ASSET PURCHASE AND SALE AGREEMENT between THOMAS M. SHELTON And WYOMING COUNTY COAL LLC Dated as of November 7, 2018 ASSET PURCHASE AND SALE AGREEMENT
Exhibit 10.9
between
XXXXXX
X. XXXXXXX
And
WYOMING
COUNTY COAL LLC
Dated
as of November 7, 2018
THIS
ASSET PURCHASE AND SALE AGREEMENT (this “Agreement”), made as of
November 7, 2018, by and between XXXXXX X. XXXXXXX, an individual
(“Seller”), and WYOMING
COUNTY COAL LLC, an Indiana limited liability company
(“Buyer”).
BACKGROUND
WHEREAS, Seller
desires to sell, assign and transfer to Buyer, and Buyer desires to
purchase from Seller, certain Assets (as defined below) in
accordance with the terms and conditions set forth herein;
and
WHEREAS,
concurrently with the execution and delivery of this Agreement,
Buyer and Seller are entering into an Asset Purchase Agreement (the
“Asset Purchase
Agreement”) providing for the sale of 100% of the
Assets (as defined in the Asset Purchase Agreement) in Synergy Coal
LLC to Buyer in accordance with the terms and conditions set forth
therein.
NOW
THEREFORE, in consideration of the mutual covenants and promises
contained in this Agreement, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer hereby agree as
follows:
1. Sale
and Purchase of Assets
.
Subject to the terms and conditions of this Agreement, at the
Closing, Seller agrees to sell, assign and transfer to Buyer, and
Buyer agrees to purchase and receive from Seller, the following
assets of Seller as set forth in Sections 1.1 and 1.2
(collectively, the “Assets”):
1.1 Real
Property.
(a) All of
Seller’s right, title and interest in, to and under the
approximate 1,100 acres of land located in Wyoming County, near
Oceana, West Virginia owned by Seller, as an individual (the
“Xxxxxxx
Land”) along with all assets owned by Synergy Coal,
LLC (“Synergy
LLC”) and
conveyed to Seller by the deeds described on Schedule 1.1(a) and included as
a part thereof, which schedule is attached hereto and hereby made a
part hereof (the “Owned Real
Property”).
(b) All of
Seller’s right, title and interest in, to and under the
leases, subleases, easements, licenses, rights-of-way, instruments,
or other real property rights conveyed to Seller by the instruments
described on Schedule
1.1(b) attached hereto and made a part hereof and as
generally depicted on the maps attached to Schedule 1.1(b) (collectively,
the “Leases” and, together
with the Owned Real Property, the “Real
Property”).
1.2 Data,
Books and Records. All engineering
and operational data, charts, surveys, maps, plans, drawings,
computer files, permit applications, books, records, data, title
and other reports, tax tickets, tax appraisals, documents, papers,
instruments and all other materials of all kinds relating to the
Assets in the possession of Seller and locatable after a diligent
search in good faith other than such materials (a) available from
public records and (b) relating to the valuation of the Assets,
Seller’s economic or business analysis of the transactions
contemplated by this Agreement or any other similar, prior
transaction negotiations, or combined with materials related to the
assets or businesses of Seller’s Affiliates (collectively,
the “Data”) provided, Seller
may retain copies of such Data.
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2. Purchase
Price. Buyer shall pay
to Seller the sum of Three Hundred Fifty Thousand Dollars
(US$350,000) paid in cash from the proceeds of the capital raise of
American Resources Corporation (“ARC” parent company to
the Buyer) at a minimum of Five Million Dollars ($5,000,000.00)
raised by ARC (the “Capital Raise”), plus Two Hundred
Fifty Thousand Dollars (US$250,000) secured by a promissory note in
substantially the form of Exhibit A attached hereto and
hereby made a part hereof (the “Note”), and a first
mortgage in the Synergy Land paid in the form of $1.00 per ton for
tons of coal sold (as the case may be) either loaded on the rail or
truck from the property until the Note is paid in full (the
“Deed of
Trust”) (the “Purchase
Price”).
3. Representations
and Warranties of Seller. Seller represents
and warrants to Buyer as follows:
3.1 Existence.
Seller is an individual.
3.2 Authorization.
Seller has the right to execute, deliver and perform this Agreement
and this Agreement constitutes the valid and binding obligations of
Seller, enforceable against Seller, in accordance with their
respective terms except as enforcement may be limited by
bankruptcy, moratorium or similar laws affecting the enforcement of
creditors’ rights generally and by general equitable
principles.
3.3 Compliance
with Other Instruments. Neither the
execution or delivery of the Agreement by Seller nor the
consummation by Seller of the transactions contemplated therein (a)
subject to the Seller Consents, violates or conflicts with or
constitutes a default under the terms of any agreement or
instrument, or any judgment, decree or order applicable to Seller,
or the Assets, (b) will result in the creation at or after the
Closing of any Encumbrance upon all or any part of the Assets,
except for Permitted Encumbrances, or (c) conflicts with,
results in any breach of, constitutes a default (or an event which
with the giving of notice or lapse of time, or both, would become a
default) under, requires any consent under, or gives to others any
rights of termination, amendment, acceleration or cancellation of,
any note, bond, mortgage or indenture, contract, agreement, lease,
sublease, license, permit, franchise or other instrument or
arrangement to which Seller is a party, except as would not
materially and adversely affect the ability of Seller to carry out
its obligations under, and to consummate the transactions
contemplated by, this Agreement, except as set forth on
Schedule 3.4 or
Schedule
3.5.
3.4 Approvals
and Consents. Except with
regard to the consents (the “Seller Consents”)
required under the agreements described on Schedule 3.4 attached hereto
and hereby made a part hereof, no permit, consent, approval,
waiver, easement, license or other authorization of or declaration
to or filing with or by any person, entity, court, governmental or
regulatory or other authority is required in connection with the
execution or performance of this Agreement by Seller or the
consummation by Seller of the transactions contemplated
herein.
3.5 Title
to Assets. Except as set
forth on Schedule
3.5, Seller owns or leases the Assets free and clear of all
mortgages, claims, liens, security interests, charges, pledges,
options, grants, reversionary rights or other encumbrances
(collectively, the “Encumbrances”) caused or
created by Seller or any Affiliate of Seller, except for Permitted
Encumbrances. Seller will warrant and defend title by, through and
under (as and to the extent applicable) to the Assets unto Buyer,
its successors and assigns, against all claims and demands of all
parties claiming by, through or under Seller except for claims and
demands related to the Permitted Encumbrances provided, the
warranty set out in this sentence is intended to grant the same
warranty as is included in the Deeds and no more. For purposes of
this Agreement, the term “Permitted Encumbrances”
means any Encumbrances (a) for taxes and assessments of a
Governmental Authority not yet delinquent, (b) evidenced by
recorded instruments, (c) created by Buyer, (d) obvious from a
physical inspection of the Real Property, or (e) affecting the Real
Property due to Laws.
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3.6 Reliance
of Buyer. Seller disclaims
and makes no representation or warranty, expressed or implied, as
to the accuracy, completeness, usefulness or reliability of the due
diligence information provided to Buyer or any portion thereof
whatsoever, except for such representations and warranties
expressly set forth in this Agreement.
4. Representations
and Warranties of Buyer. Buyer hereby
represents and warrants to Seller as follows:
4.1 Organization
and Existence of Buyer. Wyoming County
Coal LLC is a limited liability company duly organized and validly
existing under the laws of the State of Indiana.
4.2 Authorization
by Buyer. All company
action of Buyer necessary to authorize the execution, delivery and
performance of this Agreement and the Related Agreements to which
it is a party (“Buyer Agreements”) in
connection herewith has been taken and this Agreement and the Buyer
Agreements constitute the valid and binding obligations of Buyer
enforceable against Buyer in accordance with their respective terms
except as enforcement may be limited by bankruptcy, insolvency,
moratorium, reorganization, liquidation or similar laws affecting
the enforcement of creditors’ rights generally and by general
equitable principles.
4.3 Compliance
with Other Instruments. Neither the
execution and delivery of this Agreement or any of the Buyer
Agreements nor the consummation at Closing by Buyer of the
transactions contemplated therein (a) violates or conflicts with or
constitutes a default under the terms of the Articles of
Organization or the operating agreement of Buyer, or, subject to
the Buyer Consents, any agreement or instrument, or any judgment,
decree or order applicable to Buyer or any of its properties or (b)
will give rise to any right of rescission or similar remedy under
any limited liability company or securities law with respect to any
of the transactions contemplated by this Agreement.
4.4 Consents
and Approvals. Except for the
Permits and those items disclosed on Schedule 4.4
(“Buyer
Consents”), no consent, approval or action of, filing
with or notice to, any Governmental Authority or any other person
or entity, on the part of the Buyer is required in connection with
the execution, delivery and performance of this Agreement or any of
the Buyer Agreements or the consummation of the transactions
contemplated hereby or thereby.
4.5 Permitting.
Except as set forth on Schedule 4.5, neither Buyer nor
any person or entity that, together with any Affiliates of Buyer,
owns ten percent (10%) or more of the equity interests of Buyer has
been subject to any bond forfeiture, permit suspension or
revocation or similar effort or any Proceeding instituted by any
Governmental Authority that would prohibit or materially adversely
affect the transfer of the Permits to Buyer. Neither Buyer nor any
person or entity “owned or controlled” by Buyer or any
of their respective Affiliates, has been notified by the Federal
Office of Surface Mining or the agency of any state administering
the Surface Mining Control and Reclamation Act of 1977, as amended
(or any comparable state statute), that it is currently (a)
ineligible to receive additional surface mining permits or (b)
under investigation to determine whether its eligibility to receive
such permits should be revoked, i.e., “permit blocked.”
As used in this Section
4.5, “owned or controlled” shall be defined as
set forth in 30 C.F.R. Section 773.5 (1991). As used in this
Section 4.5, “Proceeding” shall mean
any action, suit, proceeding, arbitration, investigation or audit,
whether or not by any Governmental Authority.
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4.6 Financing. The Buyer shall
have, upon the completion of the Capital Raise, sufficient
immediately available funds to pay, in cash, the cash portion of
the Purchase Price and all other amounts payable pursuant to this
Agreement and the Asset Purchase Agreement and all fees and
expenses in connection with the transactions completed hereby and
thereby.
5. Closing.
5.1 Date
and Place. The closing (the
“Closing”) of the
transactions contemplated by this Agreement shall take place on
such date, time and place as the parties shall mutually agree;
provided that the Closing shall take place concurrently with the
closing under the Asset Purchase Agreement.
5.2 Closing
Costs. Buyer shall pay
all sales and transfer taxes due and payable in connection with the
sales, conveyances, assignments, transfers, and deliveries to be
made by Seller to the Buyer under this Agreement.
5.3 Closing
Deliveries.
(a) At the Closing
(subject to Section 5.4, Buyer shall pay or deliver, as the case
may be, to Seller:
(i) stock certificates
for the 1,727,273 common equity shares of ARC;
(ii) Two
Hundred Fifty Thousand Dollars (US$250,000) secured by the
Note,
(iii) a
certificate signed by the Secretary or an Assistant Secretary of
Buyer certifying as to the truthfulness, completeness and accuracy
of attached copies of resolutions of Buyer’s members
authorizing the execution of this Agreement and all transactions
contemplated herein;
(iv) a
certificate of existence for Buyer issued by the Secretary of the
State of New York dated not more than three days prior to Closing;
and
(v) such other
documents or instruments, duly executed by Buyer, as may be
reasonably necessary and requested by Seller in order to consummate
the transactions contemplated by this Agreement.
(b) At the Closing,
Seller shall deliver to Buyer:
(i) a special warranty
deed conveying and transferring to Buyer title to the Owned Real
Property in substantially the form of Exhibit 5.3(b)(i) attached hereto and
hereby made a part hereof (the “Deeds”), duly executed by
Seller;
(ii) the
Note duly executed by Seller;
(iii) the
Deed of Trust duly executed by Seller; and
(iv) the
Xxxx of Sale duly executed by Seller.
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5.4 Post-Closing Deliveries. At the
completion of the Capital Raise, Buyer shall promptly pay to Seller
an amount in cash equal to Three Hundred Fifty Thousand Dollars
(US$350,000) paid promptly upon completion of the preferred Series
C offering or the public offering of American Resource Energy
Company by electronic funds transfer to such accounts as Seller
shall direct Buyer in writing.
5.5 Conditions
to Obligations of Buyer. The obligations
of Buyer to consummate the transactions contemplated by this
Agreement shall be subject to Seller’s fulfillment of the
following conditions:
(a) Representations and Warranties
True. All representations and warranties made by Seller
under this Agreement shall be true and correct in all material
respects on the date of Closing and Seller shall deliver to Buyer a
certificate to that effect.
(b) Approvals and Consents. Seller
shall have obtained and delivered the Seller Consents to Buyer
except as otherwise agreed to by Buyer in writing.
(c) Liens Released. Seller shall
have delivered to Buyer evidence reasonably satisfactory to Buyer
that the liens set forth on Schedule 3.5 have been
released.
(d) Closing Deliveries. Seller
shall have delivered to Buyer all of the documents set forth in
Section
5.3(b).
(e) Asset Purchase Agreement. All
conditions to closing under the Asset Purchase Agreement shall have
been satisfied or waived (other than those conditions that by their
nature will be satisfied at the closing thereunder).
(f) Due Diligence. The results of
Buyer’s due diligence investigation shall be satisfactory to
Buyer.
5.6 Conditions
to Obligations of Seller. The obligations
of Seller to consummate the transactions contemplated by this
Agreement shall be subject to Buyer’s fulfillment of the
following conditions:
(a) Representations
and Warranties True. All
representations and warranties made by Buyer under this Agreement
and the Asset Purchase Agreement shall be true and correct in all
material respects on the date of Closing and Buyer shall deliver to
Seller a certificate to that effect.
(b) Closing Deliveries. Buyer shall
have delivered to Seller all of the documents set forth in
Section
5.3(a).
(c) Purchase
Price Payment. Buyer shall have
paid to Seller the Purchase Price in accordance with Section 5.3(a)(i).
(d) Asset Purchase Agreement. All
conditions to closing under the Asset Purchase Agreement shall have
been satisfied or waived (other than those conditions that by their
nature will be satisfied at the closing thereunder).
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5.7 Related
Agreements. For purposes of
this Agreement, the term “Related Agreements” means
the corporate and company resolutions of Buyer, authorizing this
Agreement, the documents to be delivered by Buyer under
Sections 5.3(a) and
by Seller under Section
5.3(b), and any other agreement, certificate or similar
document contemplated in this Agreement as to be executed by any
party hereto.
6. Other
Agreements.
6.1 Taxes.
Any and all ad valorem real property taxes, personal property
taxes, fees or assessments for the calendar year 2018 due with
respect to the Assets, or payable by Seller pursuant to the terms
of any leases, subleases, licenses, rights-of-way, instruments, or
other agreements by which Seller holds the Real Property or any
other of the Assets shall be prorated between Seller and Buyer, as
of the Closing on a calendar year basis, using the calendar year
2018 tax rates and assessments by the appropriate Governmental
Authority. If any party shall pay such taxes for which it is
entitled to be reimbursed because of such proration, the other
party responsible therefor shall promptly reimburse the party so
paying upon notice of the amount paid by such party together with
supporting documentation thereof.
6.2 Consents.
Other than Seller Consents listed in Schedule 3.4 or otherwise
provided in this Agreement, Buyer shall be solely responsible for
obtaining any and all necessary third-party consents and regulatory
agency authorizations, including for the Permits. Seller shall
provide reasonable and customary assistance to obtain such consents
and assignments, provided that such assistance shall not include
payment of any consent or transfer fees or providing guarantees or
financial assistance.
6.3 Specific
Performance. Seller and Buyer
each acknowledge that the other will be irreparably damaged and
will have no adequate remedy at law if the acknowledging party
fails to perform any of its obligations under this Agreement. If
either party fails to perform any of its obligations under this
Agreement or the Related Agreements, the other party shall have the
right, in addition to any other rights it may possess, to
injunctive relief to prevent breaches of the provisions of this
Agreement and to enforce the specific performance of this Agreement
and the Related Agreements, in addition to any other remedy to
which it may be entitled, at law or in equity.
6.4 Expenses.
Each of the parties hereto shall pay its own expenses and the fees
and expenses of its counsel, accountants, consultants and other
experts and representatives associated with this Agreement and the
transactions contemplated herein.
6.5 Waivers.
The waiver by any party to this Agreement of compliance by any
other party with, or a breach of any other party of, any provision
of this Agreement shall be made in writing executed by the party
waiving such compliance or breach which shall be delivered to the
party whose compliance or breach is being waived. The waiver by any
party hereto of compliance with or breach of any provision of this
Agreement shall not operate, or be construed, as a waiver of any
subsequent breach or failure to comply with any other provision of
this Agreement.
6.6 Further
Assurances. At or after the
Closing, (a) Seller shall execute and deliver to Buyer all such
further assignments, deeds, agreements, contracts, instruments and
other documents as Buyer may reasonably request in order to
perform, accomplish, perfect or record, if reasonably necessary,
the sale, assignment, transfer and delivery to Buyer of the Assets
as contemplated by this Agreement and to otherwise carry out the
intention and purpose of this Agreement and the Related Agreements,
and (b) Buyer shall execute, or shall cause the execution of, and
deliver to Seller such assignments, deeds, agreements, contracts,
instruments and other documents as Seller may reasonably request in
order to perform, accomplish, perfect or record, if necessary, and
carry out the intention and purpose of this Agreement and the
Related Agreements and the transactions contemplated
thereby.
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6.7 Assistance
in Title Matters. Seller shall
execute and deliver all documents, make all truthful and
appropriate affirmations, testify in any proceedings and do all
other acts that may be necessary or desirable, in the reasonable
opinion of counsel for Buyer, to perfect of record the title of
Buyer to the Assets, at Buyer’s sole cost and expense except
as to costs and expenses related to the correction of any defect in
title contrary to the express representations and warranties of
Seller in Article 3.
6.8 Disclaimer
of Warranties. The Buyer
acknowledges that the representations and warranties contained in
Article 3 are the only representations or warranties given by the
Seller, and that all other express or implied warranties are
disclaimed. Without limiting the foregoing and except as otherwise
provided in this Agreement, and without waiving any defenses to
liability under any Laws, the Buyer acknowledges that, except as
otherwise provided in Article 3, the Assets are being conveyed to
Buyer “AS
IS”, “WHERE IS” and
“WITH ALL
FAULTS” and that all warranties of condition,
merchantability or fitness for a particular purpose are disclaimed.
WITHOUT LIMITING THE FOREGOING, THE BUYER ACKNOWLEDGES THAT EXCEPT
AS PROVIDED HEREIN, THE SELLER AND ITS RESPECTIVE RELATED PERSONS
HAVE MADE NO REPRESENTATION OR WARRANTY CONCERNING (A) ANY USE TO
WHICH THE ASSETS MAY BE PUT, (B) ANY FUTURE REVENUES, COSTS,
EXPENDITURES, CASH FLOW, RESULTS OF OPERATIONS, FINANCIAL CONDITION
OR PROSPECTS THAT MAY RESULT FROM THE OWNERSHIP, USE OR SALE OF THE
ASSETS, (C) ANY OTHER INFORMATION OR DOCUMENTS MADE AVAILABLE TO
THE BUYER OR RELATED PERSONS, (D) THE CONDITION OF THE ASSETS,
INCLUDING COMPLIANCE WITH ANY ENVIRONMENTAL LAWS OR OTHER LAWS, OR
(E) THE ASSETS PRIOR TO THE DATE SELLER ACQUIRED THE ASSETS. For
purposes of this Section 6.8, “Related Persons” shall
mean Affiliates of Seller and any member, manager, officer,
director, employee, agent, shareholder, representative, successor
or assign of Seller or its Affiliates.
6.9 Survival.
All covenants and obligations in this Agreement and the Related
Agreements shall survive the Closing and the consummation of the
transactions contemplated hereunder subject to the terms and
conditions set forth herein.
6.10 Conduct
Prior to the Closing. Seller covenants
and agrees that, between the date hereof and the Closing, he shall
maintain ownership of the Assets and conduct his business relating
to the Assets and shall maintain the Assets in the ordinary course
directly or indirectly through his use of a contractor consistent
with past practice. Without limiting the generality of the
foregoing, between the date hereof and the Closing, Seller shall
(a) use commercially reasonable efforts directly or indirectly
through his use of a contractor consistent with past practice to
maintain, preserve and protect all of the Assets in the condition
in which they exist on the date hereof, except for ordinary wear
and tear and except for replacements, modifications or maintenance
in the ordinary course of business; (b) not, directly or
indirectly, sell or otherwise transfer or dispose, or offer, agree
or commit (in writing or otherwise) to sell or otherwise transfer
or dispose of any of the Assets; (c) comply in all material
respects with all laws applicable to him or having jurisdiction
over Seller insofar as they relate to the Assets; (d) maintain in
full force and effect each Permit held by Seller as of the date
hereof, and comply with the terms of each such Permit and not allow
any such Permit to terminate, expire or lapse; and (e) maintain in
full force and effect insurance covering the Assets as in effect on
the date hereof and not allow any such insurance to terminate,
expire or lapse.
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7. Termination.
7.1 Termination
Events. This Agreement
may be terminated by Seller at any time prior to the Closing if it
appears to the Seller that the Asset Purchase Agreement shall not
Close.
7.2 Effect
of Termination. In the event of
termination of this Agreement as provided in Section 7.1, this Agreement
shall forthwith become void and there shall be no liability on the
part of any party hereto except that nothing herein shall relieve
any party from liability for any breach of this Agreement occurring
prior to such termination.
8. Miscellaneous.
8.1 Assignment.
The rights and obligations of any party arising under this
Agreement, or any interest therein, shall not be assigned,
transferred, conveyed, sold, pledged, mortgaged, hypothecated,
encumbered or otherwise disposed of (whether by operation of law or
otherwise), in whole or in part, without obtaining the prior
written consent of the other party hereto, which consent shall not
be unreasonably withheld or delayed.
8.3 Broker.
Each of Seller and Buyer represent to the other that all
negotiations relevant to this Agreement and the transactions
contemplated herein have been carried on by them directly with the
other without the intervention or assistance of any person other
than their respective employees, agents and consultants, and each
agrees to indemnify the other and to hold it harmless against and
in respect of any claim against the other for brokerage or other
commissions relative to this Agreement, the sale of the Assets
hereunder and the transactions contemplated herein.
8.4 Notice.
Except as otherwise specified in this Agreement, all notices,
requests, demands and other communications under this Agreement
shall be in writing and shall be deemed to have been duly given on
the date when personally delivered to the party to whom notice is
to be given, on the date of transmission if sent by confirmed
facsimile transmission, or on the second day after mailing, if
mailed to the party to whom notice is to be given, by nationally
recognized overnight delivery service and properly addressed as
follows:
If to
the Seller:
Xxxxxx
X. Xxxxxxx
0000
Xxxxxxxx Xxxxx Xxxxx
Xxxxxxxx
Xxxxx, XX 00000
Facsimile:
(000) 000-0000
WITH
COPIES TO:
Xxxxxxxxx
Xxxxxxx, LLP
0000
Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxx
Office:
(000) 000-0000
Facsimile:
(000) 000-0000
Email:
xxxxxxx@xxxxx.xxx
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If to
the Buyer:
Wyoming
County Coal, LLC
X.X.
Xxx 000
Xxxxxxx,
XX 00000
Attention:
Xxxxxxx X. Xxxxxx
Facsimile:
606-393-0190
Email:
xxx@xxxxxxxxxxxxxxx.xxx
Any
party may change its address for the purposes of this section by
giving the other party hereto written notice of the new address in
the manner set forth above.
8.5 Third
Parties. Except as
otherwise expressly provided for in this Agreement, nothing in this
Agreement, whether expressed or implied, is intended to confer any
rights or remedies under or by reason of this Agreement on any
persons other than the parties to this Agreement and their
respective successors and permitted assigns, nor is anything in
this Agreement intended to relieve or discharge the obligation or
liability of any third person to any party to this Agreement, nor
shall any provision give any third person any right of subrogation
or action over or against any party to this Agreement.
8.6 Governing
Law. This Agreement
shall be governed by, and construed and interpreted in accordance
with, the laws of the State of Indiana, without regard to or
application of its conflict of laws or principles.
8.7 Entire
Agreement. This Agreement,
together with the attached Schedules and Exhibits, and, once
executed and delivered, the Related Agreements, constitutes the
entire agreement between the parties with respect to the subject
matter hereof and may not be changed, terminated or discharged
except by writing duly executed by the parties hereto. In the event
of a conflict between the terms and conditions of this Agreement
and the Asset Purchase Agreement, the terms and conditions of the
Asset Purchase Agreement shall control.
8.8 Benefit.
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto, their respective successors and
assigns.
8.9 Headings.
The headings contained in this Agreement are included for purposes
of convenience of reference only and shall not affect the
construction or interpretation of any of its
provisions.
8.10 Severability.
In the event one or more of the provisions of this Agreement shall,
for any reason, be held invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not
affect the validity, legality or enforceability of any other
provision of this Agreement, and this Agreement shall be construed
as if such invalid, illegal or unenforceable provision was not a
part of this Agreement.
8.11 Drafting.
No inference shall be drawn in favor of or against any party based
upon its participation in the drafting of this Agreement or any of
the other documents referenced herein.
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8.12 Counterparts.
This Agreement may be executed in counterparts (including via
facsimile and e-mail), each of which shall be deemed an original,
but all of which together shall constitute one and the same
agreement, and shall become effective when one or more counterparts
have been signed by each of the parties hereto. The executed
Agreement together with any attachments hereto may be photocopied
and stored on computer tapes, disks and similar electronic storage
media (“Imaged
Document”). If an Imaged Document is introduced as
evidence in any judicial, arbitration, mediation or administrative
proceeding, neither party shall object to the admissibility of the
Imaged Document on the basis that such was not originated or
maintained in documentary form under either the hearsay rule, the
best evidence rule, or other rule of evidence.
8.13 No
Consequential Damages. Except as
prohibited by law, the Buyer hereby waives any right it may have to
claim or recover any special, exemplary, punitive or consequential
(including business interruption) damages, or any damages other
than, or in addition to, actual damages, whether pursuant to this
Agreement, the Related Agreements or otherwise.
8.14 Jurisdiction;
Venue. All actions
arising out of or relating to this Agreement shall be heard and
determined exclusively in any United States federal court sitting
in the United States District Court for the Southern District of
Indiana, or in the event (but only in the event) that such court
does not have jurisdiction over such action or proceeding, in any
Indiana state court sitting in Xxxxxxxx County. Consistent with the
preceding sentence, the parties hereto hereby (a) submit to the
exclusive jurisdiction of any such United States federal court or
Indiana state court for the purpose of any action arising out of or
relating to this Agreement brought by any party hereto and (b)
irrevocably waive, and agree not to assert by way of motion,
defense, or otherwise, in any such action, any claim that it is not
subject personally to the jurisdiction of the above-named courts,
that its property is exempt or immune from attachment or execution,
that the action is brought in an inconvenient forum, that the venue
of the action is improper, or that this Agreement or the
transactions contemplated by this Agreement may not be enforced in
or by any of the above-named courts.
8.15 No
Public Announcements. Each of the
parties to this Agreement hereby agrees not to make any press
release or similar public announcement concerning the execution or
performance of this Agreement prior to or after the Closing without
the consent of the other party.
8.16 Definitions.
For purposes of this Agreement:
“Affiliate” means any
person or entity that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common
control with, the specified party. In this context, the term
“control” (including the terms controls, controlled by and
under common control with)
means the possession, direct or indirect, of the power to direct or
cause the direction of the management and policies of a person or
entity, whether through the ownership of voting securities, by
contract, or otherwise.
“Governmental Authority”
means any United States federal, tribal, state or local, or any
foreign government, governmental authority, regulatory or
administrative agency, governmental commission, court or tribunal
(or any department, bureau or division thereof).
“Law(s)” means any
federal, state or local statute, law, ordinance, decree, order,
rule, judgment, or regulation including, but not limited to, those
relating to zoning, employees, wages, and occupational health and
safety currently in effect, applicable to the Real
Property.
“Permits” means any
governmental permits applicable to ownership and operations of the
Assets.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above
written.
BUYER:
WYOMING
COUNTY COAL LLC
By:
Name:
Title:
SELLER:
By:
_______________________________
Xxxxxx X.
Xxxxxxx
Title: ___________________________
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