EXHIBIT 10.15
THIS AGREEMENT OF LEASE made and entered into this 30th day of June, 1982,
by and between KENTUCKY RIVER COAL CORPORATION, a corporation of the State of
Virginia, party of the first part, hereinafter referred to as LESSOR, and
SHAMROCK COAL COMPANY, a corporation of the State of Tennessee, party of the
second part, hereinafter referred to as LESSEE;
WITNESSETH: That pursuant to the power and authority vested in the parties
hereto to enter into this lease agreement, and for and in consideration of the
payment of the rents and royalties hereinafter provided, and the performance and
observance by the Lessee of all of the terms, conditions, covenants, and
stipulations hereinafter provided, the Lessor has and does hereby demise, lease,
and let the coal and mining rights described in the schedules attached hereto
unto the Lessee for the term of five (5) years or until all of the mineable and
merchantable coal herein leased has been mined and removed, whichever is later.
The Lessee shall have the exclusive right and privilege of mining, extracting
and removing and marketing all of the said mineable and merchantable coal
located in, on, and under the leasehold hereinafter described; but all other
property, rights, and privileges in, on, or said leasehold or appertaining
thereto are expressly reserved. Provided, further, that where the Lessor owns
under a mineral deed any of the coal embraced and included in the hereinafter
described leasehold, it grants unto the Lessee only such mining rights and
privileges therein as it owns under its deed or deeds by which it holds title,
and only insofar as it has the legal right to grant. The Lessor does hereby
grant unto the Lessee the right to enter in, upon, and under said lands and
erect or place thereon such buildings, houses, machinery, commissaries, plants,
and other structures, roads, ways, tram roads, air shafts, power lines,
substations, drains and drainways; and the right to operate the same therein or
thereunder to such extent as may be necessary or convenient for the mining,
excavating, removing and preparing said coal for marketing. Lessee is also
granted the right and privilege of dumping slate and refuse and draining water
upon said land when necessary or convenient for the mining and removal of said
coal. And Lessee is granted the right of ingress, egress, and regress over and
through said lands for mining purposes as may be necessary and insofar as Lessor
has the right to grant said privileges by the deeds under which it holds title.
However, where timber is located on fee or surface lands belonging to Lessor,
there is excepted herefrom all of such timber of all sizes of the following
species, to wit: walnut, poplar, cucumber, ash and linden. If any of the said
excepted timber interferes with the mining
operations of the Lessee, and the Lessor shall fail to remove such timber within
thirty (30) days after being requested in writing so to do, the Lessee shall
have the right to remove, destroy and/or use said timber without liability
therefor.
It is understood and agreed that all the rights and privileges granted
shall be construed as limited to such rights and privileges as the Lessor has
the lawful right to grant.
Lessor excepts and reserves from this lease all coal and mining rights
which may have been heretofore leased; and all seams of coal other than that
herein leased; and all other minerals and mineral rights together with the
exclusive right to mine, bore for, produce, store, manufacture, and market such
excepted coal, mineral and mineral rights; and the right to store and use water
from this leasehold for any of the purposes aforesaid; but water impounded by
Lessee shall not be subject to use by the Lessor under this exception. Lessor
also excepts and reserves the right to build, maintain, and operate roads, tram
ways, railroads, sidings, power lines, water and pipe lines and ways for any of
the purposes aforesaid. Provided, however, that the Lessee shall have and is
hereby granted the right to take and use such water, stone, clay, sand, gravel,
and slate on said lands as may reasonably be required in connection with its
operations hereunder. The Lessor further reserves the right to construct,
operate, and maintain, or to grant to another the right to construct, operate
and maintain on and over said tracts or parcels of land, railroads, roads, and
highways, telephone, telegraph, and electric lines, water lines, oil and gas
pipe lines, and other ways. Provided, further, that the rights herein reserved
shall be exercised with due respect for the requirements, convenience, and
safety of the operations of the Lessee hereunder, and interference with said
operations shall be avoided whenever practicable; and the Lessee shall not by
these reservations be construed to have waived any actual damage to the Lessee's
improvements or operations resulting from the exercise of the rights herein
reserved.
The Lessor agrees upon request of Lessee to grant such additional rights
as it may have, not otherwise herein granted, to easements and rights of way
over the said tracts or parcels of land as may be necessary, convenient or
useful to the Lessee in prosecution of its mining operations hereunder.
2
The Lessee covenants to and with the Lessor as follows, vis:
[1] To start work immediately and to develop and prosecute the mining of
the coal herein leased as rapidly as possible and insofar as market conditions,
labor supply, and other like conditions permit.
[2] Lessee agrees and binds itself to pay Lessor as a basic tonnage
royalty, the sum of Two ($2.00) Dollars per ton for each and every ton of 2,000
pounds for all merchantable coal mined and/or shipped and sold from the lease
boundary; but during the first five years of the lease term, when the average
gross sales price of the coal produced and sold therefrom amounts to the sum of
$25.00 per ton or more, the actual royalty per ton shall be Eight (8%) per cent
of the average gross sales price of such coal per ton, whether sold separately
or in an admixture with other coal; and for the next succeeding five years of
the lease term, the actual royalty shall be Two ($2.00) Dollars per ton or Nine
(9%) per cent of the gross sales price per ton, whichever is greater; and
thereafter during the lease term, the actual royalty shall be Two ($2.00)
Dollars per ton or Ten (10%) per cent of the gross sales price, whichever is
greater.
The term "gross sales price" as used herein means the sale price to the
ultimate consumer F.O.B. at the shipping point after final preparation and
loading and without any deduction of commission or selling expenses. However,
coal sold for export, transshipment by lake or to independent coal yards, or
under comparable conditions, shall be considered as sold to the ultimate
consumer.
The basic tonnage royalty and any additional royalty above the basic
tonnage royalty will be calculated at the end of the each month based upon the
current gross sales price per ton and paid to Lessor not later than the 25th day
of the succeeding month. However, at the end of each calendar year, a
recalculation shall be made of the royalties payable hereunder based upon the
average gross sales price for the immediately preceding calendar year, and
should recalculation show an overpayment by Lessee, the Lessor will credit
Lessee with such overpayment; and should it show a deficit, Lessee will promptly
pay such deficit.
The Lessee on or before the 15th day of each calendar month shall furnish
to the Lessor a report, on forms approved by the Lessor, showing the quantity of
coal mined from the leasehold and the sale price thereof during the preceding
calendar month, using the weights at the tipple or loading point furnished by
the railroad over whose railroad the coal is shipped, for all coal shipped
direct from mine to purchaser; and if coal shall be taken and not shipped by
rail
3
direct from mine to purchaser, the quantity thereof shall be ascertained in a
manner satisfactory to Lessor. The Lessee shall comply with any further
reasonable rules and regulations that may be prescribed by Lessor for the
correct ascertainment and report of the quantity of coal mined hereunder and the
sale price received therefor; and the Lessor, its officers, accountants, and
authorized employees shall have free access at all reasonable times to the books
and records of the Lessee to check the tonnage shipped and sold, the sale price
of the coal, and the amount received therefor, for the purpose of making
calculations of the amount of royalty due it under the terms of this lease or
for other lawful and relevant purposes in connection herewith.
[3] Lessee further covenants that it will during the year 1983, mine from
the lease premises at least 150,000 tons of coal, and that it will during the
year 1984, mine from the lease premises at least 400,000 tons of coal; and that
it will during each and every calendar year thereafter mine from the lease
premises at least 600,000 tons of coal until said coal is exhausted; and if the
Lessee fails to mine said minimum tonnage herein required in any one year, then
it shall pay to the Lessor as a rental an amount equal to the difference between
the actual royalty on the tonnage actually mined and paid for and the aforesaid
minimum tonnage required herein to be mined. The Lessee shall pay the royalty on
any minimum deficit on or before the 25th day of January following the year
during which such deficit occurred; and the amount of royalty due on such
deficit shall be calculated on the same basis as the royalty for the coal mined
and sold during the period such deficit accrued; or if none was mined and sold
during said period, the calculation shall be on the basis of the prevailing
market price during the year such deficit accrued, but in no event shall such
minimum royalty be less than the basic tonnage royalty hereinabove set out.
However, should Lessee fail in any year to mine tonnage sufficient to pay
the minimum rental, then it shall and does have the right in any one of the
immediately succeeding next five years during the life of this lease, and after
the required minimum tonnage for such succeeding year or years shall have been
mined and paid for, to mine and remove sufficient coal free of rental or royalty
to reimburse itself for the minimum rental in excess of actual royalty paid in
any such preceding year or years; but in no event shall any credit be carried
forward to any subsequent year for any coal mined in excess of the required
minimum during any given year.
4
At any time after the mineable and merchantable coal remaining in the
leasehold shall have been reduced to 1,000,000 tons, based upon the joint
estimate of Lessor and Lessee, the Lessee may elect to pay for such coal at the
rate provided hereinabove for tonnage royalty, and to either abandon such
remaining coal or mine and remove the same free from any further payments of
royalty. Provided, however, that Lessee's subsequent mining operations shall be
designed and prosecuted in such manner and degree as will achieve the maximum
rate of production and earliest total recovery.
[4] It is further mutually agreed between the parties hereto that in the
event of unavoidable delays in the operations of the Lessee due to strikes,
accidents, or other causes not within the control of Lessee, the Lessee shall be
released from an equitable portion of the required minimum annual production
provided by Article [3] above; but it must be shown by the Lessee that such
causes are in good faith and beyond its control; and provided further, that no
reduction of the minimum production shall be made under this article unless the
operations of the mines shall be suspended for a period of sixty (60)
consecutive days, and in no event will any suspension continue for a period of
time longer than one year.
[5] The Lessee agrees to pay all taxes, assessments, and governmental
charges that may be levied or assessed against the property, property rights,
and privileges hereby leased and let, or against the Lessor as owner thereof;
and to pay all taxes on all equipment, improvements, or betterments erected or
placed thereon by the Lessee, and upon all coal mined or produced hereunder; and
in the event any such taxes, assessments, or governmental charges payable by the
Lessee are paid by the Lessor, which it may do, the same shall be promptly paid
to it by the Lessee. The Lessee agrees to pay all taxes or assessments that may
be levied or assessed by the United States of America, the State of Kentucky, or
any county or taxing district upon the production or output of coal produced
from the leased premises, or based thereon, whether levied or assessed against
the Lessor or Lessee. All such taxes, assessments, and governmental charges,
general or special, shall be paid promptly by the Lessee as the same become due
and payable, and the Lessee covenants that it will exhibit to the Lessor at any
time upon request, legal evidence of the payment of all such taxes, assessments,
and governmental charges. The Lessor shall pay all income taxes levied or
assessed against it by any taxing power vested with the authority to levy same.
5
[6] The Lessee agrees to mine all the mineable and merchantable coal
covered by this lease according to efficient and modern methods of mining and
according to general mining plans approved by Lessor in advance as hereinafter
provided, complying in every respect with with the laws, rules, and regulations
now existing or that may hereafter be adopted by the State of Kentucky or the
United States of America or any agency thereof regulating the working of mines
or appertaining in any manner thereto.
[7] The Lessee agrees to employ an experienced and competent mining
engineer with necessary assistants, whose duties it shall be to make accurate
transit surveys, prepare the plans for mining, give direction and courses for
all entries, airways, rooms, and other mine workings; extent and location of all
strip pits, highwall or face of coal, in the event surface mining is permitted
hereunder, determine elevations sufficient for the study and promotion of good
drainage and prepare and keep upon a scale of one hundred feet to the inch or
upon such scale as may be at the time required by the laws of the State of
Kentucky and/or the United States of America, a map which shall be posted
semi-annually and at such other times as may be requested by Lessor, which shall
show accurately and completely all leasehold boundaries and property lines, haul
roads, highways, railroad tracks, and rights of way, streams, improvements, oil
and gas ▇▇▇▇▇ and pipe lines, mine workings, elevations, thickness of seam of
coal, as the same is mined, and such additional information as may reasonably be
required by Lessor, a copy of which shall be furnished to Lessor on or before
the 20th day of January and July of each year, and at such other times as may be
requested by Lessor, properly posted in accordance herewith, for the semi-annual
period ending on the last day of December and June of each year.
[8] The Lessee agrees that the Lessor, its agents, engineers, or other
authorized persons in its behalf, with their assistants, shall have the right at
all reasonable times to enter upon the leasehold and the mines and works
connected therewith, including the tipple, cleaning plant or other loading
facilities, whether on or off said property, in order to inspect, examine,
survey or measure the same or any part thereof, or for any other lawful
purposes, and for said purposes to use freely any of the means of access thereto
without hindrance or molestation.
[9] The Lessee agrees that if at any time the Lessee does not conduct its
mining operations according to the general plans provided for hereinafter, or
according to modern and efficient methods of mining, and loss of coal shall
thereby result, then Lessee shall
6
pay Lessor for coal so lost at the rate of royalty provided for herein as though
said coal had been actually mined and sold. And in case of Lessee's failure to
conduct its operations in accordance with the terms hereof, the Lessor may give
the Lessee notice in writing stating wherein and in what particular Lessee is
not complying with the requirements of this paragraph; and Lessee shall have ten
(10) days after said notice within which to remedy or diligently begin to
prosecute the work of remedying the default or condition complained of; and if
still in default at the end of such period, it shall be grounds for cancellation
of this lease.
[10] The Lessee agrees that it will not mortgage, encumber, assign,
convey, lease, underlet, sublease, transfer, or set over by any agreement or
contract whatever, any of its estate, interests, or rights hereunder, or any
part thereof, or the improvements made or placed upon the said leasehold, or any
part of said improvements, to any person or persons whomsoever, or any
corporation whatsoever, without the written consent of the Lessor for that
purpose being first had and obtained.
[11] The Lessee covenants that it will not haul, transport, into, over,
through, or under said tracts or parcels of land, or ship therefrom, any coal or
products thereof not mined by the Lessee hereunder, nor use any improvements or
equipment or any tracks or haulways or other appurtenances of said leasehold in
the mining, processing or shipping of coal from other lands without the written
consent of the Lessor for that purpose being first had and obtained.
[12] The Lessee agrees that its operations hereunder shall be so conducted
as not to violate the legal rights of any person, firm or corporation
whomsoever, or laws, rules, regulations, or rights of any governmental body or
agency whatsoever; and in the event there shall arise at any time whensoever,
any claims for damages or any other lawful claim of any kind whatsoever, growing
out of or arising from Lessee's operations under this lease or by virtue of
anything done in pursuance of the terms thereof; and any such claim or claims
shall be asserted against the Lessor, either jointly with the Lessee or
severally, the Lessee agrees and binds itself, at its own cost and expense to
defend any and all such claims and to save Lessor harmless in all respects from
any liability by reason thereof. Provided, however, that in any such event, the
Lessor may employ its own counsel to represent it and to make any defense it may
have, either jointly or severally, to any such claim or claims.
[13] The Lessee agrees to observe and perform all conditions, limitations,
and covenants affecting the mining of the coal herein leased contained in any of
the instruments
7
under which Lessor holds title and to save the Lessor harmless from the breach
of any such conditions, limitations and covenants.
[14] The Lessee agrees to work and mine the coal herein leased in
accordance with general plans of mining and descriptions thereof, which shall in
advance of development be prepared by Lessee's engineer upon a map showing the
proposed plans and which shall be submitted by the Lessee to the Lessor and
shall be subject to the approval of Lessor. Such approval shall be given in
writing within fifteen (15) days after the plans are submitted, or disapproved
within that time. If the plans are disapproved upon substantial reasons, such
disapproval shall be final.
[15] The royalties, rentals, and other payments herein agreed to be paid
shall be deemed and treated as rents reserved upon contract by the Lessor, which
reserves to itself all rights and remedies of land owners under all present and
future laws of the State of Kentucky for the collection thereof; and if any of
the royalties, rentals, or other payments shall remain unpaid for sixty (60)
days after the same shall become due and payable, as herein provided, and thirty
(30) days after notice of such default has been given to the Lessee in writing,
the Lessor shall have the right to enforce the payment thereof by remedies given
by law to landlords against delinquent tenants for nonpayment of rent; and not
only shall the personal property of Lessee on the leased premises and that used
in connection with the mining and shipping of coal therefrom, whether on or off
the leased premises, be subject to distress as contemplated and directed by law;
but the Lessor may also enter upon the leasehold and sell the same, or any part
thereof, or of the improvements used in connection with the mining and shipping
of coal therefrom, the Lessor shall have the right to become the purchaser
thereof free from any and all claims of the Lessee.
[16] Lessee agrees that the Lessor shall, and does hereby have as
additional security for the performance of all of the terms of this lease, a
further lien upon all the improvements and personal property made or placed by
the Lessee on said leasehold, and upon all property and equipment used in the
mining, transporting, cleaning and shipping of the coal mined hereunder, whether
located on or off the leasehold. Said lien is in addition to all other statutory
liens and is given as further security for the payment of the royalties,
rentals, and other payments herein provided, and for the performance of each and
all of the covenants in this lease contained upon the part of the Lessee to be
observed, kept, and performed.
8
[17] All the provisions contained herein for the collection of royalty,
rentals, or other payments or for the enforcement or protection of the rights of
Lessor shall be deemed cumulative and not exclusive, and shall not deprive the
Lessor of the benefit of any other legal, statutory, or equitable remedies, or
other remedies in this lease provided.
[18] Lessee agrees that all coal mined from this leasehold shall be
processed over and through and shipped from a tipple or tipples or preparation
plant or loading facilities located on the leasehold or other land owned by the
Lessor and that no part of said coal will be shipped from any other point or
processed over any other tipple or facilities without the written consent of the
Lessor for that purpose being first had and obtained. This provision shall not
apply to the coal herein which is located in ▇▇▇▇▇▇ County.
[19] The Lessee agrees that all the preceding terms, conditions,
covenants, and agreements to be observed and performed by it, and the covenant
to observe and perform the same, shall inure to the benefit of the Lessor, its
successors and assigns; and the Lessor, its successors or assigns, may by proper
action at law or suit in equity, re-entry, distress, or other proper proceeding,
enforce any and all of said terms, conditions, covenants, stipulations and
agreements; and the covenants of the Lessee to observe and perform the same.
[20] In case the Lessee shall fail in the observance or performance of any
of the terms, conditions, covenants, stipulations, or agreements herein
contained, and any such failure shall continue for a period of sixty (60) days
after the Lessor shall have given notice of such default to the Lessee, then in
that event, at the election of the Lessor, the term and leasehold interests
created hereby and all the rights and privileges of the Lessee hereunder shall
forthwith cease and determine; and this lease shall be forfeited, and the Lessor
shall be entitled to re-enter and take possession of the property, rights, and
privileges hereby leased and let, and all improvements and personal property
thereon and to exclude the Lessee therefrom, and to hold all of the same free
from claims of Lessee, anything herein contained to the contrary
notwithstanding. This provision shall be in addition to any other legal or
equitable remedy for the enforcement of the terms hereof.
[21] The Lessee agrees that if at any time it should be placed into
voluntary or involuntary bankruptcy, or receivership, or permit or suffer any
assignment for the benefit of creditors, this lease shall immediately become
henceforth null and void and cancelled; and the Lessor may at its option,
declare this lease and all the equipment, improvements, and personal
9
property thereon forfeited to the Lessor; and the Lessor shall have the right to
take possession of said leasehold, mining plant, equipment, and personal
property thereon and to exclude the Lessee, its receiver or trustee therefrom
without cost or liability to the Lessor.
[22] A waiver by the Lessor of any particular default or cause of
forfeiture shall not prevent the forfeiture or cancellation of this lease for
any other cause of forfeiture or for the same cause occurring at any subsequent
time. Nor shall the waiver of any breach of any covenant herein contained
constitute a waiver of any other breach or of the same breach occurring at a
subsequent time.
[23] Lessee agrees that if in the prosecution of its mining operations
hereunder, it encounters or leaves unmined, as unmineable and unmerchantable
coal, any part or portion of the coal covered hereby (it being understood that
such coal can only be left as unmineable and unmerchantable with the consent of
the Lessor, or after it has been determined as a matter of fact to be unmineable
and unmerchantable) and the workings of the Lessee hereunder have advanced to
the point where it is no longer practicable to mine such coal from its
underground workings, and to the point where such removal of such coal will not
injure or damage Lessee's mine workings, then in that event, Lessor at its
election, may declare such coal so left as no longer being a part of the
leasehold and may mine and remove such coal or lease the same to another for the
purpose of mining and removing the same as though it had not been included in
this lease in the first instance.
By the term "mineable and merchantable" coal as used in this lease is
meant, coal which when reached in the prosecution of Lessee's operations
hereunder could with sound business management be mined at a profit by the use
of machinery and methods which at the time are modern and efficient.
[24] The Lessee agrees that at any termination of this lease, other than
by forfeiture, and provided Lessee is not in default hereunder, all or any part
of the mining machinery, equipment, plant and improvements, not including
miners' houses and permanent buildings, made and placed by the Lessee on the
leasehold and all or any part of the surface or surface rights overlying any
part of the leasehold acquired by Lessee for use in its operations hereunder,
shall, if requested by Lessor, be valued by three disinterested persons, one to
be chosen by the Lessor, one to be chosen by the Lessee, and these two shall
choose a third, and the three thus chosen, or a majority of them, shall appraise
and value the said property (other than
10
miners' houses and permanent buildings); and the Lessor may, in the case of such
appraisal, purchase said property at such valuation within thirty (30) days
after the notice thereof. If the Lessor shall not request such appraisal and
valuation, or in the event thereof, fails to purchase said property, then the
Lessee shall have the privilege of removing such of said property, not including
miners' houses and permanent buildings,as may be removed from said lands within
six (6) months from the date of termination of this lease. Upon the termination
of this lease, as contemplated in this article, the miners' houses and permanent
buildings, as well as the other improvements that are not removed within six (6)
months from the date of termination of this lease, shall become the property of
the Lessor free of any cost therefor.
[25] The Lessor warrants specially the title to the property rights and
privileges hereby leased and let unto the Lessee and not otherwise. Provided,
however, if the title of the Lessor to any of the mineable and merchantable
coal, the right to mine and remove which is hereby leased and let, shall be
defeated by the holder of an outstanding superior title, by reason whereof any
of the mineable and merchantable coal is lost to the Lessee; and the same is so
adjudged by a court of last resort in the State of Kentucky or of the United
States, then in that event no royalty shall be paid to the Lessor by Lessee on
account of the coal so lost; and if royalty on the coal so lost to the holder of
such outstanding superior title has been actually paid by the Lessee, the Lessor
shall repay to the Lessee such royalty together with interest at six (6%) per
cent per annum from such final adjudication until paid; and no additional
recovery shall be had against the Lessor by reason thereof. In the event the
coal so lost is purchased by the Lessor, which it may do, the same shall
forthwith become a part of the leasehold as though included herein by perfect
title in the first instance.
[26] All suits against the Lessor affecting the title to the property
herein leased and let and all suits against the Lessee affecting such title
(when the Lessor shall be notified by the Lessee) shall be defended by, and at
the exclusive cost of the Lessor, but the Lessee may on its own account and at
its own expense, have associate counsel in any and all litigation. All suits
affecting the exercise of the mining rights covered by Lessor's titles shall be
defended by the Lessee at its own cost and expense, but the Lessor shall supply
such information as it may have and assist generally in such defense.
11
[27] The Lessee shall not purchase, lease, or otherwise acquire any coal
or lands or interests in lands within the boundaries of or adjacent to the lands
herein described without the consent of the Lessor in writing for that purpose
being first had and obtained.
[28] The giving of any notice or the making of any demand on the Lessee
under the provisions hereof, shall be sufficient if in writing addressed to the
Lessee at its office at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and forwarded by registered or certified
mail, and like notice upon the Lessor shall be in writing addressed to it at its
office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Unless a longer period is specifically
herein required, ten (10) days shall be considered reasonable notice or demand.
In case of change of office of either party hereto, the one so changing shall
give notice thereof and designate the address to which it desires notices to be
sent; and in the absence of such notice, notice or demand executed in accordance
with this section and given to the addresses herein designated, shall be deemed
sufficient.
[29] The term "Lessee" as used herein shall include each and all of the
parties of the second part herein, jointly and severally.
[30] All the terms, conditions, covenants, stipulations, and agreements to
be performed and observed by the parties hereto shall be binding upon and inure
to the benefit of the said parties and their successors and assigns; and their
lawful successors or assigns may enforce any or all of said terms, conditions,
covenants, stipulations, and agreements.
[31] It is understood and agreed that the Lessor does not warrant either
the quantity or quality of the coal covered hereby.
[32] The description of the property herein leased and let is contained in
the schedule or schedules attached hereto and which are hereby referred to and
made a part of this lease as though set out verbatim herein. Said schedule or
schedules shall be signed by the parties upon the execution hereof, and when so
authenticated, any conflict between the typed statements in this lease and those
contained in said schedule or schedules shall be construed in favor of the
latter.
12
IN WITNESS WHEREOF, the parties hereto have hereunto subscribed their
names the day and date first hereinabove written.
ATTEST: KENTUCKY RIVER COAL CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------- ---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Secretary ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, President and Chairman
of the Board
ATTEST: SHAMROCK COAL COMPANY
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------- ---------------------------------------
13
STATE OF KENTUCKY )
: SCT.
COUNTY OF FAYETTE )
I, ___________, a Notary Public in and for the county and state aforesaid,
hereby certify that the foregoing Lease Agreement between KENTUCKY RIVER COAL
CORPORATION and SHAMROCK COAL COMPANY was this day produced to me in my county
aforesaid and duly acknowledged before me by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be
the President and Chairman of the Board of Kentucky River Coal Corporation, to
be the act and deed of Kentucky River Coal Corporation and of himself as
President and Chairman of the Board thereof; also that the same was duly
attested before me by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, known to me to be the Secretary of
Kentucky River Coal Corporation.
Witness my hand this 30th day of June, 1982.
My commission expires: May 25, ____
--------------------------------------
NOTARY PUBLIC
STATE OF KENTUCKY )
: SCT.
COUNTY OF FAYETTE )
I, ▇▇▇▇▇ ▇. Difon, a Notary Public in and for the county and state
aforesaid, hereby certify that the foregoing Lease Agreement between KENTUCKY
RIVER COAL CORPORATION and SHAMROCK COAL COMPANY was this day produced to me in
my county aforesaid and duly acknowledged before me by ▇▇▇▇▇▇▇ ▇▇▇▇▇ known to me
to be the President of Shamrock Coal Company to be the act and deed of said
Shamrock Coal Company and of himself as President thereof; also that the same
was duly attested before me by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ known to me to be the
Assistant Secretary of said Shamrock Coal Company.
Witness my hand this 30th day of June, 1982.
My commission expires: April 24, 1984 .
/s/ ▇▇▇▇▇ ▇. Difon
--------------------------------------
NOTARY PUBLIC
14
AGREEMENT OF ASSIGNMENT
THIS AGREEMENT OF ASSIGNMENT is made and entered into as of the 8 day of
July, 1992, by and between SHAMROCK COAL COMPANY, INCORPORATED, a Delaware
corporation with its principal place of business in Manchester, Kentucky
("Assignor") and RAY COAL COMPANY, INC., a Kentucky corporation with its
principal place of business in Hazard, Kentucky ("Assignee").
R E C I T A L S
WHEREAS, Assignor, as successor by merger to Shamrock Coal Company,
Incorporated, a Tennessee corporation, is the lessee of a Lease Agreement, dated
June 30, 1982, as amended and supplemented (the "Lease"), in which Kentucky
River Coal Corporation (the "Lessor") is the Lessor; and
WHEREAS, Assignor is desirous of assigning its right, title and interest
in the Lease to Assignee and Assignee is willing to accept such an assignment
and the obligations contained in the Lease, all under the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises which are incorporated
herein as part of this Agreement, and subject to the terms, conditions,
covenants and agreements hereinafter set forth, it is hereby stipulated,
contracted and agreed as follows:
1. The Assignor assigns its right, title and interest under the Lease,
a copy of which is annexed hereto as Exhibit A, to Assignee and the Assignee
accepts the assignment of the Lease and the obligations contained therein and
agrees that its operations shall not violate the terms of the Lease.
2. The right to recoup minimum royalties paid by Assignor shall pass to
Assignee and shall be recouped within the time periods specified in the Lease
after Assignee has mined the minimum tonnage required in the year of recoupment.
3. In order to secure the consent of the Lessor to this Assignment,
Assignor and Assignee agree to execute the Agreement and Consent, of even date
herewith, by and among Lessor, Assignor and Assignee in the form required by
Lessor.
IN WITNESS WHEREOF, the parties have caused this Agreement of Assignment
to be executed by their duly authorized representatives as of the day and year
first above written.
SHAMROCK COAL COMPANY, INCORPORATED
("ASSIGNOR")
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Its: President
ATTEST
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------------
Its: Asst. Sec./Asst. Treas.
RAY COAL COMPANY, INC.
("ASSIGNEE")
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------
Its: President
ATTEST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Its: Asst. Secretary/Asst. Treasurer
STATE OF KENTUCKY )
Sct.
COUNTY OF CLAY )
I, the undersigned, a notary public in and for the county and state
aforesaid do hereby certify that the foregoing Agreement of Assignment between
SHAMROCK COAL COMPANY, INCORPORATED and RAY COAL COMPANY, INC., was produced,
acknowledged and delivered before me by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, known to me to be
the President of SHAMROCK COAL COMPANY, INCORPORATED, to be the act and deed of
said SHAMROCK COAL COMPANY, INCORPORATED, and of himself as President, thereof;
also that same was duly attested before me by ▇▇▇▇ ▇. ▇▇▇▇▇▇ known to me to be
the Assistant Secretary of said SHAMROCK COAL COMPANY, INCORPORATED.
Given under my hand this 8th day of July, 1992.
My commission expires: 10-16-93.
/s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
----------------------------------
Notary Public
STATE OF KENTUCKY )
Sct.
COUNTY OF PERRY )
I, the undersigned, a notary public in and for the county and state
aforesaid do hereby certify that the foregoing Agreement of Assignment between
SHAMROCK COAL COMPANY, INCORPORATED and RAY COAL COMPANY, INC., was produced,
acknowledged and delivered before me by J. ▇▇▇▇▇▇▇ ▇▇▇▇▇, known to me to be the
President of RAY COAL COMPANY, INC. to be the act and deed of said RAY COAL
COMPANY, INC., and of himself as President, thereof; also that same was duly
attested before me by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ known to me to be the Assistant Secretary
of said RAY COAL COMPANY, INC.
Given under my hand this 31st day of July, 1992.
My commission expires: 12/10/93.
/s/ ▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Notary Public
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Agreement and Assumption Agreement (this "Agreement") made and
entered into as of the 30 day of June, 1994, by and among Ray Coal Company, Inc.
and ▇▇▇▇▇▇▇▇ Coal Corporation (collectively "Assignors") and ▇▇▇▇▇-▇▇▇▇▇ Co.,
Inc. ("Assignee").
W I T N E S S E T H
WHEREAS, the parties hereto have entered into a Purchase and Sale
Agreement dated as of June 28, 1994 wherein the Assignors agreed to assign to
the Assignee certain leases, subleases, surface consents and right-of-way, and;
WHEREAS, in that Purchase and Sale Agreement, the parties agreed upon the
terms under which such assignment would be made, including the allocation of
certain liabilities and the providing of certain indemnifications, and;
WHEREAS, the Assignors desire to assign each of the leases, subleases,
surface consents, easements and rights-of-way referenced by that Purchase and
Sale Agreement.
NOW THEREFORE, in consideration of the mutual agreements and covenants
contained herein and in further consideration of the payments and mutual
agreements and covenants contained in the Purchase and Sale Agreement among
these same parties dated June 28, 1994, the parties agree as follows:
(1) The Assignors hereby assign, transfer and convey to the
Assignee, effective as of the date of this Agreement, all of
their respective rights, title, interest and estate in, under
and to each of the leases and subleases referred to in
Schedule 2.1(a)(I) of the Purchase and Sale Agreement which
Schedule is attached hereto as Exhibit A.
(2) The Assignors hereby assigns, transfer and convey to the
Assignee, effective as of the date of this Agreement, all of
their respective rights, title, interest and estate in, under
and to each of the surface consents, easements and
rights-of-way listed on Schedule 2.1(a)(III) of the Purchase
and Sale Agreement, which Schedule is attached hereto as
Exhibit B.
(3) The Assignee hereby accepts the assignment of each of these
leases, subleases, surface consents, easements of
rights-of-way from the Assignors, and assumes all of the
Assignors' respective duties, obligations and liabilities
under each of them in accordance with the terms and conditions
of the Purchase and Sale Agreement.
(4) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Kentucky.
(5) This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors
and assigns.
(6) The invalidity or unenforceability of any one or more of the
provisions of this Agreement shall not impair or affect the
validity and enforceability of all of the other provisions of
this Agreement.
RAY COAL COMPANY, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
▇▇▇▇▇▇▇▇ COAL CORPORATION
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
▇▇▇▇▇-▇▇▇▇▇, CO., INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Title: President
STATE OF KENTUCKY )
)
COUNTY OF PERRY )
Acknowledged before me by /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇ as President of Ray Coal
Corporation on this the 30th day of June, 1994.
MY COMMISSION EXPIRES: 12/13/97
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
NOTARY PUBLIC
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEASES AND SUBLEASES
(The Lease and Tract numbers indicated below are assigned by Sellers' numbering
system)
LEASE NO. 8002. Assignment of Lease, dated December 14, 1990, by and
between Kem Coal Company, as "Assignor," and ▇▇▇▇▇▇▇▇ Coal Corporation, as
"Assignee" assigning to Assignee a certain Surface Agreement, dated
January 26, 1987. Memorandum of Assignment of Lease was recorded on March
20, 1991, in Lease Book 40, Page 141, in the property records of Perry
County, Kentucky.
LEASE NO. 8004. Series of Leases covered by: (a) Memorandum of Assignment
of Leases, dated December 14, 1990, by and between Kem Coal Company, as
"Assignor," and Ray Coal Company, as "Assignee," recorded on March 20,
1991, in Lease Book 40, Page 118, in the property records of Perry County,
Kentucky, and (b) Memorandum of Assignment of Leases, dated December 14,
1990, by and between Leeco, Inc., as "Assignor," and Ray Coal Company, as
"Assignee," recorded on March 20, 1991, in Lease Book 40, Page 135, in the
property records of Perry County, Kentucky.
LEASE NO. 8006. Series of Leases covered by: (a) Memorandum of Assignment
of Leases, dated December 14, 1990, by and between Kem Coal Company, as
"Assignor," and Ray Coal Company, as "Assignee," assigning rights in: (i)
that certain Lease Agreement by and between ▇▇▇▇ ▇▇▇▇▇, et al., as
"Lessors," and Kem Coal Company as Lessee, and a memorandum of which is
recorded in Lease Book 36, Page 405, in the property records of Perry
County, Kentucky, and (ii) that certain Lease Agreement by and between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, and her husband ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, as "Lessors,"
and Kem Coal Company as Lessee, and a memorandum of which is recorded in
Lease Book 35, Page 228, in the property records of Perry County,
Kentucky; and (b) Memorandum of Assignment of Leases, dated December 14,
1990, by and between Leeco, Inc., as "Assignor," and Ray Coal Company, as
"Assignee," recorded on March 20, 1991, in Lease Book 40, Page 135, in the
property records of Perry County, Kentucky.
LEASE NO. 8008. Leases covered by: (a) Memorandum of Assignment of Leases,
dated December 14, 1990, by and between Kem Coal Company as "Assignor,"
and Ray Coal Company, as "Assignee," recorded in Lease Book 40, Page 123
in the property records of Perry County, Kentucky. The Assignment of
Leases assigns Kem Coal's rights in the following to Ray Coal: (1) that
certain Lease Agreement by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et ux., as
"Lessors," and Kem Coal Company as Lessee, including that certain Addendum
Agreement dated September 14, 1981, and including that certain Second
Addendum Agreement, and being more particularly described by deeds of
record in Deed Book 116, Page 150 and Deed Book 108, Page 238, in the
property records of Perry County, Kentucky, and (ii) that certain Lease
Agreement by and between ▇▇▇▇▇ ▇▇▇▇▇▇▇, et al., as "Lessors," and Kem Coal
Company as Lessee, dated February 27, 1980, and covering that certain
tract or tracts of land lying and being on Cat Hollow of Troublesome
Creek, Perry County, Kentucky, comprising 50 acres, more or less, and
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEASES AND SUBLEASES (Continued)
including that certain Addendum Agreement dated September 4, 1981, and
that certain Second Addendum Agreement, dated August 25, 1989.
LEASE NO. 8010:
[Surface] Lease, dated February 17, 1989, by and between ▇▇▇▇▇▇ ▇▇▇▇▇, as
"Lessor," and Shamrock Coal Company, as "Lessee," leasing the surface
estate of a certain tract described by "Exhibit A" to this Lease. Shamrock
Coal Company has assigned all of its rights and obligations under this
Lease to ▇▇▇▇▇▇▇▇ Coal Corporation, pursuant to an Assignment of Leases,
dated April 7, 1994; and
[Mineral] Lease, dated February 17, 1989, by and between ▇▇▇▇▇▇ ▇▇▇▇▇, as
"Lessor," and Shamrock Coal Company, as "Lessee," leasing the real
property and all of the merchantable and mineable coal in, on and under
the tract of land described in Deed Book 100, Page ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇'▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except the Hazard No. 7 coal seam, which
is owned by Kentucky River Coal Corporation. Shamrock Coal Company has
assigned all of its rights and obligations under this Lease to ▇▇▇▇▇▇▇▇
Coal Corporation, pursuant to an Assignment of Leases, dated April 7,
1994.
LEASE NO. 8012. Agreement of Lease [mineral and tipple lease], dated June
30, 1982, by and between Kentucky River Coal Corporation, as "Lessor," and
Shamrock Coal Company, as "Lessee." This Lease Agreement has been amended
and supplemented by: (i) a Supplemental Lease Agreement between the
parties, dated June 17, 1986; (ii) an Assignment and Consent, dated
December 14, 1990, by and among Kentucky River Coal Corporation, ▇▇▇▇▇▇▇
Coal Leasing Company, Inc., and Shamrock Coal Company, pursuant to which
Shamrock assigned a portion of its Lease to ▇▇▇▇▇▇▇, with Kentucky River's
consent; (iii) an Agreement and Consent, dated June 29, 1992, by and among
Kentucky River Coal Corporation, Ray Coal Company, Inc., and Shamrock Coal
Company, pursuant to which Shamrock assigned the remainder of its Lease to
Ray Coal, with Kentucky's River's consent; and (iv) miscellaneous letter
agreements.
LEASE NO. 8014. Lease, dated March 22, 1989, by and between ▇▇▇▇▇▇ ▇▇▇▇▇,
and his wife ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as "Lessors," and Shamrock Coal Company, as
"Lessee," leasing the surface estate of a certain tract of land lying and
being in Perry County, Kentucky and more particularly described in
"Exhibit A" to this Lease. This Lease has been amended by that certain
First Amendment of Coal Lease Agreement between the parties, dated March
19, 1992. Shamrock Coal Company has assigned all of its rights and
obligations under this Lease to ▇▇▇▇▇▇▇▇ Coal Corporation, pursuant to an
Assignment of Leases, dated April 7, 1994.
LEASE NO. 8015. Lease, dated May 16, 1989, by and between ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, et al., as "Lessors," and Shamrock Coal Company, as "Lessee,"
leasing the surface estate of a certain tract of land lying and being in
Perry County, Kentucky and more particularly described in "Exhibit A" to
this Lease. This Lease has been amended by that certain First Amendment of
Coal Lease Agreement between the parties, dated March 19, 1992.
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEASES AND SUBLEASES (Continued)
Shamrock Coal Company has assigned all of its rights and obligations under
this Lease to ▇▇▇▇▇▇▇▇ Coal Corporation, pursuant to an Assignment of
Leases, dated April 7, 1994.
LEASE NO. 8017. [Surface Lease] Contract, dated February 16, 1978, by and
between ▇. ▇. ▇▇▇▇▇▇, and her husband ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as lessors and
Tesoro Coal Company, as lessee, leasing the surface of a certain tract of
land on Upper Bad Creek which flows into Greasy Creek in ▇▇▇▇▇▇ County,
Kentucky, more particularly described by deed of conveyance from W. A.
▇▇▇▇▇▇ Comm. to ▇. ▇. ▇▇▇▇▇▇▇, dated February 27, 1911, and recorded in
deed Book 20, Page 69, in the property records of ▇▇▇▇▇▇ County, Kentucky.
Excluded from this property is the parcel sold to ▇. ▇. ▇▇▇▇▇ on March 25,
1918, pursuant to deed recorded in Deed Book 29, Page 569. Lessors derive
title from the Will of ▇.▇. ▇▇▇▇▇▇▇, and a deed of conveyance from ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, dated May 10, 1952, and recorded in the
▇▇▇▇▇▇ County (Kentucky) Court Clerk's Office Deed Book 53, Page 547. In
August, 1982, the lessors assigned this Contract to Shamrock Coal Company,
as successor in interest to Tesoro Coal Company. On May 12, 1994, Shamrock
assigned all of its right, title and interest to ▇▇▇▇▇▇▇▇.
LEASE NO. 8018. Lease, dated September 28, 1992, by and between Villis
▇▇▇▇▇ ▇▇▇▇▇, and his wife ▇▇▇▇▇▇▇ ▇▇▇▇▇, as "Lessors," and ▇▇▇▇▇▇▇▇ Coal
Corporation, as "Lessee," leasing all of the merchantable and mineable
coal and mining rights contained in, on or under those certain tracts of
land situated in Perry County, Kentucky, and more particularly described
by deed of conveyance between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, et ux., as grantors and
▇▇▇▇▇ ▇▇▇▇▇ as grantee, recorded in Deed Book 164, Page 410, dated July 1,
1971.
LEASE NO. 8022. Surface Lease Agreement, dated August 16, 1993, by and
among ▇▇▇▇ ▇▇▇▇▇ and her husband ▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
and her husband ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, collectively, the "Lessor" and ▇▇▇▇▇▇▇▇
Coal Corporation as "Lessee." Memorandum of Surface Lease Agreement,
pursuant to this Surface Lease Agreement was recorded on August 19, 1993,
in Lease Book 43, Page 45, in the property records of Perry County,
Kentucky.
LEASE NO. 8023. Surface Lease Agreement, dated October 14, 1993, by and
among Cyprus Southern Realty Corporation as "Grantor" and ▇▇▇▇▇▇▇▇ Coal
Corporation as "Grantee." Memorandum of Surface Lease Agreement, pursuant
to this Surface Lease Agreement was recorded on October 21, 1993, in Lease
Book 43, Page 329, in the property records of Perry County, Kentucky.
LEASE NO. 8025. Surface Lease Agreement, dated December 1, 1993, by and
among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, et al., collectively, as "Lessor" and ▇▇▇▇▇▇▇▇ Coal
Corporation as "Lessee." Memorandum of Surface Lease Agreement, pursuant
to this Surface Lease Agreement was recorded on March 10, 1994, in Lease
Book 43, Page 734, in the property records of Perry County, Kentucky.
SURFACE AGREEMENT. Surface Agreement, dated March 29, 1993, by and among
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and his wife ▇▇▇▇▇ ▇▇▇▇▇▇▇ (as "Grantors") and ▇▇▇▇▇▇▇▇
Coal Corporation (as "Grantee"). This agreement grants ▇▇▇▇▇▇▇▇ certain
surface mining and related rights
EXHIBIT A TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEASES AND SUBLEASES (Continued)
across a portion of the surface of that property more particularly
described by deed of record in Deed Book 164, Page 420, and a Boundary
Line Agreement and Quitclaim Deed in Deed Book 240, Page 329 in the Office
of the Perry County Clerk. This Surface Agreement was recorded on March
31, 1993, in Lease Book 42, Page 490, in the property records of Perry
County, Kentucky.
STATE OF KENTUCKY
COUNTY OF PERRY
I, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CLERK OF THE STATE AND COUNTY AFORESAID DO CERTIFY
THAT THE FOREGOING INSTRUMENT WAS LODGED FOR RECORD IN MY OFFICE AND IT THE
FOREGOING AND THIS MY CERTIFICATE HAVE BEEN DULY RECORDED IN MY OFFICE IN Lease
BOOK NO. 44 AT PAGE 292.
WITNESS THIS 29th DAY OF Sept 1994.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, CLERK
PERRY COUNTY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ D.C.
-------------------------
ASSIGNMENT OF REAL PROPERTY AGREEMENTS
This Assignment of Real Property Agreements (this "Agreement"), dated as
of September 30, 2004, is among ICG HAZARD, LLC, a Delaware limited liability
company, with an address of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the
"Buyer"), and ▇▇▇▇▇-▇▇▇▇▇ CO., INC. (SUCCESSOR-IN-INTEREST TO AND/OR f/k/a
AND/OR d/b/a ▇▇▇▇▇-▇▇▇▇▇ COMPANY, INC.), a Kentucky corporation, with an address
of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Seller").
RECITALS
A. This Agreement is being entered into to effect the transactions
contemplated by the Asset Purchase Agreement, dated May 13, 2004 as
amended and restated on June 2, 2004 (as the same may be hereafter amended
or supplemented, the "Purchase Agreement"), between the Buyer and Horizon
Natural Resources Company ("Parent") and certain of its subsidiaries
(collectively, the "Sellers"). Capitalized terms not otherwise defined
herein shall have the meanings given to such terms in the Purchase
Agreement.
B. The Seller is one of the Sellers, and is a party to the real
property agreements set forth on Schedule A hereto, which pertain to real
property located in Perry County, Kentucky (the "Real Property
Agreements").
C. The Seller desires to assign to the Buyer, and the Buyer desires
to assume, all of the Seller's right, title and interest in and to the
Real Property Agreements, pursuant to the terms of the Purchase Agreement.
D. The assignment of the Real Property Agreements covered hereby has
been approved by Order Pursuant to 11 U.S.C. Sections 105(A), 362, 363,
365, 1123 And 1146(C) and Fed. R. Bankr. P. 2002, 6004, 6006 and 9014: (A)
Approving Asset Purchase Agreements, (B) Authorizing Sale of Substantially
All Assets Free and Clear of All Liens, Claims, Interests and Other
Encumbrances, and (C) Authorizing Assumption and Assignment of Certain
Agreements, entered on September 16, 2004, by the United States Bankruptcy
Court for the Eastern District of Kentucky, Ashland Division, in the
Chapter 11 proceeding styled In Re: Horizon Natural Resources Company, et
al. (including Seller) (the "Sale Order," a ▇▇▇ of which is attached
hereto and made a part hereof as Exhibit 1), such proceedings being
jointly administered under Case No. 02-14261. Pursuant to the Sale Order
and Section 1146 of the U.S. Bankruptcy Code, the execution and delivery
of this instrument shall not be taxed under any law imposing a transfer
tax, stamp tax or similar tax.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment. The Seller hereby grants, assigns, transfers, conveys,
delivers and sets over unto the Buyer all of its right, title,
interest, duties and obligations in, to and under the Real Property
Agreements.
2. Assumption. The Buyer hereby assumes all of the Seller's right,
title, interest, duties and obligations in, to and under the Real
Property Agreements and agrees to be bound by all of the terms and
conditions of the Real Property Agreements and to pay, perform and
discharge when due, all duties and obligations of the Seller under
the Real Property Agreements, in each case, however, only to the
extent such obligations are Assumed Liabilities.
3. Conflict. This Agreement is subject to all the terms and conditions
of the Purchase Agreement and Sale Order. No provision of this
Agreement shall be deemed to enlarge, alter or amend the terms or
provisions of the Purchase Agreement or the Sale Order.
Notwithstanding anything to the contrary set forth herein, if there
is any conflict between the terms and conditions of this Agreement
and the terms and conditions of the Purchase Agreement and the Sale
Order, the terms and conditions of the Purchase Agreement and the
Sale Order shall control.
4. Governing Law. Except to the extent inconsistent with the United
States Bankruptcy Code, this Agreement shall be governed by and
construed according to the laws of the State of Delaware, without
regard to or application of its conflict of laws rules. The parties
to this Agreement agree that the Bankruptcy Court shall have
exclusive jurisdiction, and the parties hereby submit to such
jurisdiction, of any dispute arising under or related to this
Agreement.
5. Counterparts. This Agreement may be executed in one or more
counterparts (including by means of facsimile signature pages) and
all such counterparts taken together shall constitute one and the
same Agreement.
6. Severability. If any provision of this Agreement or its application
is invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of all other applications of that
provision, and of all other provisions and applications hereof, will
not in any way be affected or impaired. If any court shall determine
that any provision of this Agreement is in any way unenforceable,
such provision shall be reduced to whatever extent is necessary to
make such provision enforceable.
7. Entire Agreement. All prior negotiations and agreements by and among
the parties hereto with respect to the subject matter hereof are
superseded by this Agreement, the Purchase Agreement, the Sale Order
and the Related Agreements, and there are no representations,
warranties, understandings or agreements with respect to the subject
matter hereof other than those expressly set forth in this
Agreement, the Purchase Agreement, the Sale Order and the Related
Agreements.
8. Headings. Section headings are not to be considered part of this
Agreement, are solely for convenience of reference, and shall not
affect the meaning or interpretation of this Agreement or any
provision in it.
9. No Third-Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity other than the parties hereto
and their respective successors and permitted assigns.
10. Successors and Assigns. The terms of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
11. Further Assurances. Each party hereto agrees, upon the reasonable
request of the other party hereto, to make, execute and deliver any
and all documents or instruments of any kind or character, and to
perform all such other actions, that may be reasonably necessary or
proper (without the expenditure of funds) to effectuate, confirm,
perform or carry out the terms or provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement as of the date first set forth above.
BUYER: ICG HAZARD, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
SELLER: ▇▇▇▇▇-▇▇▇▇▇ CO., INC. (SUCCESSORS-IN-
INTEREST TO AND/OR f/k/a AND/OR d/b/a
▇▇▇▇▇-▇▇▇▇▇ COMPANY, INC.)
By: ▇▇▇▇▇ ▇▇▇▇▇▇
Name: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: President
STATE OF KENTUCKY
COUNTY OF GREENUP
The foregoing Assignment of Real Property Agreements was acknowledged
before me on October 8, 2004, by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as Secretary/Treasurer of
ICG Hazard, LLC, a Delaware limited liability company, for and on behalf of
company.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Notary Public, State at Large
My Commission Expires July 29, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
The foregoing Assignment of Real Property Agreements was acknowledged
before me on 9/30, 2004, by ▇▇▇▇▇ ▇▇▇▇▇▇, as President of ▇▇▇▇▇-▇▇▇▇▇ Co., Inc.
(successor-in-interest to and/or f/k/a and/or d/b/a ▇▇▇▇▇-▇▇▇▇▇ Company, Inc.),
for and on behalf of the company.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Notary Public, State at Large
My Commission Expires 11/24/05
THIS INSTRUMENT PREPARED BY:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE A
The real property agreements being assigned or otherwise transferred by
this instrument are those leases or instruments described in this Schedule A and
being recorded at the indicated book/volume and page numbers identified in the
charts in this Schedule A.
ICG-HZ-A-8
SCHEDULE A
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
---------- -------------- ----------- --------------- ----- --- ---------- ------ ------- -----
LA-193-017 Easement/Right ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ KY 10/19/1992 238 ▇▇
▇▇ ▇▇▇ (011) Noble (Heirs)
LA-193-010 Easement/Right ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ KY 10/19/1992 44 ▇▇▇
▇▇ ▇▇▇ (011) & Pearolee
LA-193-012 Intercompany ▇▇▇▇▇ ▇▇▇▇▇ Cyprus Southern Perry KY 10/14/1993 43 329
Agreement (011) Realty Corp.
300044 Assignment ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ Coal Perry KY 06/30/1994 44 292
(011) Company, Inc.
Et Al
LA-193-004 Easement/Right ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ KY 06/04/1993 241 ▇▇▇
▇▇ ▇▇▇ (011) ▇▇▇▇, Et Al
LA-193-009 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ KY 01/26/1987 40 141
(011) Augusta, Et Al
LA-193-013 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ , ▇▇▇▇▇ KY 03/04/1996 51 638
(011) ▇▇▇▇▇ ▇. &
▇▇▇▇▇ ▇.
LA-193-002 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ KY 08/17/1993 44 292
(011)
LA-193-025 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ KY 08/14/1998 51 633
(011) Cleatice
LA-193-042 Coal Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ KY 05/04/1999 48 94
(011) & ▇▇▇▇▇▇▇
LA-193-043 Coal Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ KY 05/04/1999 48 85
(011) & ▇▇▇▇▇▇▇, Et Al
LA-193-011 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, Et ▇▇▇▇▇ KY 08/16/1993 44 363
(011) Al
LA-193-003 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ KY 09/28/1992 42 1
(011) ▇▇▇▇▇ & Matilda
LA-193-016 Fee Lease ▇▇▇▇▇ ▇▇▇▇▇ Kentucky River Perry KY 06/30/1982 61, 51 561,736
(011) Coal
Corporation
(Job 44)
LA-193-018 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ KY 03/16/1998 46 479
(011) Omer
LA-193-007 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ KY 02/20/1995 44 504
(011) & ▇▇▇▇▇▇
LA-193-006 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ KY 11/24/1994 44 402
(011) ▇▇▇▇▇
LA-193-029 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ KY 10/13/1998 47 150
(011) Et Al
LA-193-037 Surface Lease ▇▇▇▇▇ ▇▇▇▇▇ Noble, ▇▇▇▇▇▇ ▇▇▇▇▇ KY 02/24/1999 51 697,629
(011) Ray & ▇▇▇▇▇▇
ICG-HZ-A-8c
SCHEDULE A
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
--------- ------------- ---------- ------------ --------- ---- ---------- -------- ------- ----
100022 Surface Lease Mountain Mountain Breathitt KY 07/01/1997 28, 51 614,663
Clay, Inc. Properties,
(018) Inc. (P Br.)
ICG-HZ-A-8d
SCHEDULE A
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
--------- ------------- ---------- ------------ --------- ---- ---------- -------- ------- ----
05-048 Surface Lease Mountain ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ KY 08/12/1983 54 246
Clay, Inc.
(018)
ICG-HZ-A-8e
SCHEDULE A
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
---------- ------------------ ----------- --------------- ------ ---- ---------- ------ --------- -----
03-003 Surface Lease Mountain Bowling, ▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 11/01/1985 37 225
Clay, Inc.
(018)
05-011 Surface Lease Mountain ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 11/28/1984 35 400
Clay, Inc. & ▇▇▇▇▇▇▇▇
(018)
05-015 Surface Lease Mountain ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ KY 10/31/1986 61 137
Clay, Inc. ▇▇▇▇▇▇ (Estate)
(018)
05-023 Surface Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 02/09/1997 52 62
Clay, Inc. & Easter, Et Al
(018)
05-022 Coal Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ KY 10/01/1977 61.63 555, 119
Clay, Inc. H. & ▇▇▇▇▇▇, Et
(018) Al
100050 Wheelage Agreement Mountain ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ KY 09/23/1996 51 672
Clay, Inc.
(018)
100054 Coal Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ KY 10/14/1996 51 666
Clay, Inc. Et Al
(018)
05-026 Coal Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ KY 07/14/1986 38 181
Clay, Inc. C. Et Al
(018)
200057 Fee Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 01/26/2001 60 201
Clay, Inc.
(018)
03-043 Fee Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 09/16/1994 51 474
Clay, Inc. Peyton, Et Al
(018)
03-018 Surface Lease Mountain ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ KY 04/30/1985 58 306
Clay, Inc. ▇▇▇▇▇▇, Et Al
(018)
03-017 Fee Lease Mountain ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 03/17/1986 58 297
Clay, Inc. ▇▇▇▇▇▇, Et Al
(018)
03-021 Surface Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ KY 10/25/1984 35 402
Clay, Inc. Et Al
(018)
05-084 Fee Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 12/21/1993 49 304
Clay, Inc. & ▇▇▇▇▇
(018)
05-041 Fee Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 10/18/1989 43 384, 2:18
Clay, Inc. & Pebble, Et Al pm
(018)
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
---------- ------------------ ----------- --------------- ------ ---- ---------- ------ --------- -----
100020 Surface Lease Mountain Mountain ▇▇▇▇▇▇ KY 07/01/1997 61 539
Clay, Inc. Properties,
(018) Inc. (Camp Ck)
100031 Coal Lease Mountain Mountain ▇▇▇▇▇▇ KY 12/20/1996 59 247
Clay, Inc. Properties,
(018) Inc. (▇▇▇▇▇▇▇)
05-045 Fee Lease Mountain ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ KY 03/08/1985 35 656
Clay, Inc. ▇▇▇▇▇▇▇▇, Et Al
(018)
05-047 Surface Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ KY 05/29/1986 38 141
Clay, Inc. & ▇▇▇
(018)
05-046 Fee Lease Mountain ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ KY 09/26/1978 44 299
Clay, Inc. (#4)
(018)
03-027 Surface Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ KY 11/01/1985 37 228
Clay, Inc. Marcus, Et Al
(018)
ICG-HZ-A-8f
SCHEDULE A
CONTRACT CONTRACT
# CONTRACT TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
---------- ------------------ ----------- --------------- ----- ---- ---------- ------ --------- -----
100009 Surface Lease Mountain ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ KY 12/14/1984 33 353
Clay, Inc. & ▇▇▇▇▇ ▇▇▇, Et
(018) Al
STATE OF KENTUCKY
COUNTY OF PERRY
I, Haven King, Clerk of the State and County aforesaid do certify that the
foregoing instrument was lodged for record in my office and it the foregoing and
this my certificate have duly recorded in my office in Deed Book Bo. 311 Page
507.
Witness my hand this 5th day of November 2004.
Haven King, Clerk
PERRY COUNTY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ D.C.
--------------------------