AMENDMENT NO.1 TO UNIT PURCHASE AGREEMENT dated December 9, 2013
Exhibit 4.57
AMENDMENT NO.1 TO
dated December 9, 2013
This AMENDMENT NO. 1 is entered into as of the 30th day of June 2015 by and among
a) Coal Essence Prep Plant LLC. a Kentucky limited liability company (hereinafter referred to as the “Purchaser”),
And
b) NewLead Holdings Ltd., a corporation established under the Laws of Bermuda with a registered office at Canon's Court, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX 00, Xxxxxxx and a Greek office at 00, Xxxx Xxxxxxx & Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxx (hereinafter referred to as “NewLead”),
And
c) Pallas Highwall Mining LLC. a Delaware limited liability company, with a registered address at 000 X Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000 (hereinafter referred to as the “Seller”).
(jointly the Parties and singly the Party)
NewLead and the Seller shall also mean and include their heirs, successors, legal representatives and assigns.
Capitalized terms used in this Amendment shall hare the respective meanings set forth in the relevant provisions of the Unit Purchase Agreement dated 9th December 2013.
RECITALS
WHEREAS
1. The Parties have entered into a Unit Purchase Agreement dated 9th December 2013 (hereinafter the “Purchase Agreement”), whereby the Seller agreed to sell and the Purchaser agreed to purchase 100% of the Ownership Interests in Viking Prep Plant LLC, a Kentucky limited liability company (hereinafter referred to as “VPP”) for the consideration of USD 30.000.000 (United States Dollars thirty million) (hereinafter referred to as the “Purchase Price”).
2. The Purchase Agreement contains certain customary representations, warranties and covenants by the Seller, including among others, that (a) VPP is validly existing under the law of Kentucky, (b) VPP has and at all times has had full power and authority to own and lease its assets and where such assets are now owned and leased, and to conduct its business as and where such business has been and is now being conducted. (c} the Seller is the only and ultimate beneficial owner of VPP, (d) the Financial Statements represent actual, bona fide transactions and present fairly the financial condition of VPP and the results of operations, changes in retained earnings and cash flows for such periods shown thereon are consistent with the books and records, (e) any Liabilities of VPP were disclosed on Schedule 1.3 of the Purchase Agreement, (f) any Litigation, action/ suit/ proceeding or arbitration is set out on Schedule 4.9 of the Purchase Agreement, (g) Legal Compliance Governmental Authorizations are set out on Schedule 4.10, (h) Labor matters are set out on Schedule 4.11, (i) any contracts entered by VPP are set out on Schedule 4.12, (j) the Equipment set out Schedule 4.13 and acquired by the Purchaser on “as is, where is” basis, without any warranties, (k) VPP has good and marketable title to all of its assets, tangible and intangible, as set out on Schedule 4.14.
3. The Parties now mutually desire to amend certain provisions of the Agreement as set forth in this Amendment.
NOW, IT IS THEREFORE AGREED AS FOLLOWS:
1. The Seller hereby releases and discharges the Purchaser from any liabilities, which VPP has incurred in its Ordinary Course of Business to third parties prior to the Closing Date as specifically indicated in Schedule 1 attached hereto.
2. Any Receivables prior to the Closing Date and as indicated in Schedule 1.4 of the Unit Purchase Agreement remain with the Sellers. More specifically, the amount of USO 166.268.78 is a receivable of Sellers. In the event the said Receivable is remitted to the Company, then the Purchaser shall arrange for it to be remitted to the Seller.
3. The Parties hereby mutually agree and covenant to each other that neither of them have done, executed or performed any act, deed or thing or suffered an1hing to the contrary whereby any of them are or will be hindered or prevented from the execution of this Amendment.
4. Upon execution hereof, the Parties have no liability and or responsibility to each other, waive and release and discharge each other from any obligations, claims and/or demands now or in the future for any losses, damages and/or expenses incurred with respect to the Liabilities.
5. All other terms and conditions of the Unit Purchase Agreement shall remain intact and in full force and effect.
(Signature Page follows)
In witness whereof the Parties have signed on the day, month and year first above written.
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For Coal Essence Prep Plant LLC |
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By Xx. Xxxxxxx X. Xxxxxxx |
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For New Lead Holdings Ltd. |
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By Xx. Xxxxxxx X. Xxxxxxx |
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President. CEO and Chairman |
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For Pallas Highwall Mining LLC |
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By Xxxxxx Xxxxxxxx |
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Manager |
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SCHEDULE 1
|
0001120 AA Construction & Steel Fab |
4.250,00 | |||
|
0001130 AFCO |
6.769,52 | |||
|
0001140 Airgas USA, LLC |
4.701,93 | |||
|
0001142 AKJ Industries |
5.847,90 | |||
|
0001143 Alpine Consulting & Engineerin |
205,05 | |||
|
0001146 American Express |
28.465,64 | |||
|
0001147 Amercan Express - VPP |
14.623,01 | |||
|
0001148 American Mining Insurance Co. |
0,30 | |||
|
0001157 Apogee Environmental & Archael |
1.950,00 | |||
|
0001160 Appalachian Security Inc |
10.021,00 | |||
|
0001165 Appalachian Tire Products |
3.551,95 | |||
|
0001167 Appalachian Wireless |
789,00 | |||
|
0001201 Xxxxx & Xxxxx, P.S.C. |
3.034,00 | |||
|
0000000 Banks Xxxxxx Supply |
1.733,65 | |||
|
0001207 B&C Vulcanizing |
9.282,00 | |||
|
0001212 Belt Tech Inc. |
8.793,70 | |||
|
0001215 Big Xxxxx Pressure Cleaning |
1.515,00 | |||
|
0001218 Birch Communications |
1.833,06 | |||
|
0001236 Blackhawk Mining, LLC |
3.000,00 | |||
|
0001285 Xxxxxxx Xxxxx |
6.719,07 | |||
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0001290 Busy Bee Septic Systems |
1.462,80 | |||
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0001309 Chase |
51.927,65 | |||
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0000000 Coal Operators 1, LLC |
3.250,00 | |||
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0000000 Coal Run Starter & Alternator |
291,50 | |||
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0001321 Conveyor Manufacturing&supply |
1.908,00 | |||
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0001323 Colonial Life Insurance Premiu |
1.891,36 | |||
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0001325 City Insurance Professionals |
470,32 | |||
|
0001369 CS&C |
62.823,14 | |||
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0001370 CSX Transportation |
27.326,22 | |||
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0001380 Custom Software Solutions, Inc |
525,00 | |||
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0001450 Xxxxxxxx & Shohl, LLP |
1.057,75 | |||
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0001460 Drives & Conveyors |
8.861,62 |
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0001520 Eastern Screens & Drives |
27.118,53 | |||
|
0001522 Eastern Prep |
28.782,00 | |||
|
0001523 Eastern Technologies & Telepho |
2.020,02 | |||
|
0001606 Fastenal Company |
46,26 | |||
|
0001615 Fedex |
173,85 | |||
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0001620 Fenner Dunlop |
7.700,00 | |||
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0001655 FLSmidth Xxxxx Inc |
4.098,88 | |||
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0001715 Geo/Environmental Assoc Inc |
6.290,63 | |||
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0001720 Xxxxxx Xxxx |
11,49 | |||
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0001725 Green Earth Energies |
100,00 | |||
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0001732 Grayco Rentals Inc. |
1.415,10 | |||
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0001800 Xxxxxx Electric Company |
36.543,00 | |||
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0001805 Hampton Inn - Pikeville |
5.354,35 | |||
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0001809 Highland Communications, Inc. |
2.302,32 | |||
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0001820 Holden Machine & Fabrication |
8.855,84 | |||
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0002002 Jabo Supply Corporation |
26.466,77 | |||
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0002003 JBLCo |
14.069,10 | |||
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0002005 Jigsaw Enterprises LLC |
1.260,00 | |||
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0002114 Kanawha Scales & Systems |
1.180,00 | |||
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0002115 Kentucky Power Company |
76.840,29 | |||
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0002235 Xxxxxx Equipment Co |
845,99 | |||
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0002303 XxXxx & XxXxx Laboratories |
3.393,79 | |||
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0002319 Xxxxxxx Processing LLC |
600.499,29 | |||
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0002322 Minet Lacing Technology, Inc. |
1.679,64 | |||
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0002324 Xxxxxx Xxxxx, Inc. |
11.685,95 | |||
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0002325 Mountaintop Hydroseeding, Inc. |
11.980,00 | |||
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0002326 Mountain Aggregates, Inc. |
8.458,50 | |||
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0002327 M & M Mine Supply Co., Inc. |
1.202,17 | |||
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0002410 National Safety Group LLC |
1.380,00 | |||
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0002618 Phoenix Scale Technologies |
1.623,92 | |||
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0000000 Xxxx Xxxxxx Xxxxx |
0.000,00 | |||
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0000000 Xxxx Xxxxxx Solid Waste |
135,32 | |||
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0002626 P B Dirt Movers, LLC |
171.810,40 | |||
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0002661 Postmaster |
140,00 | |||
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0002663 Precision Product Technologies |
941,00 |
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0002666 Principal financial Ins |
5.998,21 | |||
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0002667 Xxxxxx and de Bourbon Law Firm |
5.580,00 | |||
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0002702 Quality Magnetite |
23.164,99 | |||
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0002840 xx xxxxxx co. |
4.514,00 | |||
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0002920 SGS North America Inc |
9.259,80 | |||
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0002930 Silver Spur Conveyors, Inc. |
24.405,90 | |||
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0002945 Xxxx X Xxxxx |
2,10 | |||
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0002946 Xxxxx-Xxxxx |
19.890,88 | |||
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0002963 Xxxxxxx & Xxxxxxxx PLLC |
87.350,42 | |||
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0002975 Summit Engineering Inc |
15.711,73 | |||
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0002980 Sure Teck Systems Inc |
1.992,00 | |||
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0003076 Trvellers - Sterling ins serv |
1.032,25 | |||
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0003078 Tri-State Rail Services Inc |
27.673,50 | |||
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0003080 Tri -State Laboratory Services |
6.611,00 | |||
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0000000 US Cellular |
219,39 | |||
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0003250 Xpress Conveyor & Vulcanizing |
4.614,00 | |||
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0003319 Wham Steam Cleaning |
2.760,00 | |||
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0003325 Xxxxxx Supply Company |
212,07 | |||
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0003339 White Armature Works Inc |
38.931,49 | |||
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0003345 Wrightway |
4.956,00 | |||
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0003400 Young Brothers Machine & Elect |
636,00 | |||
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0003420 ZEE Medical, Inc. |
225,61 | |||
| 1,640,947.70 |
