EXHIBIT 10.17
THIS PARTIAL SURRENDER AGREEMENT made and entered into effective the 1st
day of September, 2005, effective as hereinafter set forth, by and between ACIN
LLC, a Delaware limited liability company, successor in interest to CSTL LLC
through merger, (hereinafter referred to as "Lessor"), and ALPHA LAND AND
RESERVES, LLC, a Delaware limited liability company (hereinafter referred to as
"Lessee").
WHEREAS, by Coal Mining Lease dated April 9, 2003, effective as of April
1, 2003, Lessor did demise, lease and let to Lessee the Leased Premises (all
capitalized terms used herein shall have the meaning given in the Lease), for
the purpose of mining, preparation, loading, removal, transportation and
shipping of coal, as more fully set forth in the Lease; and
WHEREAS, said Coal Mining Lease has heretofore been amended by First
Amendment to Coal Mining Lease dated September 30, 2003, effective April 1,
2003; Partial Surrender Agreement dated December 12, 2003, effective December 1,
2003; Second Amendment to Coal Mining Lease dated and effective December 15,
2003; Third Amendment to Coal Mining Lease dated and effective October 1, 2004;
and various letter agreements (said Coal Mining Lease, as supplemented and
amended, being hereinafter referred to as the "Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease by
surrendering a portion of the Leased Premises as hereinafter set forth.
W I T N E S S E T H:
That for and in consideration of the terms, conditions and stipulations
embodied within the Lease, as amended, to be performed and observed by Lessor
and Lessee, the sufficiency of which is hereby acknowledged, Lessee does hereby
agree to surrender from the Leased Premises all of Lessor's coal contained in
the Clintwood seam of coal and all seams of coal lying above the Clintwood seam
of coal, as such seams are designated on the engineering records of Lessee, that
can
be mined by the surface mining methods lying within the area shown colored in
blue on the map attached hereto and made a part hereof as Exhibit A, containing
364.32 acres, more or less, located near Pound in Wise County, Virginia.
Lessor's acceptance of this surrender shall in no way relieve Lessee of
any of its obligations or liability accruing under the Lease with respect to the
surrendered portion of the Leased Premises prior to the effective date hereof.
It is understood and agreed that the surrender of these reserves is being
consummated in order for Lessor to lease said reserves to Pound River
Properties, LLC, a Delaware limited liability company. This Partial Surrender
Agreement shall become effective simultaneously with the execution of a lease of
the subject reserves between Lessor and Pound River Properties, LLC, it being
understood that if said lease is not executed within ninety (90) days from the
date hereof, this Partial Surrender Agreement shall be null and void. In the
event such a lease is executed and said lease thereafter expires or is
terminated for any reason, Lessor shall provide Lessee with written notice of
such expiration or termination and Lessee shall have a period of sixty (60) days
from receipt of said notice to elect to have Lessor and Lessee execute an
Addendum to the Lease adding the subject area back into the Leased Premises, at
no cost to Lessee.
All other terms and conditions of the Lease, as previously amended, not
inconsistent herewith, shall remain in full force and effect, without
modification or amendment.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Partial Surrender
Agreement to be executed as of the day and year first above written.
ACIN LLC, a Delaware limited liability company,
By NRP (Operating) LLC, a Delaware limited liability
company and its Sole Operating Manager
By: /s/ Nick Carter
--------------------------------------------------
Nick Carter, Its President and Chief Operating Officer
ALPHA LAND AND RESERVES, LLC
By: /s/ Vaughn R. Groves
--------------------------------------------------
Vaughn R. Groves, Its President and Manager
STATE OF West Va. )
COUNTY OF Cabell ), to-wit:
The foregoing instrument was acknowledged before me this 31st day of
August, 2005, by Nick Carter, President and Chief Operating Officer of NRP
(Operating) LLC, a Delaware limited liability company and the sole operating
manager of ACIN LLC, on behalf of ACIN LLC, a Delaware limited liability
company.
/s/ Paddy Sue Gay
---------------------------------
Notary Public
My commission expires: November 11, 2008 {seal}
STATE OF Virginia )
COUNTY OF Washington ), to-wit:
The foregoing instrument was acknowledged before me this 2nd day of
September, 2005, by Vaughn R. Groves, as President and Manager of ALPHA LAND AND
RESERVES, LLC, on behalf of ALPHA LAND AND RESERVES, LLC, a Delaware limited
liability company.
/s/ Susan R. Reynolds
---------------------------------
Notary Public
My commission expires: March 31, 2006
THIS PARTIAL SURRENDER AGREEMENT made and entered into effective the 1st
day of September, 2005, effective as hereinafter set forth, by and between ACIN
LLC, a Delaware limited liability company, successor in interest to CSTL LLC
through merger, (hereinafter referred to as "Lessor"), and ALPHA LAND AND
RESERVES, LLC, a Delaware limited liability company (hereinafter referred to as
"Lessee").
WHEREAS, by Coal Mining Lease dated April 9, 2003, effective as of April
1, 2003, Lessor did demise, lease and let to Lessee the Leased Premises (all
capitalized terms used herein shall have the meaning given in the Lease), for
the purpose of mining, preparation, loading, removal, transportation and
shipping of coal, as more fully set forth in the Lease; and
WHEREAS, said Coal Mining Lease has heretofore been amended by First
Amendment to Coal Mining Lease dated September 30, 2003, effective April 1,
2003; Partial Surrender Agreement dated December 12, 2003, effective December 1,
2003; Second Amendment to Coal Mining Lease dated and effective December 15,
2003; Third Amendment to Coal Mining Lease dated and effective October 1, 2004;
Partial Surrender Agreement dated and effective September 1, 2005; and various
letter agreements (said Coal Mining Lease, as supplemented and amended, being
hereinafter referred to as the "Lease"); and
WHEREAS, Lessor and Lessee desire to further amend the Lease by
surrendering a portion of the Leased Premises as hereinafter set forth.
W I T N E S S E T H:
That for and in consideration of the terms, conditions and stipulations
embodied within the Lease, as amended, to be performed and observed by Lessor
and Lessee, the sufficiency of which is hereby acknowledged, Lessee does hereby
agree to surrender from the Leased Premises all of Lessor's coal that can be
mined by the surface mining methods lying within the area shown colored
in red on the map attached hereto and made a part hereof as Exhibit A,
containing 616 acres, more or less, located off Pole Bridge Road near the Wise
County Airport in Wise County, Virginia.
Lessor's acceptance of this surrender shall in no way relieve Lessee of
any of its obligations or liability accruing under the Lease with respect to the
surrendered portion of the Leased Premises prior to the effective date hereof.
It is understood and agreed that the surrender of these reserves is being
consummated in order for Lessor to lease said reserves to J. W. Construction
Company, a Virginia corporation. This Partial Surrender Agreement shall become
effective simultaneously with the execution of a lease of the subject reserves
between Lessor and J. W. Construction Company, it being understood that if said
lease is not executed within ninety (90) days from the date hereof, this Partial
Surrender Agreement shall be null and void. In the event such a lease is
executed and said lease thereafter expires or is terminated for any reason,
Lessor shall provide Lessee with written notice of such expiration or
termination and Lessee shall have a period of sixty (60) days from receipt of
said notice to elect to have Lessor and Lessee execute an Addendum to the Lease
adding the subject area back into the Leased Premises, at no cost to Lessee.
All other terms and conditions of the Lease, as previously amended, not
inconsistent herewith, shall remain in full force and effect, without
modification or amendment.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Partial Surrender
Agreement to be executed as of the day and year first above written.
ACIN LLC, a Delaware limited liability company,
By NRP (Operating) LLC, a Delaware limited liability
company and its Sole Operating Manager
By: /s/ Nick Carter
---------------------------------------------------
Nick Carter, Its President and Chief Operating Officer
ALPHA LAND AND RESERVES, LLC
By: /s/ Vaughn R. Groves
--------------------------------------------
Vaughn R. Groves, Its President and Manager
STATE OF West Va. )
COUNTY OF Cabell ), to-wit:
The foregoing instrument was acknowledged before me this 31st day of
August, 2005, by Nick Carter, President and Chief Operating Officer of NRP
(Operating) LLC, a Delaware limited liability company and the sole operating
manager of ACIN LLC, on behalf of ACIN LLC, a Delaware limited liability
company.
/s/ Paddy Sue Gay
-----------------------------------
Notary Public
My commission expires: November 11, 2008 {seal}
STATE OF Virginia )
COUNTY OF Washington ), to-wit:
The foregoing instrument was acknowledged before me this 2nd day of
September, 2005, by Vaughn R. Groves, as President and Manager of ALPHA LAND AND
RESERVES, LLC, on behalf of ALPHA LAND AND RESERVES, LLC, a Delaware limited
liability company.
/s/ Susan R. Reynolds
-----------------------------------
Notary Public
My commission expires: March 31, 2006
FOURTH AMENDMENT TO COAL MINING LEASE
THIS FOURTH AMENDMENT TO COAL MINING LEASE (this "Amendment") made and
entered into this 1st day of September, 2005, effective as of September 1, 2005,
by and between ACIN LLC, a Delaware limited liability company, successor by
merger with CSTL LLC, a Delaware limited liability company (hereinafter referred
to as "Lessor"), and ALPHA LAND AND RESERVES, LLC, a Delaware limited liability
company (hereinafter referred to as "Lessee").
WHEREAS, by Coal Mining Lease dated April 9, 2003, effective as of April
1, 2003 (the "Lease"), Lessor did demise, lease and let to Lessee the Leased
Premises (all capitalized terms used herein shall have the meaning given in the
Lease), for the purpose of mining, preparation, loading, removal, transportation
and shipping of coal, as more fully set forth in the Lease; and
WHEREAS, said Coal Mining Lease was amended by First Amendment to Coal
Mining Lease dated September 30, 2003, and
WHEREAS, said Coal Mining Lease was further amended by Second Amendment to
Coal Mining Lease dated December 15, 2003; and
WHEREAS, said Coal Mining Lease was further amended by Third Amendment to
Coal Mining Lease dated October 1, 2004; and
WHEREAS, Lessor and Lessee desire to further amend the Lease as
hereinafter set forth.
W I T N E S S E T H:
That for and in consideration of the terms, conditions and
stipulations embodied within the Lease, as amended, to be performed and observed
by Lessor and Lessee, the sufficiency of which is hereby acknowledged, Lessor
and Lessee do hereby agree with the following:
The royalty rate for surface-mined coal only produced from the Danny
Minor et al surface tract containing 63.75 acres and the Billy Gene McFall
surface tract, containing 33.59 acres, shall be two and one-half percent
(2-1/2%) of the gross selling price (GSP). Said parcels are outlined by red,
cross-hatched and attached as Exhibit A.
All other terms and conditions of the Coal Mining Lease shall remain
in full force and effect, without modification or amendment.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Amendment to be
executed as of the day and year first above written.
ACIN LLC
By NRP (Operating) LLC,
Its Sole Operating Manager
By: /s/ Nick Carter
-------------------------------------
Its President and COO
ALPHA LAND AND RESERVES, LLC
By: /s/ Victoria C. Duffy
-------------------------------------
Its: Vice President
STATE OF West Virginia
COUNTY OF Cabell, SS:
The foregoing instrument was acknowledged before me this 31st day of
August, 2005, by Nick Carter, President & COO of NRP (Operating) LLC, a Delaware
limited liability company and the sole operating manager of ACIN LLC, on behalf
of ACIN LLC, a Delaware limited liability company.
My commission expires: November 1, 2008.
/s/ Paddy Sue Gay
----------------------------------
Notary Public
[SEAL]
STATE OF Virginia
COUNTY OF Roanoke, SS:
The foregoing instrument was acknowledged before me this 2nd day of
September, 2005, by Victoria C. Duffy, as Vice President of ALPHA LAND AND
RESERVES, LLC, on behalf of ALPHA LAND AND RESERVES, LLC, a Delaware limited
liability company.
My commission expires: February 28, 2009.
Given under my hand and notarial seal this 2nd day of September, 2005.
/s/ Mary S. Meader
----------------------------------
Notary Public
My Commission expires February 28, 2009.
[SEAL]