Exhibit 10.3
CONTRIBUTION, CONVEYANCE
AND ASSUMPTION AGREEMENT
------------------------
This Contribution, Conveyance and Assumption Agreement (this
"Agreement") dated effective as of 12:01 a.m. Eastern Standard Time on September
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14, 2001 (the "Effective Time"), is entered into by and among PENN VIRGINIA COAL
--------------
COMPANY, a Virginia corporation ("PVCC"), PENN VIRGINIA OPERATING CO., LLC, a
----
Delaware limited liability company ("PVOC"), PENN VIRGINIA OIL & GAS
----
CORPORATION, a Virginia corporation ("PVOG"), PENN VIRGINIA HOLDING CORP., a
----
Delaware corporation ("Holding"), PENN VIRGINIA RESOURCE HOLDINGS CORP., a
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Delaware corporation ("Resource Holdings"), PENN VIRGINIA RESOURCE PARTNERS,
-----------------
L.P., a Delaware limited partnership (the "MLP"), PENN VIRGINIA RESOURCE GP,
---
LLC, a Delaware limited liability company ("GP LLC"), PENN VIRGINIA RESOURCE GP,
------
CORP., a Delaware corporation ("GP Corp"), PENN VIRGINIA RESOURCE LP, CORP., a
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Delaware corporation ("LP Corp"), WISE ENVIRONMENTAL TECHNOLOGIES, INC., a
-------
Virginia corporation ("Wise"), WISE LLC, a Delaware limited liability company
----
("Wise LLC"), PARAGON COAL CORPORATION, a Virginia corporation ("PCC"), LOADOUT
-------- ---
LLC, a Delaware limited liability company ("Loadout LLC"), KANAWHA RAIL CORP., a
-----------
Virginia corporation ("KRC"), and K RAIL LLC, a Delaware limited liability
---
company ("K Rail LLC").
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RECITALS
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WHEREAS, the MLP has been formed pursuant to the Delaware Revised
Uniform Limited Partnership Act (the "Delaware Act"), for the purpose of, among
------------
other things, serving as the managing member of PVOC, engaging in any business
activity permitted to be engaged by PVOC pursuant to the Amended and Restated
Limited Liability Company Agreement of PVOC and engaging in any business
activity approved by GP LLC;
WHEREAS, in order to accomplish the objectives and purposes in the
preceding recital, the following actions have previously been taken prior to the
date hereof:
1. Holding has formed GP LLC, and contributed $1,000 in capital to
it as a capital contribution in exchange for all of the membership interests in
GP LLC;
2. GP LLC and Holding have formed the MLP, with GP LLC contributing
$20 in exchange for a 2% general partner interest and Holding contributing $980
in exchange for a 98% limited partner interest;
3. Holding has formed Resource Holdings, and contributed its 100%
membership interest in GP LLC and its 98% limited partner interest in the MLP to
it as a capital contribution in exchange for all of Resource Holdings' common
stock;
4. Resource Holdings has formed LP Corp. and contributed its 98%
limited partner interest in the MLP to it as a capital contribution in exchange
for all of LP Corp's common stock;
1
5. Resource Holdings has formed GP Corp and contributed $1,000 to it
as a capital contribution in exchange for all GP Corp's common stock;
6. PVCC has formed PVOC, and contributed $1,000 to it as a capital
contribution in exchange for all of the membership interests in PVOC;
7. Wise has formed Wise LLC, and contributed $1,000 to it as a
capital contribution in exchange for all of the membership interests in Wise
LLC;
8. PCC has formed Loadout LLC, and contributed $1,000 to it as a
capital contribution in exchange for all of the membership interests in Loadout
LLC; and
9. KRC has formed K Rail LLC, and contributed $1,000 to it as a
capital contribution in exchange for all of the membership interests in K Rail
LLC.
WHEREAS, concurrently with the consummation of the transactions
contemplated hereby, each of the following matters shall occur:
1. Holding will contribute all of the common stock of PVCC to
Resource Holdings as a capital contribution.
2. PVCC will merge into PVOC, Wise will merge into Wise LLC and PCC
will merge into Loadout LLC.
3. KRC will contribute the assets listed in Exhibit A hereto (the
---------
"KRC Assets") to K Rail LLC as a capital contribution.
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4. Concord Land Company, a Virginia corporation, will convert to PVR
Concord LLC, a Delaware limited liability company, Lexington Land Company, a
Virginia corporation, will convert to PVR Lexington LLC, a Delaware limited
liability company, and Savannah Land Company, a Virginia corporation, will
convert to PVR Savannah LLC, a Delaware limited liability company.
5. PVOC will distribute the oil and gas interests set forth in
Exhibit B hereto (the "Oil and Gas Interests"), the stock of Xxxxxx River Rail
--------- ---------------------
Corporation, a Virginia corporation ("Xxxxxx River"), and the stock of KRC, to
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Resource Holdings.
6. Resource Holdings will distribute the Oil and Gas Interests to
Holding as a dividend.
7. Holding will contribute the Oil and Gas Interests to PVOG as a
capital contribution.
8. Resource Holdings will contribute a portion of its membership
interest in PVOC, such portion to be specifically determined by the parties
hereto, to GP LLC and a portion of its membership interest in PVOC, such portion
to be specifically determined by the parties hereto, to LP Corp, as capital
contributions. The sum of the portions of Resource Holdings' interest in
2
PVOC to be contributed to GP LLC and LP Corp shall equal 100% of the membership
interest of PVOC.
9. Resource Holdings will contribute its membership interest in GP
LLC to GP Corp as a capital contribution.
10. GP LLC will contribute its membership interest in PVOC to the MLP
in exchange for a continuation of its 2% general partner interest in the MLP.
11. LP Corp will contribute its membership interest in PVOC to the MLP
in exchange for a 97.5% limited partner interest in the MLP.
12. KRC will contribute its membership interest in K Rail LLC to the
MLP in exchange for a .5% limited partner interest in the MLP.
13. The MLP will contribute its interest in K Rail LLC to PVOC as a
capital contribution.
NOW, THEREFORE, in consideration of their mutual undertakings and
agreements hereunder, the parties to this Agreement undertake and agree as
follows:
Article I
Recordation
Section 1.1 Recordation of Evidence of Ownership of Assets. In
----------------------------------------------
connection with the mergers under the Delaware Act that are referred to in the
recitals to this Agreement, the parties to this Agreement acknowledge that
certain jurisdictions in which the assets of the applicable parties to such
mergers are located may require that documents be recorded by the entities
resulting from such mergers in order to evidence title in such entities. All
such documents shall evidence such new ownership and are not intended to modify,
and shall not modify, any of the terms, covenants and conditions herein set
forth .
Article II
Contributions and Distributions of Various Assets,
Stock, and Limited Partnership and Limited Liability Company Interests
Section 2.1 Contribution of PVCC Stock by Holding to Resource Holdings.
----------------------------------------------------------
Holding hereby grants, contributes, transfers, assigns and conveys to Resource
Holdings, its successors and assigns, all right, title and interest of Holding
in and to all of the common stock of PVCC (the "PVCC Stock"), and Resource
----------
Holdings hereby accepts the PVCC Stock as a contribution to the capital of
Resource Holdings in exchange for all the membership interest in Resource
Holdings.
Section 2.2 Mergers of PVCC into PVOC, Wise into Wise LLC and PCC into
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Loadout LLC. PVCC merges into PVOC, Wise merges into Wise LLC and PCC merges
-----------
into Loadout LLC.
3
Section 2.3 Contribution of KRC Assets by KRC to K Rail LLC. KRC hereby
-----------------------------------------------------------
grants, contributes, transfers, assigns and conveys to K Rail LLC, its
successors and assigns, all right, title and interest in and to the KRC Assets,
and K Rail LLC hereby accepts the KRC Assets as a contribution to the capital of
K Rail LLC in exchange for all the membership interest in K Rail LLC. In order
to give full effect to the foregoing grant, contribution, transfer, assignment
and conveyance, KRC, as grantor, and K Rail LLC, as grantee, shall execute a
Special Warranty Deed in the form attached hereto as Exhibit C.
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Section 2.4 Distribution of Oil and Gas Interests, Xxxxxx River Stock
----------------------------------------------------------
and KRC Stock by PVOC to Resource Holdings. PVOC hereby grants, distributes,
------------------------------------------
transfers, assigns and conveys to Resource Holdings, its successors and assigns,
all right, title and interest of PVOC in and to the Oil and Gas Interests, all
the common stock of Xxxxxx River (the "Xxxxxx River Stock"), and all the common
------------------
stock of KRC (the "KRC Stock"), and Resource Holdings accepts the Oil and Gas
---------
Interests, the Xxxxxx River Stock, and the KRC Stock as a dividend. In order to
give full effect to the foregoing grants, distributions, transfers, assignments
and conveyances, PVOC, and Resource Holdings, shall execute three Agreements to
Lease in the forms attached hereto as Exhibit D, with respect to the Oil and Gas
---------
Interests, and a Conveyance, Assignment and Xxxx of Sale in the form attached
hereto as Exhibit E, with respect to the Xxxxxx River Stock and the KRC Stock.
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Section 2.5 Distribution of Oil and Gas Interests by Resource Holdings
----------------------------------------------------------
to Holding. Resource Holdings hereby grants, distributes, transfers, assigns and
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conveys to Holding, its successors and assigns, all right, title and interest of
Resource Holdings in and to the Oil and Gas Interests, and Holding accepts the
Oil and Gas Interests as a dividend. In order to give full effect to the
foregoing grant, distribution, transfer, assignment and conveyance, Resource
Holdings, as assignor, and Holding, as assignee, shall execute an Assignment in
the form attached hereto as Exhibit F.
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Section 2.6 Contribution of Oil and Gas Interests by Holding to PVOG.
--------------------------------------------------------
Holding hereby grants, contributes, transfers, assigns and conveys to PVOG, its
successors and assigns, all right, title and interest of Holding in and to the
Oil and Gas Interests, and PVOG hereby accepts the Oil and Gas Interests as a
capital contribution in exchange for a continuation of its continued ownership
of all the common stock of GP Corp. In order to give full effect to the
foregoing grant, distribution, transfer, assignment and conveyance, Holding, as
assignor, and PVOG, as assignee, shall execute an Assignment in the form
attached hereto as Exhibit G.
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Section 2.7 Contribution of the GP LLC PVOC Interest and the LP Corp
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PVOC Interest by Resource Holdings to GP LLC and LP Corp. Resource Holdings
--------------------------------------------------------
hereby grants, contributes, transfers, assigns and conveys to GP LLC, its
successors and assigns, all right, title and interest of Resource Holdings in
and to a portion of its membership interest in PVOC, such portion to be
specifically determined by the parties hereto (the "GP LLC PVOC Interest"), and
--------------------
hereby grants, contributes, transfers, assigns and conveys to LP Corp, its
successors and assigns, all right, title and interest of Resource Holdings in
and to a portion of its membership interest in PVOC, such portion to be
specifically determined by the parties hereto (the "LP Corp PVOC Interest"), and
---------------------
GP LLC and LP Corp hereby accept the GP LLC PVOC Interest and LP Corp PVOC
Interest, respectively .
4
Section 2.8 Contribution of GP LLC Interest by Resource Holdings to GP
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Corp. Resource Holdings hereby grants, contributes, transfers, assigns and
----
conveys to GP Corp, its successors and assigns, all right, title and interest of
Resource Holdings in and to its membership interest in GP LLC equal to a 100%
membership interest (the "GP LLC Interest"), and GP Corp hereby accepts the GP
---------------
LLC Interest as a capital contribution in exchange for a continuation of its
continued Ownership of all the common stock of GP Corp.
Section 2.9 Contribution of GP LLC PVOC Interest by GP LLC to the MLP.
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GP LLC hereby grants, contributes, transfers, assigns and conveys to the MLP,
its successors and assigns, all right, title and interest of GP LLC in and to
its GP LLC PVOC Interest and the related incentive distribution rights, and the
MLP hereby accepts the GP LLC PVOC Interest and the related incentive
distribution rights as a capital contribution in exchange for a continuation of
the 2% general partner interest of GP LLC in the MLP.
Section 2.10 Contribution of PVOC LP Interest by LP Corp to the MLP. LP
------------------------------------------------------
Corp hereby grants, contributes, transfers, assigns and conveys to the MLP, its
successors and assigns, all right, title and interest of LP Corp in and to its
PVOC LP Interest, and the MLP hereby accepts the PVOC LP Interest as a capital
contribution in exchange for a 97.5% limited partner interest in the MLP.
Section 2.11 Contribution of K Rail LLC Interest by KRC to the MLP. KRC
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hereby grants, contributes, transfers, assigns and conveys to the MLP, its
successors and assigns, all right, title and interest of KRC in and to its
membership interest in K Rail LLC (the "K Rail LLC Interest"), and the MLP
-------------------
hereby accepts the K Rail LLC Interest as a capital contribution in exchange for
a .5% limited partner interest in the MLP.
Section 2.12 Contribution of K Rail LLC Interest by MLP to PVOC. The
--------------------------------------------------
MLP hereby grants, contributes, transfers, assigns and conveys to PVOC, its
successors and assigns, all right, title and interest of the MLP in and to the K
Rail LLC Interest as a contribution to the capital of PVOC, and PVOC hereby
accepts the K Rail LLC Interest as a capital contribution in exchange for a
continuation of its 100% membership interest in PVOC.
Article III
Assumption of Certain Liabilities
Section 3.1 Assumption of Liabilities and Obligations of PVOC by PVOG.
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In connection with the distribution by PVOC of the Oil and Gas Interests to
Resource Holdings, the subsequent distribution by Resource Holdings of the Oil
and Gas Interests to Holding and the subsequent contribution by Holding of the
Oil and Gas Interests to PVOG, PVOG hereby assumes and agrees to duly and timely
pay, perform and discharge all obligations and liabilities incurred with respect
to the Oil and Gas Interests that arise from and after the date of this
Agreement, to the full extent that PVOC would have been obligated to pay,
perform and discharge such obligations and liabilities in the future, were it
not for the execution and delivery of this Agreement; provided, however, that
said assumption and agreement to duly and timely pay, perform and discharge such
obligations and liabilities shall not increase the obligation of PVOG with
respect to such obligations and liabilities beyond that of PVOC to the extent of
such interest conveyed by PVOC.
5
Section 3.2 Assumption of Liabilities and Obligations of KRC by K Rail
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LLC. In connection with the contribution by KRC of the KRC Assets to K Rail LLC,
---
K Rail LLC hereby assumes and agrees to duly and timely pay, perform and
discharge all obligations and liabilities incurred with respect to the KRC
Assets that arise from and after the date of this Agreement, to the full extent
that KRC would have been obligated to pay, perform and discharge such
obligations and liabilities in the future, were it not for the execution and
delivery of this Agreement; provided, however, that said assumption and
agreement to duly and timely pay, perform and discharge such obligations and
liabilities shall not increase the obligation of K Rail LLC with respect to such
obligations and liabilities beyond that of KRC to the extent of such interest
conveyed by KRC.
Article IV
Title Matters
Section 4.1 Encumbrances. The distributions of the Oil and Gas
------------
Interests made to Resource Holdings and Holding and the contribution of the Oil
and Gas Interests to PVOG under this Agreement are made expressly subject to all
recorded and unrecorded liens, encumbrances, agreements, defects, restrictions,
adverse claim and all laws, rules, regulations, ordinances, judgments and orders
of governmental authorities or tribunals having or asserting jurisdiction over
the Oil and Gas Interests and operations conducted thereon or in connection
therewith, in each case to the extent the same are valid and enforceable and
affect the Oil and Gas Interests, including, without limitation, (a) all matters
that a current on the ground survey or visual inspection of the Oil and Gas
Interests would reflect, and (b) the liabilities assumed by PVOG with respect to
the Oil and Gas Interests.
Section 4.2 Disclaimer of Warranties; Subrogation; Waiver of Bulk Sales
-----------------------------------------------------------
Laws.
----
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, PVOG AND K RAIL LLC ACKNOWLEDGES AND AGREES THAT PVOC, RESOURCE
HOLDINGS, HOLDINGS AND KRC HAVE NOT MADE, DO NOT MAKE, AND SPECIFICALLY NEGATE
AND DISCLAIM, ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS
OR GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS, IMPLIED OR
STATUTORY, ORAL OR WRITTEN, PAST OR PRESENT (ALL OF WHICH ARE EXPRESSLY
DISCLAIMED BY PVOC, RESOURCE HOLDINGS, HOLDING AND KRC), REGARDING (1) THE
TITLE, VALUE, NATURE, QUALITY OR CONDITION OF THE OIL AND GAS INTERESTS OR THE
KRC ASSETS INCLUDING WITHOUT LIMITATION, THE WATER, SOIL, GEOLOGY OR
ENVIRONMENTAL CONDITION OF THE OIL AND GAS INTERESTS GENERALLY, INCLUDING THE
PRESENCE OR LACK OF HAZARDOUS SUBSTANCES OR OTHER MATTERS ON THE OIL AND GAS
INTERESTS OR THE KRC ASSETS, (2) THE INCOME TO BE DERIVED FROM THE OIL AND GAS
INTERESTS OR THE KRC ASSETS, (3) THE SUITABILITY OF THE OIL AND GAS INTERESTS OR
THE KRC ASSETS FOR ANY AND ALL ACTIVITIES AND USES WHICH PVOG OR K RAIL LLC MAY
CONDUCT THEREON, (4) THE COMPLIANCE OF OR BY THE OIL AND GAS INTERESTS OR THE
KRC ASSETS OR THEIR OPERATIONS WITH ANY LAWS (INCLUDING WITHOUT LIMITATION ANY
ZONING, ENVIRONMENTAL PROTECTION, POLLUTION OR LAND USE LAWS, RULES,
6
REGULATIONS, ORDERS OR REQUIREMENTS), OR (5) THE HABITABILITY, MERCHANTABILITY,
MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE OIL AND
GAS INTERESTS OR THE KRC ASSETS. PVOG AND K RAIL LLC ACKNOWLEDGE AND AGREE THAT
PVOG AND K RAIL LLC EACH HAVE HAD THE OPPORTUNITY TO INSPECT THE OIL AND GAS
INTERESTS AND THE KRC ASSETS AND PVOG AND K RAIL LLC EACH IS RELYING SOLELY ON
ITS OWN INVESTIGATION OF THE OIL AND GAS INTERESTS AND NOT ON ANY INFORMATION
PROVIDED OR TO BE PROVIDED BY PVOC, RESOURCE HOLDINGS, HOLDING OR KRC. PVOC,
RESOURCE HOLDINGS, HOLDING AND KRC ARE NOT LIABLE OR BOUND IN ANY MANNER BY ANY
VERBAL OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
OIL AND GAS INTERESTS AND THE KRC ASSETS FURNISHED BY ANY AGENT, EMPLOYEE,
SERVANT OR THIRD PARTY. PVOG AND K RAIL LLC EACH ACKNOWLEDGE THAT TO THE MAXIMUM
EXTENT PERMITTED BY LAW, THE CONTRIBUTION OF THE OIL AND GAS INTERESTS AND K
RAIL LLC AS PROVIDED FOR HEREIN IS MADE ON AN "AS IS", "WHERE IS" BASIS WITH ALL
FAULTS AND THE OIL AND GAS INTERESTS AND THE KRC ASSETS ARE CONTRIBUTED OR
DISTRIBUTED AND CONVEYED BY PVOC, RESOURCE HOLDINGS, HOLDING AND KRC AND
ACCEPTED BY PVOG AND K RAIL LLC SUBJECT TO THE FOREGOING. THIS PARAGRAPH SHALL
SURVIVE SUCH CONTRIBUTION OR DISTRIBUTION AND CONVEYANCE OR THE TERMINATION OF
THIS AGREEMENT. THE PROVISIONS OF THIS SECTION 4.2 HAVE BEEN NEGOTIATED BY PVOC,
RESOURCE HOLDINGS, HOLDING PVOG, K RAIL LLC AND KRC AFTER DUE CONSIDERATION AND
ARE INTENDED TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY REPRESENTATIONS OR
WARRANTIES OF PVOC, RESOURCE HOLDINGS, HOLDING AND KRC, WHETHER EXPRESS, IMPLIED
OR STATUTORY, WITH RESPECT TO THE OIL AND GAS INTERESTS AND THE KRC ASSETS THAT
MAY ARISE PURSUANT TO ANY LAW NOW OR HEREAFTER IN EFFECT, OR OTHERWISE.
(b) The distributions and contributions of the Oil and Gas
Interests and KRC Assets made under this Agreement is made with full rights of
substitution and subrogation of PVOG and K Rail LLC, and all persons claiming
by, through and under PVOG and K Rail LLC, to the extent assignable, in and to
all covenants and warranties by the predecessors-in-title of PVOC, Resource
Holdings, Holding and KRC, and with full subrogation of all rights accruing
under applicable statutes of limitation and all rights of action of warranty
against all former owners of the Oil and Gas Interests and KRC Assets.
(c) PVOC, Resource Holdings, Holding, PVOG, K Rail LLC and KRC
agree that the disclaimers contained in this Section 4.2 are "conspicuous"
disclaimers. Any covenants implied by statute or law by the use of the words
"grant," "convey," "bargain," "sell," "assign," "transfer," "deliver," or "set
over" or any of them or any other words used in this Agreement or any exhibits
hereto are hereby expressly disclaimed, waived or negated.
(d) Each of the parties hereto hereby waives compliance with any
applicable bulk sales law or any similar law in any applicable jurisdiction in
respect of the transactions contemplated by this Agreement. "Laws" means any and
----
all laws, statutes, ordinances, rules or regulations promulgated by a
governmental authority, orders of a governmental authority,
7
judicial decisions, decisions of arbitrators or determinations of any
governmental authority or court.
Article V
Further Assurances
Section 5.1 Further Assurances. From time to time after the date
------------------
hereof, and without any further consideration, PVOC, Resource Holdings, Holding,
PVOG, K Rail LLC and KRC shall execute, acknowledge and deliver all such
additional deeds, assignments, bills of sale, conveyances, instruments, notices,
releases, acquittances and other documents, and will do all such other acts and
things, all in accordance with applicable law, as may be necessary or
appropriate more fully and effectively to vest in PVOG and K Rail LLC and their
successors and assigns beneficial and record title to the interests hereby
contributed and assigned to PVOG and K Rail LLC or intended so to be and to more
fully and effectively carry out the purposes and intent of this Agreement.
Section 5.2 Other Assurances. From time to time after the date hereof,
----------------
and without any further consideration, each of the parties to this Agreement
shall execute, acknowledge and deliver all such additional instruments, notices
and other documents, and will do all such other acts and things, all in
accordance with applicable law, as may be necessary or appropriate to more fully
and effectively carry out the purposes and intent of this Agreement.
Article VI
Miscellaneous
Section 6.1 Order of Completion of Transactions. The transactions
-----------------------------------
provided for in Article II and Article III of this Agreement shall be completed
on the date of this Agreement in the following order:
(a) First, the transactions provided for in Article II shall
-----
be completed in the order set forth herein; and
(b) Second, the transactions provided for in Article III shall
------
be completed in the order set forth herein.
Section 6.2 Headings; References; Interpretation. All article and
------------------------------------
section headings in this Agreement are for convenience only and shall not be
deemed to control or affect the meaning or construction of any of the provisions
hereof. The words "hereof," "herein" and "hereunder" and words of similar
import, when used in this Agreement, shall refer to this Agreement as a whole,
including without limitation, all exhibits attached hereto, and not to any
particular provision of this Agreement. All references herein to articles,
sections, and exhibits shall, unless the context requires a different
construction, be deemed to be references to the articles, sections and exhibits
of this Agreement, respectively, and all such Exhibits attached hereto are
hereby incorporated herein and made a part hereof for all purposes. All personal
pronouns used in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders, and the singular shall include
the plural and vice versa. The use herein of the word "including" following any
general statement, term or matter shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
8
following such word or to similar items or matters, whether or not non-limiting
language (such as "without limitation," "but not limited to," or words of
similar import) is used with reference thereto, but rather shall be deemed to
refer to all other items or matters that could reasonably fall within the
broadest possible scope of such general statement, term or matter.
Section 6.3 Successors and Assigns. The Agreement shall be binding upon
----------------------
and inure to the benefit of the parties signatory hereto and their respective
successors and assigns.
Section 6.4 No Third Party Rights. The provisions of this Agreement are
---------------------
intended to bind the parties signatory hereto as to each other and are not
intended to and do not create rights in any other person or confer upon any
other person any benefits, rights or remedies and no person is or is intended to
be a third party beneficiary of any of the provisions of this Agreement.
Section 6.5 Counterparts. This Agreement may be executed in any number
------------
of counterparts, all of which together shall constitute one agreement binding on
the parties hereto.
Section 6.6 Governing Law. This Agreement shall be governed by, and
--------------
construed in accordance with, the laws of the State of Delaware applicable to
contracts made and to be performed wholly within such state without giving
effect to conflict of law principles thereof, except to the extent that it is
mandatory that the law of some other jurisdiction, shall apply.
Section 6.7 Severability. If any of the provisions of this Agreement
------------
are held by any court of competent jurisdiction to contravene, or to be invalid
under, the laws of any political body having jurisdiction over the subject
matter hereof, such contravention or invalidity shall not invalidate the entire
Agreement. Instead, this Agreement shall be construed as if it did not contain
the particular provision or provisions held to be invalid, and an equitable
adjustment shall be made and necessary provision added so as to give effect to
the intention of the parties as expressed in this Agreement at the time of
execution of this Agreement.
Section 6.8 Amendment or Modification. This Agreement may be amended or
-------------------------
modified from time to time only by the written agreement of all the parties
hereto.
Section 6.9 Integration. This Agreement supersedes all previous
-----------
understandings or agreements between the parties, whether oral or written, with
respect to its subject matter. This document is an integrated agreement which
contains the entire understanding of the parties. No understanding,
representation, promise or agreement, whether oral or written, is intended to be
or shall be included in or form part of this Agreement unless it is contained in
a written amendment hereto executed by the parties hereto after the date of this
Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
PVCC: PENN VIRGINIA COAL COMPANY, a Virginia
corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
PVOC: PENN VIRGINIA OPERATING CO., LLC, a Delaware
limited liability company
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
PVOG: PENN VIRGINIA OIL AND GAS
CORPORATION, a Virginia corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
HOLDING: PENN VIRGINIA HOLDING CORP., a
Delaware corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
RESOURCE HOLDINGS: PENN VIRGINIA RESOURCE HOLDINGS
CORP., a Delaware corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
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MLP: PENN VIRGINIA RESOURCE PARTNERS,
L.P., a Delaware limited partnership
By: Penn Virginia Resource GP, LLC, a Delaware
limited liability company, its general
partner
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
GP LLC: PENN VIRGINIA RESOURCE GP, LLC, a
Delaware limited liability company
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
GP CORP: PENN VIRGINIA RESOURCE GP, CORP., a
Delaware corporation
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
LP CORP: PENN VIRGINIA RESOURCE LP, CORP., a
Delaware corporation
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
WISE: WISE ENVIRONMENTAL TECHNOLOGIES,
INC., a Virginia corporation
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
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WISE LLC: WISE LLC, a Delaware limited liability company
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
PCC: PARAGON COAL CORPORATION, a Virginia
corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
LOADOUT LLC: LOADOUT LLC, a Delaware limited liability
company
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
KRC: KANAWHA RAIL CORP., a Virginia corporation
By: /s/ A Xxxxx Xxxxxxxx
-----------------------------------
Name: A Xxxxx Xxxxxxxx
---------------------------------
Title: Chief Executive Officer
--------------------------------
K RAIL LLC: K RAIL LLC, a Delaware limited liability
company
By: /s/ Xxxxx X Xxxxxx
-----------------------------------
Name: Xxxxx X Xxxxxx
---------------------------------
Title: Vice President
--------------------------------
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EXHIBIT A
---------
KRC ASSETS
All those certain fee lands, surface estates and interests, mineral estates
and interests, oil and gas estates and interests, coal estates and interest, and
all other real estate interests, together with all improvements thereon, all
mining rights, privileges, easements, hereditaments, rights of reverter,
reversion, and remainder, and appurtenances thereunto belonging or in anywise
appertaining, situated in Cabin Creek and Xxxxxx Districts, Kanawha County, West
Virginia, being the same lands, estates, oil, gas, minerals, coal, surface and
fee property interests, as are identified and more particularly described in,
and conveyed to, the Winifrede Railroad Company by the following deeds:
1. Deed from Xxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxxx, his wife, dated
August 10, 1885, and recorded in the office of the Clerk of the County
Commission of Kanawha County, West Virginia in Deed Book 43, at page 108;
2. Deed from Chesapeake and Ohio Railroad Company, dated July 20, 1886,
and recorded in said Clerk's office in Deed Book 44, at page 566;
3. Deed from Xxx Xxxxxx and Xxxx Xxxxxx, his wife, dated April 25, 1891,
and recorded in said Clerk's office in Deed Book 55, at page 318;
4. Deed from X. X. Xxxxx, Xx. and wife, dated November 19, 1956,
unrecorded;
5. Deed from X. X. Xxxxx, Xx., dated March 16, 1970, unrecorded;
6. Deed from Xxxxxx X. Xxxxxxx, dated May 8, 1890, of record in said
Clerk's office in Deed Book 52, at page 387;
7. Deed from Xxxx X. XxXxxxxxx, et al., dated May 12, 1886, of record in
said Clerk's office in Deed Book 44, at page 284;
Exhibit A
to Contribution, Conveyance and Assumption Agreement
-1-
8. Deed from S. E. "Xxxxx" XxXxxxxxx, Sr., and Xxxxx XxXxxxxxx, his wife,
dated March 17, 1989, of record in said Clerk's office in Deed Book 2221, at
page 407;
9. Deed from X. X. XxXxxxxxx, as Special Commissioner, dated July 1, 1892,
of record in said Clerk's office in Deed Book 59, at page 755;
10. Deed from Xxxxxxxxx Xxxxxxxxxxx and Xxxx X. Xxxxxxxxxx, his wife, dated
July 16, 1892, of record in said Clerk's office in Deed Book 60, at page 41;
11. Deed from Xxxx X. Xxxxxxxxxxx and Xxxxxxxxx Xxxxxxxxxxx, her husband,
dated June 23, 1886, of record in said Clerk's office in Deed Book 44, at page
441;
12. Deed from Xxxxxxxx Xxxxxx and Xxxx X. Xxxxxx, his wife, dated August
19, 1882, of record in said Clerk's office in Deed Book 37, at page 621; and
13. Deed to the Winifrede Railroad Company from X. X. Xxxxxx, et al., dated
March 26, 1888, and recorded in said Clerk's office in Deed Book 48, at page
225; and
14. Deed to the Winifrede Railroad Company from Xxxxxx XxXxxxxxx and Xxxxx
X. XxXxxxxxx, his wife, dated January 11, 1892, and recorded in said Clerk's
office in Deed Book 58, at page 145.
PROVIDED, HOWEVER, THAT the party of the first part hereby expressly excepts and
reserves from this conveyance the following portion of the property described
and conveyed by deed from Xxxxxxxx Xxxxxx and Xxxx X. Xxxxxx, his wife, dated
August 19, 1882, of record in said Clerk's office in Deed Book 37, at page 621,
said portion being more particularly described and defined by the centerline and
thirty feet (30') on each side thereof of the main line of the Kanawha Rail
Corp. railroad beginning at the intersection of the right-of-way of the CSX
Railroad and the Kanawha Rail Corp. main line and including the entire length of
the Kanawha Rail Corp. railroad for a total distance of Thirty-Three Thousand
Nine Hundred Eighty-Two feet (33,982 feet) containing 46.7 acres, more or less.
Exhibit A
to Contribution, Conveyance and Assumption Agreement
-2-
Exhibit B
---------
OIL AND GAS INTERESTS
Exhibit B
to Contribution, Conveyance and Assumption Agreement
-1-
EXHIBIT C
---------
Special Warranty Deed
Exhibit C
to Contribution, Conveyance and Assumption Agreement
-1-
EXHIBIT D
---------
Form of Conveyance, Assignment And Xxxx Of Sale
Recording Requested by and When Recorded Return to: Xxxxxx & Xxxxxx L.L.P., 0000
Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000, Attn: Xxxxxxx X. Xxxxxxx
CONVEYANCE, ASSIGNMENT AND XXXX OF SALE
This Conveyance, Assignment and Xxxx of Sale (this "Conveyance"), effective
----------
as of September 15, 2001 (the "Effective Date"), is from PENN VIRGINIA OPERATING
--------------
CO., LLC, a Delaware limited liability company (successor by merger under (S)
18-209 of the Delaware Limited Liability Company Act to Penn Virginia Coal
Company, a Virginia corporation) (herein called "Grantor"), and in favor of PENN
-------
VIRGINIA RESOURCE HOLDINGS, INC., a Delaware corporation, whose mailing address
is __________________, __________________, _________________ (herein called
"Grantee").
-------
ARTICLE I
GRANTING AND HABENDUM CLAUSES
1.1 Granting and Habendum Clauses.
-----------------------------
For good and valuable consideration, the receipt and sufficiency of which
Grantee hereby acknowledges, Grantor hereby contributes, conveys, assigns,
transfers, delivers, and sets over unto Grantee, its successors and assigns, all
right, title, interests and estate of Grantor in and to the following described
property, to-wit:
(a) Xxxxxx River Stock. All the common stock of Xxxxxx River Rail
------------------
Corporation, a Virginia corporation equal to all of the shares of common stock
(the "Xxxxxx River Stock"); and
------------------
(b) KRC Stock. All the common stock of Kanawha Rail Corp., a Virginia
---------
corporation equal to all of the shares of common stock (the "KRC Stock").
---------
The property described in (a) through (b) of this Section 1.1 shall be
referred to herein collectively as the "Subject Property".
----------------
TO HAVE AND TO HOLD the Subject Property, subject to the terms and
conditions hereof, unto Grantee, its successors and assigns, forever.
ARTICLE II
ENCUMBRANCES AND WARRANTY DISCLAIMERS
2.1 Permitted Encumbrances.
----------------------
This Conveyance is made and accepted expressly subject to (a) all liens,
charges, encumbrances, contracts, agreements, instruments, obligations, defects,
restrictions, security interests, options or preferential rights to purchase,
adverse claims, reservations, exceptions,
Exhibit D
to Contribution, Conveyance and Assumption Agreement
-1-
easements, rights-of-way, conditions, leases, other matters affecting the
Subject Property or to which it is subject; and (b) to all matters that a
current on the ground survey or visual inspection would reflect.
2.2 Contributions Agreement.
-----------------------
This Conveyance is expressly made subject to the terms and conditions of
that certain Contribution, Conveyance and Assumption Agreement dated as of
September 14, 2001, among Grantor, Grantee and the other parties thereto (the
"Contribution Agreement"). All capitalized terms used herein shall have the
----------------------
meanings given to such terms in the Contribution Agreement, unless otherwise
defined herein. Nothing contained in this Conveyance shall in any way affect the
provisions set forth in the Contribution Agreement nor shall this Conveyance
expand or contract any rights or remedies under the Contribution Agreement,
including without limitation any rights to indemnification specified therein.
This Conveyance is intended only to effect the transfer of the Subject Property
to Grantee as provided for in the Contribution Agreement and shall be governed
entirely in accordance with the terms and conditions of the Contribution
Agreement. In the event of a conflict between the terms of this Conveyance and
the terms of the Contribution Agreement, the terms of the Contribution Agreement
shall prevail.
2.3 Disclaimer of Warranties; Subrogation.
-------------------------------------
Except as expressly provided herein or in the Contribution Agreement, this
Conveyance is made, and is accepted by Grantee, without warranty of title,
express, implied or statutory, and without recourse, but with full substitution
and subrogation of Grantee, and all persons claiming by, through, and under
Grantee, to the extent assignable, in and to all covenants and warranties by the
predecessors in title of Grantor and with full subrogation of all rights
accruing under applicable statutes of limitation or prescription and all rights
of action of warranty against all former owners of the Subject Property. Except
as expressly provided herein or in the Contribution Agreement, any covenants
implied by statute or by the use of the words "convey", "sell", "assign",
"transfer", "deliver", or "set over" or any of them or any other words used in
this Conveyance, are hereby expressly disclaimed, waived and negated.
ARTICLE III
MISCELLANEOUS
3.1 Further Assurances.
------------------
Grantor and Grantee agree to take all such further actions and to execute,
acknowledge and deliver all such further documents that are necessary or useful
in carrying out the purposes of this Conveyance. So long as authorized by
applicable law so to do, Grantor agrees to execute, acknowledge and deliver to
Grantee all such other additional instruments, notices, affidavits, deeds,
conveyances, assignments and other documents and to do all such other and
further acts and things as may be necessary or useful to more fully and
effectively grant, bargain, assign, convey, transfer and deliver to Grantee the
Subject Property conveyed hereby or intended so to be conveyed.
3.2 Successors and Assigns; No Third Party Beneficiary.
--------------------------------------------------
Exhibit D
to Contribution, Conveyance and Assumption Assumption
-2-
This Conveyance shall be binding upon, and shall and inure to the benefit
of, Grantor and Grantee and their successors and assigns. The provisions of this
Conveyance are not intended to and do not create rights in any other person or
entity or confer upon any other person or entity any benefits, rights or
remedies and no person or entity is or is intended to be a third party
beneficiary of any of the provisions of this Conveyance.
3.3 Governing Law.
-------------
This Conveyance and the legal relations between the parties shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, excluding any conflict of law rule which would refer any issue to the
laws of another jurisdiction, except when it is mandatory that the law of the
jurisdiction wherein the Subject Property is located shall apply.
3.5 Exhibits.
--------
Reference is made to Exhibit A which is attached hereto and made a
---------
part hereof for all purposes.
3.6 Headings; References; Defined Terms.
-----------------------------------
All Section headings in this Conveyance are for convenience only and shall
not be deemed to control or affect the meaning or construction of any of the
provisions hereof. The words "hereof", "herein" and "hereunder" and words of
similar import, when used in this Conveyance, shall refer to this Conveyance as
a whole, including, without limitation, all Schedules and Exhibits attached
hereto, and not to any particular provision of this Conveyance.
3.7 Counterparts.
------------
This Conveyance may be executed in any number of counterparts, all of which
together shall constitute one agreement binding on the parties hereto.
3.8 Severability.
------------
If any of the provisions of this Conveyance are held by any court of
competent jurisdiction to contravene, or to be invalid under, the laws of any
political body having jurisdiction over the subject matter hereof, such
contravention or invalidity shall not invalidate the entire agreement. Instead,
this Conveyance shall be construed as if it did not contain the particular
provision or provisions held to be invalid and an equitable adjustment shall be
made and necessary provision added so as to give effect to the intention of the
parties as expressed in this Conveyance at the time of execution of this
Conveyance.
Exhibit D
to Contribution, Conveyance and Assumption Agreement
-3-
IN WITNESS WHEREOF, this Conveyance has been duly executed by the parties
hereto on the dates of the acknowledgments set forth below, to be effective,
however, as of the Effective Date.
GRANTOR:
PENN VIRGINIA OPERATING CO., LLC, a
Delaware limited liability company
By:_____________________________________
Xxxxx X. Xxxxxx, Vice President
GRANTEE:
PENN VIRGINIA RESOURCE HOLDINGS, INC., a
Delaware corporation
By:_________________________________
Xxxxx X. Xxxxxx, Vice President
Exhibit D
to Contribution, Conveyance and Assumption Agreement
-4-
STATE OF __________ )
) SS.
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of September
2001, by Xxxxx X. Xxxxxx, Vice President of PENN VIRGINIA OPERATING CO., LLC, a
Delaware limited liability company, on behalf of and in her capacity as Vice
President of PENN VIRGINIA OPERATING CO., LLC.
________________________________________
NOTARY PUBLIC
My Commission Expires:
________________________
STATE OF __________ )
) SS.
COUNTY OF _________ )
This instrument was acknowledged before me on the ____ day of September,
2001, by Xxxxx X. Xxxxxx, Vice President of PENN VIRGINIA RESOURCE HOLDINGS,
INC., a Delaware corporation, on behalf of and in her capacity as Vice President
of PENN VIRGINIA RESOURCE HOLDINGS, INC.
________________________________________
NOTARY PUBLIC
My Commission Expires:
________________________
Exhibit D
to Contribution, Conveyance and Assumption Agreement
-5-
EXHIBIT E
---------
AGREEMENTS TO LEASE
-------------------
Exhibit E
to Contribution, Conveyance and Assumption Agreement
-6-
EXHIBIT F
---------
ASSIGNMENT OF AGREEMENTS
------------------------
This Assignment of Agreements (this "Agreement"), is entered into as of
---------
September 14, 2001, between PENN VIRGINIA RESOURCE HOLDINGS CORP., a Delaware
corporation ("Assignor") and PENN VIRGINIA HOLDING CORP., a Virginia corporation
--------
("Assignee").
--------
RECITALS:
--------
A. Assignor and Penn Virginia Operating Co., LLC, a Delaware limited
liability company ("PVOC") entered into three forms of Agreement to Lease, each
----
dated September 14, 2001 (the "Agreements"), under which PVOC conditionally
----------
agrees to grant certain options to lease to Assignor.
B. Assignor desires to assign to Assignee all of Assignor's interest in
the Agreements, and Assignee desires to assume all of Assignor's obligations
under the Agreements, subject to the terms and conditions contained herein.
AGREEMENTS:
----------
For good and valuable consideration, whose receipt and sufficiency are
acknowledged, the parties agree as follows:
1. Assignment. Assignor assigns to Assignee all of Assignor's interest in
----------
the Agreements, and shall warrant and forever defend such interest unto
Assignee, its successors and assigns, against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof.
2. Assumption of Liabilities. Assignee assumes all of the obligations of
-------------------------
the tenant under the Agreements arising on and after the date hereof.
Executed on the date first written above.
ASSIGNOR: PENN VIRGINIA RESOURCE HOLDINGS CORP., a
Delaware corporation
By:__________________________________________
Xxxxx X. Xxxxxx, Vice President
ASSIGNEE: PENN VIRGINIA HOLDING CORP., a Virginia
corporation
By:__________________________________________
A. Xxxxx Xxxxxxxx, Chief Executive Officer
Exhibit F
to Contribution, Conveyance and Assumption Agreement
-1-
EXHIBIT G
---------
ASSIGNMENT OF AGREEMENTS
------------------------
This Assignment of Agreements (this "Agreement"), is entered into as of
---------
September 14, 2001, between PENN VIRGINIA HOLDING CORP., a Virginia corporation
("Assignor"),and Penn Virginia Oil and Gas Corporation, a Virginia corporation
--------
("Assignee").
--------
RECITALS:
--------
X. Xxxx Virginia Operating Co., LLC, a Delaware limited liability company
("PVOC") and Penn Virginia Resource Holdings Corp., a Delaware limited liability
----
company ("Resource Holdings") entered into three forms of Agreement to Lease,
-----------------
each dated September 14, 2001 (the "Agreements"), under which PVOC agrees to
----------
grant certain options to lease to Resource Holdings, and Resource Holdings
assigned to Assignor all of its interest in the Agreements, and Assignor assumed
all of Resource Holdings' obligations under the Agreements.
B. Assignor desires to assign to Assignee all of Assignor's interest in
the Agreements, and Assignee desires to assume all of Assignor's obligations
under the Agreements, subject to the terms and conditions contained herein.
AGREEMENTS:
----------
For good and valuable consideration, whose receipt and sufficiency are
acknowledged, the parties agree as follows:
1. Assignment. Assignor assigns to Assignee all of Assignor's interest in
----------
the Agreements, and shall warrant and forever defend such interest unto
Assignee, its successors and assigns, against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof.
2. Assumption of Liabilities. Assignee assumes all of the obligations of
-------------------------
the tenant under the Agreements arising on and after the date hereof.
Exhibit G
to Contribution, Conveyance and Assumption Agreement
-1-
Executed on the date first written above.
ASSIGNOR: PENN VIRGINIA HOLDING CORP., a Virginia
corporation
By:__________________________________________
A. Xxxxx Xxxxxxxx, Chief Executive Officer
ASSIGNEE: PENN VIRGINIA OIL AND GAS CORPORATION, a
Virginia corporation
By:__________________________________________
A. Xxxxx Xxxxxxxx, Chief Executive Officer
Exhibit G
to Contribution, Conveyance and Assumption Agreement
-2-
