Exhibit 2.6
PITTSTON COAL COMPANY
000 X. X. Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
December 13, 2002
Paramont Coal Company Virginia, LLC
c/o Alpha Natural Resources, LLC
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Asset Purchase Agreement (the "Agreement"), dated
as of October 29, 2002, as amended to but not including the date hereof, by and
between Pittston Coal Company ("PCC") and Paramont Coal Company Virginia, LLC
("Buyer"). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
PCC and Buyer desire to amend certain provisions of the Agreement and, in
consideration of the mutual covenants, conditions and agreements set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Section 1.82 of the Agreement is deleted in its entirety and replaced
with the following:
"1.82 Purchase Price.
"Purchase Price" shall mean the cash amount of $12,296,687
(which amount shall include $620,000 for the Parts, Fuel and Supplies
Inventory, $1,640,000 for the Coal Inventory, $55,000 for one continuous
miner, $250,000 for one helicopter and $1,483,206 for the VC 5 Estimate),
plus the Promissory Note, subject to the adjustment provided for in Section
2.2(b).
2. A new Section 1.107 of the Agreement is inserted into the Agreement as
follows:
"1.107 Subleases.
"Subleases" shall have the meaning set forth in Section
2.13(a) hereof."
3. Notwithstanding anything in the Agreement to the contrary, each of PCC
and Buyer agree that for purposes of Sections 2.1 and 2.3 of the
Agreement only, none of the Equipment listed on Schedule 1.37(b)
attached to the Agreement shall constitute Purchased Assets.
4. Notwithstanding anything in the Agreement to the contrary, each of PCC
and Buyer agree that Buyer shall have caused the applicable Asset Sale
Companies to
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purchase the Equipment specifically identified under the heading
"Transamerica Equipment" on Schedule 1.37(b) (the
"Transamerica Equipment"). Simultaneously with the Closing, PCC shall
cause the applicable Asset Sale Companies to transfer to Buyer, and
Buyer shall acquire, the Transamerica Equipment from such Asset Sale
Companies pursuant to a xxxx of sale. Each of PCC and Buyer agrees
that the Purchase Price Set forth in Section 1.82 includes all amounts
that Buyer owes PCC or the Asset Sale Companies for the Transamerica
Equipment upon its purchase by the applicable Asset Sale Companies
from Transamerica, including one-half of the lease breakage fee. PCC
acknowledges its responsibility to pay $3,672.13 to Transamerica,
which is one-half of such lease breakage fee.
5. Each of Buyer and PCC agree that the VC 5 Estimate shall mean
$1,482,206 and that the Final VC 5 Cost shall be equal to the VC 5
Estimate. Buyer hereby acknowledges that PCC has delivered
documentation reasonably acceptable to Buyer detailing and supporting
the VC 5 Estimate in accordance with Section 2.2(a) of the Agreement.
Buyer hereby acknowledges that PCC has delivered documentation
reasonably acceptable to Buyer detailing and supporting the Final VC 5
Cost in accordance with Section 2.2(b) of the Agreement.
6. Each of PCC and Buyer agree that in satisfaction of Section 2.12 of
the Agreement, the face amount of the Promissory Note shall be fixed
at $2,516,882.
7. A new Section 2.14 of the Agreement is inserted into the Agreement as
follows:
2.14 Subleases.
(a) Each of PCC and Buyer agree that at the Closing, Buyer
shall sublease the Equipment set forth on Schedule 1.37(b) attached to
the Agreement (other than the Transamerica Equipment) from the
applicable Asset Sale Company pursuant to the subleases substantially
in the forms attached hereto as Exhibits X-0, X-0, X-0, X-0 and A-5
(the "Subleases").
(b) At the Closing, PCC shall cause the applicable Asset Sale
Company to, and Buyer shall execute and deliver the Subleases.
8. Sections 5.6(b) and (c) of the Agreement are deleted in their entirety
and replaced with the following:
"(b) Prior to the Closing Date: (i) Buyer shall deliver a copy
to PCC of the filing that is necessary to cause the applicable
Governmental Authority to transfer any one of the Permits (the "Initial
Filing") to Buyer in accordance with Law, in a form that satisfies all
requirements of the applicable Governmental Authority; and (ii)
following approval by PCC, Buyer shall file the Initial Filing with the
appropriate Governmental Authority.
(c) Promptly following the Closing Date through the
application of best efforts, and in any event no later than 30 days
after the Closing, Buyer shall
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make all filings other than the Initial Filing with the appropriate
Governmental Authorities necessary to transfer the Permits to Buyer in
accordance with Law and thereafter, as required by Law, shall post
replacement bonds."
9. PCC and Buyer agree that the completion of the actions set forth in
Section 4 and 7 of this letter agreement that are required to be
completed by Buyer shall be deemed to satisfy all of Buyer's
obligations: (i) to obtain the consent of the applicable third party
lessor in accordance with Section 5.4 and Section 6.1(e) of the
Agreement; and (ii) with respect to such Equipment leases pursuant to
Section 5.6(g) of the Agreement (with the exception of the Equipment
being leased from Deere Credit, Inc. pursuant to leases expiring in
2004).
10. The Schedules to the Agreement are hereby amended and restated in
their entirety as attached hereto as Exhibit A.
11. Except as amended by this letter agreement, the Agreement shall
continue in full force and effect.
12. This letter agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Any executed counterpart
of this letter agreement or other signature hereto delivered by a
party by facsimile shall be deemed for all purposes as being good and
valid execution and delivery of this letter agreement by such party.
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Sincerely,
PITTSTON COAL COMPANY
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President - Development
and Technical Resources
ACKNOWLEDGED AND AGREED:
PARAMONT COAL COMPANY VIRGINIA, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Attorney-in-fact
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