INDEMNIFICATION AND GUARANTY AGREEMENT
INDEMNIFICATION AND GUARANTY AGREEMENT, dated as of December 13, 2002, by
and among PITTSTON COAL COMPANY, a Delaware corporation ("PCC"), THE PITTSTON
COMPANY, a Virginia corporation ("Pittston"), ALPHA NATURAL RESOURCES, LLC, a
Delaware limited liability company ("Buyer's Parent") and ALPHA COAL SALES CO.,
LLC, a Delaware limited liability company ("Buyer").
RECITALS
WHEREAS, Buyer and PCC have entered into an asset purchase agreement dated
October 29, 2002 (such agreement, together with the Exhibits and Schedules
attached thereto, as the same may be amended from time to time in accordance
with the terms thereof, being hereinafter referred to as the "Acquisition
Agreement"), pursuant to which Buyer will purchase or acquire from PCC and
certain of its Affiliates certain assets, and assume certain liabilities, all
upon the terms and subject to the conditions set forth in the Acquisition
Agreement;
WHEREAS, PCC and Buyer desire to provide for the terms upon which they will
indemnify each other with respect to certain matters relating to the
transactions contemplated by the Acquisition Agreement;
WHEREAS, Pittston owns, indirectly, all of the outstanding capital stock of
PCC and, as an inducement to Buyer to enter into the Acquisition Agreement, has
agreed to guarantee the obligations of PCC and certain of PCC's Affiliates under
this Agreement and the Acquisition Agreement; and
WHEREAS, Buyer's Parent owns all of the outstanding membership interests of
Buyer and, as an inducement to PCC to enter into the Acquisition Agreement, has
agreed to guarantee the obligations of Buyer under this Agreement and the
Acquisition Agreement;
1
NOW, THEREFORE, in consideration of the premises and mutual agreements,
covenants and conditions set forth herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
specified below. All capitalized terms used but not otherwise defined in this
Agreement shall have the meanings specified in the Acquisition Agreement.
1.1. Acquisition Agreement.
"Acquisition Agreement" shall have the meaning set forth in the
Recitals to this Agreement.
1.2. Adverse Consequences.
"Adverse Consequences" means all actions, suits, proceedings,
hearings, investigations, charges, complaints, claims, demands,
injunctions, judgments, orders, decrees, rulings, damages, dues, penalties,
fines, costs, amounts paid in settlement, Liabilities, obligations, Taxes,
liens, losses, expenses, and fees, including court costs and reasonable
attorneys' fees and expenses.
1.3. Basket.
"Basket" shall have the meaning set forth in Section 2.1(b)(i) hereof.
1.4. Buyer.
"Buyer" shall have the meaning set forth in the preamble to this
Agreement.
2
1.5. Buyer Indemnified Persons.
"Buyer Indemnified Persons" shall mean Buyer, its Affiliates
(including, after Closing, one or more Buyer Affiliates formed to hold the
Virginia coal operations of PCC acquired pursuant to the Acquisition
Agreement), and their respective members, directors, officers, employees,
consultants, agents, attorneys and representatives.
1.6. Buyer's Parent.
"Buyer's Parent" shall have the meaning set forth in the preamble to
this Agreement.
1.7. Buyer's Parent Guaranty.
"Buyer's Parent Guaranty" shall have the meaning set forth in Section
3.2 hereof.
1.8. Claim Notice.
"Claim Notice" shall have the meaning set forth in Section 2.3(b)
hereof.
1.9. Dispute.
"Dispute" shall have the meaning set forth in Article VII hereof.
1.10. Indemnified Party.
"Indemnified Party" shall have the meaning set forth in Section 2.3(b)
hereof.
1.11. Indemnifying Party.
"Indemnifying Party" shall have the meaning set forth in Section
2.3(b) hereof.
3
1.12. Other Acquisition Agreements.
"Other Acquisition Agreements" shall mean the agreements set forth on
Schedule A attached hereto.
1.13. Other Indemnification Agreements.
"Other Indemnification Agreements" shall mean the agreements set forth
on Schedule B attached hereto.
1.14. PCC.
"PCC" shall have the meaning set forth in the preamble to this
Agreement.
1.15. Pittston.
"Pittston" shall have the meaning set forth in the preamble to this
Agreement.
1.16. Pittston Guaranty.
"Pittston Guaranty" shall have the meaning set forth in Section 3.1
hereof.
1.17. Pittston Indemnified Persons.
"Pittston Indemnified Persons" shall mean Pittston, PCC, the Asset
Sale Companies and their respective directors, officers, employees, agents,
stockholders and their respective Affiliates, and their respective
directors, officers, employees, consultants, agents, attorneys and
representatives.
4
ARTICLE II
INDEMNIFICATION
2.1. Indemnification by PCC.
(a) PCC agrees to indemnify and hold harmless Buyer Indemnified
Persons from and against, and reimburse them for, any and all Adverse
Consequences that any Buyer Indemnified Persons may suffer or incur or
become subject to as a result of:
(i) the inaccuracy or breach of any representation or warranty
made by PCC to Buyer in the Acquisition Agreement either: (A) as of
the date on which such representation or warranty was made or (B) as
of the Closing Date (provided that the consummation of the
transactions contemplated by the Acquisition Agreement in accordance
with the terms shall not be deemed without more to have cause a breach
of any representation or warranty);
(ii) any failure by PCC to carry out, perform, satisfy or
discharge any of its covenants, agreements, undertakings, liabilities
or obligations in or under the Acquisition Agreement; and
(iii) any failure by PCC or the Asset Sale Companies to satisfy
the Retained Liabilities.
(b) Notwithstanding the provisions of Section 2.1(a), PCC shall not be
required to indemnify any of Buyer Indemnified Persons with respect to the
matters described in Sections 2.1(a)(i) and 2.1(a)(ii):
(i) unless and until the sum of (A) the Adverse Consequences for
which indemnification pursuant to (1) Sections 2.1(a)(i) and
2.1(a)(ii) or (2) in Sections 2.1(a)(i) and 2.1(a)(ii) of the Other
Indemnification Agreements is sought plus (B) any amounts paid by
Buyer to obtain any of the consents listed on Schedule 6.1(e)(i) of
the Acquisition Agreement or in Schedule 6.1(e)(i) of the Other
Acquisition Agreements, shall exceed $100,000 (the "Basket"), in which
case the entire amount of such Adverse Consequences is recoverable;
5
(ii) unless the right to indemnity is asserted pursuant to
Section 2.3 on or before the second anniversary of the Closing Date
for any matter described in Sections 2.1(a)(i) or 2.1(a)(ii); and
(iii) for any matter, to the extent that the aggregate amount of
the Adverse Consequences for which Buyer Indemnified Persons have been
indemnified pursuant to Sections 2.1(a)(i) and 2.1(a)(ii) or in
Sections 2.1(a)(i) and 2.1(a)(ii) of the Other Indemnification
Agreements exceeds $15,000,000 (the "Cap").
(c) Notwithstanding the foregoing, PCC agrees that any claim by a
Buyer Indemnified Person for indemnification (i) arising out of, relating
to, in the nature of or caused by any breach of PCC's representations
specified in Sections 3.1, 3.2, 3.3 and 3.6 of the Acquisition Agreement or
(ii) pursuant to Section 2.1(a)(iii), shall not be subject to the
provisions of paragraph (b) of this Section 2.1.
(d) PCC agrees that its indemnification obligation under this
Agreement includes the obligation to indemnify Buyer Indemnified Persons
for Adverse Consequences suffered through and after the date of the claim
for indemnification (including any Adverse Consequences Buyer Indemnified
Persons may suffer after the end of any applicable survival period, as long
as a claim for indemnification is made before the end of the applicable
survival period and the Adverse Consequences suffered relate to such
claim).
6
2.2. Indemnification by Buyer.
(a) Buyer agrees to indemnify and hold harmless Pittston Indemnified
Persons from and against and reimburse them for, any and all Adverse
Consequences that any Pittston Indemnified Persons may suffer or incur or
become subject to as a result of:
(i) the inaccuracy or breach of any representation or warranty
made by Buyer in the Acquisition Agreement either: (A) as of the date
on which such representation or warranty was made or (B) as of the
Closing Date (provided that the consummation of the transactions
contemplated by the Acquisition Agreement in accordance with its terms
shall not be deemed without more to have caused a breach of any
representation or warranty);
(ii) any failure by Buyer to carry out, perform, satisfy and
discharge any of its covenants, agreements, undertakings, liabilities
or obligations in or under the Acquisition Agreement;
(iii) the ownership of the Purchased Assets on or after the
Closing Date; and
(iv) any failure by Buyer to satisfy the Assumed Liabilities.
(b) The foregoing notwithstanding, Buyer shall not be required to
indemnify any Pittston Indemnified Persons with respect to the matters
described in Sections 2.2(a)(i) and 2.2(a)(ii):
7
(i) unless and until the sum of (A) Adverse Consequences for
which indemnification pursuant to (1) Sections 2.2(a)(i) and
2.2(a)(ii) or (2) in Sections 2.2(a)(i) and 2.2(a)(ii) of the Other
Indemnification Agreements is sought plus (B) any amounts paid by PCC
to obtain any of the consents listed on Schedule 6.1(e)(ii) of the
Acquisition Agreement or in Schedule 6.1(e)(ii) of the Other
Acquisition Agreements, shall exceed the Basket, in which case the
entire amount of such Adverse Consequences is recoverable;
(ii) unless the right to indemnity is asserted on or before the
second anniversary of the Closing Date pursuant to Section 2.3; and
(iii) for any matter, to the extent that the aggregate amount of
Adverse Consequences for which the Pittston Indemnified Persons have
been indemnified pursuant to Sections 2.2(a)(i) and 2.2(a)(ii) or in
Sections 2.2(a)(i) and 2.2(a)(ii) of the Other Indemnification
Agreements is sought exceeds the Cap.
(c) Notwithstanding the foregoing, Buyer agrees that any claim by a
Pittston Indemnified Person for indemnification (i) arising out of,
relating to, in the nature of or caused by any breach of Buyer's
representations specified in Sections 4.1, 4.2, 4.3 and 4.4 of the
Acquisition Agreement or (ii) pursuant to Sections 2.2(a)(iii) through
(iv), shall not be subject to the provisions of paragraph (b) of this
Section 2.2.
(d) Notwithstanding the foregoing, nothing in Section 2.2(a)(iii)
shall diminish the right of any Buyer Indemnified Person to seek
indemnification from PCC after the Closing Date pursuant to the terms of
this Agreement.
(e) Buyer agrees that its indemnification obligation under this
Agreement includes the obligation to indemnify Pittston Indemnified Persons
for Adverse Consequences suffered through and after the date of the claim
for indemnification (including any Adverse Consequences Pittston
Indemnified Persons may suffer after the end of any applicable survival
period, as long as a claim for indemnification is made before the end of
the applicable survival period and the Adverse Consequences suffered relate
to such claim).
8
2.3. Indemnification Procedures.
(a) All claims for indemnification under this Agreement shall be
asserted and resolved pursuant to this Section 2.3.
(b) Each party entitled to indemnification under this Agreement (the
"Indemnified Party") shall give notice (a "Claim Notice") to the party
required to provide such indemnification (the "Indemnifying Party")
promptly after such Indemnified Party has notice of any Adverse Consequence
which may give rise to a claim for indemnification against the other party
under this Agreement, provided, however, that no delay on the part of the
Indemnified Party in notifying the Indemnifying Party shall relieve the
Indemnifying Party from any obligation hereunder unless (and then solely to
the extent) the Indemnifying Party thereby is prejudiced. The Indemnified
Party shall not be required to commence litigation or take any action
against any third party prior to delivery of the Claim Notice.
(c) The Indemnifying Party will have the right (at its expense) to
assume the investigation and/or defense of any Adverse Consequence or any
litigation resulting therefrom so long as (i) the Indemnifying Party
notifies the Indemnified Party in writing (within 20 days after the
Indemnified Party has given the Claim Notice) that the Indemnifying Party
will indemnify the Indemnified Party from and against the entirety of the
Adverse Consequence, (ii) the Indemnifying Party provides the Indemnified
Party with evidence reasonably acceptable to the Indemnified Party that the
Indemnifying Party will have the financial resources to defend, and
otherwise indemnify for, the Adverse Consequence and fulfill its
indemnification obligations hereunder and (iii) the Adverse Consequence
involves only money damages and does not seek an injunction or other
equitable relief.
9
(d) So long as the Indemnifying Party is conducting the defense of the
Adverse Consequence in accordance with Section 2.3(c), (A) the Indemnified
Party may retain separate co-counsel at its sole cost and expense and
participate in the defense of the Adverse Consequence, (B) the Indemnified
Party will not consent to the entry of any judgment or enter into any
settlement with respect to the Adverse Consequence without the prior
written consent of the Indemnifying Party (not to be withheld
unreasonably), and (C) the Indemnifying Party will not consent to the entry
of any judgment or enter into any settlement with respect to the Adverse
Consequence without the prior written consent of the Indemnified Party;
provided, that the Indemnifying Party may consent to such judgment or enter
into such settlement without the prior written consent of the Indemnified
Party so long as an unconditional term of any such judgment or settlement
includes the giving by the claimant or plaintiff to the Indemnified Party
of a release from all liability with respect to such Adverse Consequence.
(e) In the event any of the conditions in Section 2.3(c) is or becomes
unsatisfied, however, (A) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with
respect to, the Adverse Consequence in any manner it may reasonably deem
appropriate (and the Indemnified Party need not consult with, or obtain any
consent from, any Indemnifying Party in connection therewith), (B) the
Indemnifying Party will reimburse the Indemnified Party promptly and
periodically for the costs of defending against the Adverse Consequence
(including reasonable attorneys' fees and expenses), and (C) the
Indemnifying Parties will remain responsible for any Adverse Consequence
the Indemnified Party may suffer resulting from, arising out of, relating
to, in the nature of or caused by the Adverse Consequence to the fullest
extent provided in this Agreement.
10
2.4. Insurance Proceeds.
The amount of any indemnification payable in connection with any
transaction contemplated by this Agreement or the Acquisition Agreement
shall be net of any insurance proceeds available, under any insurance
policies in effect at the time that are maintained in the Ordinary Course
of Business, to a Buyer Indemnified Person or a Pittston Indemnified
Person, respectively, in connection with the events or circumstances giving
rise to the indemnification. For purposes of this Section 2.4, any
pollution and legal liability insurance policies or an insurance policy
covering loss in connection with the representations and warranties
contained in the Acquisition Agreement will be deemed not to be maintained
in the Ordinary Course of Business.
2.5. Exclusivity of Rights and Procedures.
The parties agree that this Agreement shall constitute the sole and
exclusive remedy of the parties hereto with respect to the subject matters
addressed in this Agreement, the Acquisition Agreement and the transactions
contemplated by the Acquisition Agreement. Each party to this Agreement
hereby waives and releases the other parties from any and all claims and
other causes of action, including claims for contribution, related to those
subject matters, other than claims (i) pursuant to the terms of this
Agreement, (ii) related to the Retained Liabilities (in the case of Buyer
Indemnified Persons) or the Assumed Liabilities (in the case of the
Pittston Indemnified Persons), (iii) for fraud, and (iv) for injunctive
relief.
11
ARTICLE III
GUARANTIES
3.1. Pittston Guaranty.
(a) Pittston hereby irrevocably and unconditionally guarantees to
Buyer (the "Pittston Guaranty") the full and punctual performance and
compliance by PCC with each and every covenant, term and condition to be
performed or complied with by PCC under this Agreement and the Acquisition
Agreement. The Pittston Guaranty expressed in this Section 3.1 is an
absolute, present, primary and continuing guaranty of performance and
compliance and not of collectibility and is in no way conditioned or
contingent upon any attempt to enforce such performance or compliance by
PCC or upon any other condition or contingency.
(b) Pittston hereby expressly waives (i) notice of acceptance of the
Pittston Guaranty and (ii) any other notice given to PCC in accordance with
the provisions of the Agreement on any default under the Agreement or
otherwise. Pittston hereby authorizes Buyer to forbear with respect to,
amend, modify, enlarge, extend, compromise and discharge any or all of the
obligations of PCC under the Agreement without notice to or consent by
Pittston. Pittston acknowledges and agrees that its liability under the
Pittston Guaranty is joint and several with PCC and, upon any default by
PCC, Buyer shall not be obligated to first attempt enforcement against PCC.
Pittston hereby waives any and all defenses to enforcement of the Pittston
Guaranty, now existing or hereafter arising, which may be available to
guarantors, sureties and other secondary parties at law or in equity.
(c) Pittston represents and warrants to Buyer that (i) Pittston is a
corporation validly existing and in good standing under the laws of the
Commonwealth of Virginia; (ii) all necessary corporate action has been duly
taken by it to authorize the execution, delivery and performance by it of
the Pittston Guaranty, (iii) the Pittston Guaranty is being executed on
Pittston's behalf by a duly authorized representative, (iv) the Pittston
Guaranty is the legally valid and binding obligation of Pittston
enforceable in accordance with its terms, and (v) the execution and the
delivery of the Pittston Guaranty will not (A) 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 Pittston's Articles of Incorporation or Bylaws or of any material
franchise, mortgage, deed of trust, lease, license, instrument, agreement,
consent, approval, waiver or understanding to which Pittston is a party or
by which Pittston is bound, or any Law or any order, judgment, writ,
injunction or decree to which Pittston is a party or by which Pittston may
be bound or affected; (B) 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 or
permit issued by a Governmental Authority that is held by Pittston or that
otherwise relates to the Pittston's business; or (C) 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 Pittston is subject.
12
(d) Pittston agrees to pay all reasonable costs and expenses,
including reasonable attorney fees and related costs, incurred by Buyer
Indemnified Persons in enforcing Pittston's liability to Buyer Indemnified
Persons under the Pittston Guaranty whether or not a civil action or
similar proceeding (including claims and proceedings in and before the
bankruptcy court or arbitrators) is filed, prosecuted or appealed. If an
action or proceeding is filed, prosecuted or appealed, the reasonableness
of such attorney fees shall be determined by the trial judge and if,
appealed, by the appellate court.
(e) The Pittston Guaranty shall be binding upon Pittston and its
successors and assigns, and shall inure to the benefit of and be
enforceable by Buyer and its successors and assigns. For purposes of the
Pittston Guaranty, Pittston shall be deemed to include the surviving entity
in any merger or consolidation involving Pittston, which survivor shall be
bound by the provisions of the Pittston Guaranty and this Agreement.
13
3.2. Buyer's Parent Guaranty.
(a) Buyer's Parent hereby irrevocably and unconditionally guarantees
to PCC (the "Buyer's Parent Guaranty") the full and punctual performance
and compliance by Buyer with each and every covenant, term and condition to
be performed or complied with by Buyer under this Agreement and the
Acquisition Agreement. Buyer's Parent Guaranty expressed in this Section
3.2 is an absolute, present, primary and continuing guaranty of performance
and compliance and not of collectibility and is in no way conditioned or
contingent upon any attempt to enforce such performance or compliance by
Buyer or upon any other condition or contingency.
(b) Buyer's Parent hereby expressly waives (i) notice of acceptance of
Buyer's Parent Guaranty and (ii) any other notice given to Buyer in
accordance with the provisions of the Agreement on any default under the
Agreement or otherwise. Buyer's Parent hereby authorizes PCC to forbear
with respect to, amend, modify, enlarge, extend, compromise and discharge
any or all of the obligations of Buyer under the Agreement without notice
to or consent by Buyer's Parent. Buyer's Parent acknowledges and agrees
that its liability under Buyer's Parent Guaranty is joint and several with
Buyer and, upon any default by Buyer, PCC shall not be obligated to first
attempt enforcement against Buyer. Buyer's Parent hereby waives any and all
defenses to enforcement of Buyer's Parent Guaranty, now existing or
hereafter arising, which may be available to guarantors, sureties and other
secondary parties at law or in equity.
14
(c) Buyer's Parent represents and warrants to PCC that (i) Buyer's
Parent is a limited liability company validly existing and in good standing
under the laws of the State of Delaware; (ii) all necessary corporate
action has been duly taken by it to authorize the execution, delivery and
performance by it of Buyer's Parent Guaranty, (iii) Buyer's Parent Guaranty
is being executed on Buyer's Parent's behalf by a duly authorized
representative, (iv) Buyer's Parent Guaranty is the legally valid and
binding obligation of Buyer's Parent enforceable in accordance with its
terms, and (v) the execution and the delivery of Buyer's Parent Guaranty
will not (A) 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 Buyer's Parent's Certificate
of Formation, Operating Agreement or other organizational documents or of
any material franchise, mortgage, deed of trust, lease, license,
instrument, agreement, consent, approval, waiver or understanding to which
Buyer's Parent is a party or by which Buyer's Parent is bound, or any Law
or any order, judgment, writ, injunction or decree to which Buyer's Parent
is a party or by which Buyer's Parent may be bound or affected; (B) 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 or permit issued by a Governmental Authority
that is held by Buyer's Parent or that otherwise relates to Buyer's
Parent's business; or (C) 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 Buyer's
Parent is subject.
15
(d) Buyer's Parent agrees to pay all reasonable costs and expenses,
including reasonable attorney fees and related costs, incurred by the
Pittston Indemnified Persons in enforcing Buyer's Parent's liability to the
Pittston Indemnified Persons under Buyer's Parent Guaranty whether or not a
civil action or similar proceeding (including claims and proceedings in and
before the bankruptcy court or arbitrators) is filed, prosecuted or
appealed. If an action or proceeding is filed, prosecuted or appealed, the
reasonableness of such attorney fees shall be determined by the trial judge
and if, appealed, by the appellate court.
(e) Buyer's Parent Guaranty shall be binding upon Buyer's Parent and
its successors and assigns, and shall inure to the benefit of and be
enforceable by PCC and its successors and assigns. For purposes of Buyer's
Parent Guaranty, Buyer's Parent shall be deemed to include the surviving
entity in any merger or consolidation involving Buyer's Parent, each of
whom shall be bound by the provisions of the Buyer's Parent Guaranty and
this Agreement.
ARTICLE IV
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.
16
ARTICLE V
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 parties in the manner provided by this Article V:
if to PCC or Pittston, to them at:
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
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 Coal Sales Co., LLC
c/o Alpha Natural Resources, LLC
406 West Main Street
Abingdon, Virginia 24212
Attention: Vice President
17
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.
if to Buyer's Parent, to it at:
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.
18
ARTICLE VI
ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but
this Agreement and the rights, interests or obligations hereunder shall not
be assignable by Buyer's Parent, Buyer, Pittston or PCC without the prior
written consent of the other parties and any attempt to make such an
assignment without such consent shall be void and of no effect.
ARTICLE VII
ARBITRATION
Any dispute, controversy or claim arising out of or relating to this
Agreement (a "Dispute") shall be settled 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 designate an arbitrator within fourteen (14) 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 Article VII shall be the exclusive means to resolve all
Disputes.
19
ARTICLE VIII
MISCELLANEOUS
8.1. Headings.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
8.2. Integration.
This Agreement and any other agreement entered into contemporaneously
with this Agreement among PCC, Pittston, Buyer and Buyer's Parent or the
Affiliates of any of them constitute the entire agreement and supercede all
prior agreements and understandings not reflected in the Acquisition
Agreement, both written and oral, among the parties with respect to the
subject matter hereof.
8.3. Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, and all of which shall constitute one
and the same instrument.
8.4. Governing Law.
This Agreement shall be governed in all respects, including validity,
interpretation and effect, by the laws of the Commonwealth of Virginia,
without regard to the conflicts of laws principles thereof.
20
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
ALPHA COAL SALES CO., LLC,
a Delaware limited liability company
By:/s/ Michael J. Quillen
-----------------------------------------
Name: Michael J. Quillen
Title: Attorney-in-fact
ALPHA NATURAL RESOURCES, LLC, a Delaware limited
liability company
By:/s/ Michael J. Quillen
-----------------------------------------
Name: Michael J. Quillen
Title: President
PITTSTON COAL COMPANY,
a Delaware corporation
By:/s/ Michael D. Brown
-----------------------------------------
Name: Michael D. Brown
Title: Vice President - Development and
Technical Resources
THE PITTSTON COMPANY,
a Virginia corporation
By:/s/ James B. Hartough
-----------------------------------------
Name: James B. Hartough
Title: Vice President - Corporate Finance
and Treasurer
Schedule A
Asset Purchase Agreement by and between Pittston Coal Company and
Dickenson-Russell Coal Company, LLC, dated as of October 29, 2002, as amended.
Asset Purchase Agreement by and between Pittston Coal Company and Paramont
Coal Company Virginia, LLC, dated as of October 29, 2002, as amended.
Asset Purchase Agreement by and between Pittston Coal Company and Alpha
Land and Reserves, LLC, dated as of October 29, 2002, as amended.
Asset Purchase Agreement by and between Pittston Coal Company and Alpha
Terminal Company, LLC, dated as of October 29, 2002, as amended.
Asset Purchase Agreement by and between Pittston Coal Company and Maxxim
Rebuild Co., LLC, dated as of October 29, 2002, as amended.
Schedule B
Indemnification and Guaranty Agreement by and among The Pittston Company,
Pittston Coal Company, Dickenson-Russell Coal Company, LLC and Alpha Natural
Resources, LLC, dated as of December 13, 2002.
Indemnification and Guaranty Agreement by and among The Pittston Company,
Pittston Coal Company, Paramont Coal Company Virginia, LLC and Alpha Natural
Resources, LLC, dated as of December 13, 2002.
Indemnification and Guaranty Agreement by and among The Pittston Company,
Pittston Coal Company, Alpha Land and Reserves, LLC and Alpha Natural Resources,
LLC, dated as of December 13, 2002.
Indemnification and Guaranty Agreement by and among The Pittston Company,
Pittston Coal Company, Alpha Terminal Company, LLC and Alpha Natural Resources,
LLC, dated as of December 13, 2002.
Indemnification and Guaranty Agreement by and among The Pittston Company,
Pittston Coal Company, Maxxim Rebuild Co., LLC and Alpha Natural Resources, LLC,
dated as of December 13, 2002.