EXHIBIT 2.2
Amendment to Purchase and Sale Agreement dated as of December 20, 1996 by and
among The Coastal Corporation, a Delaware corporation, Coastal Coal, Inc., a
Delaware corporation, Atlantic Richfield Company, a Delaware corporation, and
Itochu Corporation, a Japanese corporation, Coastal Transition, Inc., a Delaware
corporation, Canyon Fuel Company, LLC, a Delaware limited liability company,
ARCO Uinta Coal Company, a Delaware corporation and Itochu Coal International,
Inc., a Delaware corporation.
EXHIBIT 2.2
AMENDMENT TO PURCHASE AND SALE AGREEMENT
This Agreement to Purchase and Sale Agreement ("Amendment"), dated this
20th day of December, 1996, is made by and among (i) The Coastal Corporation, a
Delaware corporation ("Coastal"), and Coastal Coal, Inc., a Delaware corporation
("CCI" and, together with Coastal, "Sellers"), (ii) Atlantic Richfield Company,
a Delaware corporation, and Itochu Corporation, a Japanese corporation
(together, "Buyer Parents"), and (iii) Coastal Transition, Inc., a Delaware
corporation ("CTI"), ARCO Uinta Coal Company, a Delaware corporation ("ARCO
Uinta"), Itochu Coal International Inc., a Delaware corporation ("Itochu Coal"),
and Canyon Fuel Company, LLC, a Delaware limited liability company (the "LLC"
and, together with CTI, ARCO Uinta, and Itochu Coal, "New Parties").
RECITALS
A. Buyer Parents and Sellers are parties to a Purchase and Sale Agreement
dated as of October 23, 1996 (the "Purchase Agreement"), providing for the sale
by CCI and CTI, and the purchase by ARCO Uinta and Itochu Coal, of the ownership
interests in the LLC, all upon and subject to the conditions therein set forth.
B. Pursuant to the terms of the Purchase Agreement, certain entities are
to be added as parties to the Purchase Agreement, and Buyer Parents and Sellers
desire to amend the Purchase Agreement in certain other respects.
AGREEMENT
For good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, Sellers, Buyer Parents, and New Parties agree as follows:
1. Definitions. Capitalized terms used and not otherwise defined herein
shall have the meanings respectively assigned to them in the Purchase Agreement.
2. Amendments to the Agreement. The Purchase Agreement is amended as
follows:
A. All references in the Purchase Agreement to the "Agreement" shall
mean the Purchase Agreement as amended by this Amendment.
B. In the recitals to the Purchase Agreement, and thereafter
throughout the Purchase Agreement, (i) the name of "Itochu Energy Company" shall
be restated as "Itochu Coal International Inc.," and (ii) all references to
"Coastal Sub" shall be deemed to be references to CTI.
C. The New Parties shall hereby be added as signatories and parties
to the Purchase Agreement.
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D. The first sentence of Section 2.2(a) of the Purchase Agreement is
deleted in its entirety and substituted therefor is the following:
In consideration for the sale of the LLC Interests, Buyers shall pay to
Seller and Coastal Sub on the Closing Date, in immediately-available
funds, by wire transfer to the account or accounts designated by Seller
not later than three days prior to the Closing Date or by such other
method as the parties may mutually agree, an aggregate of (i) Six
Hundred Fifteen Million Five Hundred Five Thousand Fifty Dollars
($615,505,050), plus (x) simple interest on Six Hundred Fifteen Million
($615,000,000) at LIBOR from the Pricing Date to the Closing Date and
(y) simple interest on Five Hundred Five Thousand Fifty Dollars
($505,050) at LIBOR from the date such amount is contributed to the LLC
by Seller and Coastal Sub to the Closing Date, and (ii) the amount of
any Advances then outstanding (without regard to any closing of
Advances into Investment by Parents as provided in Section 2.3), plus
simple interest thereon at LIBOR from the date any such Advance is made
through (but not including) the Closing Date (the "Purchase Price").
Interest payable under the provisions of this Section 2.2 shall be
computed on the basis of a 360-day year and the actual number of days
elapsed.
E. Section 8.3 of the Purchase Agreement is amended by adding the
following sentence to the end thereof:
Notwithstanding the foregoing clauses (a) through (g), all black lung
tax rebates relating to coal exported by any of the CSEC Companies,
whether for any Pre- Pricing Period, Post-Pricing Period, or a period
including both a Pre-Pricing Period and a Post-Pricing Period, shall be
the property of Buyers and/or the LLC. If any Affiliate of Coastal,
other than a CSEC Company, holds the right to claim any such black lung
tax rebate, Coastal shall cause such Affiliate to transfer such right
to the LLC at the Closing.
3. Conflict; Agreement to Continue as Amended. In the event of any
conflict between the terms of this Amendment and the terms of the Purchase
Agreement, such conflict shall be resolved in favor of this Amendment. As
modified by this Amendment, the Purchase Agreement shall continue in full force
and effect.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which shall be an original and all of which together shall
constitute one and the same instrument.
The Coastal Corporation Coastal Coal, Inc.
By: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxx Xxxxx
Name: Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxx Xxxxx
Title: President and Chief Executive Title: President and Chief Executive
Officer Officer
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Atlantic Richfield Company Itochu Corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx Takahisa
Name: Xxxxxx X. Xxxxx Name: Xxxxxxx Takahisa
Its: Authorized Representative Its: On behalf of Itochu Corporation
under that Certain Power of
Attorney dated October 7 1996
Coastal Transition, Inc. ARCO Uinta Coal Company
By: /s/ Xxxxxx X. X'Xxxxx By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. X'Xxxxx Name: Xxxxxx X. Xxxxx
Its: Vice President Its: Authorized Representative
Itochu Coal International Inc. Canyon Fuel Company, LLC
By: /s/ Xxxxxxx Takahisa By: Coastal Coal, Inc., its member
Name: Xxxxxxx Takahisa By: /s/ Xxxxx X. Xxx Xxxxx
Its: Chief Financial Officer Name: Xxxxx X. Xxx Xxxxx
Its: President and Chief Executive
Officer
By: Coastal Transition, Inc., its
member
By: /s/ Xxxxxx X. X'Xxxxx
Name: Xxxxxx X. X'Xxxxx
Its: Vice President
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