ASSET PURCHASE AGREEMENT
BY AND BETWEEN
PITTSTON COAL COMPANY
AND
ALPHA LAND AND RESERVES, LLC
October 29, 2002
TABLE OF CONTENTS
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ARTICLE I DEFINITIONS 1
1.1. Administrative Services Agreement.......................................1
1.2. Affiliate...............................................................2
1.3. Agreement...............................................................2
1.4. Asset Sale Companies...................................................2
1.5. Assignment and Assumption Agreements....................................2
1.6. Assumed Liabilities.....................................................2
1.7. Bills of Sale...........................................................3
1.8. Books and Records......................................................3
1.9. Business................................................................3
1.10. Buyer...................................................................3
1.11. Buyer Closing Certificate...............................................3
1.12. Buyer's Ultimate Parent.................................................4
1.13. CERCLA..................................................................4
1.14. CERCLIS.................................................................4
1.15. Closing.................................................................4
1.16. Closing Date............................................................4
1.17. Coal Act................................................................4
1.18. Code....................................................................4
1.19. Contaminated............................................................5
1.20. Contracts...............................................................5
1.21. Conveyance Deeds........................................................5
1.22. CPA Arbitrator..........................................................5
1.23. Dispute.................................................................5
1.24. Environment.............................................................5
1.25. Environmental Laws......................................................6
1.26. Environmental Matter....................................................6
1.27. Environmental or Response Action........................................7
1.28. EPA.....................................................................7
1.29. Governmental Authority..................................................7
1.30. Hazardous Substances....................................................8
1.31. Income Tax or Income Taxes..............................................8
1.32. Indemnification and Guaranty Agreement..................................8
1.33. Intercreditor Agreement.................................................8
1.34. IRS.....................................................................8
1.35. Knowledge of PCC........................................................9
1.36. Law.....................................................................9
1.37. Lien....................................................................9
1.38. Liability...............................................................9
1.39. Material Adverse Effect.................................................9
1.40. Mining Activities......................................................10
1.41. Mining Data............................................................10
TABLE OF CONTENTS
(continued)
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1.42. Mining Environmental Liabilities.......................................10
1.43. MSHA...................................................................10
1.44. Ordinary Course of Business............................................10
1.45. OSM....................................................................10
1.46. PCC....................................................................10
1.47. PCC Closing Certificate................................................11
1.48. PCC Group..............................................................11
1.49. PCC Parent.............................................................11
1.50. Permitted Liens........................................................11
1.51. Person.................................................................11
1.52. Post-Closing Period....................................................11
1.53. Pre-Closing Period.....................................................11
1.54. Purchase Price.........................................................12
1.55. Purchased Assets.......................................................12
1.56. RCRA...................................................................12
1.57. Real Property..........................................................12
1.58. Reclamation Laws.......................................................12
1.59. Related Persons........................................................12
1.60. Release................................................................13
1.61. Retained Liabilities...................................................13
1.62. Royalty Agreement......................................................15
1.63. SMCRA..................................................................15
1.64. Straddle Period........................................................16
1.65. Tax or Taxes...........................................................16
1.66. Tax Return.............................................................16
1.67. VDEQ...................................................................16
1.68. VDMME..................................................................16
ARTICLE II PURCHASE AND SALE OF ASSETS.......................................17
2.1. Transfer of Assets.....................................................17
2.2. Bills of Sale, Assignment and Assumption Agreements, Conveyance Deeds
and Other Documents....................................................17
2.3. Assumption of Liabilities..............................................18
2.4. Proration of Liabilities...............................................18
2.5. Indemnification and Guaranty Agreement.................................18
2.6. Administrative Services Agreement......................................18
2.7. Intercreditor Agreement................................................18
2.8. Additional Documents...................................................19
2.9. Allocation of Purchase Price and Assumed Liabilities...................19
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PCC............................20
3.1. Incorporation..........................................................21
3.2. Execution, Delivery and Performance....................................21
TABLE OF CONTENTS
(continued)
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3.3. Authorization..........................................................22
3.4. Absence of Changes.....................................................23
3.5. Real Property..........................................................25
3.6. Environmental Compliance...............................................28
3.7. Contracts..............................................................30
3.8. Litigation; Claims.....................................................31
3.9. No Broker..............................................................31
3.10. Restrictions on Business Activities....................................32
3.11. Powers of Attorney.....................................................32
3.12. Transactions With Affiliates...........................................32
3.13. Absence of Certain Payments............................................32
3.14. Disclosure.............................................................33
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF BUYER...........................33
4.1. Organization...........................................................33
4.2. Execution, Delivery and Performance....................................33
4.3. Authorization..........................................................34
4.4. No Broker..............................................................34
4.5. Reclamation and Environmental Compliance...............................35
4.6. Financing..............................................................35
4.7. Disclosure.............................................................35
ARTICLE V CERTAIN COVENANTS..................................................35
5.1. Business in Ordinary Course............................................35
5.2. Compliance with Law....................................................36
5.3. Cooperation............................................................36
5.4. Notices and Consents...................................................36
5.5. Publicity..............................................................37
5.6. Replacement Bonds; Insurance and Guarantees; Other Filings.............37
5.7. Exclusivity............................................................38
5.8. Access.................................................................38
5.9. Notice of Developments.................................................39
5.10. Further Assurances.....................................................39
ARTICLE VI CONDITIONS PRECEDENT TO CLOSING...................................39
6.1. Conditions Precedent to Each Party's Obligations.......................39
6.2. Conditions Precedent to Obligations of Buyer...........................41
6.3. Conditions Precedent to Obligations of PCC.............................42
ARTICLE VII CERTAIN TAX MATTERS..............................................44
7.1. Property Taxes.........................................................44
7.2. Sales and Use Taxes....................................................45
7.3. Transfer Taxes.........................................................46
TABLE OF CONTENTS
(continued)
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7.4. Access for Tax Returns.................................................46
ARTICLE VIII TERMINATION.....................................................46
8.1. Termination............................................................46
8.2. Effect of Termination..................................................48
ARTICLE IX MISCELLANEOUS.....................................................48
9.1. Entire Agreement.......................................................48
9.2. Amendment..............................................................49
9.3. Extension; Waiver......................................................49
9.4. Expenses...............................................................49
9.5. Bulk Sales Waiver......................................................49
9.6. Governing Law..........................................................49
9.7. Assignment.............................................................50
9.8. Notices................................................................50
9.9. Counterparts; Headings.................................................51
9.10. Interpretation; Construction...........................................51
9.11. Severability...........................................................52
9.12. No Reliance............................................................52
9.13. Retention of and Access to Records.....................................52
9.14. Arbitration............................................................53
EXHIBITS
Exhibit A Outline of Administrative Services Agreement
Exhibit B Assignment and Assumption Agreements
Exhibit C Bills of Sale
Exhibit D Buyer Closing Certificate
Exhibit E Conveyance Deeds
Exhibit F Indemnification and Guaranty Agreement
Exhibit G PCC Closing Certificate
Exhibit H Opinion of Counsel to PCC
Exhibit I Opinion of Counsel to Buyer
SCHEDULES
Schedule 1.4 Asset Sale Companies
Schedule 1.6 Assumed Liabilities
Schedule 1.20 Contracts of Asset Sale Companies
Schedule 1.35 Knowledge of PCC
Schedule 1.42 Mining Environmental Liabilities
Schedule 1.50 Permitted Liens
Schedule 1.57 Real Property of the Asset Sale Companies
Schedule 1.61(a) Retained Liabilities
Schedule 1.61(m) Excluded Contracts
Schedule 3.1 Foreign States
Schedule 3.2 Conflicts
Schedule 3.5(a) Real Property Matters
Schedule 3.5(d) Real Property - Third Party Mining Rights
Schedule 3.6 Permits and Environmental Compliance
Schedule 3.7(b) Contract Exceptions
Schedule 3.7(c) Consents
Schedule 3.8 Litigation; Claims
Schedule 3.12 Transactions with Affiliates
Schedule 5.4(a) PCC Consents
Schedule 5.4(b) Buyer Consents
Schedule 6.1(e)(i) PCC Material Consents
Schedule 6.1(e)(ii) Buyer Material Consents
ASSET PURCHASE AGREEMENT
------------------------
THIS ASSET PURCHASE AGREEMENT is made as of the 29th day of October, 2002,
by and between PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), and ALPHA
LAND AND RESERVES, LLC, a Delaware limited liability company ("Buyer").
RECITALS
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WHEREAS, PCC owns, directly or indirectly, all of the outstanding capital
stock of the corporations listed on Schedule 1.4 (the "Asset Sale Companies");
WHEREAS, PCC desires to cause to be sold and assigned, and Buyer desires to
purchase and assume, certain of the assets and certain of the Liabilities (as
hereinafter defined) of the Asset Sale Companies;
WHEREAS, PCC desires to cause the Asset Sale Companies to retain certain
assets and certain Liabilities;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, PCC and Buyer agree
that:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified:
1.1. Administrative Services Agreement.
"Administrative Services Agreement" shall mean the agreement by and between
PCC and Buyer, an outline of which is attached hereto as Exhibit A.
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1.2. Affiliate.
"Affiliate" shall mean, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person, whether through
the ownership of voting securities, by contract or otherwise. For purposes of
this Agreement, none of Dominion Terminal Associates or any of its partners,
other than Pittston Coal Terminal Corporation, shall be deemed an Affiliate of
PCC or any of its Affiliates.
1.3. Agreement.
"Agreement" shall mean this Asset Purchase Agreement, together with the
Exhibits and Schedules attached hereto, which are incorporated into this Asset
Purchase Agreement by this reference, as the same may be amended from time to
time in accordance with the terms hereof.
1.4. Asset Sale Companies.
"Asset Sale Companies" shall have the meaning given to it in the Recitals
to this Agreement. The term "Asset Sale Company" shall mean one of the Asset
Sale Companies.
1.5. Assignment and Assumption Agreements.
"Assignment and Assumption Agreements" shall mean the assignment and
assumption agreements substantially in the form of Exhibit B attached hereto.
1.6. Assumed Liabilities.
"Assumed Liabilities" shall mean all Liabilities of the Asset Sale
Companies listed on Schedule 1.6.
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1.7. Bills of Sale.
"Bills of Sale" shall mean the bills of sale substantially in the form of
Exhibit C attached hereto.
1.8. Books and Records.
"Books and Records" shall mean the original or true and complete copies of
all of the books and records of the Asset Sale Companies pertaining to the
Purchased Assets, including but not limited to, customer lists, purchase orders
and invoices, sales orders and sales order log books, credit and collection
records, plats, drawings and specifications, environmental and mining reports
and studies, correspondence and miscellaneous records with respect to customers
and supply sources, lessors and lessees, maps, core logs, engineering data,
equipment maintenance records and all other general correspondence, records,
books and files owned by any Asset Sale Company, but excluding any and all Tax
Returns, books and records relating to the Retained Liabilities and corporate
records of the Asset Sale Companies.
1.9. Business.
"Business" shall mean the business of owning and leasing coal reserves by
the Asset Sale Companies.
1.10. Buyer.
"Buyer" shall have the meaning given to it in the preamble of this
Agreement.
1.11. Buyer Closing Certificate.
"Buyer Closing Certificate" shall mean the certificate of Buyer
substantially in the form of Exhibit D attached hereto.
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1.12. Buyer's Ultimate Parent.
"Buyer's Ultimate Parent" shall mean Alpha Natural Resources, LLC, a
Delaware limited liability company.
1.13. CERCLA.
"CERCLA" shall have the meaning set forth in Section 1.25 hereof.
1.14. CERCLIS.
"CERCLIS" shall have the meaning set forth in Section 3.6 hereof.
1.15. Closing.
"Closing" shall mean the closing of the transactions contemplated by this
Agreement beginning at 10:00 a.m., local time, on the Closing Date, at the
offices of Hunton & Williams, Riverfront Plaza, East Tower, 951 East Byrd
Street, Richmond, Virginia 23219.
1.16. Closing Date.
"Closing Date" shall mean November 30, 2002 or such other date as the
parties may mutually agree in writing.
1.17. Coal Act.
"Coal Act" shall mean the Coal Industry Retiree Health Benefit Act of 1992
as amended through the Closing Date (codified at Subtitle J of the Code).
1.18. Code.
"Code" shall mean the Internal Revenue Code of 1986, as amended, and, where
appropriate, any predecessor or successor provisions of Law, and all regulations
thereunder.
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1.19. Contaminated.
"Contaminated" shall mean the presence of one or more Hazardous Substances
in such quantity or concentration as to: (i) violate any Environmental Law; (ii)
require disclosure to any Governmental Authority; (iii) require remediation or
removal; (iv) interfere with or prevent the use of the Real Property or any of
the Purchased Assets as customarily intended; or (v) create any contribution
Liability to fund the clean up of the Real Property.
1.20. Contracts.
"Contracts" shall mean the contracts, agreements, personal and real
property leases, relationships and commitments, written or oral, of the Asset
Sale Companies listed on Schedule 1.20.
1.21. Conveyance Deeds.
"Conveyance Deeds" shall mean the deeds substantially in the form of
Exhibit E attached hereto, with such revisions as shall be agreed upon by the
parties hereto in connection with the Royalty Agreement.
1.22. CPA Arbitrator.
"CPA Arbitrator" shall have the meaning set forth in Section 2.9 hereof.
1.23. Dispute.
"Dispute" shall have the meaning set forth in Section 9.14 hereof.
1.24. Environment.
"Environment" shall mean surface or ground water, water supply, soil or the
ambient air.
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1.25. Environmental Laws.
"Environmental Laws" shall mean collectively, all federal, foreign, state,
and local Laws in effect as of the Closing Date that relate to (a) the
prevention, abatement or elimination of pollution, or the protection of the
environment, or of natural resources, including, without limitation, Laws
applicable to coal mining operations or related activities, (b) the generation,
handling, treatment, storage, disposal or transportation of waste materials, (c)
the regulation of or exposure to Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C.ss.ss.9601 et. seq. ("CERCLA"), the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act, as amended, 42
U.S.C.ss.ss.6901 et. seq. ("RCRA"), the Clean Air Act, 42 U.S.C.ss.ss.7401 et.
seq., the Clean Water Act, 33 U.S.C. ss.ss.1251 et. seq., the Toxic Substances
Control Act, 15 U.S.C.ss.ss.2601 et. seq., the Emergency Planning and Community
Right to Know Act, 42 U.S.C.ss.ss.11001 et. seq., and any foreign, state,
county, municipal, or local statutes, Laws or ordinances similar or analogous to
the federal statutes listed in this sentence.
1.26. Environmental Matter.
"Environmental Matter" shall mean any assertion of a violation, claim or
directive by any Governmental Authority or any other Person for personal injury,
damage to property or the Environment, nuisance, contamination or other adverse
effects on the Environment, or for damages or restrictions resulting from or
related to (i) the operation of PCC's or its Affiliates' business or any
predecessor or the ownership, use or operation at or on any real property or
other assets owned, operated or leased by PCC or its Affiliates or any
predecessor; or (ii) the existence or the continuation of a Release of, or
exposure to, or the transportation, storage or treatment of any Hazardous
Substance into the Environment from or related to any real property or assets
6
currently or formerly owned, operated or leased by PCC or its Affiliates or any
activities on or operations thereof.
1.27. Environmental or Response Action.
"Environmental or Response Action" shall mean all actions required (i) to
clean up, remove, treat or in any other way address any Hazardous Substance or
other substance; (ii) to prevent the Release or threat of Release, or minimize
the further Release of any Hazardous Substance or other substance so it does not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor Environment; (iii) to perform pre-remedial studies and
investigations or post-remedial monitoring and care; (iv) to bring facilities on
any real property currently or formerly owned, operated or leased by PCC or its
Affiliates and the facilities located and operations conducted thereon into
compliance with all Environmental Laws and Reclamation Laws and all permits and
other authorizations, and the filing of all notifications and reports required
under any Environmental Laws and Reclamation Laws; or (v) for the purpose of
environmental protection of any real property currently or formerly owned,
operated or leased by PCC or its Affiliates.
1.28. EPA.
"EPA" shall have the meaning set forth in Section 3.6 hereof.
1.29. Governmental Authority.
"Governmental Authority" shall mean any governmental, judicial,
legislative, executive, administrative or regulatory authority of the United
States, or of any foreign, state or local government or any subdivision, agency,
commission, office, authority or bureau thereof or any quasi-governmental entity
or authority of any nature.
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1.30. Hazardous Substances.
"Hazardous Substances" shall mean any substance, chemical, waste, solid,
material, pollutant or contaminant that is defined or listed as hazardous or
toxic under any applicable Environmental Laws. Without limiting the generality
of the foregoing it shall also include any radioactive material, including any
naturally-occurring radioactive material, and any source, special or by-product
material as defined in 42 U.S.C. 2011, et seq., any amendments or authorizations
thereof, any asbestos-containing materials in any form or condition, any
polychlorinated biphenyls in any form or condition, radioactive waste, or
natural gas, natural gas liquids, liquified natural gas, condensate, or
derivatives or byproducts thereof or oil and petroleum products or by products
and constituents thereof.
1.31. Income Tax or Income Taxes.
"Income Tax" or "Income Taxes" shall mean any Tax based on or measured by
net income.
1.32. Indemnification and Guaranty Agreement.
"Indemnification and Guaranty Agreement" shall mean the agreement by and
among PCC Parent, PCC, Buyer and Buyer's Ultimate Parent substantially in the
form of Exhibit F attached hereto.
1.33. Intercreditor Agreement.
"Intercreditor Agreement" shall mean the Intercreditor Agreement by and
among PCC, Buyer and Buyer's third-party lenders, to be dated as of the Closing
Date, in a form to be agreed upon by the parties hereto.
1.34. IRS.
"IRS" shall mean the United States Internal Revenue Service.
8
1.35. Knowledge of PCC.
"Knowledge of PCC" shall mean, for the individuals listed on Schedule 1.35,
any such individual's actual knowledge and what any such individual should have
known after reasonable inquiry within the scope of that individual's job
responsibilities.
1.36. Law.
"Law" and "Laws" shall mean any applicable United States or foreign,
federal, state, local or other law or governmental requirement of any kind, and
the rules, regulations and orders promulgated thereunder.
1.37. Lien.
"Lien" shall mean any lien, encumbrance, mortgage, charge, claim,
restriction, pledge, security interest or imposition of any kind.
1.38. Liability.
"Liability" shall mean any liability or obligation (whether known or
unknown, whether asserted or unasserted, whether absolute or contingent, whether
liquidated or unliquidated and whether due or to become due), including any
liability for Taxes. Liabilities shall mean one or more items of Liability.
1.39. Material Adverse Effect.
"Material Adverse Effect" shall mean any event, change or occurrence that
individually, or together with any other event, change or occurrence, has a
material adverse impact on the Business, taken as a whole, without regard to the
duration of such material adverse impact.
9
1.40. Mining Activities.
"Mining Activities" shall mean those activities, if any, of the Asset Sale
Companies that have taken place on or through the use of the Purchased Assets
that involve surface, underground and auger mining, processing or transporting
of coal and the handling of coal by-products.
1.41. Mining Data.
"Mining Data" shall have the meaning set forth in Section 3.5(c) hereof.
1.42. Mining Environmental Liabilities.
"Mining Environmental Liabilities" shall mean Liabilities that relate to or
arise from both of the following: (i) any of the Hazardous Substances set forth
on Schedule 1.42 and (ii) an Environmental Matter or Environmental and Response
Action associated with Mining Activities to the extent that such Mining
Activities conformed to industry standard practices at the time such Mining
Activities were conducted.
1.43. MSHA.
"MSHA" shall have the meaning set forth in Section 3.6 hereof.
1.44. Ordinary Course of Business.
"Ordinary Course of Business" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
1.45. OSM.
"OSM" shall have the meaning set forth in Section 3.6 hereof.
1.46. PCC.
"PCC" shall have the meaning given to it in the preamble to this Agreement.
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1.47. PCC Closing Certificate.
"PCC Closing Certificate" shall mean the certificate of PCC substantially
in the form of Exhibit G attached hereto.
1.48. PCC Group.
"PCC Group" shall have the meaning given to it in Section 1.61(l).
1.49. PCC Parent.
"PCC Parent" shall mean The Pittston Company, a Virginia corporation.
1.50. Permitted Liens.
"Permitted Liens" shall mean: (i) Liens for property Taxes not due and
payable; (ii) encumbrances that would be apparent in a physical inspection of
the surface of the Real Property; (iii) all instruments of record in the offices
of the Clerk of the Circuit Court for each county where the Real Property is
located; and (iv) those Liens affecting the Purchased Assets that are listed on
Schedule 1.50.
1.51. Person.
"Person" shall mean any individual, corporation, general or limited
partnership, limited liability company, joint venture, estate, trust,
association, organization, labor union or other entity or Governmental
Authority.
1.52. Post-Closing Period.
"Post-Closing Period" shall mean any taxable period beginning after the
Closing Date.
1.53. Pre-Closing Period.
"Pre-Closing Period" shall mean any taxable period ending on or before the
Closing Date.
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1.54. Purchase Price.
"Purchase Price" shall mean the cash amount of $6,160,000, plus the Royalty
Agreement.
1.55. Purchased Assets.
"Purchased Assets" shall mean all right, title and interest in and to the
Books and Records, Real Property and Mining Data of the Asset Sale Companies and
the rights of the Asset Sale Companies with respect to the Contracts.
1.56. RCRA.
"RCRA" shall have the meaning set forth in Section 1.25 hereof.
1.57. Real Property.
"Real Property" shall mean the real property rights and interests owned,
leased or subleased by the Asset Sale Companies and any improvements, fixtures,
easements, rights of way, and other appurtenants thereto (such as appurtenant
rights in and to public streets) that are listed on Schedule 1.57.
1.58. Reclamation Laws.
"Reclamation Laws" shall mean all federal, state and local Laws, as now or
hereafter in effect, relating to coal mining reclamation activities or
Liabilities. For purposes of this definition, "coal mining" shall include, but
not be limited to, any activities defined under the Surface Mining Control and
Reclamation Act of 1977, as amended, as "surface coal mining operations."
1.59. Related Persons.
"Related Persons" shall mean related persons as that term is defined in
Section 9701(c)(2) of the Coal Act, except that it shall not include successors
in interest.
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1.60. Release.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, dumping or disposing into the
Environment of Hazardous Substances.
1.61. Retained Liabilities.
"Retained Liabilities" shall mean all of the Liabilities of each Asset Sale
Company, other than the Assumed Liabilities, including, without limitation, the
following:
(a) the Liabilities listed on Schedule 1.61(a);
(b) all Liabilities for terminated contract miner performance escrow
amounts (including interest) accrued up to the Closing Date;
(c) all Liabilities for accounts payable for which goods have been shipped
and delivered (whether or not invoiced) or services have been
performed (whether or not invoiced) and related notes, trade payables
and earned royalties, to the extent that an Asset Sale Company
received a benefit before the Closing Date;
(d) all inter-company indebtedness owed by any Asset Sale Company to the
PCC Parent or any of the PCC Parent's Affiliates;
(e) except as set forth on Schedule 1.6, all Liabilities for the claims,
legal actions, suits, litigation, arbitrations, disputes or
investigations listed on Schedules 3.5(c) and 3.8;
(f) all Liabilities of any of the Asset Sale Companies for unpaid Taxes
with respect to any Tax year or portion thereof ending on or before
the Closing Date or for any Tax year beginning before and ending after
the Closing Date to the extent allocable to the
13
portion of such period beginning before and ending on the Closing Date
(to the extent of any inconsistencies with Article VII hereof, Article
VII shall be controlling);
(g) all amounts payable as the result of the consummation of the
transactions contemplated by this Agreement that arise due to any
change of control provision of any Contract other than those Contracts
listed on Schedule 5.4(b);
(h) all Liabilities of any of the Asset Sale Companies for the unpaid
Taxes of any Person (including PCC and its subsidiaries) under Reg.
ss.1.1502-6 (or any similar provision of state, local, or foreign
law), as a transferee or successor, by contract, or otherwise;
(i) all Liabilities for any Environmental Matter or Environmental or
Response Action related to real property or any other asset owned,
operated or leased by PCC or any of its Affiliates that is not a
Purchased Asset (except to the extent otherwise provided in any other
agreement entered into contemporaneously with this Agreement pursuant
to which reclamation and other services are to be performed on PCC's
or its Affiliates' idle properties);
(j) all Liabilities for any Environmental Matter or Environmental or
Response Action (other than Mining Environmental Liabilities) to the
extent the underlying claim relates to or arises from any activity on
or through the use of the Purchased Assets and is attributable to acts
or omissions occurring at or prior to the Closing;
(k) all Liabilities of PCC that become a Liability of Buyer under any bulk
transfer Law of any jurisdiction;
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(l) (1) all Liabilities, if any, of any Asset Sale Company and its Related
Persons (collectively, the "PCC Group") under the Coal Act, and (2)
all Liabilities, if any, of the PCC Group under any post-Closing
amendments to the Coal Act for (i) beneficiaries eligible under the
Coal Act who are assigned to a member of the PCC Group or for whom a
member of the PCC Group is required to provide or pay for medical
benefits pursuant to Sections 9711 or 9712 of the Coal Act or (ii)
death benefit premiums or unassigned beneficiary premiums (as those
terms are used in Sections 9704(c) and 9704(d) of the Coal Act) for
beneficiaries eligible under the Coal Act, that are assessed against
any member of the PCC Group; provided, for the avoidance of doubt,
that the Liabilities retained pursuant to (1) and (2) above shall not
be affected by Buyer or any of its Affiliates being identified under
the Coal Act or any post-Closing amendments thereto as a successor,
successor in interest or "Related person" under the Coal Act or any
post-Closing amendments thereto to any member of the PCC Group solely
as a result of Buyer's purchase of the Purchased Assets; and
(m) all Liabilities under the contracts, agreements, personal and real
property leases, relationships and commitments of the Asset Sale
Companies listed on Schedule 1.61(m).
1.62. Royalty Agreement.
"Royalty Agreement" shall mean that $20 million Royalty Agreement between
Buyer and PCC based upon the tonnage of coal mined at the Real Property and
earnings of the Business, to be dated as of the Closing Date, in a form to be
agreed upon by PCC and Buyer.
1.63. SMCRA.
"SMCRA" shall have the meaning set forth in Section 3.6 hereof.
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1.64. Straddle Period.
"Straddle Period" shall mean any taxable period covering days before and
after the Closing Date.
1.65. Tax or Taxes.
"Tax" or "Taxes" mean any federal, state, local, or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code ss.59A),
custom duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, reclamation fees or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not, but shall not
include, for purposes of this Agreement only, Liabilities under the Coal Act, of
whatever nature and regardless of how denominated.
1.66. Tax Return.
"Tax Return" shall mean any original or amended report, return,
declaration, claim for refund, statement, document, schedule, attachment or
other information supplied or required to be supplied to a Governmental
Authority with respect to Taxes, including any return of an affiliated, combined
or unitary group.
1.67. VDEQ.
"VDEQ" shall have the meaning set forth in Section 3.6 hereof.
1.68. VDMME.
"VDMME" shall have the meaning set forth in Section 3.6 hereof.
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ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1. Transfer of Assets.
On the Closing Date, PCC (on behalf of the Asset Sale Companies) shall
cause to be sold, conveyed, transferred, assigned, and delivered to Buyer, and
Buyer shall acquire, the Purchased Assets. At the Closing, subject to the terms
and conditions of this Agreement, PCC agrees to: (i) cause title to the
Purchased Assets to be transferred and delivered to Buyer; and (ii) perform its
obligations under this Agreement to be performed at or before Closing. In full
payment for the Purchased Assets, Buyer shall: (i) assume the Assumed
Liabilities; (ii) pay to PCC (which shall receive such amounts on behalf of the
Asset Sale Companies) the Purchase Price by wire transfer of cash or other
immediately available funds and execute and deliver to PCC the Royalty
Agreement; and (iii) perform its obligations under this Agreement to be
performed at or before Closing. Buyer shall not assume or have any
responsibility with respect to any Liability of PCC Parent, PCC or the Asset
Sale Companies that is not an Assumed Liability.
2.2. Bills of Sale, Assignment and Assumption Agreements, Conveyance Deeds
and Other Documents.
At the Closing, PCC shall cause each of the Asset Sale Companies to: (i)
execute and deliver to Buyer the Bills of Sale, the Assignment and Assumption
Agreements, the Conveyance Deeds and such other documents as may be necessary to
convey to Buyer the Purchased Assets; and (ii) perform its obligations under the
Agreement to be performed at or before the Closing.
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2.3. Assumption of Liabilities.
At the Closing, Buyer shall execute and deliver to PCC the Assignment and
Assumption Agreements and such other documents and instruments as may be
necessary for Buyer to assume all of the Assumed Liabilities. Buyer shall not
assume or have any responsibility, however, with respect to any Liability of PCC
Parent, PCC or the Asset Sale Companies that is not an Assumed Liability.
2.4. Proration of Liabilities.
PCC and Buyer shall cooperate with each other to provide for payments due
with respect to the Assumed Liabilities and the Retained Liabilities during the
payment period in which the Closing occurs with all such Liabilities prorated as
of the Closing Date, if applicable.
2.5. Indemnification and Guaranty Agreement.
At the Closing, PCC, PCC Parent, Buyer's Ultimate Parent and Buyer shall
execute and deliver the Indemnification and Guaranty Agreement.
2.6. Administrative Services Agreement.
At the Closing, PCC and Buyer shall execute and deliver the Administrative
Services Agreement pursuant to which PCC or one of its Affiliates will provide
certain services to Buyer or its Affiliates for a transition period.
2.7. Intercreditor Agreement.
At the Closing, in order to set forth certain agreements among PCC, Buyer
and Buyer's third-party lenders, PCC, Buyer and Buyer's third-party lenders
shall execute and deliver the Intercreditor Agreement.
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2.8. Additional Documents.
At the Closing, PCC and Buyer shall, and PCC shall cause the Asset Sale
Companies to, execute and deliver all such other documents or instruments
necessary or appropriate to effect the transactions contemplated by this
Agreement, including the documents provided in Section 5.6 hereof and in this
Article II.
2.9. Allocation of Purchase Price and Assumed Liabilities.
The Purchase Price and the Assumed Liabilities (to the extent they
constitute part of the amount realized for federal Income Tax purposes) shall be
allocated among the Purchased Assets in accordance with a schedule to be agreed
upon by Buyer and PCC after the Closing Date. Buyer shall prepare such
allocation schedule and deliver it to PCC upon a date to be agreed upon between
the parties, which date shall be no later than 60 days after the Closing Date.
PCC shall be deemed to agree with such allocation schedule unless, within ten
(10) days after the date PCC receives the allocation schedule from Buyer, PCC
notifies Buyer in writing of (i) each allocation with which it disagrees and
(ii) for each such allocation, the amount that PCC proposes to allocate. If PCC
provides such notice to Buyer, the parties shall proceed in good faith to
resolve mutually the disputed allocation amounts within fifteen (15) days after
the date on which PCC notifies Buyer of a disagreement with Buyer's proposed
allocation. If PCC and Buyer cannot resolve any such differences, the parties
agree to submit such differences to arbitration in Abingdon, Virginia, by the
accounting firm of Deloitte & Touche, LLP or another accounting firm acceptable
to both parties (the "CPA Arbitrator"). The CPA Arbitrator shall make such
review and examination of the relevant facts and documents as the CPA Arbitrator
deems appropriate and shall permit each of Buyer and PCC to make a written
presentation of their respective positions. Within forty-five (45) days after
submission of such dispute by both
19
parties, the CPA Arbitrator shall resolve such dispute in writing and shall
prepare and deliver its decision, which shall (i) be based upon a determination
of the fair market value of the Purchased Assets, (ii) defer to valuations that
have been prepared in accordance with generally accepted valuation techniques
absent manifest error, (iii) be final and binding upon the parties without
further recourse or collateral attack and (iv) accept either Buyer's or PCC's
position in its entirety. The party whose position is not accepted by the CPA
Arbitrator shall pay all fees and costs of such CPA Arbitrator to arbitrate such
dispute. The allocation schedule shall include, at a minimum, information
necessary to complete Part II of IRS Form 8594. The allocation to the Purchased
Assets is intended to comply with the requirements of Section 1060 of the Code.
The parties shall cooperate to comply with all substantive and procedural
requirements of Section 1060, and except for any adjustment to the Purchase
Price hereunder, after the completion and agreement by the parties to the
allocation schedule, such allocation schedule shall be adjusted only if and to
the extent necessary to comply with such requirements of Section 1060. Buyer and
PCC agree that they will not take nor will they permit any Affiliate to take,
for Income Tax purposes, any position inconsistent with such allocation schedule
to the Purchased Assets; provided, however, that (i) Buyer's cost for the
Purchased Assets may differ from the total amount allocated hereunder to reflect
the inclusion in the total cost of items (for example, capitalized acquisition
costs) not included in the total amount so allocated and (ii) the amount
realized by the Asset Sale Companies may differ from the total amount allocated
hereunder to reflect transaction costs that reduce the amount realized for
federal Income Tax purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PCC
PCC hereby represents and warrants to Buyer that the statements contained
in this Article III are correct and complete, except as set forth in the
Schedules delivered by PCC to Buyer in
20
connection with this Agreement. The Schedules are arranged in paragraphs
corresponding to the lettered and numbered paragraphs contained in this Article
III.
3.1. Incorporation.
PCC and each of the Asset Sale Companies are corporations duly organized,
validly existing and in good standing under the Laws of the respective state or
commonwealth of each such company's incorporation. PCC and each of the Asset
Sale Companies that is not a corporation incorporated under the Laws of Virginia
are duly qualified or licensed to transact business as a foreign corporation in
Virginia and are in good standing under the laws of Virginia. Set forth on
Schedule 3.1 is the name of each state or other jurisdiction in which each such
company has either paid taxes or had an office in the three years prior to the
date of this Agreement.
3.2. Execution, Delivery and Performance.
The execution, delivery and performance by PCC of this Agreement and by PCC
and the applicable Asset Sale Company of each other agreement or instrument to
which it is a party executed in connection herewith or delivered pursuant hereto
and the consummation of the transactions contemplated herein and therein will
not, with or without the giving of notice or the passage of time, or both: (i)
conflict with, or result in a violation or breach of, or a default, right to
accelerate, right to exercise any remedy or loss of rights under, or result in
the creation of any Lien (other than Permitted Liens) under or pursuant to, any
provision of PCC's or any Asset Sale Company's Articles of Incorporation or
Bylaws or of any material franchise, mortgage, deed of trust, Lien, lease,
license, instrument, agreement, consent, approval, waiver or understanding to
which PCC or any Asset Sale Company is a party or by which any Asset Sale
Company is bound, or any Law or any order, judgment, writ, injunction or decree
to which PCC or any Asset
21
Sale Company is a party or by which PCC, any Asset Sale Company or the Purchased
Assets may be bound or affected; (ii) require the approval, consent or
authorization of, prior notice to, or filing or registration with any
Governmental Authority or contravene, conflict with or result in a violation of
any of the terms or requirements of, or give any Governmental Authority the
right to revoke, withdraw, suspend, cancel or terminate any authorization issued
by a Governmental Authority that is held by PCC or the Asset Sale Companies or
that otherwise relates to the Purchased Assets; or (iii) give any Governmental
Authority or other Person the right to challenge any of the transactions
contemplated hereunder or exercise any remedy or obtain any relief under any Law
to which PCC or any Asset Sale Company is subject.
3.3. Authorization.
PCC has full power and authority to enter into and deliver this Agreement
and to perform its obligations hereunder and each of PCC and the Asset Sale
Companies has full power and authority to enter into and deliver each other
agreement or instrument to which it is a party executed in connection herewith
and delivered pursuant hereto and to perform its obligations thereunder. PCC's
execution, delivery and performance of this Agreement and the execution,
delivery and performance of all other agreements and instruments by PCC and each
of the Asset Sale Companies in connection herewith and delivered pursuant hereto
and the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of PCC and each of the Asset Sale
Companies. This Agreement and all other agreements or instruments executed by
PCC or any of the Asset Sale Companies in connection
22
herewith and delivered by PCC or any of the Asset Sale Companies pursuant hereto
have been duly executed and delivered by PCC or such Asset Sale Companies and
this Agreement and all other agreements and instruments executed by PCC or any
of the Asset Sale Companies in connection herewith and delivered by PCC or any
of the Asset Sale Companies pursuant hereto constitute the legal, valid and
binding obligation of PCC or such Asset Sale Company, as the case may be,
enforceable in accordance with their respective terms (subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar Laws
affecting generally the enforcement of creditors' rights).
3.4. Absence of Changes.
Except as contemplated by this Agreement, since December 31, 2001, none of
the Asset Sale Companies has, with respect to the Purchased Assets:
(a) borrowed or agreed to borrow any funds or incurred, or become subject
to, any Liability, or issued any note, bond or other debt security, or
guaranteed any indebtedness for borrowed money or capitalized lease
obligation, except Liabilities incurred in the Ordinary Course of
Business, none of which would reasonably be expected to result in an
impact greater than $100,000;
(b) paid any Liability other than current Liabilities in the Ordinary
Course of Business;
(c) sold, transferred or otherwise disposed of, or agreed to sell,
transfer or otherwise dispose of any of the Real Property, or, other
than in the Ordinary Course of Business, any other Purchased Assets;
(d) except in the Ordinary Course of Business, entered into any agreement,
contract, lease or license (or series of related agreements,
contracts, leases and licenses) or made or permitted any material
amendment to or termination, acceleration, modification or
cancellation of any Contract or breached any provision of any
Contract;
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(e) merged or consolidated with any other Person;
(f) mortgaged, pledged or subjected to any Lien any of its assets or
properties, other than Permitted Liens;
(g) made any capital expenditure (or series of related capital
expenditures) either (x) involving more than $100,000 or (y) outside
the Ordinary Course of Business;
(h) made any capital investment in, any loan to, or any acquisition of the
securities or assets of, any other Person (or series of related
capital investments, loans and acquisitions) either (x) involving
$100,000 or (y) outside the Ordinary Course of Business;
(i) delayed or postponed the payment of accounts payable and other
Liabilities outside the Ordinary Course of Business;
(j) cancelled, compromised, waived or released any right or claim (or
series of related rights and claims) either (x) involving more than
$100,000 or (y) outside the Ordinary Course of Business;
(k) made any loan to, or entered into any other transaction with, any of
the directors, officers and employees of such Asset Sale Company
outside the Ordinary Course of Business;
(l) entered into any employment contract or collective bargaining
agreement, written or oral, or modified the terms of any existing such
contract;
(m) suffered any damage, destruction or loss, whether or not covered by
insurance, that has had or would reasonably be expected to have a
Material Adverse Effect;
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(n) implemented or adopted any change in its accounting methods or
principles or the application thereof; or
(o) entered into any agreement, arrangement or understanding with respect
to any of the foregoing.
3.5. Real Property.
(a) PCC has made available to Buyer all deeds, leases, bills of sale,
documents of title, abstracts, surveys, plats and maps in the
possession of the Asset Sale Companies or their Affiliates that relate
to the Real Property. With respect to the Real Property:
(i) the Asset Sale Companies have marketable title to the owned Real
Property, taken as a whole, and the Real Property is free and
clear of any Lien (other than Permitted Liens);
(ii) there are no pending or, to the Knowledge of PCC, threatened
condemnation proceedings, lawsuits, or administrative actions
relating to the Real Property;
(iii) the legal description for the parcels contained in the deed
thereof describes such parcel fully and adequately, and the
buildings and improvements are located within the boundary lines
of the described parcels of land;
(iv) none of the Asset Sale Companies have been notified that any
buildings or improvements located on the Real Property are in
violation of applicable zoning laws and ordinances; and
25
(v) there are no outstanding options or rights of first refusal to
purchase the parcel of Real Property, or any portion thereof or
interest therein.
(b) Schedule 1.57 identifies the coal leases, coal subleases and surface
leases that comprise a portion of the Real Property. PCC has made
available to Buyer all coal leases, coal subleases and surface leases
listed on Schedule 1.57. With respect to each such lease and sublease:
(i) the lease or sublease is legal, valid, binding, enforceable, and
in full force and effect;
(ii) except for the consents set forth on Schedule 3.7(c) that are
required to be obtained and the notices given, the lease or
sublease will continue to be legal, valid, binding, enforceable,
and in full force and effect on identical terms following the
consummation of the transactions contemplated hereby (including
the assignments and assumptions referred to above);
(iii) no Asset Sale Company nor, to the Knowledge of PCC, any other
party to the lease or sublease is in breach or default, and no
event has occurred which, with notice or lapse of time, would
constitute a breach or default or permit termination,
modification, or acceleration thereunder;
(iv) no Asset Sale Company nor, to the Knowledge of PCC, any other
party to the lease or sublease has repudiated any provision
thereof; and
(v) none of the Asset Sale Companies has assigned, transferred,
conveyed or subjected to a Lien any interest in the leasehold or
subleasehold, other than those created pursuant to the terms of
that lease or sublease.
26
(c) There is not any third party adverse claim to any of the Real
Property, other than Permitted Liens, and, to the Knowledge of PCC, no
party is in wrongful possession of any parcel of the Real Property.
(d) PCC has made available to Buyer geological data, reserve data, mine
maps, core hole logs and associated data, coal measurements, coal
samples, lithologic data, coal reserve calculations or reports,
washability analyses or reports, mine plans, mining permit
applications and supporting data, engineering studies and all other
information, maps, reports and data, if any, in the possession of the
Asset Sale Companies and relating to or affecting the Real Property,
including the coal reserves, coal ownership, coal leases to the Asset
Sale Companies, coal leases from the Asset Sale Companies to third
parties, mining conditions, mines, and mining plans, if any, of the
Asset Sale Companies as prepared and utilized by the Asset Sale
Companies in any Mining Activities (collectively, the "Mining Data").
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, BUYER
ACCEPTS THE ASSET SALE COMPANIES' COAL RESERVES IN OR UNDER THE REAL
PROPERTY, AS IS, WHERE IS, TOGETHER WITH THE MINING DATA, FREE OF ANY
WARRANTY (EXPRESS OR IMPLIED) WITH REGARD TO THE MINEABILITY,
WASHABILITY, RECOVERABILITY, VOLUME, OR QUANTITY OR QUALITY OF ANY
COAL RESERVE. The coal reserves mined by the Asset Sale Companies
(whether such reserves are owned or leased by the Asset Sale
Companies) are not subject to any mining rights of any other Person.
3.6. Environmental Compliance.
(a) Each Asset Sale Company is in material compliance with all
Environmental Laws related to the Purchased Assets. Neither PCC nor
any Asset Sale Company has been notified by any Governmental Authority
of any current, alleged or unresolved violation of any Environmental
Laws applicable to Mining Activities. if any, including any
investigatory, remedial or corrective obligations, that would result
in (i) closure, suspension or restriction of any mine or
mining-related activity on the Real Property or (ii) exposure of Buyer
to the imposition of any fines or other civil or criminal monetary
penalty in excess of $5,000.
(b) To the Knowledge of PCC, after the Closing, Buyer will not be liable
for any fines, penalties, fees, Taxes or other governmental charges
assessed with respect to notices of violation, cessation orders,
closure orders, show cause orders or other governmental enforcement
actions issued prior to Closing with respect to the Purchased Assets.
Neither this Agreement nor the consummation of the transactions that
are the subject of this Agreement will result in any Buyer Liabilities
for site investigation or cleanup, or notification to or consent of
any Governmental Agency or third parties, pursuant to any of the
so-called "transaction-triggered" or "responsible property transfer"
Environmental Laws.
(c) None of the Purchased Assets is identified on (i) the current or
proposed National Priorities List under 40 C.F.R. ss. 300, (ii) the
Comprehensive Environmental Response, Compensation and Liability
Inventory System ("CERCLIS") list, or (iii) any list arising from a
federal, state or local statute similar to CERCLA. To the Knowledge of
PCC, the Real Property is not Contaminated with any Hazardous
Substance.
27
(d) (A) None of the Purchased Assets has been or is being used in any
manner associated with the production, manufacture, processing,
generation, storage, treatment, disposal, management, shipment or
transportation of Hazardous Substances and no such Purchased Assets
are Contaminated by any Hazardous Substance; (B) there are no
underground storage tanks regulated pursuant to RCRAss. 9001 (42
U.S.C. ss. 6991) or equivalent authorized state program, and no above
ground storage tanks, located at, on, in or under the Purchased
Assets; (C) there is no asbestos-containing material in any form or
condition located at, on, in or under the Purchased Assets; (D) there
are no materials or equipment containing polychlorinated biphenyls
located at, on, in or under the Purchased Assets, (E) there are no
landfills or other areas located at, on, in or under the Purchased
Assets where Hazardous Substances have been disposed, and (F) neither
PCC nor any Asset Sale Company has disposed of any Hazardous Substance
at any offsite disposal area located on the property of any other
Person, other than a facility permitted by any Governmental Authority
with jurisdiction to receive such Hazardous Substance.
(e) No Asset Sale Company has, with respect to the Purchased Assets,
either expressly or by operation of Law, assumed or undertaken any
Liability, including without limitation, any Liability for corrective
or remedial action, of any other Person relating to any Environmental
Laws.
(f) To the Knowledge of PCC, no conditions existing as of the Closing Date
and relating to the Purchased Assets or the activities of the Asset
Sale Companies or any of their respective predecessors or Affiliates
will prevent or materially hinder Buyer's compliance with
Environmental Laws, require Buyer to undertake any investigatory,
remedial or corrective actions pursuant to Environmental Laws or
impose upon Buyer any other Liabilities pursuant to Environmental
Laws, including without limitation, any Environmental Laws relating to
onsite or offsite releases or threatened releases of Hazardous
Substances or imposing Liability for personal injury, property damage
or natural resource damage.
28
3.7. Contracts.
(a) PCC has made available to Buyer copies of all of the written
Contracts, or a written summary setting forth the terms and conditions
where no copies exist, including all amendments, modifications,
waivers and elections applicable thereto.
(b) As to the Asset Sale Companies party thereto: (i) the Contracts are
valid and binding, enforceable in accordance with their respective
terms (subject to any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar Laws affecting generally
the enforcement of creditors' rights), and are in full force and
effect; (ii) the consummation of the transactions contemplated herein
will not, with or without the giving of notice or the passage of time,
or both, conflict with, or result in a violation or breach of, or a
default, right to accelerate, right to exercise any remedy or loss of
rights under the Contracts; (iii) no Asset Sale Company, nor to the
Knowledge of PCC, any other party is in material breach or default,
and no event has occurred that, with notice or lapse of time, would
constitute a breach or default, or permit termination, modification or
acceleration, under the Contracts; and (iv) no Asset Sale Company, nor
to the Knowledge of PCC, any other party has repudiated any provision
of the Contracts.
(c) Schedule 3.7(c) sets forth the consents and approvals of third parties
and Governmental Authorities required to be obtained as a result of
the transactions contemplated by this Agreement.
29
3.8. Litigation; Claims.
(a) Schedules 3.5(c), 3.6 and 3.8 list all claims, legal actions, suits,
litigation, arbitrations, disputes, investigations, proceedings by or
before any Governmental Authority involving more than $100,000 and all
orders, decrees or judgments, now pending or in effect, or, to the
Knowledge of PCC, threatened or contemplated, against or affecting the
Asset Sale Companies, the Purchased Assets, or the consummation of the
transactions contemplated by this Agreement, except to the extent
involving Taxes for Pre-Closing Periods.
(b) There are no existing claims by or disputes involving more than
$100,000 with Persons owning or occupying lands or realty adjoining or
near any of the Real Property regarding Mining Activities, if any, by
the Asset Sale Companies or regarding the location of boundary lines,
encroachments, mineral rights, subsidence, water quantity or quality,
blasting damage, transportation of coal or other materials, nuisances
or any other similar matter.
3.9. No Broker.
None of the Asset Sale Companies, PCC or the PCC Parent has had any
dealings, negotiations or communications with or retained any broker or
other intermediary in connection with the transactions contemplated by this
Agreement and none of the foregoing is committed to any Liability for any
brokers' or finders' fees or any similar fees in connection with the
transactions contemplated hereby, other than Rothschild Inc., who shall be
compensated solely by PCC or an Affiliate of PCC.
30
3.10. Restrictions on Business Activities.
Except for this Agreement, there is no agreement, judgment,
injunction, order or decree binding upon PCC or any of the Asset Sale
Companies that has or would reasonably be expected to have the effect of
prohibiting the conduct of the Business.
3.11. Powers of Attorney.
There are no outstanding powers of attorney executed on behalf of any
of the Asset Sale Companies affecting the Purchased Assets.
3.12. Transactions With Affiliates.
The Contracts do not include any Liability between any Asset Sale
Company and any Affiliate of such Asset Sale Company. At the Closing, the
Purchased Assets will not include any receivable or other Liability from an
Affiliate of any Asset Sale Company.
3.13. Absence of Certain Payments.
During the five (5) year period prior to the date of this Agreement,
to the Knowledge of PCC, none of the Asset Sale Companies have (nor has any
director, officer, agent, or employee of any Asset Sale Company nor any
other person, acting on behalf of any Asset Sale Company) directly or
indirectly: used any of such company's funds for unlawful contributions,
gifts, entertainment or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from such company's funds; violated any provision of the Foreign
Corrupt Practices Act of 1977 applicable to such company; established or
maintained any unlawful or unrecorded fund of such company's monies or
other assets; made any false or fictitious entry on the books or records of
such company; or made any bribe, rebate, payoff, influence payment,
kickback, or other unlawful payment, to any person or entity, private or
public, regardless of form, whether in money, property, or services, to
obtain favorable treatment in securing business or to obtain special
concessions for such company, or to pay for favorable treatment for
business secured or for special concessions already obtained for such
company.
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3.14. Disclosure.
The representations and warranties contained in this Article III do
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Article III not misleading. ARTICLE IV REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to PCC that:
4.1. Organization.
Buyer is a duly formed limited liability company, validly existing and
in good standing under the Laws of the State of Delaware.
4.2. Execution, Delivery and Performance.
The execution, delivery and performance of this Agreement and each
other agreement or instrument executed in connection herewith or delivered
pursuant hereto and the consummation of the transactions contemplated
herein and therein will not, with or without the giving of notice or the
passage of time, or both, (i) conflict with, or result in a violation or
breach of, or a default, right to accelerate or loss of rights under, or
result in the creation of any Lien, under or pursuant to, any provision of
Buyer's organizational documents or of any franchise, mortgage, deed of
trust, lease, license, instrument, agreement, consent, approval, waiver or
understanding, any Law, or any finding, order, judgment, writ, injunction
or decree to which Buyer is a party or by which Buyer or its respective
assets may be bound or affected; or (ii) require the approval, consent or
authorization of, or prior notice to, filing with or registration with, any
Governmental Authority, or any other Person or entity.
32
4.3. Authorization.
Buyer has full power and authority to enter into and deliver this
Agreement, and each other agreement or instrument (to which it is a party)
executed in connection herewith or delivered pursuant hereto and to perform
its obligations hereunder and thereunder. Buyer's execution, delivery and
performance of this Agreement and all other agreements and instruments
executed in connection herewith or delivered pursuant hereto and the
transactions contemplated hereby have been duly authorized by all requisite
action. This Agreement and all other agreements or instruments executed by
Buyer in connection herewith or delivered by Buyer pursuant hereto have
been duly executed and delivered by Buyer and this Agreement and all other
agreements and instruments executed by Buyer in connection herewith or
delivered by Buyer pursuant hereto constitute Buyer's legal, valid and
binding obligation, enforceable in accordance with their respective terms
(subject to any applicable bankruptcy, insolvency, reorganization,
moratorium or other similar Laws affecting generally the enforcement of
creditors' rights).
4.4. No Broker.
Buyer has had no dealings, negotiations or communications with any
broker or other intermediary in connection with the transactions
contemplated by this Agreement nor is it committed to any Liability for any
brokers' or finders' fees or any similar fees in connection with the
transactions contemplated hereby.
33
4.5. Reclamation and Environmental Compliance.
Buyer and all operators it owns or controls are in compliance with all
Environmental Laws and Reclamation Laws in all material respects, and are
not "permit blocked" under the Applicant Violator System administered by
the Department of the Interior.
4.6. Financing.
Buyer will have available to it, at the Closing, financial resources
sufficient to consummate the transactions contemplated by this Agreement.
4.7. Disclosure.
The representations and warranties contained in this Article IV do not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements and information
contained in this Article IV not misleading.
ARTICLE V
CERTAIN COVENANTS
5.1. Business in Ordinary Course.
Except as provided in this Agreement, between the date of this
Agreement and the Closing, PCC shall cause each of the Asset Sale
Companies, in relation to the Purchased Assets, to: (i) carry on its
business in the Ordinary Course of Business; (ii) use commercially
reasonable efforts to preserve intact its Business, current business
organization and properties until the Closing Date, and maintain the
relations and good will with its suppliers, customers, landlords,
creditors, agents, and others having business relationships with such Asset
Sale Company; (iii) not enter into any contract or other obligation binding
upon such Asset Sale Company involving an expenditure, purchase, sale, cost
or commitment (unless such contract is cancelable in thirty or fewer days,
involves less than $100,000, or is for consumable purchases) without the
prior written consent of Buyer; and (iv) report regularly to Buyer
concerning the status of the business and finances of such Asset Sale
Company.
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5.2. Compliance with Law.
Between the date of this Agreement and the Closing, each of the Asset
Sale Companies shall comply in all material respects with all Laws and with
all orders of any Governmental Authority.
5.3. Cooperation.
Subject to the terms and conditions herein provided, each of PCC and
Buyer agrees to use its commercially reasonable efforts to take, or cause
to be taken, all action, and to do, or cause to be done, all things
necessary, proper and advisable under Law, to consummate and make effective
the transactions contemplated by this Agreement. In case at any time after
the Closing Date any further action is necessary or desirable to carry out
the purposes of this Agreement, PCC and Buyer will, and PCC will cause the
Asset Sale Companies to, execute any additional instruments reasonably
necessary to consummate the transactions contemplated hereby.
5.4. Notices and Consents.
PCC and Buyer each will use their commercially reasonable efforts to
obtain consents of all Governmental Authorities and other third parties
necessary to the consummation of the transactions contemplated by this
Agreement. PCC shall have responsibility for providing any notices to third
parties that may be required by the transactions contemplated by this
Agreement and for obtaining, or causing to be obtained, at its sole cost
and expense, the consents listed on Schedule 5.4(a) and Buyer shall have
responsibility for obtaining, at its sole cost and expense, all consents
listed on Schedule 5.4(b), with the other party in each case using its
commercially reasonable efforts to assist the responsible party in
obtaining such consents.
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5.5. Publicity.
All general notices, releases, statements and communications to any
suppliers, distributors and customers of the Asset Sale Companies, to the
general public and to the press relating to the transactions contemplated
by this Agreement shall be made only at such times and in such manner as
may be mutually agreed upon by PCC and Buyer; provided, however, that
either party hereto (or, in the case of PCC, the PCC Parent) shall be
entitled to make a public announcement of the foregoing if: (a) in the
opinion of its legal counsel, such announcement is required to comply with
Law or any listing agreement with any national securities exchange or
inter-dealer quotation system; and (b) such disclosing party gives a
reasonable period of notice and opportunity to comment to the other party
hereto of its intention to make such public announcement; provided, that,
failure to comment within 24 hours of receipt of such notice shall be
deemed a waiver of the opportunity to comment and provided, further, that
nothing in this Section 5.5 shall operate to prohibit any Asset Sale
Company or Buyer from communicating, after the Closing Date, with their
respective suppliers, distributors, customers and Governmental Authorities
the fact that the transaction has occurred or to employees regarding their
employment or the terms and conditions thereof, the operation of the
Purchased Assets or matters necessarily related thereto.
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5.6. Replacement Bonds; Insurance and Guarantees; Other Filings.
At or prior to the Closing Date, Buyer shall have: (i) secured
replacement bonds, replacement sureties, guarantees or other financial
security, if applicable, sufficient to allow PCC and the Persons who will
be its Affiliates after the Closing Date to be relieved or released as of
the Closing Date from all financial commitments, guarantees, collateral
agreements or similar undertakings listed on Schedule 5.6; (ii) obtained
property and liability insurance customary for a company that is engaged in
the Business or a business similar to the Business to insure the Purchased
Assets; and (iii) delivered copies of such documents to PCC.
5.7. Exclusivity.
PCC will not (nor will it cause or permit any of the Asset Sale
Companies to) (i) solicit, initiate or encourage the submission of any
proposal or offer from any Person relating directly or indirectly to the
acquisition of the Purchased Assets, or any portion thereof, or (ii)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner, any effort or attempt by any Person to do or seek any of the
foregoing. PCC will notify Buyer immediately if any Person makes any
proposal, offer, inquiry or contact with respect to any of the foregoing.
5.8. Access.
At or prior to the Closing Date, PCC will permit (and will cause each
of the Asset Sale Companies to permit) representatives of Buyer to have
full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of the Asset Sale Companies, to all
premises, properties, personnel, books, records (including Tax records),
contracts and documents of or pertaining to each of the Asset Sale
Companies as related to the Purchased Assets. Copies of and access to
accounting records, ledgers and other pertinent documents or work papers
related to the Purchased Assets will be made available to Buyer at all
reasonable times, and in a manner so as not to interfere with the normal
business operations of the Asset Sale Companies, upon request.
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5.9. Notice of Developments.
Each party will give prompt written notice to the other party of any
material adverse development causing a breach of any of its own
representations and warranties in Article III and Article IV above. No
disclosure by any party pursuant to this Section 5.9, however, shall be
deemed to amend or supplement the Schedules to such representations and
warranties or to prevent or cure any misrepresentation, breach of warranty
or breach of covenant.
5.10. Further Assurances.
The parties shall cooperate in a commercially reasonable manner with
each other and with their respective representatives in connection with any
steps required to be taken as part of their respective obligations under
this Agreement, and shall (a) furnish upon request to each other such
further information; (b) execute and deliver to each other such other
documents; and (c) do such other acts and things, all as the other party
may reasonably request for the purpose of carrying out the intent of this
Agreement and the transactions contemplated.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1. Conditions Precedent to Each Party's Obligations.
The respective obligations of each party to consummate the
transactions contemplated by this Agreement are subject to the satisfaction
at or prior to the Closing Date of the following conditions precedent:
(a) no action, suit, proceeding, order, decree or injunction
shall have been commenced, threatened or entered by or before any
Governmental Authority that remains in force and that (i) prohibits,
seeks to prohibit, or imposes or seeks substantial damages in
connection with, the consummation of the transactions contemplated by
this Agreement, (ii) seeks or imposes relief that causes or would
cause any of the transactions contemplated by this Agreement to be
rescinded following consummation, or (iii) affects adversely the right
of Buyer to own the Purchased Assets or to operate the Business on or
after the Closing Date;
38
(b) PCC Parent, PCC, Buyer and Buyer's Ultimate Parent shall have
executed and delivered to each other party thereto the Administrative
Services Agreement, the Indemnification and Guaranty Agreement and any
other documentation required in all transactions contemplated or
covered by all such agreements, all in form and substance as set forth
in Exhibits A and F attached hereto and the same shall be in full
force and effect;
(c) all other transactions pursuant to which Buyer or any of its
Affiliates acquire assets related to the Business shall have been
consummated prior to or simultaneously with the transactions
contemplated by this Agreement;
(d) PCC and Buyer shall have executed and delivered to each other
all such other documents or instruments necessary or appropriate to
effect the transactions contemplated by this Agreement, including the
documents provided in Section 5.6 hereof; and
(e) PCC shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(i) and PCC shall have provided such
payments as may be reasonably required to obtain all such consents.
Buyer shall have obtained, or caused to have been obtained, the
consents listed in Schedule 6.1(e)(ii) and Buyer shall have provided
such payments, guarantees and/or assurances as may be reasonably
required to obtain all such consents.
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6.2. Conditions Precedent to Obligations of Buyer.
The obligations of Buyer to consummate the transactions contemplated
by this Agreement are subject to the satisfaction or waiver at or prior to
the Closing Date of the following conditions precedent:
(a) all of the representations and warranties of PCC set forth in
this Agreement or in any Exhibit, Schedule or document delivered
pursuant hereto, without regard to any qualification or limitation
with respect to materiality (whether by reference to "Material Adverse
Effect" or otherwise), shall be true and correct in all respects as of
the date hereof and at and as of the Closing Date with the same effect
as though such representations and warranties were made at and as of
the Closing unless the aggregate failure of such representations or
warranties to be true and correct does not have a Material Adverse
Effect; provided that if a representation or warranty is expressly
made only as of a specific date, it need only be true and correct in
all respects as of such date, and Buyer shall have received the PCC
Closing Certificate required by Section 6.2(g) below dated as of the
Closing Date executed by PCC to such effect;
(b) all of the covenants and obligations that PCC is required to
perform or to comply with pursuant to this Agreement at or prior to
the Closing Date shall have been duly performed and complied with in
all material respects;
(c) all proceedings and actions, corporate or other, to be taken
by PCC or the Asset Sale Companies in connection with the transactions
contemplated by this Agreement and all documents incident thereto,
including all actions necessary to authorize the execution, delivery
and performance of this Agreement and the transactions contemplated
hereby, shall have been taken and shall be reasonably satisfactory in
form and substance to Buyer and Buyer's counsel;
40
(d) PCC shall have, and shall have caused the Asset Sale
Companies to have, executed and delivered the Bills of Sale, the
Assignment and Assumption Agreements, the Conveyance Deeds and such
other documents as may be necessary to convey to Buyer the Purchased
Assets;
(e) between the date of this Agreement and the Closing Date,
there shall not have been a change, event or occurrence that,
individually, or together with any other change, event or occurrence,
has had or could reasonably be expected to have a Material Adverse
Effect;
(f) Buyer shall have received an opinion of counsel to PCC
addressed to Buyer substantially in the form of Exhibit H; and
(g) Buyer shall have received an executed copy of the PCC Closing
Certificate.
6.3. Conditions Precedent to Obligations of PCC.
The obligation of PCC to consummate and cause the consummation of the
transactions contemplated by this Agreement is subject to the satisfaction
or waiver at or prior to the Closing Date of the following conditions
precedent:
(a) all of the representations and warranties of Buyer set forth in
this Agreement or in any Exhibit, Schedule or document delivered pursuant
hereto, without regard to any qualification or limitation with respect to
materiality, shall be true and correct in all respects as of the date
hereof and at and as of the Closing Date with the same effect as though
such representations and warranties were made at and as of the Closing
unless the aggregate failure of such representations or warranties to be
true and correct does not have a material adverse effect on Buyer's ability
to consummate the transactions contemplated by this Agreement or fulfill
its post-Closing obligations hereunder; provided that if a representation
or warranty is expressly made only as of a specific date, it need only be
true and correct in all respects as of such date, and PCC shall have
received Buyer's Closing Certificate required by Section 6.3(j) below dated
as of the Closing Date executed by Buyer to such effect;
(b) all of the covenants and obligations that Buyer is required to
perform or to comply with pursuant to this Agreement at or prior to the
Closing Date shall have been duly performed and complied with in all
material respects;
(c) all proceedings and actions, corporate or other, to be taken by
Buyer in connection with the transactions contemplated by this Agreement,
and all documents incident thereto, including all actions necessary to
authorize the execution, delivery and performance of this Agreement and the
transactions contemplated hereby, shall have been taken and shall be
reasonably satisfactory in form and substance to PCC and its counsel;
(d) PCC shall have received, on behalf of the Asset Sale Companies,
the Purchase Price by wire transfer of cash or other immediately available
funds and the execution and delivery by Buyer of the Royalty Agreement;
(e) Buyer and Buyer's third-party lenders shall have executed and
delivered the Intercreditor Agreement;
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(f) Buyer shall have executed and delivered the Assignment and
Assumption Agreements and such other documents as may be necessary for
Buyer to assume all of the Assumed Liabilities;
(g) Buyer shall have delivered to PCC satisfactory evidence of
compliance with Section 5.6;
(h) between the date of this Agreement and the Closing Date, there
shall not have been a change, event or occurrence that, individually, or
together with any other change, event or occurrence, has had or could
reasonably be expected to have a Material Adverse Effect;
(i) PCC shall have received an opinion of counsel to Buyer addressed
to PCC substantially in the form of Exhibit I; and
(j) PCC shall have received an executed copy of Buyer's Closing
Certificate.
ARTICLE VII
CERTAIN TAX MATTERS
7.1. Property Taxes.
Property Taxes of the Asset Sale Companies with respect to the
Purchased Assets (including, without limitation, property Taxes payable as
a tenant or lessee under any lease) will be pro-rated as of the Closing
Date and, notwithstanding any other provision of this Agreement, the
economic burden of any such property Tax will be borne by (i) the Asset
Sale Companies for all Pre-Closing Periods and the portion of any Straddle
Period through the Closing Date and (ii) by Buyer for all Post-Closing
Periods and the portion of any Straddle Period after the Closing Date.
Accordingly, notwithstanding any other provision of this Agreement, (i) if
any Asset Sale Company pays such a property Tax with respect to a
Post-Closing Period or the portion of Straddle Period after the Closing
Date, Buyer will reimburse PCC on behalf of such Asset Sale Company within
15 days after receiving from PCC written demand for the amount of such
property Tax, and (ii) if Buyer pays such a property Tax with respect to a
Pre-Closing Period or the portion of a Straddle Period through the Closing
Date, PCC on behalf of the Asset Sale Companies will reimburse Buyer within
15 days after receiving from Buyer written demand for the amount of such
property Tax. For purposes of pro-rating property Taxes, the amount of any
property Tax attributable to the portion of a Straddle Period through the
Closing Date shall be deemed to be the amount of such property Taxes for
the entire Straddle Period multiplied by a fraction, the numerator of which
is the number of days in the Straddle Period through the Closing Date and
the denominator of which is the number of days in the entire Straddle
Period. In determining the Straddle Period for property Taxes, the Tax
period as reflected on the statement of Taxes due, property Tax bill,
property "tax ticket," or any other request for payment from a Governmental
Authority will determine the taxable period (e.g., a Virginia property Tax
bill that indicates the tax year as 2002 is for a Tax for the taxable
period January 1, 2002 through December 31, 2002).
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7.2. Sales and Use Taxes.
Buyer and PCC or the Asset Sale Companies hereby intend that the
transaction be an occasional sale within the meaning of Virginia Code
Section 58.1-602 and regulations thereunder, and therefore exempt from
Virginia sales and use Tax pursuant to Virginia Code Section 58.1-609. PCC
will be responsible for sales and use Taxes payable as a result of the
failure of this transaction to qualify as an occasional sale or as an
exempt transaction under any other Virginia law; provided, however, that
any use Tax payable as a result of this transaction that would be payable
regardless of whether the transaction qualifies as an occasional sale or
not shall be paid by Buyer.
7.3. Transfer Taxes.
All transfer, recording and similar Taxes arising in connection with
the transactions contemplated hereunder shall be borne equally by PCC and
Buyer. PCC and Buyer shall (and they shall cause their respective
Affiliates to) cooperate to comply with all Tax Return requirements for
such Taxes and provide such documentation and take such other actions as
may be necessary to minimize the amount of any such Taxes.
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7.4. Access for Tax Returns.
Following the Closing Date, Buyer shall, at reasonable times, and in a
manner so as not to interfere with normal business operations, allow PCC
(and if requested by PCC, representatives of federal, state or local
agencies) access to the Purchased Assets for purposes of reviewing
information pertinent to any Tax Return filed by PCC Parent or any of its
Affiliates, including the Asset Sale Companies.
ARTICLE VIII
TERMINATION
8.1. Termination.
This Agreement may be terminated prior to the Closing Date only as
follows:
(a) by mutual written consent of PCC and Buyer;
(b) by either PCC or Buyer, if the Closing Date shall not have
occurred prior to the close of business on December 31, 2002 or such
later date as the parties may agree in writing (provided, that the
right to terminate this Agreement under this Section 8.1(b) shall not
be available to any party whose failure to fulfill any obligation
under this Agreement has been the cause, in whole or in part, of, or
has resulted in, the failure of the conditions in Article VI to be
satisfied and the Closing Date to occur on or before such date);
44
(c) by PCC or Buyer if an action, suit, or proceeding, shall have
been commenced or threatened by or before any Governmental Authority,
or any order, decree or injunction shall have been entered therein,
that (i) prohibits, seeks to prohibit, or imposes or seeks substantial
damages in connection with, the consummation of the transactions
contemplated by this Agreement, (ii) seeks or imposes relief that
causes or would cause any of the transactions contemplated by this
Agreement to be rescinded following consummation, or (iii) affects
adversely the right of Buyer to own the Purchased Assets or to operate
the Business;
(d) by Buyer if (i) the representations of PCC contained in this
Agreement are not true and correct in all material respects as if made
at and as of that time, except for failures to be true and correct
that are capable of being and are cured within fifteen (15) days after
written notice from Buyer to PCC of such failure; or (ii) PCC has
failed to comply materially with its respective obligations under this
Agreement, except for failures to comply that are capable of being and
are cured within fifteen (15) days after written notice from Buyer to
PCC of such failure;
(e) by PCC if (i) the representations of Buyer contained in this
Agreement are not true and correct in all material respects as if made
at and as of that time, except for failures to be true and correct
that are capable of being and are cured within fifteen (15) days after
written notice from PCC to Buyer of such failure; or (ii) Buyer has
failed to comply materially with its obligations under this Agreement,
except for failures to comply that are capable of being and are cured
within fifteen (15) days after written notice from the PCC to Buyer of
such failure; or
45
(f) by PCC, if by November 25, 2002, Buyer has not obtained
approval by its third party lenders of the Conveyance Deeds, Royalty
Agreement and Intercreditor Agreement with such terms as are
reasonably acceptable to PCC.
8.2. Effect of Termination.
If this Agreement is terminated pursuant to Section 8.1 hereof, all
further obligations of the parties under or pursuant to this Agreement
shall terminate without further Liability of either party to the other
except: (a) as set forth in Section 9.4; and (b) for breaches of
representations, warranties, or covenants or for fraud. PCC and Buyer
hereby agree that the provisions of this Section 8.2 and of Section 9.4
shall survive any termination of this Agreement pursuant to the provisions
of this Article VIII.
ARTICLE IX
MISCELLANEOUS
9.1. Entire Agreement.
This Agreement, the documents referred to herein and to be delivered
pursuant hereto and any other agreement entered into contemporaneously with
this Agreement among PCC, PCC Parent, Buyer and Buyer's Ultimate Parent or
the Affiliates of any of them constitute the entire agreement between the
parties pertaining to the subject matter hereof, and supersede all prior
agreements, understandings, negotiations and discussions of the parties,
whether oral or written, and there are no warranties, representations or
other agreements between the parties in connection with the subject matter
hereof, except as specifically set forth herein or therein.
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9.2. Amendment.
This Agreement may be amended by an instrument in writing and signed
on behalf of all of the parties hereto at any time.
9.3. Extension; Waiver.
At any time prior to the Closing Date, the parties may (i) extend the
time for the performance of any of the obligations or other acts of the
other parties hereto, (ii) waive any inaccuracies in the representations
and warranties contained herein or in any document, certificate or writing
delivered pursuant hereto or (iii) waive compliance with any of the
agreements or conditions contained herein, other than the conditions
contained in Section 6.1(a) hereof as it relates to the entry of an order
in any proceeding by or before a Governmental Authority. Any agreement on
the part of any party to any such extension or waiver shall be valid only
if set forth in an instrument in writing and signed on behalf of such
party.
9.4. Expenses.
Whether or not the transactions contemplated by this Agreement are
consummated, each of the parties hereto shall pay the fees and expenses of
their respective counsel, investment bankers, financial advisors,
accountants and other experts and the other expenses incident to the
negotiation and preparation of this Agreement and consummation of the
transactions contemplated hereby.
9.5. Bulk Sales Waiver.
Buyer hereby waives compliance with all applicable bulk sales Laws.
9.6. Governing Law.
This Agreement shall be construed and interpreted according to the
Laws of the Commonwealth of Virginia, without regard to the conflicts of
Law rules thereof.
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9.7. Assignment.
This Agreement and each party's respective rights hereunder may not be
assigned at any time except as expressly set forth herein without the prior
written consent of the other party, provided that PCC may assign its rights
hereunder to any Affiliate of PCC after the Closing Date without the
consent of Buyer and Buyer may assign its rights hereunder to any Affiliate
of Buyer prior to, at or after the Closing Date without the consent of PCC
and, further provided, that nothing in this Agreement shall prevent a
successor in interest to either party from enforcing the provisions of this
Agreement.
9.8. Notices.
All communications, notices and disclosures required or permitted by
this Agreement shall be in writing and shall be deemed to have been given
when delivered personally or by messenger or by overnight delivery service,
or within five days of being mailed by registered or certified United
States mail, postage prepaid, return receipt requested, in all cases
addressed to the person for whom it is intended at his address set forth
below or to such other address as a party shall have designated by notice
in writing to the other party in the manner provided by this Section 9.8:
If to PCC: Pittston Coal Company
448 N.E. Main Street
P.O. Box 5100
Lebanon, Virginia 24266
Attention: President
With a copy to: Pittston Coal Company
c/o The Pittston Company
1801 Bayberry Court
P.O. Box 18100
Richmond, Virginia 23226-8100
Attention: General Counsel
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And a copy to: Hunton & Williams
Riverfront Plaza, East Tower
951 East Byrd Street
Richmond, Virginia 23219
Attention: Louanna O. Heuhsen, Esq.
If to Buyer: Alpha Land and Reserves, LLC
c/o Alpha Natural Resources, LLC
406 West Main Street
Abingdon, Virginia 24212
Attention: Vice President
With a copy to: First Reserve Corporation
411 West Putnam, Suite 109
Greenwich, Connecticut 06830
Attention: Alex T. Krueger
First Reserve Corporation
1801 California Street, Suite 4110
Denver, Colorado 80202
Attention: Thomas R. Denison
Bartlit Beck Herman Palenchar & Scott
1899 Wynkoop Street, Suite 800
Denver, Colorado 80202
Attention: James L. Palenchar, Esq.
9.9. Counterparts; Headings.
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but such counterparts shall together
constitute but one and the same Agreement. The Table of Contents and
Article and Section headings in this Agreement are inserted for convenience
of reference only and shall not constitute a part hereof.
9.10. Interpretation; Construction.
(a) Unless the context requires otherwise, all words used in this
Agreement in the singular number shall extend to and include the
plural, all words in the plural number shall extend to and include the
singular and all words in any gender shall extend to and include all
genders.
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(b) This Agreement has been fully negotiated by the parties
hereto and shall not be construed by any Governmental Authority
against either party as the drafting party.
9.11. Severability.
If any provision of this Agreement is held invalid or unenforceable by
any court of competent jurisdiction, the other provisions of this Agreement
will remain in full force and effect. Any provision of this Agreement held
invalid or unenforceable only in part or degree will remain in full force
and effect to the extent not held invalid or unenforceable.
9.12. No Reliance.
No third party is entitled to rely on any of the representations,
warranties and agreements contained in this Agreement and PCC and Buyer
assume no Liability to any third party because of any reliance on the
representations, warranties and agreements of PCC and Buyer contained in
this Agreement, other than Section 5.5 hereof, which is intended to be for
the benefit of the Persons expressly covered thereby and may be enforced by
such Persons.
9.13. Retention of and Access to Records.
After the Closing Date, Buyer shall retain for a period consistent
with Buyer's record retention policies and practices those books and
records relating to the Asset Sale Companies delivered to Buyer. Buyer also
shall provide to PCC and its Affiliates reasonable access thereto, during
normal business hours and on at least three days' prior written notice, to
enable them to prepare financial statements or Tax Returns or deal with Tax
audits or litigation. Buyer shall deliver to PCC at least thirty days
written notice prior to the destruction or other disposal of any such books
and records. PCC and its Affiliates may elect to take delivery of any such
books and records that Buyer intends to destroy or otherwise dispose of and
to copy any such books and records that Buyer intends to keep, all at their
own expense.
9.14. Arbitration.
Any dispute, controversy or claim arising out of or relating to this
Agreement (a "Dispute"), excluding any dispute or disagreement among the
parties concerning the allocation of Purchase Price and Assumed
Liabilities, which shall be resolved pursuant to Section 2.9, shall be
decided by binding arbitration in accordance with the commercial
arbitration rules of the American Arbitration Association. PCC and Buyer
shall jointly select one arbitrator. If the two parties shall fail to
select an arbitrator within fourteen calendar days after arbitration is
requested, then such arbitrator shall be selected by the American
Arbitration Association or any successor thereto upon application of either
party. No Dispute shall be consolidated in any arbitration with any
dispute, claim or controversy of any other party. The arbitration shall be
conducted in Roanoke, Virginia, and any court having jurisdiction thereof
may immediately issue judgment on the arbitration award. The parties agree
that the arbitration provided for in this Section 9.14 shall be the
exclusive means to resolve all Disputes.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first above written.
PITTSTON COAL COMPANY
By: /s/ Michael D. Brown
-------------------------------
Name: Michael D. Brown
Title: Vice President - Development and
Technical Resources
ALPHA LAND AND RESERVES, LLC
By: /s/ Eddie Neely
-------------------------------
Name: Eddie Neely
Title: Vice President
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SCHEDULE 1.4
ASSET SALE COMPANIES
Clinchfield Coal Company, a Virginia corporation
Pyxis Resources Company, a Virginia corporation
Paramont Coal Corporation, a Delaware corporation
Motivation Coal Company, a Virginia corporation