EXHIBIT 10.10
THIS LEASE made the 8th day of April, in the year
1965, between XXXXX X. XXXXXX, widower, and XXXXXXX X. INK
and XXX X. INK, her husband, parties of the first part and
Lessors, and CHERRY RIVER COAL AND COKE COMPANY, a
corporation, party of the second part and Lessee.
Leased WITNESSETH: That the Lessors lease and let unto the
Premises Lessee all the mineable, merchantable coal, in all those
certain lands located in Glade District, Xxxxxxx County,
West Virginia, containing 1305 acres, more or less, more
particularly bounded and described in a document marked
"Exhibit A" attached hereto and made part hereof.
Exceptions This lease is made subject to the exceptions and
reservations in the Lessors' documents of title and to all
existing rights of way on the land, and the Lessors reserve
the right to use the land in any way which does not
interfere with operations hereunder.
Warranty Subject to such exceptions and reservations, the
Lessors warrant their title generally and that they have the
lawful right to make this lease and that there are no other
leases upon or rights against the coal or rights therewith
inconsistent with this lease.
Term The term of this lease shall be five (5) years from
and after the date hereof and shall thereafter be
automatically extended and renewed for additional periods of
five years each until the exhaustion of the mineable,
merchantable coal, unless the Lessee gives the Lessors a
three month's written notice of termination before the end
of any five year period. Exhaustion of the mineable,
merchantable coal shall terminate this lease.
Mining The Lessee shall have the right to enter in, upon and
Rights under the land, explore for, mine, remove and process all
the coal by deep, strip and augar mining, without liability
for damage to the surface or anything therein or thereon; to
drain, ventilate, furnish power and communication and
transportation facilities for all operations; to make
excavations and erect structures; to use stone, gravel,
sand, water, timber under 14 inches in diameter two feet
from the ground; to dump waste from this and other
land without liability for dust, smoke or otherwise; to
conduct its operations without regard to statutory pillars;
all to the extent that the Lessors have and can transfer
such rights.
Transport-ation The Lessee shall have the right to
transport coal, machinery, equipment, supplies, power and
employees and provide ventilation, drainage and
communication to and from other lands, through, over and
under the above lands, insofar as the Lessors have and can
transfer same, and the same to continue during the life of
this lease and thereafter without payment of minimums so
long as the Lessee, its successors and assigns shall have
such other coal under ownership or lease.
Royalty The Lessee promises to pay unto the Lessors a royalty
of 12 cents per net ton of 2000 pounds of coal mined,
removed and marketed from the premises, and same to be paid
on or before the 25th day of each month for coal mined,
removed and marketed during the preceding calendar month,
and weights to be determined by railroad weights when
separately obtainable, but if this coal be commingled with
coal from other lands before separate railroad weights are
obtainable then weights shall be determined by scales or by
measurement or other engineering methods.
REPORTS With each monthly settlement of royalty, the
Lessee shall make report of the tonnage covered by the
payment.
Minimum Royalty The Lessee agrees to pay an annual minimum royalty of
$3,000.00, beginning with the calendar year 1966, the same
to be settled on or before January 25 of each year covering
the next preceding calendar year. Per-ton royalty for the
year shall be credited against the minimum. Any minimum
royalty paid in excess of the per-ton royalty for any year
may be recaptured by mining in excess of the minimum in any
subsequent year during the life of this lease and then
taking credit therefor.
Taxes The Lessee shall pay all taxes, levies and assessments
which may be assessed against the leasehold estate and all
the Lessee's property and improvements thereon, and the
Lessors shall pay all taxes on the land and the coal in
place.
Mining The Lessee agrees to mine and remove the coal in a
good and workmanlike manner according to modern, approved
methods and to comply with all federal and state laws, rules
and regulations applicable thereto.
Engineer The Lessee agrees to employ a competent engineer to
make surveys and maps
2
required by law.
Maps The Lessee agrees to furnish the Lessors a copy
of all maps required by state law and at the times required
by such law.
Records The Lessee shall keep accurate records of the coal
mined and removed.
Inspection The Lessors shall have the right at reasonable
intervals during business hours to enter the premises,
workings and operations for any lawful purpose of
inspection, and the right at such times to inspect the
Lessee's records and maps relating to the property.
Removal of Upon termination of this lease, the Lessee shall have
Property six months within which to remove all its property, whether
affixed or not, from the premises.
Assignment The Lessee may assign or sublet this lease
without consent, but shall remain fully liable for
performance hereunder.
Liens Money payable by the Lessee hereunder shall be
treated as rents reserved upon contract, and the Lessors
shall have a lien upon the Lessee's property on the premises
to secure same and shall have the benefit of all remedies
provided by law for the collection of same.
Forfeiture In case of any material breach by the Lessee of any
promise or agreement herein contained to be kept and
performed by it and in case of its failure to correct the
same after a thirty-day written notice so to do, the Lessors
shall have the right to terminate this lease by written
notice of such election.
Agent It is expressly understood and agreed by and
between the parties hereto that Xxxxx X. Xxxxxx, 00
Xxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxx, and Xxx X. Ink,
0000 Xxxxxxx Xxxxxxx, Xxxx Xxxxx, Xxxxxxx, are designated as
co-agents of the Lessors herein, to receive from the Lessee
herein any and all payments on rents, royalty, one-half of
said such payments to be delivered to each agent, and to
receive all notices as provided for in this lease which
shall be directed to the said Xxxxx X. Xxxxxx and Xxx X.
Ink, and each of them, which notices shall constitute
compliance with conditions appertaining thereto. The Lessors
may change their agent by notice in writing providing that
not more than two be so authorized at all times.
Notices Notices hereunder may be given by Certified U. S. Mail
to the Lessors through their agent above, and to the Lessee
at 000 Xxxxx Xxxxxx, Xxx Xxxx City.
3
Successors This lease shall be binding upon and inure to the
and Assigns benefit of the successors and assigns of the parties.
Witness the following signatures and seals.
/s/ Xxxxx X. Xxxxxx (SEAL)
--------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Ink (SEAL)
--------------------
Xxxxxxx X. Ink
/s/ Xxx X. Ink (SEAL)
--------------------
Xxx X. Ink
4
ATTEST: CHERRY RIVER COAL AND COKE CO.
By /s/ Xxxxxx X. Xxxx
------------------------------
/s/ X.X. Xxxxxxxxx Vice President
------------------
Secretary
State of Ohio,
County of Athens, to-wit:
I, Xxxxx X. Xxxxxxxx, a Notary Public in and for said state, do
certify that Xxxxx X. Xxxxxx, widower, whose name is signed to the writing
above, bearing date on the 8th day of April, 1965, has this day acknowledged the
same before me in my said county.
Given under my hand and notarial seal this the 8th day of April,
1965.
SEAL OF
NOTARY
/s/ Xxxxx X. Xxxxxxxx
------------------------
Notary Public
State of Ohio
My commission expires Lifetime Commission
State of Florida,
County of Xxx, to-wit:
I, Xxxxxxx X. Xxxxx, a Notary Public in and for said county and
state, do certify that Xxxxxxx X. Ink and Xxx X. Ink, her husband, whose names
are signed to the writing above, bearing date on the 6th day of April, 1965,
have this day acknowledged the same before me in my said county.
Given under my hand and notarial seal this the 6th day of April,
1965.
SEAL OF /s/ Xxxxxxx X. Xxxxx
NOTARY -------------------
Notary Public
My commission expires May 28, 1965
5
STATE OF NEW YORK
COUNTY OF NEW YORK, to-wit
I, Xxxxx X. Xxxxxx, a Notary Public in and for said County, do
certify that Xxxxxx X. Xxxx, who signed the within writing bearing date on the
8th day of April, 1965, for Cherry River Coal and Coke Co., has this day, before
me, acknowledged the same to be the act and deed of said Corporation.
Given under my hand this the 23rd day of April, 1965.
/s/ Xxxxx X. Xxxxxx
--------------------
Notary Public
My Commission Expires:
March 30th, 1966
6
PARTIAL ASSIGNMENT OF LEASE
THIS PARTIAL ASSIGNMENT, made and entered into as of the 20th day of
September, 1984, by and between CHERRY RIVER COAL AND COKE CO., a West Virginia
corporation ("Assignor") and TWIN RIVER COAL COMPANY, a California corporation,
P. O. Xxx 00000, Xxxxxxxxx, Xxxxxxxx 00000-0000 ("Assignee");
WITNESSETH:
That for and in consideration of Ten Dollars ($10.00), cash in hand
paid, the assumption by Assignee of obligations as hereinafter set forth and
other good and valuable consideration, the receipt of which is hereby
acknowledged, Assignor hereby assigns, transfers and conveys unto Assignee, its
successors and assigns, all of its estate, interest, rights and privileges under
that certain lease dated April 8, 1965, by and between Xxxxx X. Xxxxxx, et al.
as lessors and Assignor as lessee (such lease, as amended, hereinafter referred
to as the "Lease"), to mine and remove all of the coal which is within the area
described in Exhibit A, attached hereto and made a part hereof (the "Assigned
Premises". Assignee shall have, and is hereby granted, all of the rights and
privileges of Assignor under the Lease to the Assigned Premises to the same
extent and as if Assignee were the original lessee therein.
In consideration of the foregoing assignment, Assignee hereby
accepts said assignment, assumes and agrees to perform all of the covenants,
duties and obligations of the lessee under the Lease as to the Assigned Premises
to the same extent and as if it were the original lessee thereunder. In addition
to the foregoing Assignee agrees to pay all minimum royalties and taxes
applicable to the unassigned premises. Assignor is hereby absolved of all
further obligation and liability under the Lease as to the Assigned Premises
arising after the date of this Partial Assignment.
Assignor hereby warrants specially its leasehold title to the
Assigned Premises covered by the Lease. This Partial Assignment shall be binding
upon and inure to the benefit of the parties hereto, their successors and
assigns.
IN WITNESS WHEREOF, the parties have caused this Assignment to be
executed by their duly authorized officers as of the date first above written.
CHERRY RIVER COAL AND COKE CO.
ATTEST:
By /s/ T X. Xxxxxx
----------------------------------------
/s/ Xxxxxx X. Xxxxxxx Its VICE PRESIDENT
--------------------------------
Secretary
TWIN RIVER COAL COMPANY
ATTEST:
By /s/ C. N. Xxxxxxx
------------------------------------
/s/ Xxxx X. Xxxx Its PRESIDENT
--------------------------------
Assistant Secretary
STATE OF KENTUCKY
COUNTY OF FAYETTE
The foregoing Assignment was acknowledged before me this 20th day of
Sept., 1984, by X. X. Xxxxxx as Vice President of Cherry River Coal and Coke
Co., a West Virginia corporation, on behalf of the corporation.
My commission expires: Jan. 31, 1985
/s/ Xxxxxxxx X. Xxxxx [Notary Seal]
------------------------
Notary Public
STATE OF KENTUCKY
COUNTY OF FAYETTE
The foregoing Assignment was acknowledged before me this 20th day of
Sept., 1984, by C. N. Xxxxxxx as President of Twin River Coal Company, a
California corporation, on behalf of the corporation.
My commission expires: Jan. 31, 1985
This instrument was
prepared by: /s/ Xxxxxxxx X. Xxxxx [Notary Seal]
------------------------
/s/ Xxxxxx X. Xxxxxxx
-----------------------
Xxxxxx X. Xxxxxxx
Attorney at Law
0000 Xxxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx
EXHIBIT A
A certain tract of land situate on the waters of Beaver Creek, Glade
District, Xxxxxxx County, West Virginia, and more particularly described as
follows:
BEGINNING at an 8" iron pin filled with concrete to take the place of a
poplar called for in the original survey, with two black gums, beech and
white oak marked as pointers in the Wethered line; running thence with the
Wethered line N 5-1/2 E 611-1/2 poles to an 8" iron pipe filled with
concrete to take the place of a chestnut oak, original corner of said
survey in the division line of Xxxxxxxxxx and Xxxxx and running with the
same; thence N 76-1/2 W 564 poles to an 8" iron pipe to take the place of
a stone pile; thence S 8 W 301 poles to an 8" iron pipe filled with
concrete to take the place of a poplar and maple called for in the
original calls; thence S 84-1/2 E 263 poles to an 8" iron pipe to take the
place of a white oak; thence S 33 E 498-1/2 poles to the beginning,
containing 1,305 acres, more or less, excepting therefrom a certain tract
of land more particularly bounded and described as follows:
Beginning at an 8" iron pipe, said iron pipe being a corner to the land
now or formerly owned by X. X. Xxxxx, a point in the line of the land now
or formerly owned by Tioga Lumber Company, and being the northwest corner
of the parent 1,305 acre tract; thence, leaving the land of said Tioga
Lumber Company, with the land of said Xxxxx, as follows:
South 76 degrees 30' East, approximately 1,460 feet to a point in the
center of O'Brien Fork; thence, leaving the land of said Xxxxx, severing
the said 1,305 acre tract, as follows:
Downstream with the meanders of said O'Brien Fork to its confluence with
Beaver Creak; thence,
Downstream with the meanders of said Beaver Creak to where said Beaver
Creek intersects the western property line of the said 1,305 acre parent
tract, said point being in the line of the land of said Tioga Lumber
Company; thence, leaving said Beaver Creek, with the land of said Tioga
Lumber Company, as follows:
North 8 degrees 00' East approximately 1,820 feet to the place of
beginning, containing 40.00 acres more or less, leaving in the parent
tract 1,265.00 acres more or less.
STATE OF WEST VIRGINIA, Xxxxxxx County
Commission Clerk's Office August 7, 1985
The foregoing Partial Assignment together with the certificate of its
acknowledgement, was this day presented in said office and admitted to
record.
Teste: /s/ Xxxxx X. Xxxxxxxx Clerk
---------------------------
GENERAL CONVEYANCE, ASSIGNMENT AND TRANSFER
KNOW ALL MEN BY THESE PRESENTS that:
WHEREAS, Twin River Coal Company, a California corporation
(hereinafter called "Twin River"), and Island Creek Coal Company, a Delaware
corporation (hereinafter called "Island Creek"), entered into an Agreement of
Merger, dated December 6th, 1988, providing for the merger of Twin River into
Island Creek, the surviving corporation, which said Agreement of Merger has been
adopted by the boards of directors of the constituent corporations and has been
executed by the proper officers of said corporations and is in the process of
being filed and recorded, all as provided by the corporation laws of California
and Delaware; and
WHEREAS, upon said merger becoming effective, Island Creek, pursuant
to the said corporation laws, will possess all of the rights, privileges, powers
and franchises, public and private, of Twin River and all business and property,
real, personal and mixed, belonging to Twin River shall be vested in Island
Creek; and to carry out and effectuate said merger it is desired to further
evidence the passage of title of the properties of Twin River to and into Island
Creek;
NOW, THEREFORE, Twin River, in consideration of the premises, does
hereby grant, bargain, sell, convey, transfer, assign, set over and deliver unto
Island Creek, all and singular the properties, assets and rights of Twin River
wheresoever situated including, but not limited to, those situated in the
Counties of Christian, Henderson, Hopkins, McLean, Muhlenberg, Union and
Xxxxxxx, State of Kentucky, and in the Counties Braxton, Logan, Xxxxx, Xxxxxxxx,
Upshur, Webster and Wyoming, State of West Virginia, and rights and interests in
coal, oil, gas and other mineral leases, all coal, oil, gas and other minerals,
all mineral rights and interests and all royalty interests, all rights of way,
easements, permits and licenses; together with all rights of Twin River to the
name "Twin River Coal Company"; and also all properties, assets and rights of
Twin River of every kind, character and description, real, personal or mixed,
situated in the United States of America or elsewhere, owned by Twin River or to
which it may be entitled.
TO HAVE AND TO HOLD all and singular the properties, assets and
rights hereby transferred, assigned and conveyed or intended to be transferred,
assigned and conveyed unto Island Creek, its successors and assigns forever.
This general conveyance, assignment and transfer is made with full substitution
and subrogation of Island Creek in and to all covenants and warranties by others
hereunder given or made in respect of said properties, assets and rights, or any
part thereof.
This instrument shall be effective for all purposes as of the
effective date of said merger.
This conveyance, assignment and transfer may be executed in any
number of counterparts, and each of such counterparts shall for all purposes be
deemed to be an original; and all such counterparts shall constitute but one and
the same general conveyance, assignment and transfer.
IN WITNESS WHEREOF, Twin River Coal Company, grantors herein, has
caused this instrument to be duly executed on the 8th day of December, 1988.
TWIN RIVER COAL COMPANY
BY /s/ S. O. Xxxxx
-----------------------------
President
ATTEST:
/s/ Xxxxxx X. Xxxxxxx
-----------------------
Secretary
STATE OF KENTUCKY
COUNTY OF FAYETTE
The foregoing General Conveyance, Assignment and Transfer was
acknowledged before me this 8th day of December, 1988, by S. O. XXXXX, as
President of Twin River Coal Company, a California corporation, on behalf of the
corporation.
My Commission Expires: Aug. 27, 1989
[Notary Seal] /s/ Xxxxx X. Xxxx
--------------------------------
Notary Public, State-At-Large
- 2 -
DECLARATION OF CONSIDERATION
I hereby declare that the document to which this Declaration is
appended is a conveyance of real property made pursuant to a merger of
corporations and is therefore exempt from the West Virginia Excise Tax on
Privilege of Transferring Real Property pursuant to Chapter 11, Article 22,
Section 1 of the West Virginia Code.
Given under my hand this 8th day of December, 1988.
ISLAND CREEK COAL COMPANY
BY: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Secretary
This Instrument Prepared By:
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Xxxxxx X. Xxxxxxx
000 Xxxx Xxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
STATE OF WEST VIRGINIA
Nicholas County Commission Office 1-25-1991 This merger was this day presented
to said office and thereupon together with the certificate thereto annexed is
admitted to record.
Teste /s/ Xxxx Xxxxx Clerk
STATE OF WEST VIRGINIA, Xxxxxxx County
Commission Clerk's Office January 11, 1991
General Conveyance,
The foregoing Assignment & Transfer together with the certificate of its
acknowledgment, was this day presented in said office and admitted to record.
Teste: /s/ Xxxxx X. Xxxxxxxxx Clerk
Office of the Clerk of the Xxxxxx Xxxxx 0-00-00 Xxxxx Xxxxxx, Xxxx Xxxxxxxx 9:19
A.M.
The foregoing writing together with the certificate of
acknowledgement thereof, thereto annexed, was this day admitted to record in and
since.
Recording Fee: 4.00 Clerk: /s/ Xxxxx X. Diamond
- 3 -
ASSIGNMENT
THIS ASSIGNMENT, made and entered into this the 18 day of December,
1990, by and between ISLAND CREEK COAL COMPANY, a Delaware corporation, 000 Xxxx
Xxxx Xxxxxx, P. O. Xxx 00000, Xxxxxxxxx, Xxxxxxxx 00000-0000, hereinafter
referred to as "Assignor", and LAUREL RUN MINING COMPANY, a Virginia
corporation, 000 Xxxx Xxxx Xxxxxx, P. O. Xxx 00000, Xxxxxxxxx, Xxxxxxxx
00000-0000, hereinafter referred to as "Assignee";
WITNESSETH:
WHEREAS, Assignor is, through mense conveyances and mergers, the
owner of certain rights under and pursuant to that certain Lease dated April 8,
1965, between XXXXX X. XXXXXX, et al. ("Lessors"), and CHERRY RIVER COAL AND
COKE CO. ("Lessee") appearing of record in Lease Book 21, Page 31, in the Office
of the Clerk of the County Commission of Xxxxxxx, West Virginia, as subsequently
amended, modified, supplemented and assigned (collectively, the "Agreements");
and
WHEREAS, Assignor desires to now transfer, assign and convey to
Assignee all of Assignor's right, title and interest in and to said Agreements
and Assignee desires to acquire and accept same and to assume the rights and
obligations of Assignor thereunder.
NOW, THEREFORE, for and in consideration of the sum of TEN DOLLARS
($10.00), cash in hand paid, and the performance and observance of the terms and
conditions set forth in the Agreements and contained herein, and other good and
valuable consideration, the receipt and sufficiency of which being hereby
acknowledged, Assignor has bargained and sold and does hereby transfer, assign,
set over and convey to Assignee, its successors and assigns, subject to the
terms and conditions of the Agreements assigned hereby, all of its right, title
and interest in and to the Agreements.
TO HAVE AND TO HOLD said Agreements and all rights and obligations
of Assignor incident thereto or accruing thereunder, subject only to the terms
and conditions of the Agreements, together with all rights and privileges
appurtenant thereto, unto Assignee, its successors and assigns forever, with
covenant of Special Warranty of title.
Assignor does covenant to and with Assignee that it has fulfilled
its obligations due on or before the date hereof under each of the Agreements
and that each of said Agreements is valid, binding and enforceable in accordance
with its terms, except as may be limited by bankruptcy, reorganization or
similar laws affecting the rights of creditors generally.
Assignee accepts the assignment made herein and assumes the
Agreements; and does hereby covenant to and with Assignor, its successors and
assigns, that it will perform and comply with the terms and conditions of the
Agreements as if it had been the contracting party originally named therein, and
that it will indemnify and save harmless Assignor from and against any and all
liabilities, obligations, damages, claims, costs, expenses and disbursements
(including without limitation attorney's fees and expenses) arising out of or in
connection with the Agreements from and after the date hereof which may be
imposed upon, incurred by or asserted against Assignor.
IN WITNESS WHEREOF, the parties have executed this Assignment on
this the day and year first above written.
ISLAND CREEK COAL COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Its: President
LAUREL RUN MINING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Its: President
- 2 -
STATE OF KENTUCKY
COUNTY OF FAYETTE
The foregoing instrument was acknowledged before me on this 18 day
of December, 1990, by Xxxxxxx X. Xxxxxx as President of ISLAND CREEK COAL
COMPANY, a Delaware corporation, for and on behalf of said corporation.
My Commission Expires:
May 16, 1991 /s/ Xxxxxxxx Xxxxx
---------------------------
Notary Public
[Notary Seal]
STATE OF KENTUCKY
COUNTY OF FAYETTE
The foregoing instrument was acknowledged before me on this 18 day
of December, 1990, by Xxxxxxx X. Xxxxxx as President of LAUREL RUN MINING
COMPANY, a Virginia corporation, for and on behalf of said corporation.
My Commission Expires:
May 16, 1991 /s/ Xxxxxxxx Xxxxx
---------------------------
Notary Public
[Notary Seal]
This Instrument Prepared By:
XXXXXXX & XXXXX
Attorneys at Law
000 X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
/s/ X. Xxxxx Brow
----------------------------
STATE OF WEST VIRGINIA, Xxxxxxx County
Commission Clerk's Office January 11, 1991
The foregoing Assignment together with the certificate of its
acknowledgment, was this day presented in said office and admitted
to record.
Teste: /s/ Xxxxx X. Xxxxxxxxx Clerk
-----------------------------
- 3 -
October 25, 1995
Gauley Eagle Holdings, Inc.
000 Xxxx Xxxx Xx., Xxxxx 000
Xxxxxxxxx, XX 00000
Consent to Assignment of Lease to Black Eagle Holdings, Inc. and Partial
Assignment to Eastern Kentucky Energy Corporation
Gentlemen:
Reference is made to that certain coal lease dated April 8, 1965 originally by
and between Xxxxx X. Xxxxxx, Xxxxxxx X. Ink and Xxx Ink, husband and wife, as
lessors and Cherry River Coal and Coke Company as lessee as amended and
supplemented (hereinafter the "Lease"). By various assignments and successions,
Xxxxx X. Xxxxxx and Xxxxx Xxxxx Xxxxxx, husband and wife, Xxxxxxx X. Xxxxxx and
Xxxxx X. Xxxxxx, husband and wife and Xxxxxxx X. Ink, became the lessors (the
"Lessors") and Laurel Run Mining Company ("Laurel Run") became the lessee.
Pursuant to Section 5 of that Amendment and Supplement to Lease dated March 10,
1995, the Lessors agreed that the Lease could be assigned by Laurel Run to
Gauley Eagle Holdings, Inc. ("Gauley Eagle"), and further, Gauley Eagle could
assign the Lease to a third party as part of the sale of its coal holdings in
the area.
As contemplated in the above-noted Amendment, the Lease has now been assigned to
Gauley Eagle, and Gauley Eagle will be transferring certain coal properties in
the area so that mining may begin in the near future on the Lease. In order to
facilitate this transfer, Gauley Eagle has been requested to obtain the written
consent of the Lessors to the following Assignments of the Lease:
1. That Assignment of the Lease from Laurel Run Mining Company to Black Eagle
Holdings, Inc. dated October 9, 1995 and the subsequent Assignment from
Black Eagle Holdings, Inc. to Gauley Eagle Holdings, Inc. dated October
19, 1995.
2. A Partial Assignment of the Lease to be made by Gauley Eagle to East
Kentucky Energy Corporation, a Kentucky corporation located at 00 Xxxxxx
Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000, whereby the northeast corner of
the leased premises (located east and north of the Oldhe Fork drainage)
under the Lease, consisting of approximately 94 acres, will be assigned to
Eastern Kentucky Energy Corporation.
The Lessors hereby consent to the above described Assignments. The Lessors are
granting their consent on the understanding that the respective Assignees under
the above Assignments will assume and perform all of the lessee's obligations
under the Lease. Further, Gauley Eagle shall, upon execution of the Partial
Assignment, deliver copies of all Assignments to the Lessors.
Sincerely,
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
----------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxxxx X. Ink
----------------------------------
Xxxxxxx X. Ink
PARTIAL ASSIGNMENT OF KNIGHT-INK LEASE
THIS PARTIAL ASSIGNMENT OF KNIGHT-INK LEASE, made and entered into this
30th day of October, 1995, by and between GAULEY EAGLE HOLDINGS, INC., a
Delaware corporation, XX 00, Xxx 00X, Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000 ("Gauley
Eagle"), and EAST KENTUCKY ENERGY CORPORATION, a Kentucky corporation, 00 Xxxxxx
Xxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("EKE");
WITNESSETH:
WHEREAS, Gauley Eagle is, by assignment, the owner of the entire leasehold
estate under and pursuant to that certain Lease, as previously assigned, amended
and supplemented, between Xxxxx X. Xxxxxx and Xxxxxxx X. Ink and Xxx X. Ink, her
husband, as Lessors, and Cherry River Coal and Coke Company, as Lessee, dated
April 8, 1965, and recorded January 29, 1988, in Lease Book 21, page 31, in the
Office of the Clerk of the County Commission of Xxxxxxx County, West Virginia
(the "Lease"), and also recorded January 29, 1988, in Lease Book 21, page 42, in
the Office of the Clerk of the County Commission of Xxxxxxx County, West
Virginia, which Lease includes, among other properties, a certain parcel or
tract of property, containing 94 acres, more or less, located in Glade District,
Xxxxxxx County, West Virginia, as more particularly described on the attached
Exhibit "A" (the "Property"); and
WHEREAS, Gauley Eagle desires to transfer, assign and convey to EKE all of
Gauley Eagle's right, title and interest in and to the Lease only insofar as the
Lease covers the Property, and EKE desires to acquire and accept the same and to
assume the rights and obligations of Gauley Eagle thereunder to the extent
herein set forth.
NOW, THEREFORE, that for and in consideration of the sum of Ten Dollars
($10.00), in hand paid, and the performance and observance of the terms and
conditions set forth in the Lease, insofar, and only insofar, as the Lease
covers the Property, and this Assignment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. PARTIAL ASSIGNMENT OF LEASE. Subject to the terms and conditions of the
Lease, Gauley Eagle does hereby transfer, assign, set over and convey to EKE,
its successors and assigns, all of Gauley Eagle's right, title and interest in
and to the Lease insofar, and only insofar, as the Lease covers the Property,
and EKE accepts from Gauley Eagle all of Gauley
Eagle's right, title and interest in and to the Lease, and agrees to perform and
comply with the terms and conditions of the Lease as lessee, insofar, and only
insofar, as the Lease covers the Property. This Partial Assignment of Lease is
made by Gauley Eagle without any covenant, representation or warranty
whatsoever, whether expressed or implied.
2. PAYMENT OF ROYALTIES; TAXES AND ASSESSMENTS. All advance, minimum,
production (to the extent of mining conducted by EKE) and other royalties coming
due under the Lease pertaining to the Property from and after the date hereof
shall be paid directly by EKE to the Lessors, their successors or assigns. That
portion of advance or minimum royalties paid prior to the date hereof for any
period from and after the date hereof and attributable to the Property shall be
allocated and paid to Gauley Eagle by EKE. All taxes, charges, fees, minimum or
advance royalties and assessments required by the Lease to be paid by the lessee
which are accrued or incurred prior to the date hereof shall be prorated between
the parties hereto as of the date of this Assignment on a calendar year basis
and allocated between the parties on the basis of their respective acreages
covered under the Lease. Specifically, the parties agree that the minimum
royalty and taxes shall be allocated as follows: seven percent (7%) to EKE and
ninety-three percent (93%) to Gauley Eagle.
3. NOTICE OF DEFAULT OR OTHER CLAIM. Upon receipt by either party to this
Assignment ("recipient") of any notice of default, demand, claim or other notice
with respect to the Lease (regardless of whether such notice relates to the
Property), any activities under the Lease (regardless of whether such notice
relates to the Property) or in, on or under the Property (including, but not
limited to, any claim with respect to any environmental liabilities) ("initial
notice"), from any person or entity, whether private, commercial or
governmental, the recipient shall immediately notify and inform the other party
hereto of such initial notice by giving to the other party a written copy of
such initial notice, in the manner specified in Section 9 of this Assignment.
4. JOINT USE OF ROADS, RAILROAD AND POWER LINES. To the extent allowed by
the Lease, Gauley Eagle and EKE hereby grant each to the other all reasonable
and necessary rights of way to use all the premises covered by the Lease for
roads, railroads, power lines and such other uses and rights of ingress and
egress that may be required for their respective use of the leased premises and
upon adjoining, adjacent or nearby lands, all as provided in the Lease. The
parties hereto agree that all maintenance costs associated with any roads
commonly used by both
2
parties, their agents, contractors, successors and assigns, shall be borne by
each party in proportion to the respective usage of such road by each party.
5. GOVERNING LAW. This Assignment shall be governed by and be construed
and interpreted in accordance with the laws of the State of West Virginia.
6. BINDING EFFECT. This Assignment shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns.
7. MODIFICATION; AMENDMENT. This Assignment shall not be modified or
amended in any respect except by a written instrument signed by the parties
hereto.
8. NO WAIVER. No waiver of a breach of any of the covenants of this
Assignment shall be construed to be a waiver of any succeeding breach of the
same covenant or of any breach of any other covenant hereunder.
9. NOTICES. Any notice which may be given or is required to be given in
connection with and according to the terms of this Assignment shall be given by
telefax machine and by registered or certified United States mail, postage
prepaid, return receipt requested, and shall be deemed given when placed in the
mail or sent as follows:
For Gauley Eagle: Gauley Eagle Holdings, Inc.
c/o Xxxxx Xxxxxxxx
XX 00, Xxx 00X
Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000
Tel. 000-000-0000
Fax 000-000-0000
with a copy to
T. Xxxxxxxx Xxx, Esq.
Xxxxxxx, Xxxxxx & Battle
P. O. Xxx 000
Xxxxxxxxxx, XX 00000
Tel. 000-000-0000
Fax 000-000-0000
For EKE: East Kentucky Energy Corporation
c/o Xxxxxxx Xxxxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tel. 000-000-0000
Fax 000-000-0000
3
Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is to be given, but no such
change shall be effective unless and until it shall have been accomplished by
written notice given in the manner set forth in this Section 9.
10. CAPTIONS. The captions of this Assignment are for convenience only and
do not in any way limit or amplify the terms and provisions hereof.
11. COVENANTS TO MAINTAIN LEASE. EKE agrees to assume and perform in
accordance with the terms of the Lease the obligations, covenants and duties of
Gauley Eagle under the Lease, insofar as same pertain to the Property, and to be
bound by each and every term, covenant, condition and provision of the Lease,
insofar as same pertain to the Property, to the same extent as if it had been
named the original lessee thereunder. Gauley Eagle agrees to perform and comply
with all the obligations of the lessee under the Lease insofar as same pertain
to the remainder of the leasehold premises under the Lease excluding the
Property so as to maintain in full force and effect all rights and benefits of
the lessee under the Lease throughout the term of the Lease. Neither EKE nor
Gauley Eagle shall modify, amend, supplement, forfeit, terminate or surrender
that portion of the Lease which relates to the other party's interest therein,
or in any way diminish any of the lessee's rights thereunder, or in any way
release the Lessors of or from any obligations, covenants, conditions and
agreements of the Lessors to be done and performed by the Lessors, as they
relate to the other parties' interest, without the prior written consent of the
other, which shall not be unreasonably withheld, and otherwise subject to the
terms and conditions of the Lease. Upon receipt of any initial notice as
provided in Section 3 of this Assignment, the party responsible for that portion
of the leased premises to which the initial notice applies shall promptly take
all necessary action to cure, address, satisfy or otherwise resolve the
applicable default, claim, demand or other matters subject of said initial
notice. In the event that such responsible party does not promptly cure,
address, satisfy or otherwise resolve the said default, claim, demand or other
matters subject of said initial notice, the other party to this Assignment shall
have all the rights and privileges of the responsible party to cure, address,
satisfy or otherwise resolve the said default, claim, demand or other matters
subject of the initial notice at the expense of the responsible party.
12. INDEMNIFICATION. EKE shall indemnify and save harmless, and if
requested, defend Gauley Eagle against and from any and all losses, damages,
injuries and deaths suffered by anyone whomsoever, occurring on or after the
date hereof, and all claims, demands and
4
liabilities therefor, including any claim, demand, loss or damage resulting from
any breach by EKE of any covenant of the Lease or the failure of EKE to perform
any of the obligations under the Lease, from and after the date hereof arising
as a result of or during the use, occupancy or presence of EKE of, in or on the
Property, excluding in any case all losses, damages, claims, demands and
liabilities arising from or based upon the act of transferring, assigning or
conveying the Property hereunder.
IN WITNESS WHEREOF, the parties have executed this Assignment as of the
date first above written.
GAULEY EAGLE HOLDINGS, INC.,
a Delaware corporation
BY: /s/ Xxxxx Xxxxxxxx
----------------------------
, President
EAST KENTUCKY ENERGY CORPORATION,
a Kentucky corporation
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------
, President
0
XXXXX XX XXXX XXXXXXXX )
) SS:
COUNTY OF KANAWHA )
I, Xxxxxx Xxxx Xxxxxxxx, a Notary Public in and for said County, do
certify that Xxxxx Xxxxxxxx, the President, who signed the within writing
bearing date on the 30th day of October, 1995, for Gauley Eagle Holdings, Inc.,
a Delaware corporation, on behalf of said corporation, has this day, before me,
acknowledged the same to be the act and deed of said corporation.
Given under my hand this the 30th day of October, 1995.
My Commission expires: January 11, 2005
/s/ Xxxxxx Xxxx Xxxxxxxx
---------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF WEST VIRGINIA )
) SS:
COUNTY OF KANAWHA )
I, Xxxxx X. Xxxxxxxxxx, a Notary Public in and for said County, do certify
that Xxxxxxx X. Xxxxxx, the President, who signed the within writing bearing
date on the 30th day of October, 1995, for East Kentucky Energy Corporation, a
Kentucky corporation, on behalf of said corporation, has this day, before me,
acknowledged the same to be the act and deed of said corporation.
Given under my hand this the 30th day of October, 1995.
My Commission expires: February 26, 2005
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
This Instrument Prepared By: XXXX X. XXXXXX
Attorney at Law
0000 Xxxxxxx Xxxxx
X. X. Xxx 000
Xx. Xxxxxx, XX 00000
(000) 000-0000
6
EXHIBIT "A"
PARTIAL ASSIGNMENT OF
KNIGHT/INK LEASEHOLD
[MAP]
ASSIGNMENT OF KNIGHT-INK LEASE
This Assignment of Knight-Ink Lease, made and entered into this 30th day
of October, 1995, by and between GAULEY EAGLE HOLDINGS, INC., a Delaware
corporation, XX 00, Xxx 00X, Xxxxxxxxxxx, Xxxx Xxxxxxxx 00000 ("Gauley Eagle"),
and EAST KENTUCKY ENERGY CORPORATION, a Kentucky corporation, 00 Xxxxxx Xxxx,
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000 ("EKE");
WITNESSETH:
WHEREAS, Gauley Eagle is, by assignment, the owner of the entire leasehold
estate under and pursuant to that certain Lease between Xxxxx X. Xxxxxx and
Xxxxxxx X. Ink and Xxx X. Ink, her husband, as Lessors, and Cherry River Coal
and Coke Company, as Lessee, dated April 8, 1965, and recorded January 29, 1988,
in Lease Book 21, Page 31, in the Office of the Clerk of the County Commission
of Xxxxxxx County, West Virginia, and also recorded January 29, 1988, in Lease
Book 21, Page 42, in the Office of the Clerk of the County Commission of Xxxxxxx
County, West Virginia, as subsequently modified, amended and supplemented by
various amendments and supplements ("the Lease"); and
WHEREAS, the Lease covers the following described real property:
A tract situated on the waters of Beaver Creek, Glade District,
Xxxxxxx County, West Virginia, and more substantially described as
follows:
Beginning at an 8" iron pin filled with concrete to take the place
of a poplar called for in the original survey, with two black gums,
beech and white oak marked as pointers in the Wethered line; running
thence with the Wethered line N 5-1/2 E 611-1/2 and poles to an 8"
iron pipe filled with concrete to take the place of a chestnut oak,
original corner of said survey in the division line of Xxxxxxxxxx
and Xxxxx and running with the same; thence N 76-1/2 W 564 poles to
an 8" iron pipe to take the place of a stone pile; thence S 8 W 301
poles to an 8" iron pipe filled with concrete to take the place of a
poplar and maple called for in the original calls; thence S 84-1/2 E
263 poles to an 8" iron pipe to take the place of a white oak;
thence S 33 E 498-1/2 poles to the beginning, containing 1,305
acres, more or less,
(the "Property"); and
WHEREAS, by Partial Assignment dated October 30, 1995, Gauley Eagle
transferred, assigned and conveyed to EKE a portion of Gauley Eagle's right,
title and interest in and to the premises covered by the Lease; and
WHEREAS, Gauley Eagle desires to transfer, assign and convey to EKE all of
the remainder of Gauley Eagle's right, title and interest in and to the Lease,
and EKE desires to acquire and accept same and to assume the rights and
obligations of Gauley Eagle thereunder.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00), in hand paid, and the performance and observance of the terms and
conditions set forth in the Lease and this Assignment, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. ASSIGNMENT OF LEASE. Subject to the terms and conditions of the Lease,
Gauley Eagle does hereby transfer, assign, set over and convey to EKE, its
successors and assigns, all of Gauley Eagle's right, title and interest in and
to the Lease, including, but not limited to, the right of recoupment of advance,
minimum and other royalties to which Gauley Eagle is entitled under the Lease,
and EKE accepts from Gauley Eagle all of Gauley Eagle's right, title and
interest in and to the Lease, and agrees to perform and comply with the terms
and conditions of the Lease as lessee. This Assignment is made by Gauley Eagle
without any covenant, representation or warranty whatsoever, whether express or
implied.
2. PAYMENT OF ROYALTIES. All advance, minimum, production and other
royalties coming due under the Lease from and after the date hereof shall be
paid directly by EKE to the Lessors, their successors or assigns. That portion
of advance or minimum royalties paid prior to the date hereof for any period
from and after the date hereof and attributable to the Property shall be
allocated and paid to Gauley by EKE. All taxes, charges, fees, minimum or
advance royalties and assessments required by the Lease to be paid by the lessee
which are accrued or incurred prior to the date hereof shall be prorated between
the parties hereto as of the date of this Assignment on a calendar year basis
and allocated between the parties on the basis of their respective acreages
covered under the Lease. All taxes, charges, fees, minimum or advance royalties
and assessments required by the Lease to be paid by the lessee and which accrue
or are incurred from and after the date of this Assignment shall be paid by EKE.
3. NOTICE OF CLAIMS. Upon receipt by either party to this Assignment
("recipient") of any notice of default, demand, claim or other notice with
respect to the Lease or any activities
2
under the Lease in, on or under the real property covered by the Lease
(including, but not limited to, any claim with respect to any environmental
liabilities) ("initial notice"), from any person or entity, whether private,
commercial or governmental, the recipient shall immediately notify and inform
the other party hereto of such initial notice in the manner specified in Section
5 of this Assignment.
4. BINDING EFFECT. This Assignment shall be binding upon and inure to the
benefit of the parties hereto, their successors and assigns.
5. NOTICES. Any notice which may be given or is required to be given in
connection with and according to the terms of this Assignment shall be given by
telefax machine and by registered or certified United States mail, postage
prepaid, return receipt requested, and shall be deemed given when placed in the
mail or sent as follows:
For Gauley Eagle: Gauley Eagle Holdings, Inc.
c/o Xxxxx Xxxxxxxx
XX 00, Xxx 00X
Xxxxxxxxxxx, XX 00000
Tel. 000-000-0000
Fax 000-000-0000
with a copy to
T. Xxxxxxxx Xxx, Esq.
Xxxxxxx, Xxxxxx & Battle
P. O. Xxx 000
Xxxxxxxxxx, XX 00000
Tel. 000-000-0000
Fax 000-000-0000
East Kentucky Energy Corporation
For EKE: c/o Xxxxxxx Xxxxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Tel. 000-000-0000
Fax 000-000-0000
Nothing herein contained shall be construed as prohibiting the parties
respectively from changing the place at which notice is to be given, but no such
change shall be effective unless and until it shall have been accomplished by
written notice given in the manner set forth in this Section 5.
6. CAPTIONS. The captions of this Assignment are for convenience only and
do not in any way limit or amplify the terms and provisions hereof.
3
7. COVENANTS TO MAINTAIN LEASE. EKE hereby expressly assumes and agrees to
perform in accordance and comply with all of the terms of the Lease, and all
obligations, covenants and duties of the lessee under the Lease and to be bound
by each and every term, covenant, condition and provision of the Lease to the
same extent as if it had been named the original lessee thereunder.
8. INDEMNIFICATION. EKE shall indemnify and save harmless, and if
requested, defend Gauley Eagle against and from any and all losses, damages,
injuries and deaths suffered by anyone whomsoever, occurring on or after the
date hereof, and all claims, demands and liabilities therefor, including any
claim, demand, loss or damage resulting from any breach by EKE of any covenant
of the Lease or the failure of EKE to perform any of the obligations under the
Lease, from and after the date hereof arising as a result of or during the use,
occupancy or presence of EKE of, in or on the Property, excluding in any case
all losses, damages, claims, demands and liabilities arising from or based upon
the act of transferring, assigning or conveying the Property hereunder.
4
IN WITNESS WHEREOF, Gauley Eagle and EKE have executed this Assignment as
of the date first above written.
GAULEY EAGLE HOLDINGS, INC.,
a Delaware corporation
BY: /s/ Xxxxx Xxxxxxxx
----------------------------
, President
EAST KENTUCKY ENERGY CORPORATION,
a Kentucky corporation
BY: /s/ Xxxxxxx X. Xxxxxx
----------------------------
, President
0
XXXXX XX XXXX XXXXXXXX )
) SS:
COUNTY OF KANAWHA )
I, Xxxxxx Xxxx Xxxxxxxx, a Notary Public in and for said County, do
certify that Xxxxx Xxxxxxxx, the President, who signed the within writing
bearing date on the 30th day of October, 1995, for Gauley Eagle Holdings, Inc.,
a Delaware corporation, on behalf of said corporation, has this day, before me,
acknowledged the same to be the act and deed of said corporation.
Given under my hand this the 30th day of October, 1995.
My Commission expires: January 11, 2005.
/s/ Xxxxxx Xxxx Xxxxxxxx
-------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
STATE OF WEST VIRGINIA )
) SS:
COUNTY OF KANAWHA )
I, Xxxxx X. Xxxxxxxxxx, a Notary Public in and for said County, do certify
that Xxxxxxx X. Xxxxxx, the President, who signed the within writing bearing
date on the 30th day of October, 1995, for East Kentucky Energy Corporation, a
Kentucky corporation, on behalf of said corporation, has this day, before me,
acknowledged the same to be the act and deed of said corporation.
Given under my hand this the 30th day of October 1995.
My Commission expires: Feb. 26, 2005.
/s/ Xxxxx X. Xxxxxxxxxx
-------------------------
NOTARY PUBLIC
[NOTARIAL SEAL]
This Instrument Prepared By: XXXX X. XXXXXX, Attorney at Law, 0000 Xxxxxxx
Xxxxx, X.X. Xxx 000, Xx. Xxxxxx, XX 00000 (618) 262-7801
STATE OF WEST VIRGINIA, Xxxxxxx County
Commission Clerk's Office October 15, 1996
The foregoing Assignment together with the certificate
of its acknowledgment, was this day presented in said
office and admitted to record.
Teste: /s/ Xxxxx X. Xxxxx Clerk
--------------------------
ASSIGNMENT OF REAL PROPERTY AGREEMENTS
This Assignment of Real Property Agreements (this "Agreement"), dated as
of Sept. 30, 2004, is among ICG EASTERN LAND, LLC, a Delaware limited liability
company, with an address of 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (the
"Buyer"), and EAST KENTUCKY ENERGY CORPORATION (SUCCESSOR-IN-INTEREST TO AND/OR
F/K/A AND/OR D/B/A CLIPPER COAL CORPORATION), a Kentucky corporation, with an
address of 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (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 Xxxxxxx County, West Virginia (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 copy 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.
2
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]
3
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 EASTERN LAND, LLC
By: /s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Vice President
SELLER: EAST KENTUCKY ENERGY
CORPORATION (SUCCESSOR-IN-INTEREST TO
AND/OR F/K/A AND/OR D/B/A CLIPPER COAL
CORPORATION)
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Treasurer
X-0
XXXXX XX XXX XXXX
XXXXXX XX XXX XXXX
The foregoing Assignment of Real Property Agreements was acknowledged
before me on September 29, 2004, by Xxxxx X. Wax, as Vice President of ICG
Eastern Land, LLC, a Delaware limited liability company, for and on behalf of
company.
/s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Notary Public, State at Large
My Commission Expires:
[Notary Stamp & Seal]
STATE OF NEW YORK
COUNTY OF NEW YORK
The foregoing Assignment of Real Property Agreements was acknowledged
before me on September 29, 2004, by Xxxx Xxxxxxx, as Treasurer of East Kentucky
Energy Corporation (successor-in-interest to and/or/f/k/a and/or d/b/a Clipper
Coal Corporation), a Kentucky corporation, for and on behalf of company.
/s/ Xxxxxx Xxxx
----------------------------------------
Notary Public, State at Large
My Commission Expires:
[Notary Stamp & Seal]
THIS INSTRUMENT PREPARED BY:
/s/ Xxxxxx X. Xxxxxxx CHICAGO TITLE INSURANCE CO.
--------------------------------- 000 X. XXXXX XX. XXX: 04SP
Xxxxxx X. Xxxxxxx, Esq. XXXXXXX, XX 00000
Xxxxx Xxxxx Xxxx LLC ATTN: XXXXX XXXXXXXXX
000 Xxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
(000) 000-0000
S-2
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.
SCHEDULE A
CONTRACT CONTRACT CONTRACT
# TYPE LESSEE LESSOR CTY ST DATE BOOK PAGE DOC
------------------------------------------------------------------------------------------------------------------------------------
WV-B-4 Surface Lease East Kentucky Xxxxx, Xxxxx X. Xxxxxxx WV 07/03/1978 055 282 17950
Energy Corp. (434) And/Or Xxxxxxxx
(Base Lessors)
WV-B-2 Coal Lease East Kentucky Xxxxx, Xxxxxx Et Xxxxxxx WV 09/22/1977 12 64
Energy Corp. (434) Al (Base Lessors)
WV-S-1 Fee Lease East Kentucky Xxxx Xxxxxx, Et Xx Xxxxxxx WV 10/19/1978 12,12, 430,
Energy Corp. (434) 18 445,
387
WVL711 Sublease East Kentucky Xxxxxx Run Mining Xxxxxxx WV 03/14/2001 24 619
Energy Corp. (434) Company, Llc
(Lessor/Sublessor)
WV-R-2 Coal Lease East Kentucky Xxxx, Xxxxxxx Et Xx Xxxxxxx WV 07/13/1976 12,12, 414,
Energy Corp. (434) (Base Lessors) 42 416,
422
WV00003001 Coal Lease East Kentucky Knight-ink Heirs Xxxxxxx WV 04/08/1965 21 31
Energy Corp. (434)
WV-M-1 Fee Lease East Kentucky M-B, Llc (Base Lessor) Xxxxxxx WV 10/14/1977 13,50, 283,
Energy Corp. (434) 380 223,
727
WV-R-1 Coal Lease East Kentucky Xxxxxxx, Xxxxxxx X. Et Xxxxxxx WV 04/25/1978 13 306
Energy Corp. (434) Al (Base Lessors)
RW02250001 Easement/Right Of East Kentucky Xxxxxxxxxx, Xxxxxx Xxxxxxx WV 05/31/1991 221 510 1166
Wa Energy Corp. (434)
RW02256001 Easement/Right Of East Kentucky Bright, Xxxxxxx X Xxxxxxx WV 09/05/1991 222 237 1616
Wa Energy Corp. (434)
RW02249001 Easement/Right Of East Kentucky Xxxxxx, Hardy Webster WV 04/11/1991 220 620 605
Wa Energy Corp. (434)
RW02254001 Easement/Right Of East Kentucky Hall, Xxxxxx Xxxxxxx WV 05/31/1991 221 521 1168
Wa Energy Corp. (434)
RW02251001 Easement/Right Of East Kentucky Xxxx, Xxxxxxx Xxxxxxx WV 05/31/1991 221 533 1171
Wa Energy Corp. (434)
RW02252001 Easement/Right Of East Kentucky Xxxxxx, Denver Xxxxxxx WV 05/31/1991 221 529 1170
Wa Energy Corp. (434)
RW02255001 Easement/Right Of East Kentucky Short, Xxxxxx Xxxxxxx WV 05/31/1991 221 517 1167
Wa Energy Corp. (434)
RW02253001 Easement/Right Of East Kentucky Xxxxx, Xxxx Xxxxxxx WV 05/31/1991 221 525 1169
Wa Energy Corp. (434)
RW02257001 Easement/Right Of East Kentucky Xxxxx, Xxxxx Xxxxxxx WV 07/18/1991 221 475 1140
Wa Energy Corp. (434)
