COAL MINING LEASE (FEDERAL #2 RESERVES) Between SUNCREST RESOURCES LLC And STERLING SMOKELESS COAL COMPANY Dated December 19, 2002
Execution Copy
EXHIBIT 10.8
(FEDERAL #2 RESERVES)
Between
SUNCREST RESOURCES LLC
And
STERLING SMOKELESS COAL COMPANY
Dated December 19, 2002
INDEX
| ARTICLE 1 | ||||
| TERM OF LEASE | ||||
| Section 1.1 |
Term |
2 | ||
| ARTICLE 2 | ||||
| MINING OPERATIONS | ||||
| Section 2.1 |
Mining Operations |
3 | ||
| ARTICLE 3 | ||||
| ROYALTIES | ||||
| Section 3.1 |
Minimum Rental Payments |
3 | ||
| Section 3.2 |
Production Royalty Payments |
4 | ||
| ARTICLE 4 | ||||
| DEFAULT | ||||
| Section 4.1 |
Events of Default |
6 | ||
| Section 4.2 |
Remedies |
8 | ||
| Section 4.3 |
Arbitration |
10 | ||
| ARTICLE 5 | ||||
| INDEMNIFICATION | ||||
| Section 5.1 |
Indemnification of Lessor |
11 | ||
| ARTICLE 6 | ||||
| TAXES AND INSURANCE | ||||
| Section 6.1 |
Payment of Taxes |
11 | ||
| Section 6.2 |
Insurance |
12 | ||
| ARTICLE 7 | ||||
| INSPECTION AND MINE PLANS | ||||
| Section 7.1 |
Lessor’s Right to Inspect |
14 | ||
| Section 7.2 |
Mine Plans |
14 | ||
| ARTICLE 8 | ||||
| LOST COAL QUANTITY | ||||
| Section 8.1 |
Agreement to Acquire Adverse Interests |
15 | ||
| Section 8.2 |
Determination of Lost Coal Quantity |
16 | ||
| Section 8.3 |
Mandatory Sale of Lost Coal Quantities for Failure to Acquire Adverse Interests |
17 | ||
| Section 8.4 |
Federal No. 2 Order |
17 | ||
| Section 8.5 |
Determination of Lost Coal Quantity |
17 | ||
| Section 8.6 |
Mandatory Sale of Lost Coal Quantities for Adverse Chloride Event |
19 | ||
| ARTICLE 9 | ||||
| GENERAL | ||||
| Section 9.1 |
Remedies Cumulative |
20 | ||
| Section 9.2 |
Notices |
20 | ||
| Section 9.3 |
Binding Effect of Lease |
21 | ||
| Section 9.4 |
Entire Agreement |
21 | ||
| Section 9.5 |
Governing Law and Section Headings |
21 | ||
| Section 9.6 |
Memorandum of Lease |
21 | ||
| Section 9.7 |
Relationship Between the Parties |
21 | ||
| Section 9.8 |
Separability of Provisions |
22 | ||
| Section 9.9 |
Force Majeure |
22 | ||
| Section 9.10 |
Reconveyance |
23 | ||
THIS COAL MINING LEASE (“Lease”) is made and entered into as of the 19th day of December, 2002, by and between Suncrest Resources LLC, a Delaware limited
liability company, having its principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Lessor”), and Sterling Smokeless Coal Company, a West Virginia corporation, having its principal offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Lessee”).
WITNESSETH:
WHEREAS, Lessor owns the fee interest in the Pittsburgh seam of coal in certain tracts of land in Monongalia County, West Virginia (the “Fee Interests”); and
WHEREAS, Lessee has agreed to obtain (i) all subsidence rights with respect to certain tracts of land in
Monongalia County, West Virginia (the “Subsidence Rights”), and (ii) certain adverse Pittsburgh seam of coal interests in four tracts in Monongalia County, West Virginia (the “Adverse Pittsburgh Interests” and, together with the
Subsidence Rights, the “Adverse Interests”);
WHEREAS, the Fee Interests and the Adverse Interests are
collectively referred to herein as the “Coal Reserves”, which are fully described in Exhibit A attached hereto and made a part hereof; and
WHEREAS, Lessee desires to lease the Coal Reserves from Lessor for the purpose of mining such coal reserves by any underground mining method;
NOW, THEREFORE, in consideration of the premises and of the mutual covenants hereinafter contained, the parties hereto agree as follows:
Subject to the terms hereof, Lessor does hereby lease unto Lessee the Coal Reserves for the purpose of mining the coal by any underground
mining method. Lessor also grants to Lessee all such mining rights held by Lessor with respect to the Coal Reserves.
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NOTWITHSTANDING ANY PROVISION IN THIS LEASE OR ANY AGREEMENT REFERRED TO
HEREIN OR ATTACHED HERETO, LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, WHETHER OF MERCHANTABILITY, QUALITY, QUANTITY, RECOVERABILITY, TITLE OR OTHERWISE AS TO THE COAL RESERVES OR LESSOR’S INTERESTS THEREIN OR MINING RIGHTS OWNED BY LESSOR,
OR AS TO THE CONDITION OF THE COAL RESERVES AND LESSEE SHALL RELY UPON ITS OWN EXAMINATION THEREOF THROUGH ENGINEERS AND OTHER REPRESENTATIVES SELECTED AND EMPLOYED SOLELY BY LESSEE.
Lessee’s rights hereunder are subject, however, to all rights existing as of the date hereof, including, but not limited to, coalbed methane rights, oil and natural
gas lease rights, public roads, public drainage ditches, easements for power lines, pipelines, railroads and rights-of-way, telephone lines, buried cables and all other easements.
TO HAVE AND TO HOLD the same unto the Lessee, its successors and assigns, for and during the term herein set forth and upon the following terms and conditions:
ARTICLE 1
TERM OF LEASE
Section 1.1 Term. The term of this Lease shall commence on
the date hereof and terminate on the earlier of (a) the date on which all of the “mineable” and “merchantable” coal shall have been removed from the Coal Reserves or (b) the Purchase Date (as defined in Section 9.1(a) of the
Purchase and Sale Agreement dated the date hereof (the “Purchase Agreement”) among Eastern Associated Coal Corp. (“EACC”), Penn Virginia Resource Partners, L.P., Peabody Energy Corporation (“Peabody”) and Peabody
Natural Resources Company. For purposes of this Lease, the term “mineable coal” shall mean coal which can be mined by the use of modern, practical and efficient machinery, facilities and methods. The term “merchantable” coal
shall mean coal that is generally mineable at a profit to Lessee.
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ARTICLE 2
MINING OPERATIONS
Section 2.1
Mining Operations. Lessee shall promptly upon execution of this Lease begin and diligently continue to mine and remove the mineable and merchantable Coal Reserves, subject only to Force Majeure (as defined in Section 9.9 hereof), in a
skillful and professional manner in accordance with commercially modern mining practices having due regard for the value of the Coal Reserves so as to avoid damage and waste of the Coal Reserves. Lessee shall conduct its mining operations and any
other activities conducted by Lessee with respect to the Coal Reserves, including but not limited to permitting, reclamation and bonding obligations, in accordance with, and shall comply with, all federal, state and local laws and the lawful rules,
regulations and orders of any governmental authority (collectively, “Laws and Regulations”) in respect of such mining operations and other activities. Lessee shall have the obligation, at the cost and expense of Lessee, to do and perform,
with respect to the Coal Reserves, whatever may be required by all Laws and Regulations (including, without limitation, Environmental Laws (as defined in the Purchase Agreement)) to be performed by Lessee, or may be deemed by Lessee to be so
required or to be advisable.
ARTICLE 3
ROYALTIES
Section 3.1 Minimum
Rental Payments. Lessee will pay to Lessor a recoupable monthly minimum rental payment (the “Minimum Rental Payment”) in the amount of $416,667 commencing on the 25th day of the month immediately following the month during which this Lease was executed and delivered and continuing each month thereafter (it being
acknowledged that the first Minimum Rental Payment shall be that amount equal to (x) $416,667 times (y) a fraction the numerator of which is the number of days remaining in the month during which this Lease is executed and the denominator of which
is 31) until the earlier to occur of (i) the eight-year anniversary of the date hereof, (ii) the date on which Lessee has paid to Lessor Production Royalty
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Payments (as defined in Section 3.2 hereof) with respect to (A) 40 million tons of Coal Reserves, less
(B) any tons of Coal Reserves sold pursuant to Article 8 or (iii) the date on which the remaining Coal Reserves are insufficient to allow for recoupment of the Minimum Rental Payments which have been paid but not recouped (the “Minimum
Period”), provided, however, that in the event that the remaining Coal Reserves (whether or not mineable and/or merchantable) are insufficient to allow for recoupment of the full Minimum Rental Payment, then the Minimum Rental Payment
for the applicable month shall be prorated in proportion to the ratio of tons of Coal Reserves remaining (whether or not mineable and/or merchantable) to the tons necessary for recoupment of the full Minimum Rental Payment. All Minimum Rental
Payments shall be paid on the 25th day of each calendar month during the Minimum Period and shall be
recouped against Production Royalty Payments as set forth in Section 3.2. Lessee’s obligation to pay Minimum Rental Payments during the Minimum Period shall be absolute and shall not be subject to Force Majeure or any other contingency or
event.
Section 3.2 Production Royalty Payments.
(a) Payment for Coal Mined. For all coal mined from the Coal Reserves by Lessee hereunder and sold by Lessee, Lessee shall pay to Lessor a royalty (a
“Production Royalty Payment”) in a fixed amount per ton of coal sold by Lessee as follows:
| Time Coal Sold |
Production Royalty Rate | |
| Commencement of Lease – December 31, 2003 |
$1.09 | |
| January 1, 2004 – December 31, 2004 |
$1.20 | |
| January 1, 2005 – December 31, 2005 |
$1.31 | |
| January 1, 2006 – December 31, 2006 |
$1.42 | |
| January 1, 2007 – December 31, 2007 |
$1.53 | |
| January 1, 2008 – December 31, 2008 |
$1.64 | |
| January 1, 2009 – December 31, 2009 |
$1.71 | |
| January 1, 2010 and thereafter |
$1.75 |
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In the event that the Production Royalty Payment in any month is less than the
Minimum Rental Payment, the excess of the Minimum Rental Payment over the Production Royalty Payment (“Recoupable Royalty”) shall be recoupable as provided below. In the event that the Production Royalty Payment in any month equals or
exceeds the Minimum Rental Payment, no Minimum Rental Payment shall be due. In the event that the Production Royalty Payment in any month exceeds the Minimum Rental Payment and there exists a balance in the Cumulative Recoupable Royalty (defined
below), the Production Royalty Payment for such month shall be reduced by all or a portion of the Cumulative Recoupable Royalty. The resultant Production Royalty Payment for such month shall not be reduced to an amount less than the Minimum Rental
Payment for such month. The reduction shall be referred to as the “Reduction Amount.” The “Cumulative Recoupable Royalty” for any month shall be the aggregate total of the Recoupable Royalty for all months preceding the current
month less any Reduction Amount used to reduce the Production Royalty Payment for any months preceding the current month.
(b) Lessee to Keep Records. Lessee shall keep accurate records of truck scale weights and/or railroad car weights, whichever is or are applicable, which shall be taken as the basis for payment of Production Royalty Payments.
Lessee shall keep a true and correct record of all coal mined, removed and sold from the Coal Reserves. Lessee shall keep a true and correct record of the produced but unsold inventory of coal mined from the Coal Reserves at the end of each calendar
year and shall deliver a copy of such record to Lessor by February 1st of each year during the term
hereof. In accordance with the provisions contained in Section 7.1, Lessee shall permit Lessor or its agents, at all reasonable times, to inspect the records, and perform other practical and reasonable investigations to check the accuracy of the
weighing records of Lessee. Lessor, through its agents, may enter upon the Coal Reserves at any time for the purpose of verifying the quantity of coal removed therefrom.
(c) Time and Place of Payment of Production Royalty Payments. All Production Royalty Payments shall be paid by Lessee to Lessor on or before the 25th day of each calendar month on all coal sold by Lessee from the Coal Reserves during
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the preceding calendar month (or part thereof) during the term hereof. All Production Royalty Payments
shall be paid in immediately available funds by wire transfer to such account as Lessor may designate from time to time in writing. Contemporaneously with each payment of Production Royalty Payments hereunder, Lessee shall deliver to Lessor a
statement from Lessee showing the number of tons of coal sold from the Coal Reserves by Lessee during the calendar month for which such Production Royalty Payment relates, and the computation of royalties payable on such coal so sold during such
calendar month, offset by Minimum Rental Payments made pursuant to Section 3.1 hereof and recoupable in accordance with Section 3.2. Any late payment of Production Royalty Payments shall bear interest at the rate of 8% compounded annually.
ARTICLE 4
DEFAULT
Section 4.1 Events of Default. Upon the occurrence of any of the
following events (an “event of default”), Lessor shall have the remedies provided in Section 4.2:
(a)
Lessee shall fail to pay any Minimum Rental Payment or Production Royalty Payment after the same is due hereunder and such failure shall continue for two business days after Lessor has given notice to Lessee; or
(b) Lessee shall fail for a period of 30 days after written demand therefor from Lessor to pay any sums due for Taxes as provided herein;
or
(c) Lessee shall abandon the mineable Coal Reserves; or
(d) Lessee or any of its successors or assigns, shall, pursuant to ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code, as amended, or any similar Federal or state law for the relief of
creditors (“Bankruptcy Law”), (i) commence a voluntary case; (ii) consent to the entry of an order for relief against it or any of its Subsidiaries (as defined in the Purchase Agreement) in an involuntary case in which it is the debtor;
(iii) consent to the appointment of a receiver; trustee, assignee, liquidator, custodian or similar official
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under any Bankruptcy Law; or (iv) make a general assignment for the benefit of its creditors; or
(e) Lessee shall fail to:
(i) diligently continue its operations as required in Section 2.1 hereof; or
(ii) conduct its mining operations and any other activities conducted by Lessee with respect to the Coal Reserves in compliance with all Laws and
Regulations as required in Section 2.1 hereof; or
(iii) maintain and make available to Lessor
those records as required to be so maintained and made so available by Section 3.2 hereof; or
(iv) provide workers compensation insurance, Employer’s Liability insurance, Comprehensive Automotive Liability insurance, Property insurance and Comprehensive General Liability insurance as required in Section 6.2 hereof; or
(v) provide such information and access to Lessor in connection with its inspection of
Lessee’s mine workings and records as required in Section 7.1 hereof; or
(vi) provide
Lessee’s mine plans and files to Lessor, and make available all permits to Lessor, as required in Section 7.2 hereof; or
(vii) comply with the indemnity provisions of Section 5.1 hereof; or
(viii) comply with the non-assignment and other provisions of Section 9.3 hereof; or
(ix) comply with the arbitration provisions of Section 4.3 hereof; or
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(x) keep and perform any of the other terms,
conditions, covenants and agreements of this Lease to be kept and performed;
and any such failure shall continue for more than 30 days
following written notice thereof from Lessor to Lessee; provided, however, that if such failure under this Section 4.1(e) cannot be cured within such 30-day period, Lessee shall have such additional reasonable time to cure such failure if
Lessee has commenced such cure during such 30-day period and continues to diligently attempt to cure such failure.
Section 4.2 Remedies.
(a) Termination of Lease. Upon the occurrence of an event of default, all rights of Lessee hereunder to mine, process and ship coal as provided herein shall, at the option of the Lessor
(except for an event specified in Section 4.1(d) hereof, which event shall cause a forfeiture and termination ipso facto), become forfeited and cease and determine (the date of such forfeiture and cessation to be referred to herein as the “Date
of Termination”), and Lessor shall have the right, without notice or demand (except as set forth in Section 4.2(b)), and without legal action or notice or process required by any Laws and Regulations, to reenter and reclaim the Coal Reserves
and to exclude Lessee therefrom and to hold the Coal Reserves free of any claims of Lessee; provided, however, that Lessor shall not have the right to reenter and reclaim the Coal Reserves if Lessee has paid to Lessor the Breach Sale Price;
provided further, however, that (i) Lessee shall fully comply with, perform and complete all of its reclamation, environmental and other obligations hereunder, (ii) the termination of this Lease in any manner or for any cause whatever shall
not relieve Lessee of its obligation for any payment of any sum which may have accrued hereunder at or prior to the Date of Termination, it being acknowledged that certain of such accrued obligations may be payable under Section 4.2(b) as part of
the Breach Sale Price and (iii) in the event Lessor shall assume this Lease pursuant to Section 365 of Title 11 of the United States Code (the “Bankruptcy Code”), then Lessee as debtor-in-possession, or any trustee, receiver or liquidator
appointed for Lessee’s benefit shall provide adequate assurance of performance of the terms of this Lease and shall satisfy all other Bankruptcy Code
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requirements for the assumption of this Lease; and if the trustee does not cure all events of default then existing and provide such adequate
assurances under the Bankruptcy Code within the applicable time periods provided by the Bankruptcy Code, then Lessee hereby agrees that cause exists under 11 U.S.C. §362(d) for granting relief from the bankruptcy automatic stay, or Lessor may
determine in its sole discretion that the Lease shall be deemed rejected and Lessor shall have the right to immediate possession of the Coal Reserves and shall be entitled to all remedies provided by the Bankruptcy Code for damages for breach and/or
termination of this Lease. The remedy of termination in the event of default by Lessee as above authorized shall not be deemed or interpreted as the exclusive remedy available to Lessor, and Lessor may require and enforce performance by Lessee of
each and every term and provision of this Lease incumbent upon the Lessee to be kept and performed, utilizing any available remedy therefore unless Lessee shall have paid to Lessor the Breach Sale Price in which case Lessor shall not have any
further remedies available for a breach and/or termination of this Lease other than damages incurred in connection with Lessee’s failure to fully comply with its obligations described in Section 4.2(a)(ii).
(b) Mandatory Sale for Breach. Upon and after the Date of Termination, Lessor shall notify (the “Mandatory Sale Notice”)
Lessee in writing that Lessor desires to sell, assign and transfer the then remaining Coal Reserves to Lessee on account of such event of default, which notice shall include the purchase price (the “Breach Sale Price”) payable for such
remaining Coal Reserves, which shall be computed as follows: the product of (x) the difference between (i) 40 million tons and (ii) that number which is the sum of (A) the number of tons of Coal Reserves with respect to which Lessor had received
Production Royalty Payments and (B) the number of tons of Coal Reserves with respect to which Lessor has received Cumulative Recoupable Royalty Payments (computed based on the Royalty Rate at the time such Cumulative Recoupable Royalty Payments were
made) which are then outstanding, and (C) the Lost Coal Quantity, if any (as defined in Section 8) and (D) the number of tons of Coal Reserves with respect to which Pittsburgh Escrow Units have been delivered to Buyer, in accordance with the Escrow
Agreement (as such terms are defined in Section 8.3), times (y) the Production Royalty rate in effect on the Date of Termination. The Breach
9
Sale Price shall be payable by not later than three business days after the date of the Breach Sale Notice (the “Due Date”). Upon
receipt of the Breach Sale Price, Lessor shall convey to Lessee or one of its affiliates by special warranty deed all Coal Reserves and other rights granted under this Lease.
Section 4.3 Arbitration. Any disagreement between Lessor and Lessee arising hereunder shall be submitted to binding arbitration in accordance with the rules of the
American Arbitration Association then in effect. A panel of three arbitrators knowledgeable with the coal industry shall be named, one to be selected by Lessee, one to be selected by Lessor, and within 15 days those two arbitrators shall name a
third arbitrator. Each party shall name their representative arbitrator within 15 days of receipt of notice from the other party requesting arbitration. If the two representative arbitrators are unable to agree on the selection of a third arbitrator
within 15 days, then the American Arbitration Association shall designate a disinterested person to act as such third arbitrator. If either of the parties should, for a period of 15 days after receipt of the notice referred to above, fail to select
and make known in writing to the other party the arbitrator selected by it, the one party-selected arbitrator and an arbitrator selected by the American Arbitrator Association shall constitute the Board. Either party may at any time serve upon the
other a notice setting forth the point or points upon which the decision of the Board of Arbitration is desired and the other party may, within ten days thereafter, serve a counter-notice specifying any additional points or differences arbitrable
hereunder upon which such other party may desire a decision. The Board shall give ten days written notice of the time and place of hearing to the respective parties, which hearing shall be held within 15 days after the appointment of the third
arbitrator. The Board shall make its decision and award in writing within 20 days of such hearing. The decision and award of a majority of the arbitrators shall be final, conclusive and obligatory upon the said parties to this Lease, their
successors and assigns, and without appeal, and each party hereto agrees to abide by and comply with every such decision and award. All questions of costs shall in each case be determined by the Board when it renders its decision and in the interim
each party shall pay one half of the costs of the Board.
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ARTICLE 5
INDEMNIFICATION
Section 5.1
Indemnification of Lessor. Lessee does hereby indemnify and hold Lessor, its parent, subsidiaries and other affiliates and its and their respective officers, directors, partners, employees, agents, successors and assigns (collectively, the
“Indemnitees”) harmless of, from and against, any and all claims, damages, demands, expenses, fines and liabilities (of any character or nature whatsoever, regardless of by whom imposed), and losses of every conceivable kind, character and
nature whatsoever (including, but not limited to, claims for losses or damages to any property or injury to or death of any person) asserted by or on behalf of any person or entity arising out of, resulting from or in any way connected with
Lessee’s presence on the real property in which the Coal Reserves are situated or mining of the coal from the Coal Reserves. Lessee also covenants and agrees, at its expense, to pay, and to indemnify and save the Indemnitees harmless of, from
and against, all costs, reasonable attorneys’ fees and expenses incurred by any Indemnitee in connection with any claim for which any Indemnitee is indemnified hereunder. The indemnification obligations under this Article 5 shall survive
termination of this Lease.
ARTICLE 6
TAXES AND INSURANCE
Section 6.1
Payment of Taxes. Lessee shall pay, at the times they become due and payable in accordance with all Laws and Regulations, all taxes (except income taxes payable by Lessor on account of its receipt of payments due hereunder) fees, levies,
assessments, including, but not limited to, ad valorem, excise, license, privilege or severance taxes, and any other charges due with respect to: (a) the fee estate or other interests of Lessor in the Coal Reserves; (b) Lessee’s interest in
this Lease; (c) the leasehold estate hereby created; (d) all coal mined and produced from the Coal Reserves by Lessee and the products thereof; (e) any buildings, structures, improvements, equipment or other personal property of any kind owned or
used by Lessee in connection with the Coal Reserves; and (f) the exercise of any right or
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privileges in connection with Lessee’s operations hereunder (collectively “Taxes”); so that Lessor shall be entirely relieved
from such charges. Lessee shall forward evidence of the payment of real estate taxes to Lessor promptly after such payment is made, and Lessee shall permit Lessor and its agents at all reasonable times to inspect the records evidencing payments of
all other Taxes.
If Lessor makes any payment, either voluntarily or as required by law, on account of any Taxes,
then the amount thereof shall be repaid by Lessee to Lessor immediately after the date Lessor submits a written statement to Lessee regarding such payment.
Section 6.2 Insurance.
(a) Types and Amounts of
Coverage. Lessee shall obtain and continue in force, during the term of this Lease from Pacific Employers Insurance Company or other insurance companies of similar size and reputation (or, in the case of Black Lung, insurance as described in
Section 6.2(a)(v)), the following insurance coverages (including commercially reasonable deductible amounts):
(i) (A) Statutory workers’ compensation insurance or evidence of same through a state self-insured workers’ compensation privilege or participation in a state workers’ compensation fund in accordance with requirements
of applicable Laws and Regulations and (B) Employer’s Liability Insurance with limits of $2,000,000 each occurrence.
(ii) Comprehensive Automobile Liability insurance covering owned, non-owned and hired motor vehicles which may be used in any connection with the mining operations contemplated hereunder with limits of not less than
$1,000,000 combined single limits in any one occurrence, for all liability arising out of injury to or death of one or more persons, and for all liability arising out of damage to or destruction of property, including loss of use thereof and
downtime.
(iii) Property Insurance in amounts equal to the full replacement cost (or the highest
insurable value if coverage for replacement cost is not
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available) covering all real and personal property and fixtures located on the real property in which the Coal Reserves
are situated, against loss or damage by fire, lightning, explosion or other hazards covered under extended coverage insurance. The proceeds of any loss payable under such policies as above required shall be used by Lessee in the restoration, repair,
or replacement of the destroyed or damaged property as required for the performance of Lessee’s obligations under this Lease.
(iv) Comprehensive General Liability insurance, including Contractual Liability, Pollution Liability, Owners and Contractors Protective Liability, Broad Form Property Damage Liability and Explosion and
Collapse Hazards coverages with Bodily Injury limits of $2,000,000 each person and $2,000,000 each occurrence.
(v) State and Federal Black Lung insurance, as required, and/or evidence of same through a state self-insured privilege and/or participation in a state fund in accordance with requirements of applicable Laws and Regulations,
including any liability arising out of the Federal Coal Mine Health and Safety Act of 1969, as shall be amended from time to time, and/or any substitute, replacement, or supplement thereto.
(b) Other Requirements. All policies and endorsements providing the insurance required shall:
(i) Name Lessor as an Additional Insured;
(ii) Be primary to any and all other insurance of Lessor and the Indemnified Parties with respect to any and all claims and demands which may be made against them for bodily injury or death to
Lessor’s or Lessee’s employees, contractors, agents, invitees and guests, and for property damage, including damage to Lessor’s or Lessee’s property, caused by or alleged to have been caused by any act, omission or default,
negligent or otherwise, of Lessee by reason of the mining or other activities under this Lease; and
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(iii) Provide that it applies separately to each insured against
which claim is made or suit is brought, however in no event for more than the limit of liability of the applicable policy.
(c) Certificates of Insurance. Lessee shall promptly provide to Lessor acceptable evidence in the form of an original certificate or certificates of insurance from the respective insurance companies confirming that all
coverages and policies required hereinbefore are in full force and effect in the form required, and confirming that Lessor will be notified in writing not less than 30 days prior to the cancellation or non renewal of any such insurance. Lessee shall
require its contractors, subcontractors and other agents performing any work in connection with this Lease to obtain and maintain insurance for the risks and in accordance with all the terms in this Section but at reasonable limits designated by
Lessee.
ARTICLE 7
INSPECTION AND MINE PLANS
Section 7.1 Lessor’s
Right to Inspect. Lessor or its representatives at all reasonable times, and upon advance notice, shall have the right to enter the Coal Reserves for the purpose of inspecting the mine workings and premises or to make surveys of the workings in
the Coal Reserves herein leased to determine the accuracy of Lessee’s surveys of such workings and to examine maps and engineering records of Lessee with reference to said surveys. Lessee shall keep records of all coal mined and sold from the
Coal Reserves and Lessor shall have the right to inspect the records at all reasonable times. Lessor agrees to treat Lessee’s records as confidential and not to disclose such records. Lessee shall not be responsible for any injury, loss or
damages suffered by Lessor’s representatives that enter the Coal Reserves, except for any injury, loss or damages caused in whole or in part by the gross negligence of Lessee, its agents or employees.
Section 7.2 Mine Plans. Lessee shall furnish to Lessor copies, in electronic and paper formats, Lessee’s mine plan maps and
any revisions thereto (which maps shall depict mining plans and projections, Coal Reserve thickness, including seam
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thickness, and elevation of coal seams). Such maps and files shall be provided not less than twice each year and shall show the extent of
workings through June 30 and December 31 of each year. Such maps shall be provided not later than August 15 and February 15 of each year, as appropriate; provided, however, that if Lessee changes its mine plan at any time to include the
mining of areas outside of the lands in which the Coal Reserves are located, Lessee shall provide such maps and files to Lessor promptly upon making such change. Lessee shall also make available to Lessor for inspection all permits (and applications
therefor, including all maps and diagrams submitted herewith) or other authorizations issued to Lessee with respect to the Coal Reserves by any regulatory authority. Lessor shall not interfere with Lessee’s permitting activities, provided that
Lessee shall have complied with the terms and conditions of this Lease. In addition, Lessor agrees to treat Lessee’s maps and files as confidential and not to disclose such maps and files (except as required by applicable law or as publicly
filed).
ARTICLE 8
LOST COAL QUANTITY
Section 8.1 Agreement to Acquire
Adverse Interests. Lessee shall, at its own expense, diligently seek to acquire, as soon as practicable but in no event later than the applicable dates set forth in Schedule 8.1 (each such date, a “Deadline”), Subsidence Rights with
respect to each of the respective tracts of land set forth opposite such Deadlines on Schedule 8.1, which tracts are located in Monongalia County, West Virginia, as more particularly described in Schedule 8.1. Lessee shall, at its own expense,
diligently seek to acquire, as soon as practicable but in no event later than the applicable Deadlines set forth in Schedule 8.1, the Adverse Pittsburgh Interests with respect to each of the respective tracts of land set forth opposite such
Deadlines on Schedule 8.1, as more particularly described in Schedule 8.1. Upon acquisition of any of the Adverse Interests, Seller Group shall promptly convey, or cause to be conveyed, the Adverse Interest(s) to Lessor by special warranty deed in
the same form as the Special Warranty Deed dated December 19, 2002 (the “Federal Special Warranty Deed”) between Lessor and EACC for the Coal Reserves. Lessee shall at that time
15
provide all real estate documents in its possession with respect to such Adverse Interest including, but not limited to, a title opinion on the
Adverse Interest.
Section 8.2 Determination of Lost Coal Quantity. If Lessee fails to acquire any of the
Adverse Interests by the applicable Deadline, Lessee shall, by not later than 5 business days after such Deadline, so notify (the “Mandatory Sale Adverse Interest Notice”) Lessor in writing which notice shall describe the tract or tracts
that were not acquired and set forth Lessee’s estimate (including the calculation thereof) of the quantity of tons of Coal Reserves that are rendered unmineable as a result of Lessor’s failure to acquire such Adverse Interests (“Lost
Coal Quantity”). If Lessor and Lessee are unable to agree upon the Lost Coal Quantity within 10 business days after the date of the Mandatory Sale Adverse Interest Notice (“Adverse Interest Negotiation Period”), then Lessor and Lessee
shall each appoint an Eligible Mining Consultant (as defined below) of its choice within five business days after the Adverse Interest Negotiation Period. The two Eligible Mining Consultants appointed by the respective parties shall appoint a third
Eligible Mining Consultant not later than five business days after such two Eligible Mining Consultants have been so appointed. Within 15 business days from the appointment of the third Eligible Mining Consultant, each Eligible Mining Consultant
appointed as aforesaid shall provide Lessor and Lessee with a determination of the Lost Coal Quantity. The Lost Coal Quantity shall be the average of the three determinations; provided, however, that for purposes of calculating the average,
the highest quantity shall in no event be deemed to be more than 10% above the second highest quantity and the lowest quantity shall in no event be deemed to be more than 10% below the second highest quantity. The determination of the Lost Coal
Quantity pursuant to this Section 8.2 shall be final and binding on Lessor and Lessee and shall not be appealable. Each of Lessor and Lessee shall be responsible for the costs and expenses of its Eligible Mining Consultant appointee, and the costs
of the third Eligible Mining Consultant shall be shared equally by them. For the purposes of this Agreement, “Eligible Mining Consultant” shall mean any of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and Associates, Inc., ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, NorWest
Mine Services, Inc. or ▇▇▇▇ International and their respective successors and assigns.
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Section 8.3 Mandatory Sale of Lost Coal Quantities for Failure to Acquire
Adverse Interests. If Lessee fails to acquire any of the Adverse Interests by the applicable Deadline, then Lessee shall pay Lessor in immediately available funds by wire transfer to an account designated by Lessor for the Lost Coal Quantity
related to such Adverse Interest an amount equal to (a) the product of (x) the Lost Coal Quantity and (y) the Production Royalty payment per ton applicable to the applicable Deadline, less (b) the product of (x) the number of any Applicable
Pittsburgh Escrow Units (as defined in the Escrow Agreement dated the date hereof (the “Escrow Agreement”)) delivered to Buyer (as defined in the Escrow Agreement) pursuant to the Escrow Agreement, and (y) $19.00 (as adjusted for any
split, subdivision or combination of Common Units). Lessee shall make such payment within three business days after, as applicable, (a) if Lessor and Lessee agree upon the Lost Coal Quantity during the Adverse Interest Negotiation Period, the end of
the Adverse Interest Negotiation Period or (b) if Lessor and Lessee fail to so agree, the date the Lost Coal Quantity is determined by the Eligible Mining Consultants in accordance with Section 8.2. Upon such payment, Lessor shall convey to Lessee
(or one of its affiliates designated by Lessee) by special warranty deed in the same form as the Federal Special Warranty Deed all of Lessor’s interest in the Lost Coal Quantity.
Section 8.4 Federal No. 2 Order. EACC is subject to an Order of Compliance, dated September 12, 2002, issued by the West Virginia Department of Environmental
Protection against EACC (such order, including other similar orders or requirements that may be assessed in the future in connection with elevated levels of chloride concentrations relating to the matter referred to therein or any related appeal,
the “Federal No. 2 Order”) as a result of chloride concentrations in excess of levels permitted by Environmental Laws and Environmental Permits (each as defined in the Purchase Agreement). Lessee acknowledges and agrees that EACC shall
perform its obligations under the Federal No. 2 Order in conformity with Section 2.1 of this Agreement.
Section
8.5 Determination of Lost Coal Quantity. Lessee promptly shall furnish to Lessor prior written notice in reasonable detail of any actions EACC may take in
17
complying with the Federal No. 2 Order that may adversely affect the mineability or merchantability of any of the Coal Reserves and, without
limiting the generality of Section 7.2, any actual or prospective revisions to Lessee’s mining plans and projections associated with compliance with the Federal No. 2 Order. Without limiting the generality of Section 7.1, Lessee shall promptly
thereafter at all reasonable times, and upon advance notice, provide Lessor or its representatives the right to enter the Coal Reserves for the purpose of inspecting any of the Federal Reserves the mineability and merchantability of which may be
adversely affected by compliance with the Federal No 2. Order. If the performance of EACC’s obligations under the Federal No. 2 Order adversely affects the mineability or merchantability of any of the Coal Reserves (an “Adverse Chloride
Event”), then Lessee shall, by not later than 5 business days after such Adverse Chloride Event, so notify (the “Lessee Adverse Chloride Notice”) Lessor in writing, which notice shall describe the affected tract or tracts or portions
thereof and shall set forth Lessee’s estimate (which shall be in good faith and based on reasonable assumptions) of the quantity of tons of Coal Reserves that is not mineable and merchantable as a result of such Adverse Chloride Event (the
final determination of such quantity is referred to as the “Lost Coal Quantity”). Lessee shall also provide Lessor with its calculations of the amount of the Lost Coal Quantity. Nothing herein shall preclude Lessor from similarly providing
a written notice (the “Lessor Adverse Chloride Notice”) to Lessee to the extent Lessor believes that an Adverse Chloride Event has occurred and Lessee has failed to provide the Lessee Adverse Chloride Notice. If Lessor and Lessee are
unable to agree upon the Lost Coal Quantity within 10 business days after the date of the Lessee Adverse Chloride Notice or Lessor Adverse Chloride Notice, as the case may be (the “Chloride Negotiation Period”), then Lessor and Lessee
shall each appoint an Eligible Mining Consultant of its choice within five business days after the Chloride Negotiation Period. The two Eligible Mining Consultants appointed by the respective parties shall appoint a third Eligible Mining Consultant
not later than five business days after such two Eligible Mining Consultants have been so appointed. Within 15 business days from the appointment of the third Eligible Mining Consultant, each Eligible Mining Consultant appointed as aforesaid shall
provide Lessor and Lessee with a determination of the Lost Coal Quantity. The Lost
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Coal Quantity shall be the average of the three determinations; provided, however, that for purposes of calculating the average, the highest
quantity shall in no event be deemed to be more than 10% above the second highest quantity and the lowest quantity shall in no event be deemed to be more than 10% below the second highest quantity, provided, however, that if two out of the
three Eligible Mining Consultants determine pursuant to this Section 8.5 that there is no Lost Coal Quantity attributable to an Adverse Chloride Event, the resulting Lost Coal Quantity determination hereunder shall be zero. The determination of the
Lost Coal Quantity pursuant to this Section 8.5 shall be final and binding on Lessor and Lessee and shall not be appealable. Each of Lessor and Lessee shall be responsible for the costs and expenses of its Eligible Mining Consultant appointee, and
the costs of the third Eligible Mining Consultant shall be shared equally by them.
Section 8.6 Mandatory Sale
of Lost Coal Quantities for Adverse Chloride Event. In the event of a determination of any Lost Coal Quantity as provided in Section 8.5, then Lessee shall pay Lessor for the Lost Coal Quantity in an amount (the “Lost Coal Payment”)
equal to the product of (x) the Lost Coal Quantity and (y) the Production Royalty Payment per ton applicable pursuant to this Lease at the time of determination of the Lost Coal Quantity as provided in Section 8.5. Lessee shall have the option to
make the Lost Coal Payment (i) in immediately available funds by wire transfer to an account designated by Lessor, (ii) by duly transferring to Lessor (or any affiliate of Lessor designated by Lessor) the number of Common Units representing limited
partner interests in Penn Virginia Resource Partners, L.P. equal to the Lost Coal Payment, assuming each Common Unit so transferred is the equivalent of $19.00, as adjusted for any split, subdivision or combination of Common Units, or (iii) by some
combination of (i) and (ii) above that equals the Lost Coal Payment. Lessee shall make such Lost Coal Payment within three business days after, as applicable, (a) if Lessor and Lessee agree upon the Lost Coal Quantity during the Adverse Chloride
Negotiation Period, the end of the Adverse Interest Negotiation Period or (b) if Lessor and Lessee fail to so agree, the date the Lost Coal Quantity is determined by the Eligible Mining Consultants in accordance with Section 8.5. Upon such payment,
Lessor shall convey to Lessee (or
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one of its affiliates designated by Lessee) by special warranty deed in the same form as the Federal Special Warranty Deed all of Lessor’s
interest in the Lost Coal Quantity.
ARTICLE 9
GENERAL
Section 9.1 Remedies
Cumulative. Except as provided in Section 4.2(b) and Article 8, each right, power and remedy of Lessor or Lessee provided for in this Lease shall be cumulative and concurrent and shall be in addition to every other right, power or remedy
provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise, and the exercise or beginning of the exercise or the failure to exercise by Lessor or Lessee of any one or more of the rights, powers or remedies
provided for in this Lease or now or hereafter existing at law or in equity or by statute or otherwise shall not preclude the simultaneous or later exercise by Lessor or Lessee of any or all rights, powers or remedies.
Section 9.2 Notices. All notices and other communications with respect to this Lease shall be in writing and shall be deemed
effectively given when delivered personally, by telecopy or by courier, such as Federal Express, or seventy-two (72) hours after mailing by certified mail, postage prepaid, to the following addresses of the parties:
President
Suncrest Resources LLC
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
President
Sterling Smokeless Coal Company
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
Each party may change its address by giving written notice of such change to the other party.
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Section 9.3 Binding Effect of Lease. This Lease shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that Lessee will not assign, let, mortgage or otherwise transfer its rights hereunder, without the prior written consent of Lessor,
which consent shall not be unreasonably withheld; provided, however, Lessee may assign this Lease or sublease the Coal Reserves to an Affiliate (as hereinafter defined). For purposes of this Lease, “Affiliate” shall mean any entity
which controls, is controlled by, or is under common control with Lessee. No assignment, sublease, mortgage or other transfer by Lessee will release Lessee from its obligations hereunder. Lessor may sell, assign, mortgage or otherwise transfer its
rights hereunder in any transaction effectuated pursuant to Article IX of the Purchase Agreement.
Section 9.4
Entire Agreement. This Lease constitutes the entire agreement between the parties hereto with respect to the subject matter hereof, and no alteration, modification or interpretation hereof shall be binding upon the parties hereto unless in
writing and signed by Lessor and Lessee.
Section 9.5 Governing Law and Section Headings. This Lease shall
be interpreted and construed in accordance with the laws of the state of West Virginia. The titles of the Articles and Sections in this Lease have been inserted as a matter of convenience of reference only and shall not control or affect the meaning
or construction of any of the terms and provisions hereof.
Section 9.6 Memorandum of Lease. Lessor and
Lessee agree to execute and record a short form of this Lease called a Memorandum of Lease, the form of which is attached hereto as Exhibit C and made a part hereof.
Section 9.7 Relationship Between the Parties. Nothing contained herein or implied hereby including, without limitation, the rights of Lessor to receive and examine
mining plans and maps, to review Lessee’s records and otherwise audit and inspect Lessee’s operations shall in any way be construed as creating or constituting any obligation or right in Lessor to control or otherwise correct Lessee’s
acts and omissions or any relationship of partnership, joint venture or agency between Lessor and Lessee.
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It is expressly understood and agreed that the relationship between Lessor and Lessee in connection with this Lease shall be solely that of
landlord and tenant.
Section 9.8 Separability of Provisions. If any provision of this Lease shall to any
extent be held to be unenforceable, the remainder of this Lease shall not be affected thereby, and each provision of this Lease shall be valid and enforceable to the extent permitted by law.
Section 9.9 Force Majeure. Lessee’s obligations to conduct mining operations under this Lease shall be suspended in the event coal mining operations on the Coal
Reserves are suspended or are prevented or prohibited by any event of force majeure. An event of force majeure shall mean any event of the type listed below which is beyond Lessee’s reasonable control and which is not caused by the negligence
or willful misconduct of Lessee, its agents or employees, including the following: an act of God or of the public enemy; a law, ordinance or other governmental regulation or court order not in effect on the date hereof; inability to obtain mining or
related permits provided that Lessee has used commercially reasonable means to secure such permits; strike, lockout or industrial disturbance; sabotage; failure of carriers to transport or furnish transportation equipment and facilities; explosion;
fire; storm; or natural flood. Lessee shall have the right to determine and settle any strikes, lockouts or industrial disputes in its sole discretion. Promptly upon the occurrence of any event of force majeure, Lessee shall give written notice
thereof to Lessor in reasonable detail including without limitation the nature thereof, the current and projected effect on mining operations, and the proposed steps to remedy the same. Additionally, immediately upon the occurrence of an event of
force majeure, Lessee shall take commercially reasonable steps to remedy the same or to avoid the effects thereof and shall continue such efforts diligently until such event of force majeure is no longer applicable. Any suspension, prohibition, or
reduction of mining operations on the Coal Reserves necessary to comply with the Federal No. 2 Order shall not be considered an event of force majeure under this Lease.
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Section 9.10 Reconveyance. In a timely manner after the date on which all
mineable and merchantable coal shall have been removed from the Coal Reserves, Lessor shall convey to Lessee or one of its affiliates by special warranty deed all of its interest in the Coal Reserves.
IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed by one of its duly authorized officers as of the date
first above written.
| SUNCREST RESOURCES LLC | ||
| By: |
Eastern Associated Coal Corp., its sole member | |
| By: |
| |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
| STERLING SMOKELESS COAL COMPANY | ||
| By: |
| |
| Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ | ||
| Title: Vice President | ||
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EXHIBIT A
Legal Description of Federal Reserves
1
Schedule 8.1
Adverse Interests
| Excepted Parcel in Legal Description |
Rights to be Acquired |
Approximate Acres |
Deadline for Acquiring Interests | |||
| 2 – Tract 1 |
Coal |
21.47 |
March 31, 2004 | |||
| 2 – Tract 2 |
Coal |
23.10 |
March 31, 2004 | |||
| 2 – Tract 3 |
Coal |
19.40 |
March 31, 2004 | |||
| 2 – Tract 4 |
Coal |
26.06 |
March 31, 2004 | |||
| 3 |
Coal |
1.334 |
February 28, 2006 | |||
| 4 |
Coal |
6.606 |
January 31, 2005 | |||
| 5 |
Coal |
10.792 |
July 31, 2005 | |||
| 6 |
Subsidence |
1.334 |
February 28, 2006 | |||
| 7 |
Subsidence |
21.47 |
March 31, 2004 |
2