Exhibit 2.2
PITTSTON COAL COMPANY
448 N. E. Main Street
Lebanon, Virginia 24266
December 13, 2002
Dickenson-Russell Coal Company, LLC
c/o Alpha Natural Resources, LLC
406 West Main Street
Abingdon, Virginia 24212
Ladies and Gentlemen:
Reference is made to the Asset Purchase Agreement (the "Agreement"), dated
as of October 29, 2002, as amended to but not including the date hereof, by and
between Pittston Coal Company ("PCC") and Dickenson-Russell Coal Company, LLC
("Buyer"). Capitalized terms used herein without definition shall have the
meanings ascribed to them in the Agreement.
PCC and Buyer desire to amend certain provisions of the Agreement and, 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, the parties hereto agree as
follows:
1. Section 1.87 of the Agreement is deleted in its entirety and replaced
with the following:
"1.87 Purchase Price.
"Purchase Price" shall mean the cash amount of $12,510,674 (which amount
shall include $880,000 for the Parts, Fuel and Supplies Inventory, $3,180,000
for the Coal Inventory and $110,000 for two continuous miners), plus the
Promissory Note."
2. A new Section 1.108 of the Agreement is inserted into the Agreement as
follows:
"1.108 Subleases.
"Subleases" shall have the meaning set forth in Section 2.13(a) hereof."
3. Notwithstanding anything in the Agreement to the contrary, each of PCC
and Buyer agree that for purposes of Sections 2.1 and 2.2 of the
Agreement only, none of the Equipment listed on Schedule 1.44(b)
attached to the Agreement shall constitute Purchased Assets.
4. Notwithstanding anything in the Agreement to the contrary, each of PCC
and Buyer agree that PCC shall have caused the applicable Asset Sale
Companies to purchase the Equipment specifically identified under the
heading "Transamerica Equipment" on Schedule 1.44(b) (the
"Transamerica Equipment"). Simultaneously with the
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Closing, PCC shall cause the applicable Asset Sale Companies to
transfer to Buyer, and Buyer shall acquire, the Transamerica Equipment
from such Asset Sale Companies pursuant to a bill of sale. Each of PCC
and Buyer agrees that the Purchase Price set forth in Section 1.87
includes all amounts that Buyer owes PCC or the Asset Sale Companies
for the Transamerica Equipment upon its purchase by the applicable
Asset Sale Companies from Transamerica, including one-half of the
lease breakage fee. PCC acknowledges its responsibility to pay
$64,939.74 to Transamerica, which is one-half of such lease breakage
fee.
5. Each of PCC and Buyer agree that in satisfaction of Section 2.11 of
the Agreement, the face amount of the Promissory Note shall be fixed
at $5,784,442.
6. A new Section 2.13 of the Agreement is inserted into the Agreement as
follows:
2.13 Subleases.
(a) Each of PCC and Buyer agree that at the Closing, Buyer shall
sublease the Equipment set forth on Schedule 1.44(b) attached to
the Agreement (other than the Transamerica Equipment) from the
applicable Asset Sale Company pursuant to the subleases
substantially in the forms attached hereto as Exhibits A-1, A-2
and A-3 (the "Subleases").
(b) At the Closing, PCC shall cause the applicable Asset Sale Company
to, and Buyer shall execute and deliver the Subleases.
7. Sections 5.6(b) and (c) of the Agreement are deleted in their entirety
and replaced with the following:
"(b) Prior to the Closing Date: (i) Buyer shall deliver a
copy to PCC of the filing that is necessary to cause the
applicable Governmental Authority to transfer any one of the
Permits (the "Initial Filing") to Buyer in accordance with Law,
in a form that satisfies all requirements of the applicable
Governmental Authority; and (ii) following approval by PCC, Buyer
shall file the Initial Filing with the appropriate Governmental
Authority.
(c) Promptly following the Closing Date through the
application of best efforts, and in any event no later than 30
days after the Closing, Buyer shall make all filings other than
the Initial Filing with the appropriate Governmental Authorities
necessary to transfer the Permits to Buyer in accordance with Law
and thereafter, as required by Law, shall post replacement
bonds."
8. PCC and Buyer agree that the completion of the actions set forth in
Sections 4 and 6 of this letter agreement that are required to be
completed by Buyer shall be deemed to satisfy all of Buyer's
obligations: (i) to obtain the consent of the applicable third party
lessor in accordance with Section 5.4 and Section 6.1(e) of the
Agreement; and (ii) with respect to such Equipment leases pursuant to
Section 5.6(g) of the Agreement (with the exception of the Equipment
being leased from Deere Credit, Inc. pursuant to leases expiring in
2004).
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9. The Schedules to the Agreement are hereby amended and restated in
their entirety as attached hereto as Exhibit A.
10. Except as amended by this letter agreement, the Agreement shall
continue in full force and effect.
11. This letter agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument. Any executed counterpart
of this letter agreement or other signature hereto delivered by a
party by facsimile shall be deemed for all purposes as being good and
valid execution and delivery of this letter agreement by such party.
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Sincerely,
PITTSTON COAL COMPANY
By: /s/ Michael D. Brown
- -------------------------------------
Name: Michael D. Brown
Title: Vice President - Development
and Technical Resources
ACKNOWLEDGED AND AGREED:
DICKENSON-RUSSELL COAL COMPANY, LLC
By: /s/ Anthony McGartland
- -------------------------------------
Name: Anthony McGartland
Title: President
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