EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
By and between
BLC PROPERTIES LLC
And
WPP LLC
December 22, 2003
TABLE OF CONTENTS
ARTICLE 1: DEFINITIONS AND INTERPRETATIONS............................................................ 1
1.1 Definitions.................................................................................... 1
1.2 Interpretations................................................................................ 2
ARTICLE 2: PURCHASE AND SALE OF ASSETS................................................................ 2
2.1 Purchase and Sale.............................................................................. 2
2.2 Purchase Price................................................................................. 2
2.3 The Closing.................................................................................... 2
2.4 Effective Time................................................................................. 2
2.5 Deliveries at the Closing...................................................................... 3
ARTICLE 3: REPRESENTATIONS AND WARRANTIES OF SELLER................................................... 4
3.1 Representations as to Seller and Transaction................................................... 4
3.2 Representations and Warranties Concerning the Assets........................................... 5
ARTICLE 4: REPRESENTATIONS AND WARRANTIES OF BUYER.................................................... 7
4.1 Representations and Warranties of the Buyer.................................................... 7
ARTICLE 5: POST-CLOSING COVENANTS..................................................................... 8
5.1 General........................................................................................ 8
5.2 Possession and Retention of and Access to the Records.......................................... 8
5.3 Release of Encumbrances........................................................................ 9
ARTICLE 6: REMEDIES FOR BREACHES OF AGREEMENT......................................................... 9
6.1 Survival of Representations, Warranties and Certain Covenants.................................. 9
6.2 Indemnification Provisions for Benefit of the Buyer............................................ 9
6.3 Indemnification Provisions for Benefit of Seller............................................... 10
6.4 Matters Involving Third Parties................................................................ 11
6.5 Determination of Amount of Adverse Consequences................................................ 12
6.6 Tax Treatment of Indemnity Payments............................................................ 12
ARTICLE 7: TAX MATTERS................................................................................ 12
7.1 Post-Closing Tax Returns....................................................................... 12
7.2 Pre-Closing Tax Returns........................................................................ 12
7.3 Allocation of Ad Valorem Taxes................................................................. 12
7.4 Claims for Refund.............................................................................. 12
7.5 Cooperation on Tax Matters..................................................................... 13
7.6 Certain Taxes.................................................................................. 13
7.7 Audits......................................................................................... 13
7.8 Control of Proceedings......................................................................... 14
7.9 Powers of Attorney............................................................................. 14
7.10 Remittance of Refunds......................................................................... 14
7.11 Purchase Price Allocation..................................................................... 15
7.12 Closing Tax Certificate....................................................................... 15
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ARTICLE 8: MISCELLANEOUS.............................................................................. 15
8.1 Insurance...................................................................................... 15
8.2 Press Releases and Public Announcements........................................................ 15
8.3 No Third Party Beneficiaries................................................................... 16
8.4 Succession and Assignment...................................................................... 16
8.5 Counterparts................................................................................... 16
8.6 Notices........................................................................................ 16
8.7 Personnel...................................................................................... 18
8.8 Financial Statements of Seller................................................................. 18
8.9 Governing Law.................................................................................. 18
8.10 Consent to Jurisdiction and Service of Process; Appointment of Agent for Service of Process... 18
8.11 Waiver of Jury Trial.......................................................................... 19
8.12 Entire Agreement.............................................................................. 20
8.13 Severability.................................................................................. 20
8.14 Transaction Expenses.......................................................................... 20
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EXHIBITS
Exhibit A: Definitions and Interpretations
Exhibit B: Description of Mineral Properties
Exhibit C: Description of Surface Property
Exhibit D: Surface Damage and Royalty Agreement Recording Information and
Mutual Easement Agreement Recording Information
Exhibit E: Form of Agreement Respecting Non-Participating Royalty Interest
Exhibit F: Forms of Special Warranty Deed (Tennessee, Kentucky, Alabama,
Virginia and West Virginia)
Exhibit G: Form of Assignment and Assumption of Leases
Exhibit H: Form of Assignment and Assumption of Rights and Obligations
Exhibit I: Form of Bill of Sale
SCHEDULES
Schedule 2.1(c) Leases
Schedule 2.1(e) Personal Property (Vehicles)
Schedule 3.1(c) Required Third Party Consents or Approvals
Schedule 3.2(a) Encumbrances Which Will Be Satisfied From Sales Proceeds
Schedule 3.2(b) Adverse Claims
Schedule 3.2(d) Litigation
Schedule 3.2(f) Defaults Under Leases
Schedule 3.2(g) Additional Mineral Leases and Extended Mineral Leases
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") dated as of
December 22, 2003 is by and between BLC Properties LLC, a Delaware limited
liability company, ("BLC" or "Seller") and WPP LLC, a Delaware limited liability
company, ("Buyer"). Seller and Buyer are sometimes referred to collectively
herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, BLC owns approximately 440,000 acres of mineral properties as
described on Exhibit B hereto ("Mineral Properties") and approximately 1,500
acres of surface property associated with the Mineral Properties, as described
on Exhibit C hereto ("Surface Property"); and
WHEREAS, BLC has sold the surface over certain of the Mineral
Properties to Ataya Hardwoods, LLC and with regard to such surface there is a
Surface Damage and Royalty Agreement (the "SDRA") that controls the use of such
surface and a Mutual Easement Agreement (the "MEA") concerning certain related
matters, and the recording information for the SDRA and the MEA is attached
hereto as Exhibit D (with certain related information); and
WHEREAS, this Agreement contemplates a transaction in which Buyer will
purchase Seller's right, title and interest in and to the Mineral Properties and
the Surface Property in return for the consideration specified herein; and
WHEREAS, BLC will retain a non-participating royalty interest as to the
oil, gas (including coal bed methane) and other mineral estates (other than
coal) on the Mineral Properties ("Royalty Minerals") and the effect thereof will
be governed by an Agreement Respecting Non-Participating Royalty Interest which
is attached hereto as Exhibit E;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 Definitions. Unless otherwise provided to the contrary in this
Agreement, capitalized terms in this Agreement shall have the meanings set forth
in Exhibit A.
1.2 Interpretations. Unless expressly provided to the contrary in
this Agreement, this Agreement shall be interpreted in accordance with the
provisions set forth in Exhibit A.
ARTICLE 2
PURCHASE AND SALE OF ASSETS
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement and the Exhibits hereto, Seller agrees to sell to Buyer and Buyer
agrees to purchase from Seller all of Seller's right, title and interest in the
following:
(a) the Mineral Properties;
(b) the Surface Property;
(c) the Leases;
(d) the Records; and
(e) the Personal Property.
2.2 Purchase Price. In consideration for the Assets, Buyer agrees
to pay to Seller at Closing $73,000,000 (the "Purchase Price"), by wire transfer
of immediately available funds to Seller as designated by Seller prior to the
Closing Date and such payment shall constitute the receipt by Seller of the
Purchase Price as allocated pursuant to Section 7.11 hereof.
2.3 The Closing. The closing of the transactions contemplated by
this Agreement (the "Closing") shall take place in person with delivery of
original documents or via facsimile delivery of documents and receipt of
documents previously sent by overnight courier service, if any. All of the
deliveries of documents that are contemplated by this Agreement to be made at
the Closing shall be delivered to the applicable Party or Parties by (i) in
person delivery, (ii) overnight courier service for delivery on the Closing Date
or (iii) if delivery by overnight courier service on the Closing Date is not
practicable, then by facsimile on the Closing Date, with original executed
documents delivered on the next succeeding business day. Any documents to be
delivered to a Party on the Closing Date will be delivered and held in escrow
until the Parties communicate via telephone to confirm delivery of all documents
and consummation of all other actions contemplated by this Article 2.
2.4 Effective Time. The transactions contemplated by this
Agreement shall be effective as of 12:01 AM on January 1, 2004 (the "Effective
Time").
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2.5 Deliveries at the Closing. At the Closing:
(a) Seller shall deliver to Buyer the certificate
required by Section 7.12 hereof;
(b) Seller shall deliver all third party consents
required to effectuate the transactions under this Agreement on terms acceptable
to Buyer, in its sole discretion;
(c) Seller and Buyer shall execute the Agreement
Respecting Non-Participating Royalty Interest in substantially the form attached
as Exhibit E;
(d) Seller shall execute and deliver to Buyer special
warranty deeds (the "Deeds"), substantially in the forms attached as Exhibit F,
to convey the Mineral Properties and related mining rights and the Surface
Property, together with any transfer tax declarations required by applicable
law;
(e) Seller and Buyer shall execute the Assignment and
Assumption of Leases in substantially the form attached as Exhibit G;
(f) Seller and Buyer shall execute the Assignment and
Assumption of Rights and Obligations in substantially the form attached as
Exhibit H;
(g) Seller shall execute and deliver the Bill of Sale in
substantially the form of Exhibit I transferring to Buyer title to the Records
and Personal Property;
(h) Each of Seller and Buyer shall deliver to the other a
Certificate of Authority in customary form evidencing the authority of the
officer executing this Agreement on behalf of such Party;
(i) Seller and Buyer shall agree upon and execute a
Closing Statement in customary form and content;
(j) Buyer shall deliver the Purchase Price by wire
transfer to the Seller as specified in Section 2.2 of this Agreement;
(k) Seller shall deliver to Buyer the certificates of
title and any related documents necessary to transfer title to the vehicles
listed on Schedule 2.1(e) to Buyer; and
(l) Each of Seller and Buyer shall deliver to the other a
Bringdown Certificate in customary form certifying that the representations and
warranties made in this Agreement remain accurate in all material respects as of
the Closing Date.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
3.1 Representations as to Seller and Transaction. Seller
represents and warrants to Buyer as follows:
(a) Organization of Seller. Seller is a limited liability
company duly organized, validly existing, and in good standing under the Laws of
the State of Delaware. Seller is duly qualified and in good standing to conduct
business in Kentucky, Tennessee, Alabama, Virginia and West Virginia.
(b) Authorization of Transaction. Seller has full limited
liability company power and authority to execute and deliver this Agreement and
to perform its obligations under this Agreement. This Agreement constitutes the
valid and legally binding obligation of Seller enforceable in accordance with
its terms and conditions, subject, however, to the effects of bankruptcy,
insolvency, reorganization, moratorium or similar Laws affecting creditors'
rights generally, and to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(c) Noncontravention. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any Governmental Authority to
which Seller, or any of the Assets is subject or any provision of Seller's
Organizational Documents or (ii) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify, or cancel, or require any notice
under any agreement, contract, lease, license, instrument, or other arrangement
to which Seller is a party or by which Seller or any of the Assets is bound or
to which any of its assets (including the Assets) is subject, except (x) for
required consents to transfer and related provisions and any other third party
approvals or consents contemplated by this Agreement and set out and listed in
Schedule 3.1(c) which is attached hereto and made a part hereof, and (y) where
the violation, conflict, default, breach, acceleration, termination,
modification, cancellation, failure to give notice, right to payment or other
compensation, Encumbrance or other occurrence would not have a Material Adverse
Effect on the ability of Seller to consummate the transactions contemplated by
this Agreement. Seller need not give notice to, make any filing with, or obtain
any authorization, consent, or approval of any Governmental Authority in order
for the Parties to consummate the transactions contemplated by this Agreement,
except where the failure to give notice, to file, or to obtain any
authorization, consent, or approval would not have a Material Adverse Effect or
would not materially adversely affect the ability of Seller to consummate the
transactions contemplated by this Agreement.
(d) Brokers' Fees. Neither Seller nor any of its
Affiliates has any liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which Buyer could become liable or obligated.
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(e) Solvency. As of the date of this Agreement, and after
consummation of the transactions contemplated by this Agreement, Seller is not
insolvent or unable to pay its debts and has not made a general assignment with
or for the benefit of its creditors, and no proceeding under any bankruptcy,
insolvency or reorganization law has been commenced by or with respect to
Seller.
3.2 Representations and Warranties Concerning the Assets. Seller
represents and warrants to Buyer as follows:
(a) Title to the Assets. To Seller's Knowledge, the
Assets are free and clear of all Encumbrances, except for (i) Permitted
Encumbrances, (ii) Encumbrances that do not have a Material Adverse Effect, and
(iii) those listed and described in Schedule 3.2(a), which will be satisfied
from the sales proceeds of Seller and be released post-closing. Seller has
delivered or made available to Buyer Seller's Title Policies; and with respect
to the Mineral Properties not associated with the property covered by Seller's
Title Polices (the "Uninsured Mineral Properties"), Seller has delivered or made
available to Buyer all material (i) title reports, (ii) title insurance
policies, (iii) title commitments, (iv) title opinions and (v) title abstracts
relating to such Uninsured Mineral Properties, all of which is located in
Seller's office in Middlesboro, Kentucky (collectively Seller's Title Policies
and the additional information relating to the Uninsured Mineral Properties are
referred to as the "Title Information"). To Seller's Knowledge, all Title
Information is true and accurate except to the extent such inaccuracy or
inaccuracies in the aggregate would not have a Material Adverse Effect.
(b) No Adverse Claims. To Seller's Knowledge, there are
no adverse claims to any of the Assets except for (i) Permitted Encumbrances,
(ii) those claims which would not have a Material Adverse Effect, and (iii)
those listed and described in Schedule 3.2(b). There are no eminent domain,
zoning or condemnation proceedings pending, or to Seller's Knowledge, threatened
against any of the Assets except such proceedings that would not have a Material
Adverse Effect.
(c) Tax Matters. Except as would not have a Material
Adverse Effect:
(i) There is no dispute or claim concerning any
Tax liability with respect to the Assets claimed or raised by any authority.
(ii) There are no outstanding agreements or
waivers extending the statutory period of limitations applicable to any Tax
Returns required to be filed by or with respect to the Assets or for which Buyer
may be responsible.
(iii) Seller has filed all Tax Returns with
respect to the Assets that were required to be filed and such Tax Returns (with
respect to such assets) are accurate in all material respects. All Taxes shown
as due with respect to the Assets on any such Tax Returns have been paid.
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(iv) No special assessments for improvements are
outstanding or have been completed as of the date of this Agreement with respect
to the Assets.
(d) Litigation. None of the Assets (i) is subject to any
outstanding injunction, judgment, order, decree, ruling, or charge or (ii) is
the subject of any action, suit, proceeding, hearing, or investigation of, in,
or before any court or quasi-judicial or administrative agency of any federal,
state, local, or foreign jurisdiction, or is the subject of any pending or, to
Seller's Knowledge, threatened claim, demand, or notice of violation or
liability from any Person, except where any of the foregoing would not have a
Material Adverse Effect and except for those listed and described in Schedule
3.2(d).
(e) Environmental Matters.
(i) With respect to the Assets, to Seller's
Knowledge, Seller and each lessee of Seller is in compliance with all applicable
federal, state and local Laws (including common law) relating to the protection
of the environment as in effect on or before the date of this Agreement,
including the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
section 1201 et seq., the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as amended, 42 U.S.C. section 9601, et seq.
("CERCLA"), the Resource Conservation and Recovery Act of 1976, as amended, 42
U.S.C. section 6901, et seq., the Clean Air Act, as amended, 42 U.S.C. section
7401, et seq., the Federal Water Pollution Control Act, as amended, 33 U.S.C.
section 1251, et seq., and the Oil Pollution Act of 1990, 33 U.S.C. section
2701, et seq. and the statutes, regulations, rules and orders of all agencies
responsible for supervision and enforcement of environmental and mining laws of
Tennessee, Kentucky, and West Virginia (collectively, the "Environmental Laws"
and individually an "Environmental Law"), except for such instances of
noncompliance that do not have a Material Adverse Effect.
(ii) Seller has obtained all material licenses,
franchises, authorities, consents, and approvals, and has made all filings and
maintained all material information, documentation, and records, required of
Seller under applicable Laws including Environmental Laws with respect to the
Assets and the related business as it is presently conducted by Seller, and all
such permits, licenses, franchises, authorities, consents, approvals, and
filings remain in full force and effect, except for such matters that do not
have a Material Adverse Effect.
(iii) Except as does not have a Material Adverse
Effect, (A) there are no pending or, to Seller's Knowledge, threatened claims,
demands, actions, administrative proceedings or lawsuits against Seller or its
predecessors in title with respect to the Assets under any Environmental Laws
and Seller has no Knowledge (without any obligation of due inquiry) of facts
which would give rise to the same and (B) none of the Assets are subject to any
outstanding injunction, judgment, order, decree or ruling under any
Environmental Laws.
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(iv) Seller has not received any notice that
Seller or its predecessors in title, with respect to the Assets, is or may be a
potentially responsible party under CERCLA or any analogous state law in
connection with any site actually or allegedly containing or used for the
treatment, storage or disposal of Hazardous Substances.
(f) Leases. Except as set forth in Schedule 3.2(f), the
Leases are in full force and effect and each party thereto has performed all
material obligations required to be performed by it under such Leases, and is
not in default under any obligation of such Leases.
(g) SDRA and MEA. The SDRA and MEA are in full force and
effect and each party thereto has performed all material obligations required to
be performed by it thereunder, and is not in default under any obligation of
such SDRA and MEA. The Leases include the Existing Mineral Leases, as such term
is defined in the SDRA, and except as set forth on Schedule 3.2(g), there are no
Additional Mineral Leases or Extended Mineral Leases, as such terms are defined
in the SDRA.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Representations and Warranties of the Buyer. Buyer hereby
represents and warrants to Seller as follows:
(a) Organization of the Buyer. Buyer is a limited
liability company duly organized, validly existing, and in good standing under
the Laws of the State of Delaware.
(b) Authorization of Transaction. Buyer has full limited
liability company power and authority to execute and deliver this Agreement and
to perform its obligations under this Agreement. This Agreement constitutes the
valid and legally binding obligation of the Buyer, enforceable in accordance
with its terms and conditions, subject, however, to the effects of bankruptcy,
insolvency, reorganization, moratorium, or similar Laws affecting creditors'
rights generally and to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
(c) Noncontravention. Neither the execution and delivery
of this Agreement, nor the consummation of the transactions contemplated hereby,
will (i) violate any statute, regulation, rule, injunction, judgment, order,
decree, ruling, charge, or other restriction of any Governmental Authority to
which Buyer is subject or any provision of its Organizational Documents or (ii)
conflict with, result in a breach of, constitute a default under, result in the
acceleration of, create in any Party the right to accelerate, terminate, modify,
or cancel, or require any notice, approval or consent under any agreement,
contract, lease, license, instrument, or other arrangement to which Buyer is a
party or by which it is bound or to which any of its assets is subject, except
for such
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violations, defaults, breaches, or other occurrences that do not, individually
or in the aggregate, have a material adverse effect on the ability of Buyer to
consummate the transactions contemplated by this Agreement. Buyer need not give
any notice to, make any filing with, or obtain any authorization, consent, or
approval of any Governmental Authority in order to consummate the transactions
contemplated by this Agreement, except notices, filings, authorizations,
consents or approvals, the failure of which to make or obtain would not have a
Material Adverse Effect on the ability of Buyer to consummate the transactions
contemplated by this Agreement.
(d) Brokers' Fees. Neither Buyer nor any of its
Affiliates has any liability or obligation to pay any fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement for which Seller could become liable or obligated.
(e) Solvency. As of the date of this Agreement, and after
consummation of the transactions contemplated by this Agreement, Buyer is not
insolvent or unable to pay its debts and has not made a general assignment with
or for the benefit of its creditors, and no proceeding under any bankruptcy,
insolvency or reorganization law has been commenced by or with respect to Buyer.
ARTICLE 5
POST-CLOSING COVENANTS
5.1 General. In case at any time after the Closing any further
action is necessary to carry out the purposes of this Agreement, each of the
Parties will take such further action (including the execution and delivery of
such further instruments and documents) as the other Party reasonably may
request, all at the sole cost and expense of the requesting Party (unless the
requesting Party is entitled to indemnification therefor under Article 6).
5.2 Possession and Retention of and Access to the Records. On the
Closing Date, Buyer will take possession of the Records located at Seller's
office at Middlesboro, Kentucky. Seller (and its successors and assigns
including Ataya Hardwoods, LLC) may retain or at any time make (at its own
expense) a copy of the Records to the extent that they relate to the former
operation of its business or the operation of the surface property conveyed by
Seller to Ataya Hardwoods, LLC. Buyer agrees to (a) hold the Records and not to
destroy or dispose of any portion thereof for a period of 10 years from the
Closing Date or such longer period as may be required by Law, provided that at
any time after such period, if it desires to destroy or dispose of such Records,
it will first offer in writing at least 60 days before such destruction or
disposition to surrender them to Seller and if Seller or its successors or
assigns do not accept such offer within 60 days after receipt of such offer,
Buyer may take such action, and (b) following the Closing Date, afford Seller
and Seller's successors and assigns and any of their agents, employees,
accountants, and counsel, during normal business hours, upon reasonable request,
at any time, full access to the Records and to Buyer's employees
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at no cost to Seller (other than for reasonable out-of-pocket expenses);
provided that such access will not be construed to require the disclosure of
Records that would cause the waiver of any attorney-client, work product or like
privilege; provided, further, that in the event of any litigation nothing herein
shall limit any Party's rights of discovery under applicable Law. Nothing herein
shall impose any liability upon Buyer in the event of destruction or loss of any
Records as a result of casualty.
5.3 Release of Encumbrances. Seller shall cause releases of the
Encumbrances listed in Schedule 3.2(a) to be executed and delivered by the
holder thereof or the party benefited or secured thereby within 10 days of
Closing and to be recorded in the appropriate offices as soon as reasonably
possible thereafter.
ARTICLE 6
REMEDIES FOR BREACHES OF AGREEMENT
6.1 Survival of Representations, Warranties and Certain Covenants.
The representations and warranties of Seller contained in Article 3 and in any
documentation or certificates delivered pursuant to Sections 2.5(a), 2.5(d), 2.5
(h) and 2.5(l) shall survive the Closing under this Agreement for a period of 2
years after the Closing Date except for those relating to Taxes which shall
survive for 6 years. The representations and warranties of Buyer contained in
Article 4 and in any documentation or certificates delivered pursuant to Section
2.5 shall survive the Closing for a period of 2 years after the Closing Date.
All other representations and warranties of the Parties shall terminate upon the
Closing. The covenants contained in Articles 5 and 7 and in Section 8.1 of this
Agreement to be performed after the Closing shall survive the Closing
indefinitely.
6.2 Indemnification Provisions for Benefit of the Buyer.
(a) Seller shall indemnify and hold Buyer Indemnitees
harmless from and against any and all Adverse Consequences whatsoever arising
out of or resulting from:
(i) Any breach of warranty or misrepresentation
by Seller or the nonperformance of any covenant or obligation to be performed by
Seller to the extent that and only to the extent that (A) there is an applicable
survival period pursuant to Section 6.1 with respect to such warranty,
representation, covenant, or obligation; and that (B) Buyer makes a written
claim for indemnification against Seller pursuant to Section 8.6 within such
survival period;
(ii) Any liability or claim arising out of the
ownership, conduct or operation of the Assets prior to the Closing Date, to the
extent (A) there is an applicable survival period pursuant to Section 6.1 with
respect to such liability or claim; and that (B) Buyer makes a written claim for
indemnification against Seller pursuant to Section 8.6 within such survival
period; and
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(iii) Any claim which may be asserted against
Buyer or any of the Assets by any third party or any of Seller's current or
former employees, independent contractors, their employees, or agents with
respect to liabilities incurred by or on Seller's behalf prior to the Closing
Date, whether covered by a collective bargaining agreement or not, including
labor costs, severance pay, pension benefits, employee benefits, workers'
compensation, vacation and holiday benefits, sick pay, multiemployer withdrawal
liability, any and all employee benefits, and any other costs associated
therewith.
(b) Limitations of Indemnification. The following
limitations shall apply with regard to Seller's obligations to indemnify Buyer
Indemnitees pursuant to this Section 6.2:
(i) Seller's liability under this Agreement
shall not exceed the Purchase Price paid in accordance with Section 2.2 (the
"Liability Cap"). The limitations on Seller's indemnification obligations set
forth in the prior sentence shall not apply to losses resulting from fraud or
willful misconduct by Seller or its Affiliates.
(ii) Seller will have no liability under this
Agreement, unless and until the aggregate Adverse Consequences for which Buyer
Indemnitees are entitled to recover under this Agreement exceeds one percent
(1%) of the Purchase Price paid in accordance with Section 2.2 (the "Threshold
Amount"); provided, however, once such amount exceeds the Threshold Amount,
Buyer Indemnitees will be entitled to recover all amounts to which they are
entitled in excess of the Threshold Amount, subject to the limitations set forth
in (i) above.
(iii) Buyer acknowledges and agrees that the
indemnification provisions in this Article 6 shall be the exclusive remedies of
Buyer Indemnitees with respect to the transactions contemplated by this
Agreement.
(c) Limited Guaranty. Begley Properties, LLC and Baillie
Properties, LP, hereby jointly and severally guarantee the collection by Buyer
of any amounts due from Seller pursuant to this Section 6.2.
6.3 Indemnification Provisions for Benefit of Seller.
(a) Buyer shall indemnify and hold Seller Indemnitees
harmless from and against all Adverse Consequences whatsoever arising out of or
resulting from:
(i) Any breach of warranty or misrepresentation
by Buyer contained herein, or the non-performance of any covenant or obligation
to be performed by Buyer to the extent that and only to the extent that (A)
there is an applicable survival period pursuant to Section 6.1 with respect to
such warranty, representation, covenant, or obligation; and that (B) Seller
makes a written claim for indemnification against Buyer pursuant to Section 8.6
within such survival period; or
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(ii) Any liability arising out of the ownership,
conduct or operation of the Assets from and after the Closing Date.
(b) Limitations of Indemnification. The following
limitations shall apply with regard to Buyer's obligations to indemnify Seller
Indemnitees pursuant to this Section 6.3:
(i) Buyer's and its Affiliates' liability under
this Agreement shall not exceed the Liability Cap. The limitations on Buyer's
indemnification obligations set forth in the prior sentence shall not apply to
losses resulting from fraud or willful misconduct by Buyer.
(ii) Buyer and its Affiliates will have no
liability for any Adverse Consequences, unless and until the aggregate Adverse
Consequences for which Seller Indemnitees are entitled to recover under this
Agreement exceeds the Threshold Amount; provided, however, once such amount
exceeds the Threshold Amount, Seller Indemnitees will be entitled to recover all
amounts to which they are entitled in excess of the Threshold Amount, subject to
the limitations set forth in (i) above.
(iii) Seller acknowledges and agrees that the
indemnification provisions in this Article 6 shall be the exclusive remedies of
the Seller, Seller Indemnitees and their Affiliates with respect to the
transactions contemplated by this Agreement.
6.4 Matters Involving Third Parties.
(a) If any third party shall notify any Party (the
"Indemnified Party") with respect to any matter (a "Third Party Claim") that may
give rise to a right to claim for indemnification against the other Party (the
"Indemnifying Party") under Section 6.2 or Section 6.3, then the Indemnified
Party shall promptly (and in any event within 5 business days after receiving
notice of the Third Party Claim) notify the Indemnifying Party thereof in
writing.
(b) The Indemnifying Party will have the right to assume
and thereafter conduct the defense of the Third Party Claim with counsel of its
choice reasonably satisfactory to the Indemnified Party; provided, however, that
the Indemnifying Party will not consent to the entry of any judgment or enter
into any settlement with respect to the Third Party Claim without the prior
written consent of the Indemnified Party (not to be withheld unreasonably)
unless the judgment or proposed settlement involves only the payment of money
damages not exceeding the Liability Cap (provided, however, that any such money
damages will be immediately paid in full by the Indemnifying Party without any
further payment or other action required of the Indemnified Party), and does not
impose an injunction or other equitable relief upon the Indemnified Party.
(c) Unless and until the Indemnifying Party assumes the
defense of the Third Party Claim as provided in subsection 6.4(b), the
Indemnified Party
- 11 -
may defend against the Third Party Claim in any manner it reasonably may deem
appropriate.
(d) In no event will the Indemnified Party consent to the
entry of any judgment or enter into any settlement with respect to the Third
Party Claim without the prior written consent of the Indemnifying Party which
consent shall not be withheld unreasonably.
6.5 Determination of Amount of Adverse Consequences. The Adverse
Consequences giving rise to any indemnification obligation hereunder shall be
limited to the actual loss suffered by the Indemnified Party (i.e., reduced by
any insurance proceeds or other payment or recoupment received, realized or
retained by the Indemnified Party as a result of the events giving rise to the
claim for indemnification), net of any reduction in Taxes of the Indemnified
Party (or the affiliated group of which it is a member) occasioned by such loss
or damage. Upon the request of the Indemnifying Party, the Indemnified Party
shall provide the Indemnifying Party with information sufficient to allow the
Indemnifying Party to calculate the amount of the indemnity payment in
accordance with this Section 6.5. An Indemnified Party shall take all reasonable
steps to mitigate damages in respect of any claim for which it is seeking
indemnification and shall use reasonable efforts to avoid any costs or expenses
associated with such claim and, if such costs and expenses cannot be avoided, to
minimize the amount thereof.
6.6 Tax Treatment of Indemnity Payments. All indemnification
payments made under this Agreement, including any payment made under this
Article 6, shall be treated as purchase price adjustments for Tax purposes.
ARTICLE 7
TAX MATTERS
7.1 Post-Closing Tax Returns. Buyer shall prepare or cause to be
prepared and file or cause to be filed any Post-Closing Tax Returns with respect
to the Assets. Except as set forth in Section 7.3 below, Buyer shall pay (or
shall cause to be paid) any Taxes due with respect to such Post-Closing Tax
Returns.
7.2 Pre-Closing Tax Returns. Seller shall prepare or cause to be
prepared and file or cause to be filed all Pre-Closing Tax Returns with respect
to the Assets. Seller shall pay (or cause to be paid) any Taxes due with respect
to such Tax Returns.
7.3 Allocation of Ad Valorem Taxes. Seller shall be responsible
for and shall pay (or cause to be paid) all ad valorem real property taxes
(including unmined mineral taxes) on the Assets assessed on or before December
31, 2003.
7.4 Claims for Refund. Buyer shall not file any claim for refund
of taxes with respect to the Assets for whole or partial taxable periods
beginning before the Closing Date.
- 12 -
7.5 Cooperation on Tax Matters.
(a) Buyer and Seller shall cooperate fully, as and to the
extent reasonably requested by the other, in connection with the filing of Tax
Returns and any audit, litigation or other administrative or judicial proceeding
relating to liability for Taxes and making employees available on a mutually
convenient basis to provide additional information and explanation of any
material provided hereunder. Buyer and Seller shall (i) retain all books and
records that are in its possession with respect to Tax matters pertinent to the
Assets relating to any whole or partial taxable period beginning before the
Closing Date until the expiration of the statute of limitations (and, to the
extent notified by Buyer or Seller, any extensions thereof) of the respective
taxable periods, and to abide by all record retention agreements entered into
with any taxing authority, and (ii) give the other Party reasonable written
notice prior to transferring, destroying or discarding any such books and
records and, if the other Party so requests, Buyer or Seller, as the case may
be, shall allow the other party to take possession of such books and records.
(b) Buyer and Seller further agree, upon request, to use
their commercially reasonable efforts to obtain any certificate or other
document from any Governmental Authority or any other Person as may be necessary
to mitigate, reduce or eliminate any Tax that could be imposed upon the Assets
(including, but not limited to, with respect to the transactions contemplated
hereby).
7.6 Certain Taxes. Seller and Buyer shall cooperate in the
preparation, execution, and filing of all returns, questionnaires, applications
or other documents regarding any transfer (including stock transfer), recording,
documentary, sales, use, stamp, registration and other similar taxes and fees
("Transfer Taxes") that become payable in connection with the transaction
contemplated by this Agreement, and Seller and Buyer shall use their
commercially reasonable efforts to obtain any certificate, document or take
other action to reduce or eliminate any such Transfer Tax. Buyer will file all
necessary tax returns and other documentation with respect to all such Transfer
Taxes, and, if required by applicable Law, Seller will, and will cause its
Affiliates to, join in the execution of any such tax returns and other
documentation. Notwithstanding anything set forth in this Agreement to the
contrary, Seller will be obligated to bear and shall pay at Closing, and shall
indemnify, defend and hold Buyer harmless for, any Transfer Taxes incurred in
connection with the transactions contemplated by this Agreement, except that
Buyer shall pay any costs for recordation of the Deeds.
7.7 Audits. Seller and Buyer shall provide prompt written notice
to the other of any pending or threatened Tax audit, assessment or proceeding
that it becomes aware of related to the Assets for whole or partial periods for
which it may be indemnified by the other party hereunder or for which the other
party may be responsible. Such notice shall contain factual information (to the
extent known) describing the asserted Tax liability in reasonable detail and
shall be accompanied by copies of any notice or other document received from any
tax authority in respect of any such matters. If an Indemnified Party has
knowledge of an asserted Tax liability with respect to a matter for which it may
be indemnified hereunder and such party fails to give the
- 13 -
Indemnifying Party prompt notice of such asserted Tax liability, then (a) if the
Indemnifying Party is precluded by the failure to give prompt notice from
contesting the asserted Tax liability in any forum, the Indemnifying Party shall
have no obligation to indemnify the Indemnified Party for any Taxes arising out
of such asserted Tax liability, and (b) if the Indemnifying Party is not so
precluded from contesting, but such failure to give prompt notice results in a
detriment to the Indemnifying Party, then any amount which the Indemnifying
Party is otherwise required to pay the Indemnified Party pursuant to this
Section shall be reduced by the amount of such detriment, provided, the
Indemnified Party shall nevertheless be entitled to full indemnification
hereunder to the extent, and only to the extent, that such party can establish
that the Indemnifying Party was not prejudiced by such failure. This Section 7.7
shall control the procedure for Tax indemnification matters to the extent it is
inconsistent with any other provision of this Agreement.
7.8 Control of Proceedings. The party responsible for the Tax
under this Agreement shall control audits and disputes related to such Taxes
(including action taken to pay, compromise or settle such Taxes). Reasonable out
of pocket expenses with respect to such contests shall be borne by Seller and
Buyer in proportion to their responsibility for such Taxes as set forth in this
Agreement. Except as otherwise provided by this Agreement, the non-controlling
Party shall be afforded a reasonable opportunity to participate in such
proceedings at its own expense.
7.9 Powers of Attorney. Buyer shall provide Seller and its
Affiliates with such powers of attorney or other authorizing documentation as
are reasonably necessary to empower them to execute and file Tax Returns they
are responsible for hereunder, file refund and equivalent claims for Taxes they
are responsible for, and contest, settle, and resolve any audits and disputes
that they have control over under Section 7.8 (including any refund claims which
turn into audits or disputes).
7.10 Remittance of Refunds. If Buyer or any Affiliate of Buyer
receives a refund of any Taxes attributable to a Pre-Closing Tax Period that
Seller is responsible for hereunder, or if Seller or any Affiliate of Seller
receives a refund of any Taxes attributable to a Post-Closing Tax Period that
Buyer is responsible for hereunder, the Party receiving such refund shall,
within 15 days after receipt of such refund, remit it to the party who has
responsibility for such Taxes hereunder, provided that notwithstanding anything
herein to the contrary, if Buyer or any Affiliate of Buyer receives any refund
arising out of the ownership or operation of the Assets prior to Closing, Buyer
shall, within 15 days after receipt of such refund, remit it to Seller. For the
purpose of this Section 7.10, the term "refund" shall include a reduction in Tax
and the use of an overpayment as a credit or other tax offset, and receipt of a
refund shall occur upon the filing of a return or an adjustment thereto using
such reduction, overpayment or offset or upon the receipt of cash.
- 14 -
7.11 Purchase Price Allocation. Prior to Closing, Seller and Buyer
shall attempt to agree upon the allocation of the Purchase Price among the
Assets for all purposes (including Tax and financial accounting purposes). The
Buyer, Seller and their applicable Affiliates will file all Tax Returns
(including amended Tax Returns and claims for refund) and information reports in
a manner consistent with such agreed upon allocation.
7.12 Closing Tax Certificate. At the Closing, Seller shall deliver,
to Buyer a certificate signed under penalties of perjury (i) stating that it is
not a foreign corporation, foreign partnership, foreign trust or foreign estate,
(ii) providing its U.S. Employer Identification Number and (iii) providing its
address, all pursuant to Section 1445 of the Code. At the Closing, Buyer shall
deliver to Seller a statement providing its U.S. Employment Identification
Number and its address.
ARTICLE 8
MISCELLANEOUS
8.1 Insurance. Buyer acknowledges and agrees that, following the
Closing, the Insurance Policies of Seller and its Affiliates may be terminated
or modified to exclude coverage of all or any portion of the Assets by Seller or
its Affiliates and, as a result, Buyer acknowledges that the Assets will not be
insured by Seller. Buyer further acknowledges that Seller only maintained such
Insurance Policies (including self insurance and deductible levels) that they
deemed necessary in their sole discretion or that were required by Law.
Notwithstanding this Section 8.1, if any claims are made or losses occur prior
to the Closing Date that relate solely to the Assets and such claims, or the
claims associated with such losses, properly may be made against the policies
retained by Seller or its Affiliates pursuant to Section 8.1 or under policies
otherwise retained by Seller or its Affiliates after the Closing, then, subject
to any limitations under the Insurance Policies (including time restrictions on
"claims made" policies), Seller shall use its reasonable commercial efforts so
that Buyer can file, notice, and otherwise continue to pursue these claims
pursuant to the terms of such policies; however nothing in this Agreement shall
require Seller to maintain or to refrain from asserting claims against or
exhausting any retained policies and Seller shall not be required to proceed
against any direct or indirect self-insured primary insurance programs or
policies of, or maintained by Seller or any of its Affiliates, including
arrangements with carriers for claims administration service under cost-plus
reimbursement agreements, assumed retention, deductible or retrospective rating
plans or other plans or arrangements to the extent that risk of loss thereunder
is ultimately assumed or paid by such Seller.
8.2 Press Releases and Public Announcements. No Party shall issue
any press release or make any public announcement relating to the subject matter
of this Agreement without the prior written approval of the other Party;
provided that either Party may make any public disclosure it believes in good
faith is required by applicable Law or any listing or trading agreement
concerning its publicly traded securities (in which case the disclosing Party
will advise the other Party before making the disclosure).
- 15 -
8.3 No Third Party Beneficiaries. Except as otherwise specifically
provided in this Agreement, nothing in this Agreement shall confer any rights or
remedies upon any Person other than the Parties and their respective successors
and permitted assigns.
8.4 Succession and Assignment. This Agreement shall be binding
upon and inure to the benefit of the Parties named herein and their respective
successors and permitted assigns. No Party may assign either this Agreement or
any of its rights, interests or obligations hereunder without the prior written
approval of the other Party. Notwithstanding the foregoing provisions of this
Section 8.4, the Parties acknowledge that following the Closing, without consent
of Seller, Buyer may freely assign or transfer any or all of its rights with
respect to the Records, provided that any such assignment or transfer by Buyer
shall provide that each assignee or transferee shall be entitled to the rights
and subject to the obligations to which Buyer was entitled or subject pursuant
to Section 5.2 of this Agreement.
8.5 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original but which together will constitute one
and the same instrument.
8.6 Notices. All notices, requests, demands, claims, and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder shall be deemed duly given one business day
after it is sent by overnight expedited courier or two business days after it is
sent by registered or certified mail, return receipt requested, postage prepaid,
and addressed to the intended recipient as set forth below:
- 16 -
If to the Buyer: With copy to:
WPP LLC WPP LLC
c/o Natural Resource Partners L.P. c/o Natural Resource Partners L.P.
P.O. Box 2827 Suite 3600
Huntington, WV 25727-2827 601 Jefferson Street
Attn: Nick Carter Houston, TX 77002
Tel: (304) 522-5757 Attn: Wyatt Hogan
Fax: (304) 522 5401 Tel: (713) 751-7516
Fax: (713) 751-7563
If to Seller: With copies to:
BLC Properties LLC Cunnagin & Cunnagin
c/o Begley Properties, LLC 201 South Main Street
2001 Russell Dyche Memorial Highway London, Kentucky 40741
P.O. Box 2800 Attn: Willis C. Cunnagin, Esq.
London, Kentucky 40741 FAX: (606) 878-2711
Attn: Mr. James Begley Phone: (606) 864-7347
Fax: (606) 877-1230
Phone: (606) 877-1228 and:
and Hodgson Russ LLP
One M & T Plaza, Suite 2000
BLC Properties LLC Buffalo, NY 14203-2391
c/o Baillie Lumber Company Attn: Todd M. Joseph, Esq.
P.O. Box 6 FAX: (716) 819-4638
4002 Legion Drive Phone: (716) 848-1404
Hamburg, New York 14075-0006
Attn.: Mr. Jeffrey S. Meyer
Fax: (716) 648-6107
Phone: (800) 950-2850
Any Party may send any notice, request, demand, claim, or other communication
hereunder to the intended recipient at the addresses set forth above using any
other means (including personal delivery, expedited overnight courier, messenger
service, telecopy, ordinary mail, or electronic mail), but no such notice,
request, demand, claim, or other communication shall be deemed to have been duly
given unless and until it actually is received by the intended recipient. Any
Party may change the address to which notices, requests, demands, claims, and
other communications hereunder are to be delivered by giving the other Party
notice in the manner herein set forth.
- 17 -
8.7 Personnel. Seller acknowledges that Buyer anticipates offering
employment to one or more persons currently employed by Seller in Seller's
office in Middlesboro, Kentucky. Seller agrees that, as of the Closing Date, it
will terminate the employment of any such employees identified by Buyer and will
terminate the participation by any such persons in all employee benefit plans of
Seller as of the Closing Date.
8.8 Financial Statements of Seller. Seller covenants and agrees to
use its best efforts to prepare financial statements in accordance with GAAP and
in accordance with Regulation S-X of the Securities and Exchange Commission for
Seller's "Mineral Business" being acquired by Buyer for the most recent three
fiscal years ending prior to the Closing Date, in such form that such statements
can be audited by Duncan, Smith & Stilz, P.S.C., Seller's independent certified
public accountants, and to cause such accountants to issue to Seller an
unqualified opinion with respect to such financial statements (such statements
and related opinions being hereinafter referred to as the "Audited Financial
Statements"). Seller shall, within three business days after the date of this
Agreement, engage for that purpose, and shall direct Duncan, Smith & Stilz,
P.S.C. to use its best efforts to assist in the preparation of the Audited
Financial Statements so that the Audited Financial Statements can be completed
and delivered to Buyer not later than 45 days following the Closing Date. Such
engagement shall include the consent of Duncan, Smith & Stilz, P.S.C. that the
Audited Financial Statements may be relied upon by Buyer and its underwriters
(a) to prepare and file reports under the Securities and Exchange Act of 1934,
as needed, and (b) in connection with any financing or public offering of
securities by Buyer or any of its affiliates. Buyer may, at its option and
expense, engage its own certified public accountants, Ernst & Young, to monitor
and review the progress of the production of the Audited Financial Statements.
8.9 Governing Law. This Agreement shall be governed by and
construed in accordance with the Laws of the Commonwealth of Kentucky without
giving effect to any choice or conflict of law provision or rule (whether of the
Commonwealth of Kentucky or any other jurisdiction) that would cause the
application of the Laws of any jurisdiction other than the Commonwealth of
Kentucky.
8.10 Consent to Jurisdiction and Service of Process; Appointment of
Agent for Service of Process. EACH PARTY TO THIS AGREEMENT HEREBY CONSENTS TO
THE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
KENTUCKY AND ANY KENTUCKY STATE COURT LOCATED IN LONDON, KENTUCKY AND
IRREVOCABLY AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY BUSINESS OR OTHER
DISPUTES BETWEEN THE PARTIES (WHETHER SUCH ACTIONS OR PROCEEDINGS ARE BASED IN
STATUTE, TORT, CONTRACT OR OTHERWISE), SHALL BE LITIGATED IN SUCH COURTS. EACH
PARTY (A) CONSENTS TO SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF SUCH COURTS
FOR SUCH ACTIONS OR PROCEEDINGS, (B) AGREES THAT IT WILL NOT ATTEMPT TO DENY OR
DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE FROM ANY
SUCH COURT, AND
- 18 -
(C) AGREES THAT IT WILL NOT BRING ANY SUCH ACTION OR PROCEEDING IN ANY COURT
OTHER THAN SUCH COURTS. EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE EXCLUSIVE AND IRREVOCABLE
JURISDICTION AND VENUE OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM
NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY NON-APPEALABLE
JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH ACTIONS OR PROCEEDINGS. A COPY
OF ANY SERVICE OF PROCESS SERVED UPON THE PARTIES SHALL BE MAILED BY REGISTERED
MAIL TO THE RESPECTIVE PARTY EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY
APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF
SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY A PARTY REFUSES TO ACCEPT SERVICE,
EACH PARTY AGREES THAT SERVICE UPON THE APPROPRIATE PARTY BY REGISTERED MAIL,
RETURN RECEIPT REQUESTED, SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF A PARTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW.
8.11 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT
HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM
RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP THAT IS
BEING ESTABLISHED. EACH PARTY ALSO WAIVES ANY BOND OR SURETY OR SECURITY UPON
SUCH BOND THAT MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE OTHER PARTY. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES
THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS
AGREEMENT, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND
ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH PARTY ACKNOWLEDGES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP THAT EACH
HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH PARTY
FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE
TRANSACTION CONTEMPLATED HEREBY. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY
BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT. ACCORDINGLY, EACH PARTY
ACKNOWLEDGES THAT IT HAS WAIVED ITS RIGHT TO A JURY
- 19 -
TRIAL. EACH PARTY HAS DISCUSSED THIS AGREEMENT WITH ITS COUNSEL AND AGREES TO BE
BOUND BY ITS TERMS.
8.12 Entire Agreement. This Agreement (including the documents
referred to in this Agreement) constitutes the entire agreement between the
Parties and supersedes any prior understandings, agreements, or representations
by or between the Parties, written or oral, to the extent they have related in
any way to the subject matter of this Agreement. Neither this Agreement nor any
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by Buyer and Seller.
8.13 Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
8.14 Transaction Expenses. Each of Buyer and the Seller will bear
its own costs and expenses (including legal fees and expenses) incurred in
connection with this Agreement and the transactions contemplated hereby.
- 20 -
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
WPP LLC, a Delaware limited liability
company
By NRP (Operating) LLC, its sole managing
member,
By:/s/ Nick Carter
------------------------------------
Title: President
BLC Properties LLC, a Delaware limited
liability company
By Baillie Properties, LP, its Manager
By: /s/ Jeffrey S. Meyer
------------------------------------
Title: President
With respect to Section 6.2(c) only:
Begley Properties, LLC
By: /s/ James Begley
-------------------------------
Title: Member
Baillie Properties, LP
By: /s/ Jeffrey S. Meyer
-------------------------------
Title: President.
- 21 -
EXHIBIT A
DEFINITIONS AND INTERPRETATIONS
Definitions. Unless otherwise provided to the contrary in this
Agreement, capitalized terms in this Agreement shall have the following
meanings:
1. "Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands, injunctions,
judgments, orders, decrees, rulings, damages, dues, penalties, fines, costs,
amounts paid in settlement, liabilities, obligations, Taxes, liens, losses,
expenses, and fees, including court costs and reasonable attorneys' fees and
expenses, but excluding lost profits, punitive, exemplary, special or
consequential damages.
2. "Affiliate" means, with respect to any specified Person, any
other person which directly or indirectly through one or more intermediaries
controls, or is controlled by, or is under common control with, such specified
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of such Person, whether through the ownership of voting
securities, by agreement or otherwise.
3. "Agreement" has the meaning set forth in the preface.
4. "Assets" means all of the items listed in Section 2.1.
5. "Buyer" has the meaning set forth in the preface.
6. "Buyer Indemnitees" means, collectively, Buyer and its
Affiliates and its and their members, managers, officers, directors, employees,
agents and representatives.
7. "Closing" has the meaning set forth in Section 2.3.
8. "Closing Date" means January 2, 2004.
9. "Code" means the Internal Revenue Code of 1986, as amended, or
any successor Law.
10. "Effective Time" shall have the meaning set forth in Section
2.4.
11. "Encumbrance" means any mortgage, pledge, lien, encumbrance,
servitude, restriction, reservation, easement, right-of-way, charge, other
security interest, including any and all coal or mineral leases or surface
leases on any Assets and including rights or obligations under any collective
bargaining agreement.
- 22 -
12. "Environmental Law" or "Environmental Laws" has the meaning
set forth in Section 3.2(e)(i).
13. "Governmental Authority" means the United States and any
state, county, city or other political subdivision, agency, court or
instrumentality.
14. "Hazardous Substance" means any material defined as a
"hazardous substance" or "hazardous waste" under any Environmental Law.
15. "Indemnified Party" has the meaning set forth in Section
6.4(a).
16. "Indemnifying Party" has the meaning set forth in Section
6.4(a).
17. "Insurance Policies" means those material policies of
insurance that Seller or any of their Affiliates maintained with respect to the
Assets prior to Closing.
18. "Knowledge" means, in the case of Seller, the actual knowledge
of James Begley and Jeffrey S. Meyer, who are the executive officers of Seller,
after reasonable inquiry of those employees of Seller who have or should have
knowledge concerning or relating to the Assets, and, in the case of Buyer, the
actual knowledge of Nick Carter, Kevin Wall, Paul Sebastian and Wyatt Hogan upon
due inquiry.
19. "Laws" means any statute, code, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any applicable
Governmental Authority.
20. "Leases" means all leases of any of the minerals, servitudes,
easements, roads, rights of access, ingress, egress and rights of way relating
or appurtenant to or useful in connection with the Mineral Properties and
Surface Property, including those coal leases and oil and gas leases described
or listed in Schedule 2.1(c), which is attached hereto and made a part hereof.
21. "Liability Cap" has the meaning set forth in Section 6.2(b).
22. "Material Adverse Effect" means any change or effect that,
individually or in the aggregate with other changes or effects, is materially
adverse to the ownership or value of the Assets taken as a whole, provided that
in determining whether a Material Adverse Effect has occurred, the following
changes or effects shall not be considered: (i) the coal mining industry
generally (including, but not limited to, the price of coal and the costs
associated with the mining, production and delivery of coal); (ii) United States
or global economic conditions or financial markets in general, including changes
in interest rates; (iii) the transactions contemplated by this Agreement; and
(iv) changes in Law, or any judgments, orders or decrees that apply generally to
similarly situated persons.
23. "MEA" has the meaning set forth in the recitals.
- 23 -
24. "Mineral Properties" has the meaning set forth in the
Recitals.
25. "Obligations" means duties, liabilities and obligations,
whether vested, absolute or contingent, known or unknown, asserted or
unasserted, accrued or unaccrued, liquidated or unliquidated, due or to become
due, and whether contractual, statutory or otherwise.
26. "Ordinary Course of Business" means the ordinary course of
business in all material respects consistent with the affected party's past
custom and practice (including with respect to quantity and frequency).
27. "Organizational Documents" means the articles of
incorporation, certificate of incorporation, charter, bylaws, articles or
certificate of formation, regulations, operating agreement, certificate of
limited partnership, partnership agreement, and all other similar documents,
instruments or certificates executed, adopted, or filed in connection with the
creation, formation, or organization of a Person, including any amendments
thereto.
28. "Party" and "Parties" have the meanings set forth in the
preface.
29. "Permitted Encumbrances" means any of the following: (i) any
liens for Taxes and assessments not yet due and payable or, if due and payable,
that are being contested in good faith in the Ordinary Course of Business; (ii)
any obligations or duties vested in any municipality or other Governmental
Authority to regulate any Asset in any manner including obligations, duties,
restrictions and limitations under all applicable Laws (including zoning,
building and other similar Laws); (iii) liens reserved for Seller's performance
under leases, subleases, licenses and similar instruments; (iv) liens of
mechanics, materialmen, carriers, workmen, warehousemen, repairmen, or other
like Encumbrances arising or incurred in the Ordinary Course of Business and
securing obligations that are not delinquent or, if delinquent, that are being
contested in good faith by appropriate proceedings and have been properly bonded
over; (v) any Encumbrances listed on Schedule 3.2(a) which is attached hereto
and made a part hereof; (vi) Encumbrances and other conveyances (including
deeds, easements, leases and licenses) of record in the chain of title of Seller
or its Affiliates and their predecessors-in-title; (vii) Encumbrances apparent
from an inspection of the Assets; (viii) easements, rights-of-way, restrictions
and other similar encumbrances which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from the value of the
property subject thereto as it is currently being used or materially interfere
with the ordinary conduct of the business; (ix) the Leases; (x) encroachments,
overlaps, and any other matters which would be disclosed by an accurate survey
and inspection of the Assets; (xi) any portion of the Assets which is or may be
within the bounds of any public roads, railroads, paths, rights-of-way, streets
and/or highways which would be disclosed by an inspection of the Assets; and
(xii) any matter disclosed by Seller's Title Policies. Notwithstanding the
above, paragraphs (v) and (vi) above does not include Encumbrances consisting of
mortgages, deeds of trust, pledges, liens or security interests.
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30. "Person" means an individual or entity, including any
corporation, association, joint stock company, trust, joint venture, limited
liability company, unincorporated organization, or governmental entity (or any
department, agency or political subdivision thereof).
31. "Personal Property" means all personal property located in
Seller's office in Middlesboro, Kentucky and those vehicles listed on Schedule
2.1(e).
32. "Post-Closing Tax Period" means any Tax period ending after
the Closing Date.
33. "Post-Closing Tax Return" means any Tax Return that is
required to be filed with respect to a Post-Closing Tax Period.
34. "Pre-Closing Tax Period" means any Tax periods hereof ending
on or before the Closing Date.
35. "Pre-Closing Tax Return" means any Tax Return that is required
to be filed with respect to a Pre-Closing Tax Period.
36. "Purchase Price" has the meaning set forth in Section 2.2.
37. "Records" means all records in the possession of Seller
pertaining to the Mineral Properties and Surface Property, including all the
Title Information and maps, files, reserve information, historical production
information and other similar materials pertaining to such Assets, and true and
correct copies or originals of the Leases.
38. "Royalty Minerals" has the meaning set forth in the Recitals.
39. "Seller" has the meaning set forth in the preface.
40. "Seller Indemnitees" means, collectively, Seller and its
Affiliates and its and their members, managers, officers, directors, employees,
agents, and representatives.
41. "Seller's Title Policies" means the title insurance policies
issued to Seller by First American Title Insurance Company with respect to
certain of the Assets.
42. "Subsidiary" means, with respect to any relevant Person, any
other Person that is (directly or indirectly) controlled and more than 90%-owned
(directly or indirectly) by the relevant Person.
43. "Surface Property" has the meaning set forth in the Recitals.
44. "Tax" or "Taxes" means any state or local ad valorem
(including any unmined mineral taxes required to be assessed under KRS 132.820),
real property or personal property tax, including any interest, penalty or
addition thereto, whether disputed or not.
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45. "Tax Return" means any return, declaration, report, claim for
refund, or information return or statement relating to Taxes, including any
schedule or attachment thereto, and including any amendment thereof and
including further any unmined mineral taxes return required to be filed under
KRS 132.820.
46. "Third Party Claim" has the meaning set forth in Section 6.4.
47. "Threshold Amount" has the meaning set forth in Section
6.2(b).
48. "Title Information" has the meaning set forth in Section
3.2(a).
Interpretations. Unless expressly provided for elsewhere in this
Agreement, this Agreement shall be interpreted in accordance with the following
provisions:
(a) Whenever the context may require, any pronoun used in this
Agreement shall include the corresponding masculine, feminine, or neuter forms,
and the singular form of nouns, pronouns and verbs shall include the plural and
vice versa.
(b) If a word or phrase is defined, its other grammatical forms
have a corresponding meaning.
(c) A reference to a person, corporation, trust, estate,
partnership, or other entity includes any of them.
(d) The headings contained in this Agreement are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
(e) All references in this Agreement to articles, sections or
subdivisions thereof shall refer to the corresponding article, section or
subdivision thereof of this Agreement unless specific reference is made to such
articles, sections, or subdivisions of another document or instrument.
(f) A reference to any agreement or document (including, without
limitation, a reference to this Agreement) is to the agreement or document as
amended, varied, supplemented, novated or replaced, except to the extent
prohibited by this Agreement or that other agreement or document.
(g) No waiver by either Party of any default by the other Party in
the performance of any provision, condition or requirement herein shall be
deemed to be a waiver of, or in any manner release the other Party from,
performance of any other provision, condition or requirement herein, nor shall
such waiver be deemed to be a waiver of, or in any manner a release of, the
other Party from future performance of the same provision, condition or
requirement. Any delay or omission of either Party to
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exercise any right hereunder shall not impair the exercise of any such right, or
any like right, accruing to it thereafter. The failure of either Party to
perform its obligations hereunder shall not release the other Party from the
performance of such obligations.
(h) A reference to any party to this Agreement or another
agreement or document includes the party's successors and assigns.
(i) A reference to legislation or to a provision of legislation
includes a modification or reenactment of it, a legislative provision
substituted for it and a regulation or statutory instrument issued under it.
(j) A reference to a writing includes a facsimile transmission of
it and any means of reproducing of its words in a tangible and permanently
visible form.
(k) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and article,
section, subsection, schedule and exhibit references are to this Agreement
unless otherwise specified.
(l) The word "including" shall mean including without limitation.
(m) The Exhibits identified in this Agreement are incorporated
herein by reference and made a part of this Agreement.
(n) The Parties have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any of the provisions of
this Agreement.
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