx Lease and deleted from the Arch Reserves," had never been included in the
Arch Reserves and as if the coal identified on the map entitled "Map showing
coal in Upper Cedar
-2-
Grove Seam outlined in red which is to be deleted from the Amended Lyburn Lease
and added to the Arch Reserve," had at all times been included in and as a part
of the Arch Reserves and said Deed of Lease Agreement dated June 1, 1962, as
amended by the agreements heretofore recited.
2. The aforementioned Agreements by which the Arch Reserves are leased to
Arch, as so amended by this instrument, are validly existing and shall otherwise
remain in full force and effect and are hereby in all respects approved,
ratified and confirmed.
3. In the negotiation and preparation of this document, the parties have
been represented by qualified engineers and legal counsel.
WITNESS the signatures of the parties hereto by their respective corporate
officers or representatives thereto duly authorized, as of the day and year
first above written in triplicate originals.
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxx X. Xxxxx III
---------------------------------------------
Its: President
---------------------------------------------
ARCH OF WEST VIRGINIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------------
Its: President
--------------------------------------------
-3-
STATE OF WEST VIRGINIA,
COUNTY OF Kanawha, to-wit:
The foregoing instrument was acknowledged before me this 30th day of
November, 1987, by Xxxxx X. Xxxxx, III, the President of Xxxxxxx-Rum Coal
Company, corporation, on behalf of the corporation
[NOTARY SEAL]
My commission expires 5-7-96.
/s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Notary Public
STATE OF WEST VIRGINIA,
COUNTY OF Kanawha, to-wit:
The foregoing instrument was acknowledged before me this 12th day of
November, 1987, by Xxxxxx X. Xxxxxx, the President of Arch of West Virginia,
Inc., a corporation, on behalf of the corporation
My commission expires July 8, 1992.
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Notary Public
This document was prepared by Xxxxxx X. Xxxxxxxx, Xxxxxxxx & XxXxxxx, Xxxx
Xxxxxx Xxx 0000, Xxxxxxxxxx, Xxxx Xxxxxxxx 00000.
-4-
[MAP APPEARS HERE]
Map showing coal in Lower Coalburg Seam and all seams above within area
outlined in red which is to be added to the Amended Xxxx Lease and deleted from
the Arch Reserves
[MAP APPEARS HERE]
Map showing coal in Upper Cedar Grove Seam outlined in red which is to be
deleted from the Amended Lyburn Lease and added to the Arch Reserves
THIS PARTIAL RELEASE AND SURRENDER OF LEASE, executed in duplicate
originals and effective this 6th day of May, 1988, by and between ARCH OF WEST
VIRGINIA, INC., a West Virginia corporation, (herein referred to as "Arch"), as
Lessee, and XXXXXXX-RUM COAL COMPANY, a West Virginia corporation, (herein
referred to as "Xxxxxxx-Rum"), as Lessor:
RECITALS
--------
Arch (formerly Amherst Coal Company) is the Lessee of certain coal reserves
(herein referred to as the "Arch Reserves") in Xxxxx County, West Virginia,
pursuant to certain agreements with Xxxxxxx-Rum. The agreements consist of: (1)
"Deed of Lease Agreement" dated June 1, 1962, (2) "supplemental Deed of Lease
and Agreement" dated January 1, 1968, (3) "Amendment" dated June 1, 1973, (4)
"Amendment" dated June 1, 1974, and (5) "Amendment of Lease" dated January 1,
1964 (all of which are collectively referred to as the "Xxxxxxx-Rum Lease
Agreements"). By Amended Certificate of Authority for Name Change issued by the
Secretary of State of the State of West Virginia on June 2, 1987, the name of
Amherst Coal Company was changed to Arch of West Virginia, Inc.
Arch wishes to surrender to Dinqess-Rum only such portion of the Arch
Reserve as is identified on the map attached hereto and entitled "Map Showing
Coal In Xxxxxxx Seam Which Is To Be Deleted From The Arch Reserves" so that the
same will be available for leasing to other parties by Dinqess-Rum.
Xxxxxxx-Rum wishes to accept Arch's surrender of its Xxxxxxx seam coal
reserves in the area identified on the map attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
all of which is hereby acknowledged, the parties, intending to be legally bound,
agree as follows :
1. The parties agree that the Xxxxxxx Seam of coal identified on the map
entitled "Map Showing Coal In Xxxxxxx Seam Which Is To Be Deleted From The Arch
Reserves," attached hereto and made a part of this Agreement, is hereby deleted
from the Arch Reserves effective as of the date hereof.
2. Xxxxxxx-Rum hereby releases Arch from any and all continuing
obligations, covenants, conditions and liabilities arising by reason of the
Xxxxxxx-Rum Lease Agreements, insofar only as the same pertain to the area of
the Xxxxxxx seam identified on the map attached hereto.
3. Xxxxxxx-Rum Lease Agreements, as so amended by this instrument, are
validly existing and shall otherwise remain in full force and effect and are
hereby in all respects approved, ratified and confirmed.
4. All rights and privileges of Arch derived from the Xxxxxxx-Rum Lease
Agreements as so amended by this instrument, are and shall remain dominant and
superior to the right of Xxxxxxx-Rum or any assignee, lessee or successor in
interest to Xxxxxxx-Rum, to mine or remove coal in the Xxxxxxx seam in the
2
area identified on the map attached hereto. Arch reserves the right to
concurrently use the surface and roads on the surrendered area in connection
with the operations of Arch elsewhere on the Arch Reserves. Arch agrees to
exercise its rights in the Arch Reserves and its concurrent rights in the
surrendered area so as not to unreasonably interfere with any existing or future
operation of Xxxxxxx-Rum or its assigns, lessees or successors in interest in
the Xxxxxxx seam in the area identified on the map attached hereto. Xxxxxxx-Rum
hereby agree that, in the event it should sublease all or any part of the
Xxxxxxx seam identified on the map attached hereto to any third party, such
lease or other instrument conveying such rights to such third party (and any
recording memorandum of such lease or instrument) shall be expressly subject and
servient to all rights and privileges of Arch derived form the Xxxxxxx-Rum Lease
Agreements, as amended by this instrument or any subsequent instrument or
agreement.
5. Any recovery of coal from the Xxxxxxx seam in the surrendered area by
Xxxxxxx-Rum or its assigns, lessees or successors shall be done in such manner
and sequence as to maintain support (if necessary, in the sole opinion of the
Xxxxxxx-Rum chief engineer) and to allow the greatest possible recovery of coal
from the Arch Reserves adjacent to and overlying the Xxxxxxx seam area hereby
surrendered.
6. As consideration for Arch's surrender of the Xxxxxxx seam of coal in
the area identified on the map attached hereto, Xxxxxxx-Rum agrees to pay to
Arch an overriding royalty of two
3
percent (2%) of the gross sales price for each ton (2,000 lbs.) of coal mined
from the Xxxxxxx seam in the area so surrendered by any third party leasing said
area from Xxxxxxx-Rum within one year from the date hereof. The overriding
royalty to be paid to Arch by Xxxxxxx-Rum shall be calculated in the same manner
as the royalty to be paid to Xxxxxxx-Rum by said third party lessee.
7. In the negotiation and preparation of this document, the parties have
been represented by qualified engineers and legal counsel.
WITNESS the signatures of the parties hereto by their respective corporate
officers of representatives thereto duly authorized, as of the day and year
first above written.
ARCH OF WEST VIRGINIA, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Its President
-------------------------------------
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxx X. Xxxxx III
-----------------------------------------
Its President
-------------------------------------
4
STATE OF WEST VIRGINIA,
COUNTY OF Xxxxx, to-wit:
The foregoing instrument was acknowledged before me this 26 day of May,
1988, by Xxxxxx X. Xxxxxx, the authorized President of ARCH OF WEST VIRGINIA,
INC., on behalf of the corporation.
My commission expires January 5, 1994.
/s/ Xxxxxxxx Necessary
-----------------------------------------
Notary Public
[SEAL]
STATE OF WEST VIRGINIA,
COUNTY OF Xxxxxx, to-wit:
The foregoing instrument was acknowledged before me this 27 day of May,
1988, by Xxxxx X. Xxxxx, III, the Authorized President OF XXXXXXX-RUM COAL
COMPANY, on behalf of the corporation.
My commission expires April 26,1992.
/s/ Xxxx Xxx
------------------------------------------
Notary Public
[SEAL]
5
THIS CORRECTIVE PARTIAL RELEASE AND SURRENDER OF LEASE, effective this 6th
day of May, 1988, by and between ARCH OF WEST VIRGINIA, INC., a West Virginia
corporation, (herein referred to as "Arch"), as Lessee, and XXXXXXX-RUM COAL
COMPANY, a West Virginia corporation, (herein referred to as "Xxxxxxx-Rum"), as
Lessor:
RECITALS
--------
Arch (formerly Amherst Coal Company) is the Lessee of certain coal reserves
(herein referred to as the "Arch Reserves") in Xxxxx County, West Virginia,
pursuant to certain agreements with Xxxxxxx-Rum. The agreements consist of: (1)
"Deed of Lease and Agreement" dated June 1, 1962, of record in Xxxxx County Deed
Book 287, at page 404, (2) "Supplemental Deed of Lease and Agreement" dated
January 1 1968, of record in Xxxxx County Deed Book 319, at page 233, (3)
"Supplemental Deed of Lease and Agreement" dated June 1, 1973, of record in
Xxxxx County Deed Book 414, at page 561, (4) "Supplemental Deed of Lease and
Agreement" dated July 1, 1974, of record in Xxxxx County Deed Book 365, at page
569, and (5) the non-recorded "Amendment of Lease" dated January 1, 1984 (all of
which are collectively referred to as the "Xxxxxxx-Rum Lease Agreements") . By
Amended Certificate of Authority for Name Change issued by the Secretary of
State of the State of West Virginia on June 2, 1987, the name of Amherst Coal
Company was changed to Arch of West Virginia, Inc.
Arch wishes to surrender to Xxxxxxx-Rum only such portion of the Arch
Reserve as is identified on the map attached
hereto and entitled "Map Showing Coal In Xxxxxxx Seam Which Is To Be Deleted
From The Arch Reserves" so that the same will be available for leasing to other
parties by Xxxxxxx-Rum.
Xxxxxxx-Rum desires to accept Arch's surrender of its Xxxxxxx seam coal
reserves in the area identified on the map attached hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of
all of which is hereby acknowledged, the parties, intending to be legally bound,
agree as follows:
1. The parties agree that the Xxxxxxx Seam of coal identified on the map
entitled "Map Showing Coal In Xxxxxxx Seam Which Is To Be Deleted From The Arch
Reserves," attached hereto and made a part of this Agreement, is hereby deleted
from the Arch Reserves as of the effective date hereof.
2. Xxxxxxx-Rum hereby releases Arch from any and all continuing
obligations, covenants, conditions or liabilities arising by reason of the
Xxxxxxx-Rum Lease Agreements, insofar only as the same pertain to the area of
the Xxxxxxx seam identified on the map attached hereto.
3. Xxxxxxx-Rum Lease Agreements, as so amended by this instrument, are
validly existing and shall otherwise remain in full force and effect and are
hereby in all respects approved, ratified and confirmed.
4. All rights and privileges of Arch derived from the Xxxxxxx-Rum Lease
Agreements as so amended by this instrument,
2
are and shall remain dominant and superior to the right of Xxxxxxx-Rum or any
assignee, lessee or successor in interest to Xxxxxxx-Rum, to mine or remove coal
in the Xxxxxxx seam in the area identified on the map attached hereto. Arch
reserves the right to concurrently use the surface and roads on the surrendered
area in connection with the operations of Arch elsewhere on the Arch Reserves.
Arch agrees to exercise its rights in the Arch Reserves and its concurrent
rights in the surrendered area so as not to unreasonably interfere with any
existing or future operations of Xxxxxxx-Rum or its assigns, lessees or
successors in interest in the Xxxxxxx seam in the area identified on the map
attached hereto. Xxxxxxx-Rum hereby agrees that, in the event it should sublease
all or any part of the Xxxxxxx seam identified on the map attached hereto to any
third party, such lease or other instrument conveying such rights to such third
party (and any recording memorandum of such lease or instrument) shall be
expressly subject and servient to all rights and privileges of Arch derived from
the Xxxxxxx-Rum Lease Agreements, as amended by this instrument or any
subsequent instrument or agreement.
5. Any recovery of coal from the Xxxxxxx seam in the surrendered area by
Xxxxxxx-Rum or its assigns, lessees or successors shall be done in such manner
and sequence as to maintain support (if necessary, in the sole opinion of the
Xxxxxxx-Rum chief engineer) and to allow the greatest possible recovery of coal
from the Arch Reserves adjacent to and overlying the Xxxxxxx seam area hereby
surrendered.
3
6. As consideration for Arch's surrender of the Xxxxxxx seam of coal in
the area identified on the map attached hereto, Xxxxxxx-Rum agrees to pay to
Arch an overriding royalty of two percent (2%) of the gross sales price for each
ton (2,000 lbs.) of coal mined from the Xxxxxxx seam in the area so surrendered
by any third party leasing said area from Xxxxxxx-Rum within one year from the
date hereof. The overriding royalty to be paid to Arch by Xxxxxxx-Rum shall be
calculated in the same manner as the royalty to be paid to Xxxxxxx-Rum by said
third party lessee.
7. In the negotiation and preparation of this document, the parties have
been represented by qualified engineers and legal counsel.
WITNESS the signatures of the parties hereto by their respective corporate
officers or representatives thereto duly authorized.
ARCH OF WEST VIRGINIA, INC.
By: /s/ Xxx X. Xxxx
----------------------------------------
Its President
-------------------------------------
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxx X. Xxxxx III
-----------------------------------------
Its President
------------------------------------
4
STATE OF WEST VIRGINIA,
COUNTY OF Xxxxx, to-wit:
The foregoing instrument was acknowledged before me this 18th day of
October, 1988, by Xxx X. Xxxx, the authorized President of ARCH OF WEST
VIRGINIA, INC., on behalf of the corporation.
My commission expires Jan 5, 1993.
[OFFICIAL SEAL APPEARS HERE] /s/ Xxxx Xxxxxxxx
-------------------------------
Notary Public
STATE OF WEST VIRGINIA,
COUNTY OF Kanawha, to-wit:
The foregoing instrument was acknowledged before me this 25th day of
October, 1988, by Xxxxx X. Xxxxx, III, the authorized President of XXXXXXX-RUM
COAL COMPANY, on behalf of the corporation.
My commission expires 5-7-96
[OFFICIAL SEAL APPEARS HERE] /s/ Xxxxx X. Xxxxxxxx
---------------------------------
Notary Public
5
ASSIGNMENT OF LEASE
-------------------
THIS ASSIGNMENT is made and entered into this 15th day of March, 1990 and
is effective the 16th day of March, 1990, by and between ARCH OF WEST VIRGINIA,
INC. ("AOWV"), a West Virginia Corporation, with its address being X.X. Xxx 000,
Xxxxxxx, Xxxx Xxxxxxxx 00000, and PINE CREEK LAND COMPANY ("Pine Creek"), a
Delaware Corporation, with its principal place of business being XxxxXxxxx Xxx,
Xx. Xxxxx, Xxxxxxxx 00000.
WHEREAS, by Deed of Lease and Agreement dated June 1, 1962, as amended
("Coal Lease"), Xxxxxxx-Rum Coal Company, as Lessor, leased to Amherst Coal
Company, predecessor in interest to AOWV, the coal and certain mining rights
pertaining to a certain tract of land located in Xxxxx County, West Virginia
(the "Leased Property); and
WHEREAS, AOWV is willing to assign to Pine Creek the right to mine the
Lower Five Block (Clarion) seam of coal and all seams lying above said seam
underlying a small portion of the Leased Property contained in the Coal Lease,
which portion to be assigned is depicted on the map attached hereto as Exhibit
A.
NON THEREFORE, for and in consideration of Ten Dollars ($10.00) and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, AOWV does hereby assign, transfer and set over unto Pine Creek all
of its right, title, interest and obligations, except as otherwise stated
herein, in, to and under the above-referenced Coal Lease, as to the right to
mine the Lower Five Block (Clarion) seam of coal and all seams lying above said
seam underlying that tract of land depicted on Exhibit A hereto. Pine Creek
hereby accepts this assignment, agrees to be bound by all of the terms and
conditions of the Coal Lease, and any amendments thereto and, except as to
payment of minimum royalties, assumes and undertakes to perform all obligations
of AOWV under said Coal Lease which arise on or after the effective date of this
assignment.
This assignment is subject to and contingent upon the consent of the
lessors under the Coal Lease. In the event such consent is not obtained, this
assignment shall have no binding effect on either party hereto.
IN WITNESS WHEREOF the parties hereto have executed this assignment as of
the day and year first above written.
ATTEST: ARCH OF WEST VIRGINIA, INC.
/s/ X. X. Xxxx By: /s/Xxxx X. Xxxxxx
--------------------------------- ------------------------------------
X. X. Xxxx, Assistant Secretary Xxxx X. Xxxxxx, Vice President
ATTEST: PINE CREEK LAND COMPANY
/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxxx X. XxXxxxx
--------------------------------- ------------------------------------
Xxxxx X. Xxxxxxxxx, Secretary Xxxxxx X. XxXxxxx, President
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
I, the undersigned, a Notary Public, in and for said State and County
aforesaid, do hereby certify that Xxxx X. Xxxxxx and X. X. Xxxx, personally
known to me to be the same persons whose names are, respectively, as Vice
President and* Secretary of Arch of West Virginia, Inc., a West Virginia
corporation, subscribed to the foregoing instrument, appeared before me this day
in person and severally acknowledged that they, being thereunto duly authorized,
signed, sealed with the seal of said corporation and delivered the said
instrument as the free and voluntary act of said corporation and as their own
free and voluntary act, for the uses and purposes therein set forth. *Assistant
Given under my hand and notarial seal this 15th day of March, 1990.
XXXXX XXX XXXX
NOTARY PUBLIC STATE OF MISSOURI
ST. LOUIS COUNTY /s/ Xxxxx Xxx Xxxx
MY COMMISSION EXP. JAN 28, 1994 ----------------------------------
NOTARY PUBLIC
My Commission Expires: Jan. 28, 1994
-2-
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
I, the undersigned, a Notary Public, in and for said State and County
aforesaid, do hereby certify that Xxxxxx X. XxXxxxx and Xxxxx X. Xxxxxxxxx,
personally known to me to be the same persons whose names are, respectively, as
President and Secretary of Pine Creek Land Company, a Delaware corporation,
subscribed to the foregoing instrument, appeared before me this day in person
and severally acknowledged that they, being thereunto duly authorized, signed,
sealed with the seal of said corporation and delivered the said instrument as
the free and voluntary act of said corporation and as their own free and
voluntary act, for the uses and purposes therein set forth.
Given under my hand and notarial seal this 15th day of March, 1990.
XXXXX XXX XXXX
NOTARY PUBLIC STATE OF MISSOURI /s/Xxxxx Xxx Xxxx
ST. LOUIS COUNTY -------------------------------------
MY COMMISSION EXP. JAN. 28, 1994 NOTARY PUBLIC
My Commission Expires: Jan. 28, 1994
THIS DOCUMENT PREPARED BY:
/s/Xxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxx X. Xxxxxxxxx, Counsel
Pine Creek Land Company
CityPlace Xxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000
id:LND/702
-3-
CONSENT
-------
THIS CONSENT AGREEMENT, dated this 27th day of March, 0000, xxxxxxx XXXX XX
XXXX XXXXXXXX, INC. ("AOWV"), a West Virginia corporation; PINE CREEK LAND
COMPANY ("Pine Creek"), a Delaware corporation; and XXXXXXX-RUM COAL COMPANY
("Dingess-Rum"), a West Virginia corporation.
WHEREAS, by Deed of Lease and Agreement dated June 1, 1962, as amended (the
"Coal Lease"), by and between Xxxxxxx-Rum, as Lessor, and Amherst Coal Company,
predecessor in interest to AOWV, as Lessee, Xxxxxxx-Rum has leased to AOWV the
right to mine on certain real property located in Xxxxx County, West Virginia
(the "Leased Property"); and,
WHEREAS, the Coal Lease requires that Lessor's consent is required prior to
assigning or subleasing the Coal Lease or Leased Property; and,
WHEREAS, AOWV desires to assign its rights to mine the Lower Five Block
(Clarion) seam of coal and all seams lying above said seam underlying a small
portion of the Leased Property contained in such Coal Lease to Pine Creek, which
portion of the Leased Property to be assigned is shown on the map attached as
Exhibit A hereto; and,
WHEREAS, upon assignment, Pine Creek desires to sublease its rights to mine
the Lower Five Block (Clarion) seam of coal and all seams above said seam
underlying the assigned portion of the Leased Property to M & D Mining, Inc. ("M
& D").
NOW, THEREFORE, for and in consideration of the agreements contained
herein:
1. Subject to the conditions hereinafter stated Xxxxxxx-Rum consents to
the assignment of the Coal Lease, insofar as it assigns the right to mine the
Lower Five Block (Clarion) seam of coal and all seams lying above said seam
underlying the portion of the Leased Property shown on the map attached hereto
as Exhibit A, to Pine Creek, and Xxxxxxx-Rum further consents to the sublease
from Pine Creek to M & D.
2. The consent of Xxxxxxx-Rum as set forth in Paragraph 1 hereof is
specifically conditioned upon:
(a) AOWV, notwithstanding such assignment, shall not be
released of its obligation to perform all of the terms
and conditions of the Coal Lease, including that
portion assigned to Pine Creek as hereinabove
described; and,
-2-
(b) The granting of such consent shall not relieve AOWV and
Pine Creek from their obligation to obtain the consent
of Xxxxxxx-Rum to any further or other assignments or
subletting.
3. Pine Creek covenants and agrees with Xxxxxxx-Rum and AOWV that it will
perform all of the obligations required of the Lessee in the Coal Lease with
respect to the assigned property, except that AOWV will continue to pay in full
all minimum royalties required under the Coal Lease.
IN WITNESS WHEREOF, the corporate parties hereto have caused their
------------------
corporate names to be hereunto signed by their proper officers thereunto duly
authorized, this day and date first above written.
ARCH OF WEST VIRGINIA, INC.
By: /s/ X. X. Xxxxxx
-----------------------------------
Its: Vice President
------------------------------
PINE CREEK LAND COMPANY
By: /s/ Xxxxx X. XxXxxxx
-----------------------------------
Its: President
------------------------------
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxx X. Xxxxx III
-----------------------------------
Its: President
------------------------------
-3-
ASSIGNMENT OF LEASES AND
------------------------
INTERESTS IN REAL PROPERTY
--------------------------
THIS ASSIGNMENT is made and entered into this 5th day of October, 1990 and
is effective the 1st day of July, 1990 by and between ARCH OF WEST VIRGINIA,
INC., a West Virginia corporation ("Assignor"), and PINE CREEK LAND COMPANY, a
Delaware corporation ("Assignee").
W I T N E S S E T H :
For Ten Dollars ($10.00) and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, Assignor does hereby
assign, transfer and set over unto Assignee all of Assignor's right, title,
interest and obligations in, to and under the Leases (as hereinafter defined)
described on Exhibit A attached hereto and made a part hereof. Assignor does
hereby further assign, transfer and set over unto Assignee all of Assignor's
right, title, interest and obligations in, to and under any and all easements,
licenses and other contractual interests affecting or relating to real property
located In Xxxxx and Wyoming Counties, West Virginia. Assignee hereby accepts
this assignment, agrees to be bound by all of the terms and conditions of the
Leases, easement agreements, licenses and other contractual agreements and
assumes and undertakes to perform all obligations of Assignor under said Leases
and other contractual agreements which arise on or after the effective date of
this Assignment.
In the event said leasehold and other contractual interests held by
Assignor are not assignable without the consent of third parties, such interests
are excepted from this Assignment; provided, however, each such interest shall
be included and become a part of this Assignment effective the date when such
consent is obtained.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of
the day and year first above written.
ATTEST ARCH OF WEST VIRGINIA, INC.
/s/Xxxxx X. Xxxxxxx By:/s/X. X. Xxxxxx
---------------------------------------- --------------------------------
Xxxxx X. Xxxxxxx, Assistant Secretary X. X. Xxxxxx, Vice President
ATTEST PINE CREEK LAND COMPANY
/s/Xxxxx X. Xxxxxxxxx By:/s/Xxxxxx X. XxXxxxx
---------------------------------------- --------------------------------
Xxxxx X. Xxxxxxxxx, Secretary Xxxxxx X. XxXxxxx, President
STATE OF MISSOURI )
) SS.
COUNTY OF ST. LOUIS )
The foregoing instrument was acknowledged before me on this the 5th day of
October, 1990 by X.X. Xxxxxx, as Vice President of Arch of West Virginia, Inc.,
a West Virginia corporation, on behalf of the corporation.
/s/Xxxx X. Xxxxx
------------------------------------------------
Notary Public Xxxx X. Xxxxx
NOTARY PUBLIC STATE OF Missouri
My Commission Expires: 2/15/93 ST. LOUIS COUNTY
MY COMMISSION EXP. FEB 15, 1993
Book 9, Page 319
-2-
Book 9, Page 000
XXXXX XX XXXXXXXX )
) SS.
COUNTY OF ST. LOUIS )
The foregoing instrument was acknowledged before me on this the 5th day of
October, 1990 by Xxxxxx X. XxXxxxx as President of Pine Creek Land Company, a
Delaware corporation, on behalf of the corporation.
/s/Xxxx X. Xxxxx
----------------------------------------
Notary Public
XXXX X. XXXXX
NOTARY PUBLIC STATE OF MISSOURI
My Commission Expires: 2/15/93 ST. LOUIS COUNTY
MY COMMISSION EXPIRES FEB. 15, 1993
THIS INSTRUMENT PREPARED BY:
/s/Xxxxx X. Xxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxx, Counsel
Pine Creek Land Company
CityPlace Xxx
Xx. Xxxxx, Xxxxxxxx 00000
(000) 000-0000
JNQ/420
-3-
EXHIBIT A
1. Deed of Lease dated January 1, 1931, as amended, between Xxxxxx Heirs,
Inc. and Arch of West Virginia, Inc. (successor in interest to Xxxxx
County Coal Corporation).
2. Deed of Lease and Agreement dated June 1, 1962, as amended, between
Arch of West Virginia, Inc. and Xxxxxxx-Rum coal Company.
3. Sublease Agreement effective November 12, 1987 between Elkay Mining
Company, Xxxxxxx-Rum Coal Company and Arch of West Virginia, Inc.
4. Deed of Lease dated August 20, 1948 between X.X. XxXxxxxx, et al.
(Xxxxxxx XxXxxxxx Estate) and Arch of West Virginia, Inc.
5. Lease dated June 1, 1983 between the Xxxxx XxXxxxxx Holding Company,
et al. and Arch of West Virginia, Inc.
6. Lease dated March 1, 1978 between Xxxxxx Xxxx Xxxxx Xxxxxxxxxxx, et
al. (Xx Xxxx Heirs) and Arch of West Virginia, Inc.
7. Articles of Agreement dated May 1, 1914, as amended, between Xxxxxx
Land Company, a Limited Partnership, and Arch of West Virginia, Inc.
8. Lease dated January 1, 1979 between Xxx Xxxxxxxxxx Xxxxx, et al.
(Xxxxxxxxxx Heirs) and Arch of West Virginia, Inc.
9. Lease effective January 1, 1984 between Xxxxx-Xxxxxxxx Land Company
and Arch of West Virginia, Inc.
STATE OF WEST VIRGINIA, COUNTY OF XXXXX, TO-WIT:
IN THE OFFICE OF THE CLERK OF THE COUNTY COMMISSION:
The foregoing paper was this the 19 day of October 1990
at 4:01 P.M presented to me in my office, and thereupon,
together with a certificate thereunto annexed is admitted to
record. Recording fee $4.00 PD. Teste: XXXX X. XXXXXX,
County Clerk
BY /s/ Xxxxxx Xxxxxxx Deputy
---------------------
Book 9, page 321
OFFICE OF THE CLERK OF THE COUNTY COMMISSION Clerk
WYOMING COUNTY, W. VA. JANUARY 24, 1991 SS-
p.m. 1:00 /s/ D. Xxxxxxx Xxxxx
The foregoing writing, together with the certificate
of acknowledgment thereof thereto annexed, was this
day admitted to record.
By /s/ Xxxxxx Xxxx Deputy
THIS AMENDMENT OF PARTIAL RELEASE AND SURRENDER OF LEASE is made and
entered into on this 7th day of January, 1993, by and between XXXXXXX-RUM COAL
COMPANY, a West Virginia corporation, whose address is X.X. Xxx 000, Xxxxxxxxxx,
Xxxx Xxxxxxxx, 00000, hereinafter called "Lessor", and ARK LAND COMPANY, a
Delaware corporation, whose address is X.X. Xxx 0000, Xxxxxxxx Xxxxxxx, Xxxxxxxx
00000, hereinafter called "ARK";
WITNESSETH:
WHEREAS, by an instrument entitled "Partial Release and Surrender of Lease"
dated the 6th day of May, 1988, by and between the parties hereto or their
predecessors in interest, Ark surrendered to Lessor from a certain Lease dated
June 1, 1962, and amended and supplemented as therein described, which by means
assignments had been assigned to Ark, a certain portion of the Xxxxxxx seam of
coal more specifically therein described and reference is being made hereby to
such description (hereinafter "Surrendered Area"); and,
WHEREAS, in Paragraph 6 of said instrument of May 6, 1988, Ark retained an
overriding royalty of 2% of the gross sales price for all of such coal mined
from the Surrendered Area; and,
WHEREAS, the Surrendered Area has been returned to Ark by an assignment to
Ark from Rum Creek Coal Sales, Inc. ("Rum Creek"), of a coal lease dated the 6th
day of May, 1988 between Lessor and Rum Creek covering such Surrendered Area;
and
WHEREAS, it is appropriate to eliminate said 2% overriding royalty by
reason of the reacquisition of such Surrendered Area by Ark.
NOW, THEREFORE, WITNESSETH that, for and in consideration of the premises,
which are not mere recitations but which form an integral part of this document
and also in consideration of the mutual terms, covenants and agreements
hereinafter set forth to be kept and performed by Ark under the terms of the
Lease, the parties hereto do hereby cancel and terminate the provisions of
Article 6, of said Partial Release and Surrender of Lease.
Except as herein amended, the parties hereto do hereby ratify and confirm
said Partial Release and Surrender of Lease.
IN WITNESS WHEREOF, the corporate parties hereto have caused their
corporate names to be hereunto signed and their corporate seals to be hereunto
affixed by their proper officers thereunto duly authorized as of the day and
year first above written.
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxx X. Xxxxx III
---------------------------
Title: President
------------------------
ARK LAND COMPANY
By: /s/ Xxxxxx X. XxXxxxx
---------------------------
Title: President
------------------------
STATE OF WEST VIRGINIA,
COUNTY OF Kanawha, TO WIT:
The foregoing instrument was acknowledged before me this 7th day of
January, 1993, by Xxxxx X. Xxxxx, III, of DINGESS-
2
RUM COAL COMPANY, a West Virginia corporation, on behalf of said corporation.
My Commission expires January 15, 2002.
[Notarial Seal] /s/ Xxxxx X. Xxxxxx
-----------------------
Notary Public
STATE OF West Virginia,
COUNTY OF Kanawha, TO WIT:
The foregoing instrument was acknowledged before me this 7th day of
January, 1993, by Xxxxxx X. XxXxxxx, of ARK LAND COMPANY, a Delaware
corporation, on behalf of said corporation.
My Commission expires January 15, 2002.
[Notarial Seal] /s/ Xxxxx X. Xxxxxx
-----------------------
Notary Public
This instrument prepared by:
X. X. Xxxxxx, Esquire
Campbell, Woods, Bagley, Emerson, XxXxxx & Xxxxxxx
Suite 1400, Coal Exchange Building
X.X. Xxx 0000
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
3
ARK
LAND
COMPANY
(Mailing Address)
X.X. Xxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (Fax)
February 24, 1993
Xxxxxxx-Rum Coal Company
X.X. Xxx 000
XxXxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Vice President
Re: Deed of Lease and Agreement dated June 1, 1962, as amended (the
"Lease"), between Xxxxxxx-Rum Coal Company ("Xxxxxxx-Rum") and
Ark Land Company ("Ark"), successor to Amherst Coal Company
Gentlemen:
Xxxxxxx-Rum and Ark agree that Ark's sublessee, Arch of West Virginia
("AOWV"), under the above Lease, has mined and removed a portion of the mineable
and merchantable coal by conventional mining methods from the Central Ridge Mine
located on the leased premises. The parties believe that additional coal may
potentially be recovered by pillar extraction methods from the Central Ridge
Mine utilizing an Alpine Breaker Line Support System ("ABLS"). To enhance the
economic feasibility of such mining, Xxxxxxx-Rum and Ark agree to amend the
Lease as provided herein:
1. During the term of the Lease, and in the event that AOWV procures one
or more ABLS systems for pillar extraction, Ark agrees to pay and Xxxxxxx-Rum
shall accept as tonnage royalty only in respect to the pillaring in the
Central Ridge Mine an amount equal to Seventy-Five cents ($.75) for each and
every ton of coal mined by pillar extraction methods; such payments shall be due
as provided in the Lease. In the event AOWV mines less than 100,000 pillared
tons of coal from the Central Ridge Mine by such mining methods, then Ark shall
pay in accordance with paragraph 2 an additional royalty of Twenty-Five cents
($.25) to Xxxxxxx-Rum for each and every ton of coal so mined ("Additional
Royalty").
2. Ark shall make a determination, in its sole discretion, when it has
extracted all such coal extractable from the Central Ridge Mine utilizing the
ABLS system and, in the event that it
Xxxxxxx-Rum Coal Company
February 24, 1993
Page 2
has extracted less than 100,000 pillared tons, it shall pay the Additional
Royalty due under paragraph 1 within thirty (30) days of making such
determination.
3. Nothing in this letter agreement shall require Ark to mine the pillars
in the Central Ridge Mine or to pay for coal left in place in such pillars at
the Central Ridge Mine.
4. Except as provided herein, this letter agreement shall be governed by
the terms of the Lease, and all terms of the Lease, as amended, shall remain in
effect.
Please indicate your acceptance to the terms of this letter agreement by
signing this letter in duplicate where indicated below. Please return one fully
executed original to me at the above address.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
Vice President
AGREED TO AND ACCEPTED THIS 25th DAY
OF February, 1993
XXXXXXX-RUM COAL COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Title: VICE PRESIDENT
---------------------
[logo]
XXXXXXX-RUM PROPERTIES, INC.
XXXX XXXXXX Xxx 000
XxXXXXXXX, XX 00000-0000
TELEPHONE (000) 000-0000
FAX (000) 000-0000 XXXXXXX X. XXXXXX
VICE PRESIDENT AND CHIEF ENGINEER
September 16, 1996
Xx. Xxxxxx X. XxXxxxx, President
Ark Land Company
Cityplace Xxx
Xx. Xxxxx, Xxxxxxxx 00000-0000
RE: COAL SALES AGREEMENTS: CARDINAL OPERATING COMPANY, DECEMBER 21, 1992, AND
CINCINNATI GAS AND ELECTRIC, DATED JANUARY 1, 1995
Dear Xxxxx:
Reference is made to that certain Lease dated June 1, 1962, by and between
Xxxxxxx-Rum Coal Company, now Xxxxxxx-Rum Properties, Inc., ("Xxxxxxx-Rum") and
Amherst Coal Company, predecessor to Ark Land Company ("Ark"), as amended, (the
"Lease") by which Xxxxxxx-Rum leased certain coal properties located in Xxxxx
County, West Virginia to Ark. Ark currently subleases such property to its
affiliate, Apogee Coal Company, dba Arch of West Virginia ("Arch"). Ark's
parent, Arch Mineral Company, and its wholly-owned subsidiary, Arch Coal Sales,
entered into a coal sales agreement (the "Cardinal Agreement") with Cardinal
Operating Company, on December 21, 1992, and a coal sales agreement (the "CG&E
Agreement") with Cincinnati Gas and Electric, dated January 1, 1995.
We have recently had discussions concerning the sourcing of the coal to be
sold under the Cardinal Agreement and the CG&E Agreement from property demised
by the Lease. In order to induce Ark, and its associated companies, to source
the Cardinal Agreement and the CG&E Agreement from such property, Xxxxxxx-Rum is
willing to make the following concessions for the period beginning October 1,
1996 through December 31, 1997:
1. Notwithstanding the provisions of Section 10, Article V of the Lease,
as amended by the Amendment of Lease dated January 1, 1984, in computing the
"average selling price" as determined
Xx. Xxxxxx X. XxXxxxx
September 16, 1996
Page Two(2)
monthly for the purpose of payment of the tonnage royalty, the realization
received for coal sold under the Cardinal Agreement and the CG&E Agreement will
not be considered, but such average selling price will be determined using all
other coal sold from the property contained in the Lease' during each such
month. Attached is a spreadsheet illustrating such computation.
2. The savings to Ark in royalty payments under the computation set forth
in (1) above, shall be determined monthly and Ark shall pay, at the same time as
the monthly royalty payments are made, to D-R an additional royalty equal to
one-half of such savings.
3. It is specifically understood that in no event shall the royalty be
less than the $1.25 per ton minimum tonnage royalty provided for in the Lease.
4. The terms and conditions of this letter agreement shall supercede the
terms and conditions contained in that certain letter agreement dated August
16,1996, related to the Cardinal Operating Company (the "Cardinal Agreement").
5. It is specifically understood that in the event the combined tonnage
from the Cardinal Agreement and the CG&E Agreement that is sourced from the
demised premises is less than 450,000 tons, for the period beginning October 1,
1996 and ending December 31, 1997, then the terms and conditions contained in
this agreement shall not apply and Ark will immediately pay the applicable
tonnage royalty due had this agreement not been in place.
If the above correctly sets forth our mutual understanding and agreement,
please sign this letter on behalf of Ark and have it signed on behalf of Arch
Mineral Company.
Yours very truly,
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
Vice President and Chief Engineer
GFW:mms
Xx. Xxxxxx X. XxXxxxx
September 16, 1996
Page Three(3)
Agreed and Accepted:
Ark Land Company
By: /s/ Xxxxxx X. XxXxxxx
-----------------------
Its: PRESIDENT
-----------------------
Arch Mineral Company
By: /s/ Xxxxx X. Xxxxx
-----------------------
Its: VICE PRESIDENT
-----------------------
ARK LAND COMPANY
Xxxxxxx-Rum Royalty Reduction
June, 1996
------------------------------------------------------------------------------------------------------
Normal Excl. C,G&E C,G&E & 1/2
Calculation & Cardinal Cardinal Total Change Change
------------------------------------------------------------------------------------------------------
Gross Realization $ 6,513,656.34 $ 3,674,733.87 $ 2,838,922.47 $ 6,513,656.34
Tons Sold 237,160.29 157,073.94 80,086.35 237,160.29
--------------------------------------------------------------------------
Average Selling Price $ 27.4652 $ 23.3949
Less: Percentage
Reduction $ (1.3079) $ (1.1140)
--------------------------------------------------------------------------
Royalty ASP $ 26.1573 $ 22.2809
==========================================================================
Royalty/Ton @ 5.0% * $ 1.3079 $ 1.2500 $ 0.0579 $ 0.0290
------------------------------------------------------------------------------------------------------
Tons Sold 237,160.29
-------------
AEP CARDINAL / CG&E REDUCTION $ 6,865.79
* $1.25 minimum royalty applies.
_____________________________________________________________________________
Cumulative Information
Cardinal &
C,G&E Tons Reduction $
-------------- ----------------
1996
October
November
December -------------- ----------------
- -
Subtotal -------------- ----------------
1997
January
February
March
April
May
June
July
August
September
October
November
December -------------- ----------------
- -
Subtotal -------------- ----------------
Totals - - Minimum tons of
450,000 guaranteed
______________ ________________
ARK
LAND
COMPANY
CityPlace Xxx XXXXXX X. XxXXXXX
XX. XXXXX, XXXXXXXX 00000-0000 PRESIDENT
(000) 000-0000 December 4, 1996
Xx. Xxxxxxx X. Xxxxxx
XXXXXXX-RUM COAL COMPANY
X.X Xxx 000
XxXxxxxxx, Xxxx Xxxxxxxx 00000
RE: LETTER AGREEMENT DATED DECEMBER 14, 1992, AS AMENDED, BY AND
BETWEEN PINE CREEK LAND COMPANY, PREDECESSOR TO ARK LAND COMPANY
("ARK") AND XXXXXXX-RUM COAL COMPANY ("XXXXXXX-RUM") (AMA-334)
Dear Xxxx:
This letter is to request an extension of the term of the minimum royalty
reduction for "rash" coal as set forth in the above-referred letter agreement.
Ark hereby requests an extension of the royalty concession for an additional one
(1) year term from December 14, 1996 through and including December 13, 1997.
If you agree with the terms of the foregoing, please signify your agreement
by executing this letter agreement in duplicate and returning one fully executed
original to me.
Very truly yours,
/s/ Xxxxxx X. XxXxxxx
Xxxxxx X. XxXxxxx
SEM/sp
cc: Xxxxx X. Xxxxx, XX
AGREED AND ACKNOWLEDGED THIS 18TH DAY OF DECEMBER, 1996.
XXXXXXX-RUM COAL COMPANY
BY: /s/ Xxxxxxx X. Xxxxxx
--------------------------
ITS: VICE PRESIDENT
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