EXHIBIT 10.9
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") to the PURCHASE AND SALE
AGREEMENT dated as of November 6, 2002 (the "Agreement"), is made and entered
into as of December 4, 2002 by and among (1) EL PASO CGP COMPANY, a Delaware
corporation ("El Paso CGP"); COASTAL COAL COMPANY, LLC, a Delaware limited
liability company ("Coastal Coal"); COASTAL COAL - WEST VIRGINIA, LLC, a
Delaware limited liability company ("Coastal Coal WV"); and ANR WESTERN COAL
DEVELOPMENT COMPANY, a Delaware corporation ("ANR WCDC") (individually a
"Seller" and collectively the "Sellers") and (2) CSTL LLC, a Delaware limited
liability company (the "Buyer"). Capitalized terms used but not defined herein
have the meanings set forth in the Agreement.
WHEREAS, the Parties have agreed to amend the terms of the Deed/Lease
Agreements to provide El Paso CGP or its designee an overriding royalty
interest;
WHEREAS, in consideration of granting El Paso CGP such an overriding
royalty interest the Parties have agreed to reduce the Purchase Price from $69
million to $57 million; and
WHEREAS, the Parties have agreed to delete certain conditions precedent
and post-closing covenants with regard to the preparation of financial
statements.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Sellers and Buyer hereby agree
as follows:
1. Amendment.
1.1 Purchase Price Reduction - Section 2.2 of the Agreement is hereby
amended to reduce the Purchase Price from $69 million to $57 million.
1.2 Deliveries at the Closing Amendment - The following changes shall
be made with respect to the documents to be delivered at Closing:
(a) Deed - The form of the special warranty deeds referred to
in Section 2.4 and attached as Exhibit C to the Agreement for Dickenson, Lee,
Russell, Scott and Wise Counties, Virginia and Preston County, West Virginia
shall be amended to conform to the form attached to this Amendment. Coastal Coal
and Coastal Coal WV, respectively, will execute and deliver such deeds to the
Buyer that are necessary (a) to convey to the Buyer (i) the Coastal Coal Real
Property and the Coastal Coal Easements and (ii) the Coastal Coal WV Real
Property and the Coastal Coal WV Easements, together with sales listing forms
required by applicable law and (b) to convey to El Paso CGP or its designee an
overriding royalty interest in the identified properties.
(b) Leases - The form of the Lease Agreements referred to in
Section 2.4 and attached as Exhibit E to the Agreement for VICC and Kingwood
shall be amended to conform to the form attached to this Amendment.
The Parties agree that the effective date for purposes of the lease payments
under the Lease Agreements and the overriding royalty interests under the
special warranty deeds set forth above shall be the first day of the month of
the month of Closing.
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1.3 Financial Statement Amendments - The following provisions of the
Agreement shall be deleted as set forth below with regard to the preparation of
financial statements and submissions to the Securities and Exchange Commission:
(a) Section 5.7 shall be deleted in its entirety; and
(b) Section 7.1(f) shall be deleted in its entirety.
1.4 Employee Matters Amendment - Section 6.3 of the Agreement is hereby
amended and replaced in its entirety with the following:
6.3 Employee Matters.
(a) As of December 31, 2002, the employees listed on Section
6.3 of the Disclosure Schedule as of the Closing (the "Current Employees") shall
be offered employment with the Buyer or its Affiliates in the same positions, at
the same level of wages and/or salary, and at a work location which is within 50
miles of their work location as of December 31, 2002; provided, however, except
as may be specifically required by applicable law or any contract, neither the
Buyer nor its Affiliates, on the one hand, nor any employee, on the other hand,
shall be obligated to continue any employment relationship or any specific terms
of employment for any specific period of time. As of December 31, 2002, all
Current Employees shall cease active participation in all employee benefit plans
and arrangements of the Sellers and their Affiliates. As of December 31, 2002,
all Current Employees shall be permitted to participate in the employee benefits
plans and arrangements of the Buyer and its Affiliates on the same terms as
similarly situated employees of the Buyer or any of its Affiliates. To the
extent any employee benefit plan, program or policy of the Buyer or their
Affiliates is made available to the Current Employees as of December 31, 2002
with respect to any welfare benefit plans to which such employees may become
eligible, the Buyer or its Affiliates shall cause such plans to provide credit
for any co-payments or deductibles by such employees and waive all pre-existing
condition exclusions and waiting periods, other than limitations or waiting
periods that have not been satisfied under any welfare plans maintained by the
Seller and its Affiliates for their employees as of December 31, 2002.
(b) For the period from Closing until December 31, 2002, the
Sellers agree to make the Current Employees available to provide support or
services to the Buyer in its operation of the Assets after the Closing
consistent with the type of support the Current Employees provided immediately
prior to Closing (the "Services"). The Sellers shall provide or cause to be
provided to the Buyer the Services pursuant to this Section 6.3(b) with the same
degree of care, skill and diligence with which the Sellers perform similar
services for its own account or the account of its affiliates. In no event shall
the Sellers or its Affiliates be liable for any damages or liability (including
without limitation any special, incidental, consequential, any lost profits or
punitive damages) arising out of or in connection with any Services to be
rendered by the Sellers pursuant to this Section 6.3(b). The Sellers make no
representations or warranties, expressed or implied, with respect to the
Services to provided pursuant to this Section 6.3(b). Buyer agrees that Sellers
shall be allowed reasonable access to the Current Employees at no cost during
the period from December 31, 2002 through June 30, 2003, so that Current
Employees can provide transitional assistance to Sellers with respect to (a) the
sale of Sellers mining operations, (b) relocation of property and lease records,
and (c) various property and lease management issues as they arise.
2. Effect of This Agreement - From and after the date of this Amendment, all
references in the Agreement to the Agreement shall mean the Agreement, as
amended, modified or supplemented hereby.
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Except as specifically amended, modified or supplemented above, the Agreement
shall remain in full force and effect (subject to the conditions precedent to
effectiveness contained in the Agreement) and is hereby ratified and confirmed.
3. Headings - The headings used for the sections and articles herein are for
convenience and reference purposes only and shall in no way affect the meaning
or interpretation of the provisions of this Amendment.
4. Counterparts - This Amendment may be executed in several counterparts, each
of which is an original and all of which constitute one and the same instrument.
IN WITNESS WHEREOF, the parties set forth below have caused this
Amendment to be duly executed as of December 4, 2002.
CSTL LLC
By NRP (Operating) LLC, its sole
managing member,
By: /s/ Kevin Wall
---------------------------------
Kevin Wall, Its Vice President
EL PASO CGP COMPANY
By: /s/ Kevin Crutchfield
---------------------------------
Title: Pres
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COASTAL COAL COMPANY, LLC
By: /s/ Kevin Crutchfield
---------------------------------
Title: Pres
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COASTAL COAL - WEST VIRGINIA, LLC
By: /s/ Kevin Crutchfield
---------------------------------
Title: Pres
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ANR WESTERN COAL DEVELOPMENT COMPANY
By: /s/ Bennett K. Hatfield
---------------------------------
Title: Executive Vice President
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ACCEPTED AND AGREED TO
AS OF DECEMBER 4, 2002
NATURAL RESOURCES PARTNERS L.P.
By NRP (GP) LP, its General Partner
By GP Natural Resources Partners LLC,
its general partner
By: /s/ Kevin Wall
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Name: Kevin Wall
Title: Vice President
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