West Virginia-Webster County Coal Lease - NGHD Lands Inc., T C Lands Inc., White Pine Inc. and Coastal Coal-West Virginia LLC
COAL LEASE
THIS COAL LEASE, made this 1st day of July, 1999, by and between NGHD
LANDS, INC., a West Virginia Corporation, T. C. LANDS, INC., a West Virginia
Corporation, LARRY A. DEITZ and GLORIA K. DEITZ, his wife, WHITE PINE, INC, a
West Virginia Corporation, G. D. HEROLD ESTATE by JAMES H. WOLVERTON and EUGENIA
P. HEROLD, Co-Executors in the Last Will and Testament of G. D. HEROLD, MAXEY
ANN TULLY, widow, (hereinafter collectively called "Lessor"), and COASTAL
COAL-WEST VIRGINIA, LLC, (hereinafter called "Lessee")
NOW, THEREFORE, WITNESSETH that, for and in consideration of the rents and
royalties herein reserved and to be paid by Lessee to Lessor as hereinafter
provided and of the terms, conditions, covenants, stipulations and agreements
herein contained and to be kept and performed by Lessee, Lessor does hereby
demise and lease all of the mineable and merchantable coal including the
Stockton Seam and all seams above the Stockton Seam of coal in those certain
tracts or parcels of land situate in Glade District, Webster County, West
Virginia, and more particularly described on Schedule A, attached hereto and
made a part hereof, and shown and designated on a map attached hereto and made a
part hereof and marked for identification, i. e., 188 Acres (WE46), 76 Acres
(WE51), 28 Acres (WE45), 202 Acres (WE48), 20.75 Acres (WE50), 43.54 Acres
(WE52), and 73 Acres (WE47);
[REFER TO COAL - SCHEDULE A AND MAPS EXHIBIT 1 AND EXHIBIT 2]
all of which, together with the rights granted Lessee in Article II hereof, is
sometimes hereinafter referred to as the "demised premises".
Lessee does hereby accept this demise and lease and the same is made upon
the following terms, covenants and agreements, that is to say:
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ARTICLE I
TITLE AND ACREAGE
1.1 No Warranty of Title or Acreage. Lessor hereby leases unto Lessee only
such coal, mining and surface rights in and to the demised premises as Lessor
owns and has the right to lease. This lease is made without any representations
or warranties of any kind as to title or covenants of rights to lease or of
quiet or peaceful possession, express or implied. Moreover, this lease is a
lease in gross and not by acre and in the event there should be a deficiency of
acreage in any of the tracts subject to this lease, such deficiency shall not
impose any liability upon Lessor or in any way affect any provision of this
lease, including without limitation, the minimum annual royalty required to be
paid by Lessee. The parties acknowledge that the map attached hereto is for
convenience only and shows only the approximate location of the demised premises
and its boundary lines. Lessor makes no representations or warranties of any
kind, either expressed or implied, as to contiguity of any individual tracts or
parcels of land which may comprise the demised premises.
ARTICLE II
MINING RIGHTS
2.1 Grant of Mining Rights. Subject to the provisions of Article I above,
Lessor, to the extent that Lessor owns and has the right to do so, hereby grants
unto Lessee the right to mine and remove all of the mineable and merchantable
coal hereby leased by any mining method, excluding the auger mining method,
which will recover not less than eighty percent (80%) of such coal within the
entire leased premises, together with all necessary and convenient rights with
respect thereto, including but not limited to the following:
It is understood and agreed by and between the parties hereto that the
Lessee shall make a good faith, reasonable effort, to adopt and implement a
mining plan which will recover no less
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than eighty percent (80%) of the recoverable coal on the leased premises. After
having exhausted all reasonable efforts to obtain permits which will accomplish
such removal percentages as are required hereunder, the Lessor agrees to
consider in good faith alternate plans. In connection with any such
reconsideration, Lessee shall be provided with copies of any and all
documentation related to the permitting procedure for review by Lessor's
Engineers.
(a) Rights-of-Way. All necessary rights of way over and across the surface
of the demised premises, with the right to construct, operate and maintain
thereon railroads, roads, haul ways, conveyors, power lines, water lines, drain
ways and other ways necessary or convenient for the exploration, mining and
processing of the coal hereby leased.
(b) Structures. The right to construct buildings, tipples, preparation
plants, power stations and other structures which Lessee may deem necessary or
convenient for use in connection with its coal mining operations under this
lease.
(c) Surface. The right to disturb, remove and utilize so much of the
surface of the demised premises and the stone, sand and water thereon and right
to cut and use (subject to the provisions of Section (f) hereof) so much of the
timber situate on the demised premises as may be necessary or convenient for
Lessee's coal mining operations, subject to like consent having been obtained
from the owner(s) of any outstanding interest.
(d) Subjacent Support. The right to mine by approved mining method all of
the mineable and merchantable coal within and underlying the demised premises
without leaving any subjacent support for the overlying strata and without being
liable for any damages which may be caused by the removal of all of such coal to
the overlying or underlying strata therein or thereon or to any objects or
structures thereon; provided, however, that where Lessor does not own any
portion of the demised premises in fee simple, Lessor's waiver of subjacent
support on
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that portion of the surface is conditional upon Lessee obtaining a like waiver
from persons owning any outstanding surface interest or other interests and
situate within the demised premises.
(e) Surface Deposits. The right to deposit upon the surface of the demised
premises slate, rock, dirt, bone, refuse and other unmerchantable materials and
waste water resulting from the mining, removing, processing and marketing of the
coal mined by Lessee from the demised premises; provided, however, that Lessee
shall comply with such reasonable regulations and limitations as Lessor may
prescribe and with all statutes, regulations and rules which may now or
hereafter be enacted or prescribed by the United States of America or the State
of West Virginia or any other governing body which regulates the disposal of
such waste, overburden or refuse material; and provided further, however, that
Lessee shall, during the term of this lease, and at all times thereafter, be
fully and completely responsible for the treatment and/or removal of any water,
overburden or refuse materials placed by Lessee on the demised premises which
shall be required by any governmental agency, including, but not limited to, the
elimination of any fires, drainage or ecological problems or other environmental
hazards.
(f) Timber. The right to damage or destroy any timber on the demised
premises which damage or destruction is occasioned by Lessee's mining operations
and other activities in connection therewith; provided, however, Lessee shall
give Lessor at least six (6) months written notice of Lessee's intention to
damage or destroy any of such timber and Lessor shall have the right during such
six (6) month period to cut and remove all or any part of such timber and
subject to like notice and consent being obtained from the owner(s) of any
outstanding interest in said demised premises; provided, further, if Lessor
shall fail to exercise the right herein granted,
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Lessee shall thereafter have the right to cut, burn or remove such timber
without being obligated to pay for the same.
(g) Wheelage. The right to transport under or through all tracts or any
part of any one tract of the demised premises coal mined from lands other than
the demised premises ("adverse coal") upon the payment to Lessor of an amount of
money equal to (a) Ten Cents ($0.10) or (b) one-fourth of one percent (1/4 of
1%), whichever is greater, of the gross selling price, as hereinafter defined,
for each ton of two thousand (2,000) pounds of such adverse coal so transported
under or through the demised premises as follows: Group 1 - 28-Acre tract
(WE45), 20.75-Acre tract (WE50), 202-Acre tract (WE48), and 43.54-Acre tract
(WE52) have been pooled and regardless of which tract is being used for
transporting over or across the demised premises as aforesaid, the Lessors
(owners) shall be paid wheelage as outlined on Schedule A and as shown on Map
Exhibit 1 Coal Wheelage, attached hereto and made a part hereof; Group 2 -
188-Acre tract (WE46) and 76-Acre tract (WE51) have been pooled and regardless
of which tract is being used for transporting over or across the demised
premises as aforesaid, the Lessors (owners) shall be paid wheelage as outlined
on Schedule A and as shown on Map Exhibit 1 Coal Wheelage, attached hereto and
made a part hereof; and, Group 3 - 73-Acre tract (WE47) shall be paid wheelage
as outlined on Schedule A and as shown on Map Exhibit 1 Coal Wheelage, attached
hereto and made a part hereof; all of which shall be paid wheelage as follows
and as outlined on Map Exhibit 1-Coal Wheelage attached hereto and made a part
hereof:
GROUP 1: NGHD LANDS, INC. 30.36%
LARRY A. DEITZ 30.36%
WHITE PINE, INC. 25.00%
G. D. HEROLD ESTATE 14.28%
------
TOTAL 100.00%
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GROUP 2: NGHD LANDS, INC. 30.36% of 20/27
LARRY A. DEITZ 30.36% of 20/27
WHITE PINE, INC. 25.00% of 20/27
G. D. HEROLD ESTATE 14.28% of 20/27
------
TOTAL 100.00% of 20/27 INTEREST
AND
T. C. LANDS, INC. 75.00% of 7/27
LARRY A. DEITZ 25.00% of 7/27
------
TOTAL 100.00% of 7/27 INTEREST
GROUP 3: T. C. LANDS, INC. 25.00%
LARRY A. DEITZ 25.00%
MAXEY ANN TULLY 50.00%
------
TOTAL 100.00%
It is understood each Group is to be treated separately. All such payments
for adverse coal shall be made annually on or before February 25th. Payments for
the wheelage of adverse coal shall not be credited on minimum annual royalties.
[NOTE: This provision does not apply to the surface of the tracts or
parcels of the demised coal tracts hereinabove described.]
(h) Waiver of Barrier Pillars. The right to mine coal upon the demised
premises without maintaining barrier pillars between the demised premises and
any adjacent or contiguous property which may now or at some future time be
owned, leased or controlled by Lessee; provided that, the owners of such
adjacent or contiguous property also consent in writing to waive their rights
with respect to the maintenance of barrier pillars, and further subject to like
consent being obtained from the owner(s) of any outstanding interest.
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ARTICLE III
EXCLUSIONS FROM LEASE:
3.1 Exceptions and Reservations. This lease is made expressly subject to,
and Lessor excepts and reserves from the demised premises and from the operation
of this lease, the following: the entire ownership and control of the all the
land in the demised premises and the surface thereof and all rights pertaining
thereto, except only to the extent herein expressly leased to Lessee, together
with the stone, sand, water, timber, oil, gas (including without limitation
coalbed methane, gob gas and all natural gases originating, produced, or emitted
from the coal seams) and other minerals, including all coal other than that
herein specifically demised, with the full right to lease, use, enjoy, operate
and develop the same in any manner which may seem appropriate to Lessor; and
together with the right of Lessor, its lessees, assigns and contractors to use
all presently existing and hereinafter constructed roads over and across the
demised premises; provided, however, that the exercise by Lessor of its retained
ownership and control of the materials and minerals excepted in this Article
shall not unreasonably interfere with the requirements and safety of the
operations of Lessee. Gas or gas products released during normal mining
operations are not reserved or excepted.
3.2 Prior Deeds, etc. Lessor further excepts from this lease any and all
rights, easements, conveyances, rights-of-way, deeds, contracts, leases and
agreements heretofore granted or made by Lessor or any of its predecessors in
title and any and all possessory rights which may pertain to or affect the
demised premises appearing of record or visible on the ground.
3.3 Inspection By Lessee. Lessor has disclosed to Lessee that prior mining
operations have been prosecuted in, on and under the demised premises and the
Lessor makes no warranty or representation regarding the condition of the
demised premises or any mine entries, working
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places, structures or surface conditions. Lessee represents that it has
inspected the demised premises and accepts the same as they now are.
ARTICLE IV
TERM
4.1 Term. The rights granted herein are for, except as hereinafter
provided, an initial term of five (5) years commencing July 1st , 1999, and
ending June 30th, 2004, ("Primary Term"). If and only if at the end of the
Primary Term of this Lease, the Lessee is conducting active mining operations on
the demised premises as described below and paying tonnage royalties as herein
otherwise provided, and shall have fully kept and performed all of the
covenants, agreements, promises and conditions of this Lease, may at its sole
option upon the giving of written notice six (6) months in advance of the end of
the Primary Term, or the first extended term as the case may be, extend this
Lease for a period of two (2) additional five (5) year terms, for a total term
of no more than fifteen (15) years.
28.00 Acres (WE45)
188.00 Acres (WE46)
50.00 Acres (WE49)
73.00 Acres (WE47)
202.00 Acres (WE48)
20.75 Acres (WE50)
76.00 Acres (WE51)
Lessee reserves the right to surrender this Lease Agreement with one
hundred eighty (180) days notice to Lessor, and, if Lessee opts to surrender
this Lease prior to the initial five (5) year term, then Lessee shall pay to
Lessor the amount due as advance minimum royalty for the remaining portion of
the initial five (5) year Primary Term.
4.2 Entry After Termination. Lessee shall have the right, and the
obligation, after the termination for any reason of this lease, to enter upon
the demised premises for the purpose of
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reclaiming areas disturbed by its operations and otherwise complying with the
requirements of any federal, state and local law, rule, regulation or ordinance.
ARTICLE V
TONNAGE ROYALTY
5.1 Tonnage Royalty. Lessee covenants and agrees to pay to Lessor as
tonnage royalty for each ton of coal of two thousand (2000) pounds mined and
removed by approved mining method from the demised premises, an amount of money
equal to (a) One Dollar ($1.00) or (b) Five Percent (5%) whichever sum is
greater, of the gross sales price of said coal f.o.b. the loading point, for
each ton of two thousand (2,000) pounds of coal mined. The following tracts have
been separated into groups for the purpose of payment of tonnage royalty:
20.75 Acres (WE50)
28.00 Acres (WE45)
202.00 Acres (WE48)
43.54 Acres (WE52) GROUP 1
188.00 Acres (WE46)
76.00 Acres (WE51) GROUP 2
73.00 Acres (WE47) GROUP 3
(a) Each such payment of tonnage royalty shall be paid to each individual
owner her/his/its prorata share as the ownership is shown in GROUP 1, GROUP 2,
and GROUP 3, as follows:
GROUP 1: NGHD LANDS, INC. 30.36%
LARRY A. DEITZ 30.36%
WHITE PINE, INC. 25.00%
G. D. HEROLD ESTATE 14.28%
------
TOTAL 100.00%
GROUP 2: NGHD LANDS, INC. 30.36% of 20/27
LARRY A. DEITZ 30.36% of 20/27
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WHITE PINE, INC. 25.00% of 20/27
G. D. HEROLD ESTATE 14.28% of 20/27
------
TOTAL 100.00% of 20/27 INTEREST
AND
T. C. LANDS, INC. 75.00% of 7/27
LARRY A. DEITZ 25.00% of 7/27
------
TOTAL 100.00% of 7/27 INTEREST
GROUP 3: T. C. LANDS, INC. 25.00%
LARRY A. DEITZ 25.00%
MAXEY ANN TULLY 50.00%
------
TOTAL 100.00%
5.2 Definition of Gross Sales Price. As used in this lease, the term
"gross sales price" shall mean the gross price at which Lessee sells coal mined
and removed from the demised premises f.o.b. the loading point without any
deductions for sales commissions, selling costs, advertising, credit losses,
transportation costs, taxes of any kind (other than sales or use taxes),
discounts, or other expenses of deductions whatsoever; provided, however, that
in the event any sale of such coal by Lessee shall not be at arm's length, then
the gross sales price for such sales shall be the gross sales price received by
other operators mining and producing coal of a similar kind and quality in the
area of the coal produced by Lessee which is sold at arm's length.
5.3 Definition of Loading Point. The term "loading point" for purposes of
this lease, shall mean the point at which the coal is loaded f.o.b. for shipment
by truck, railroad or barge or such other point where the ultimate consumer
takes custody of the coal with respect to coal not shipped by rail or barge as
the parties hereto may from time to time agree to in writing.
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5.4 Payment of Tonnage Royalties. Lessee covenants and agrees to pay to
Lessor all tonnage royalties on or before the 25th day of each calendar month
for all coal mined and removed during the preceding calendar month.
5.5 Weighing of Coal. The quantity of raw coal mined and removed from the
demised premises shall be weighed and determined by true and accurate scales,
duly calibrated for accuracy at least every six (6) months at Lessee's expense
by an independent licensed engineer qualified to make such calibration, and/or
volumetric measurements, and shall be reconciled to truck weights. Lessee shall
be required to give an accurate and separate accounting for each individual coal
tract. In addition, the scales shall be inspected and certified at least
annually by the West Virginia Department of Labor as correct. Lessor, and its
authorized representatives, shall have the right to inspect the scales at any
time during Lessee's normal operating hours; provided, however such inspection
shall not unreasonably interfere with Lessee's operations. Lessee shall keep an
accurate record by date of the number of truck loads from each separate tract,
along with the weight of each truck load, with accompanying printout, hauled
from each mine or pit each day supported by a truck count at the pit or mine.
(a) In addition to the foregoing, Lessor shall have the absolute right,
upon demand:
(i) to have produced and provided to the Lessor or to a duly
authorized representative of the Lessor certified copies of
any and all documents relating to tonnage production allocated
to the demised premises whether such allocation is made within
the current corporate entity of the Lessee, a subsidiary
corporate entity, or an independent contractor, reconciled to
and with truck weights;
(ii) to measure and compute by engineering methods the tonnage
removed from the premises.
(b) Any Agreement with any independent contractor shall require such
contractor to provide to the Lessor upon demand copies of documents relating to
the tonnage production on which payment to contractor was made.
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(c) In the event such information or such calculation exhibits a
discrepancy between sums paid as Production Royalty, and tonnage removed from
the premises, any dispute in relation thereto shall be submitted to arbitration
as hereinafter provided.
5.6 Commingling.
(a) Prior to any commingling of coal mined from the demised premises with
coal mined from other properties, Lessee shall weigh and make a reasonable
determination of the reject percentage of coal mined from the demised premises
pursuant to the terms of this Coal Lease, making use of acceptable engineering
methods for the industry.
(b) The Lessor reserves the right to measure and compute reject percentage
by any available acceptable engineering method. And in the event of a
discrepancy or disagreement in connection with the same shall be submitted to
arbitration as hereinafter provided.
(c) If there is any loss of coal subsequent to commingling, such loss
shall be allocated fairly and equitably to all parties whose coal is commingled.
5.7 Monthly Report. At the same time that Lessee is required to pay
tonnage royalties to Lessor, Lessee shall furnish to Lessor statements signed by
a responsible person having knowledge of the facts showing the quantity of all
coal mined from the demised premises during the preceding calendar month, the
gross sales price of each type of coal f.o.b. the loading point, the number of
tons sold at each price, the seam or seams from which all of such coal was
produced, the method of mining, a summary of coal produced from the demised
premises categorized by tract identification numbers from Schedule A to be
supplied by Lessor. Upon request copies of certificates of the weigh master or
other official of the railroad or barge lines of weights of such car, or barge
of coal shipped during such month over such railroad or barge line and the
weight of all coal mined and removed from the premises by Lessee during such
month
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and not shipped by railroad or barge will be available at the Lessee's office
for the Lessor to review and/or copy.
5.8 Lessee's Books and Records. Lessee shall keep accurate books of
accounts showing separately all coal mined and removed by Lessee from the
demised premises and the gross sales price of such coal together with such
additional facts as may be necessary for a just accounting of rents and
royalties. Lessee shall keep and preserve all statements showing realization on
all coal sold by Lessee, including the statements of all sales agents. Lessor,
its agents and attorneys shall have access at any and all reasonable times to
all of such records and to the offices where such records are kept for the
purpose of inspecting, auditing and making copies of such records.
ARTICLE VI
MINIMUM ANNUAL ROYALTY
6.1 Minimum Annual Royalty. For each lease year of the initial five (5)
years this lease is in effect, Lessee covenants and agrees to pay to Lessor a
minimum annual royalty for each tract as scheduled below:
SCHEDULE B
28.00 Acres (WE45) 1 $ 1,225.
188.00 Acres (WE46) 2 6,580.
73.00 Acres (WE47) 3 2,555.
202.00 Acres (WE48) 1 7,070.
20.75 Acres (WE50) 1 700.
76.00 Acres (WE51) 2 2,660.
43.54 Acres (WE52) 1 0.
--------
$20,790.
(a) Each such payment of minimum royalty shall be paid to each individual
owner her/his/its prorata share as the ownership is shown in Schedule A and
shall be payable on or
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before the first day of each lease year of the initial five (5) year Primary
Term. Lessee shall have the right during any succeeding year during the term of
this Lease, including any extension thereof, to mine, free from tonnage royalty,
an amount of coal sufficient to make up any minimum annual royalty paid in
excess of the tonnage royalty in any prior year of this Lease.
(b) After the initial five (5) year Primary Term, there will be no minimum
annual royalty payments required.
(c) Failure to mine on the 43.54 acre tract shall not constitute a breach
in the terms of this agreement nor does active mining on this tract secure the
duration of the lease under the Primary Term.
(d) If for any reason Lessee fails to mine 20,000 tons of coal from the
demised premises as outlined on Map Exhibit 1-Coal which exhibit is attached
hereto and made a part hereof, in any lease year after the Primary Term, at the
end of each of any such year Lessee will owe Lessor Eighteen Thousand Six
Hundred Dollars ($18,600.00) non-recoupable rent, payable to each individual
Lessor her/his/its prorata share as shown on Schedule A and Map Exhibit 1-Coal
attached hereto and made a part hereof, and further as shown in Group 1, Group 2
and Group 3, Article 5.1 hereof.
6.2 Recoupment. Lessee shall, for the life of this lease, have the right
in any lease year of the term of this lease to credit and recoup tonnage
royalties due on account of coal mined during such lease year, or any prior
lease year of the present Lease only, all payments of minimum annual royalties
made for such lease year, against the prorata share of each individual owner as
outlined in Schedule A and Map Exhibit l-Coal, and against each individual tract
as outlined in Schedule B. The payment of any tonnage royalties in any lease
year in excess of the
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minimum annual royalties paid for such lease year shall not be credited on the
minimum annual royalties thereafter required to be paid in any subsequent lease
year or years.
ARTICLE VII
OPERATIONS AND MINING PLANS
7.1 Covenant to Mine. Lessee covenants and agrees that it will promptly
commence and diligently develop and prosecute mining operations hereunder in an
energetic, efficient and skillful manner, according to approved and modern
methods of mining, and with the use of adequate, sufficient and efficient mining
machinery and equipment, reasonably adapted to the conditions encountered, all
to the end that all the mineable and merchantable coal shall be mined, produced
and sold from the demised premises, as is consistent with practical and modern
mining methods and prudent mining practices, having due regard always for safety
and preservation of the demised premises as coal mining operation all in
compliance with all laws, rules, regulations, and ordinances.
7.2 Definition of Mineable and Merchantable Coal. The term "mineable and
merchantable" coal as used in this lease shall mean coal which, when reached in
the prosecution of Lessee's operations hereunder, can ordinarily be mined at a
profit by the use of such current modern mining methods and cleaning machinery
and equipment as are reasonably adapted to practical, efficient and economical
mining under the conditions found and in conformity with prudent mining
practices and diligent and skillful management.
7.3 General Mining Plans. Prior to beginning mining operations on the
demised premises, Lessee shall submit to Lessor a general plan for the mining
operations to be conducted upon the demised premises. These plan(s) will be the
same as contained in the permits as submitted to the regulatory agencies for the
mining area. Such plans shall be from time to time
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updated as the mining circumstances warrant and/or as directed by any regulatory
agency and a copy of such changes will be forwarded to Lessor.
7.4 Intentionally left blank.
7.5 Lessor's Approval. Lessee shall obtain Lessor's approval of the plans
and projections mentioned in Section 7.3 hereof prior to conducting any
operations shown on such plans. Said approval shall be given in writing to the
Lessee within 30 day. If Lessor has not responded in writing within said 30
days, then said plans shall be deemed approved by the Lessor. After having
obtained such approval, Lessee shall faithfully adhere to and comply with the
plans and projections so approved and shall not deviate from the same except in
case of emergency and/or as dictated by regulatory agency, mining conditions, or
other unknown conditions after which Lessor shall be duly notified.
7.6 Maps. Lessee shall at all times maintain maps showing, on true
meridian and on a scale of not more than one hundred (100) feet to the inch, the
extent of Lessee's operations on the demised premises, together with the
boundaries of the demised premises, the location of all railroad tracks,
rights-of-way, streams, roads, buildings, underground roadways, entries,
passages, airways, rooms, shafts, heights of coal, location of channel samples,
rolls or faults, prospect openings, seam elevations, open cuts, box cuts and
seam sections at regular intervals, ponds, hollow-fills and other improvements
therein, thereon, or thereover, and the location and identifying number of each
drill hole and each oil and gas well on the demised premises. Lessee covenants
and agrees to deliver to Lessor semi-annually on or before the 1st day of March
and the 1st day of September, a copy of such maps showing the mining operations
conducted by Lessee as of the last day of December and the last day of June of
each year. Such maps shall be made from data derived from accurate surveys and
shall be prepared by a competent licensed
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engineer. Lessee shall also furnish Lessor a copy of such maps within thirty
(30) days after receiving from Lessor in writing a request therefor. The maps
will be the same as required by the regulatory agencies except that the Lessee
shall be required to provide the height or total thickness of coal seams and
sections.
7.7 Permits, Bonds, Reclamation and Expenses. Lessee covenants and agrees
to obtain from the State of West Virginia, and any other governmental authority
requiring the same, permits and other authorizations required for conducting
mining operations on the demised premises and will, at its own cost and expense,
post such bonds as may be required in connection with the issuance of such
permits or other authorizations and, in addition thereto, will pay all
reclamation fees and otherwise be entirely responsible for the reclamation of
the lands disturbed in connection with Lessee's mining operations and will
comply with all of the provisions of this lease in respect to said reclamation.
Upon request, Lessee shall promptly supply Lessor with all information
pertaining to permitting, bonding, inspection reports, citations by any
regulatory authority, and any and all other information which may effect the
Lessor's interests in the demised premises as may reasonably be required by the
Lessor.
7.8. Intentionally left blank. See Paragraph 7.9.
7.9 Lost or Abandoned Coal. Before abandoning any area of deep mining or
surface mining, Lessee shall notify Lessor of its intention to abandon in order
that Lessor may, within ten (10) days, inspect the operations of the Lessee to
see whether or not they are in accordance with the terms of the lease and, if
not, to require compliance before abandonment. Any dispute in relation thereto
shall be submitted to arbitration as hereinafter provided.
7.10. Joint Use of Roads. Lessee agrees to keep at its sole cost and
expense all existing roads on the demised premises and roads constructed by it
thereon in a good state of repair,
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passable and open, or, when necessary, relocate existing roads so that
continuous access to the demised premises is available. If Lessor authorizes
other persons or entities to use any road constructed or maintained by Lessee,
then Lessor shall enter into an agreement with such persons or entities, which
agreement shall make provision for an allocation of maintenance costs according
to use and for a usage agreement which shall ensure that no unreasonable
interference with Lessee's use of such roads shall occur.
7.11 Fires. Lessee covenants and agrees that it will use all reasonable
precautions necessary or prudent to avoid damage to or destruction of properties
owned by Lessor by fire and will comply with all federal and state laws and
regulations concerning forest fire and forest fire safety.
ARTICLE VIII
LESSOR'S RIGHT OF INSPECTION
8.1 Inspection. Lessor, its agents, engineers or other persons in its
behalf shall have the right at all reasonable and proper times, but at its and
their own risk, to enter upon the demised premises in order to inspect, examine,
survey or measure the same or any part thereof, or for any other lawful purpose,
and for these purposes to use freely the means of access to the mining
operations of Lessee.
ARTICLE IX
INDEMNIFICATION AND INSURANCE
9.1 Indemnity. Lessee shall fully protect, indemnify and save harmless
Lessor and its directors, officers, agents and employees and each of them, from
any and all claims, demands, damages, liabilities, penalties, fines, costs and
expenses (including reasonable attorneys' fees and costs and expenses of
litigation or alternative dispute resolution methods) arising out of or in
connection with any act or omission relating to the operations or other
activities of Lessee
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hereunder, its agents, employees, contractors, invitees, sublessees or such
agents', invitees', contractors' sublessees' agents, employees or contractors or
any one or more of them. Lessee's obligation under this paragraph shall survive
the termination of this lease for any cause.
9.2 General Liability Insurance. In addition to and not in limitation of
the obligations described in Section 9.1 hereof, Lessee covenants and agrees to
maintain and keep in full force and effect, throughout the term of this lease,
general liability and property damage insurance, on an occurrence basis, with
coverage of not less than Two Million Dollars ($2,000,000) for injuries or
damages to any one person, Two Million Dollars ($2,000,000) for any one
occurrence, and Two Million Dollars ($2,000,000) property damage, in which
policy of insurance both Lessee and Lessor shall be named an insured. Any such
policy or policies shall specifically provide that Lessor may be a permissible
claimant for any damage done to its properties.
9.2-2 Commercial Automobile Liability Insurance. In addition to and not in
limitation of the obligations described in Section 9.1 hereof, Lessee covenants
and agrees to maintain and keep in full force and effect, throughout the term of
this Lease, automobile insurance and non-owned automobile insurance, on an
occurrence basis, in a good and reliable commercial insurance company or
companies authorized to do business in the State of West Virginia with coverage
of not less than Two Million Dollars ($2,000,000.00) for injuries or damages to
any one person, Two Million Dollars ($2,000,000.00) for any one occurrence, and
Two Million Dollars ($2,000,000.00) property damage, in which policy of
insurance both Lessee and Lessor shall be named an insured. Any such policy or
policies shall specifically provide that Lessor may be a permissible claimant
for any damage done to its properties.
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9.3 Workers' Compensation Insurance. Lessee, its sublessees, assigns and
contractors shall, throughout the term of this lease, be and remain a subscriber
to the West Virginia Workers' Compensation Fund of which Lessee is a member as a
self insured entity.
9.4 Intentionally left blank.
9.5 Form of Insurance Certificates. All insurance required under the
provision of this Article shall contain a provision requiring thirty (30) days'
advance notice to Lessor of any proposed cancellation or any material change in
coverage. Certificates in respect to all such insurance shall be delivered to
Lessor prior to commencement of any operations on the demised premises.
9.6 Lessee's Liability. The insurance requirements set forth in this
Article are minimum requirements and shall not limit Lessee's liability to
Lessor in any manner.
ARTICLE X
TAXES
10.1 Payment of Taxes. In addition to all other payments required to be
made by Lessee to Lessor, Lessee covenants and agrees to pay all of the real
estate taxes and assessments becoming due or assessed during the term of this
lease on the demised premises, all such taxes required to be paid on the
personal property and improvements of Lessee placed upon the demised premises
and taxes on the rights and privileges herein demised, as well as all other
taxes and assessments, including, but not limited to, any severance or excise
tax levied against the coal mined hereunder by the United States and the State
of West Virginia, or either of them. Lessee shall furnish to Lessor evidence of
the payment for all such taxes. Lessor shall have the right, but not the
obligation, to pay such taxes and in the event any such payment is made by
Lessor, Lessee shall, upon demand, immediately reimburse Lessor.
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10.2 Right to Contest. Notwithstanding the foregoing, Lessee shall have
the right to challenge in good faith, by legal and proper means, in the name,
place and stead of Lessor, the amount, validity and equality, of any such taxes,
levies or assessments that Lessee is required to pay hereunder; provided,
however, that Lessee shall at all times protect Lessor's title to the demised
premises from tax liens, penalties, tax sales or any other encumbrances or
impairments resulting directly or indirectly from any such challenge, and Lessee
shall be responsible for any interest, penalty or similar charges incurred as a
result of any such challenge.
ARTICLE XI
LAWS AND REGULATIONS
11.1 General. Lessee covenants and agrees that it will in connection with
its mining operations and related activities under this lease, comply with all
federal and state laws, now enacted or which may be hereinafter enacted, and all
rules, regulations, and executive orders promulgated thereunder.
11.2 Black Lung Benefits. Without in any way limiting Lessee's obligations
under paragraph 11.1, Lessee agrees that it shall comply with all of the terms
and provisions of the Black Lung Benefits Act of 1972, the Federal Mine Safety
and Health Act of 1977, the Internal Revenue Code, 26 U.S.C. 1 et seq., the
Black Lung Benefits Reform Act of 1977, the Black Lung Benefits Revenue Act of
1981, the Black Lung Benefits Amendments of 1981, (P.L. 97-119), and the Coal
Industry Retiree Health Benefit Act of 1992, all as now or hereafter amended,
and all rules and regulations adopted pursuant thereto (hereinafter referred to
collectively as "Acts").
11.3 Lessee To Be Operator. As between Lessor and Lessee the parties
hereto acknowledge that Lessee is, and shall be deemed to be, the operator of
any coal mine or coal preparation facility for the extraction, preparation or
transportation of coal from the demised
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premises and of all related activities, including but not limited to, coal mine
construction or maintenance and land reclamation or restoration, engaged in by
Lessee or persons under contract with Lessee pursuant to the terms of this lease
with respect to any claim for black lung benefits ("Benefits") filed by or on
account of Lessee's employees or former employees. Lessee shall secure and shall
require any other person or entity who operates, controls or supervises a coal
mine or coal preparation facility on the demised premises or performs services
of construction, maintenance, transportation or other activities related to coal
mining, preparation, shipment or reclamation under the terms of this lease, or
who otherwise may be liable for the payment of Benefits, to secure the payment
of such Benefits to or on account of employees or former employees in accordance
with all applicable laws and regulations and shall provide Lessor, upon request,
with appropriate certification that each of them has provided security in
compliance with all applicable laws and regulations for the payment of such
Benefits.
11.4 Security for Benefits. Without limiting the generality of Lessee's
obligations to comply with all other provisions of this lease, Lessee agrees
that it will secure and guarantee the payment of all Benefits required to be
paid under the Acts by reason of said mining, construction, transportation,
reclamation and related activities under this lease, and Lessee does hereby
agree that it will indemnify and hold Lessor harmless from any liability or
expenses, including reasonable attorneys' fees, and costs and expenses of
litigation or resolution by alternative means, which Lessor may suffer directly
or indirectly, as a result of or with respect to any claim for Benefits filed by
or on account of any of Lessee's employees or former employees, or employees or
former employees of others who may be required to secure the payment of Benefits
under Article 11.3 above.
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11.5 Decisions Concerning Mining. Except as provided in Section 7.9
hereof, notwithstanding any thing in this lease to the contrary, this lease does
not empower Lessor to make any decisions, and Lessor hereby expressly waives and
disclaims any right to make any decisions, with respect to the terms and
conditions under which the coal hereby leased is extracted or prepared, such as,
but not limited to, the manner of extraction or preparation or the amount of
such coal to be produced, all within the meaning of the Acts. The parties hereto
do acknowledge, however, that Lessor has reserved certain rights and has imposed
certain requirements under the terms of this lease solely for the purpose of
preventing waste and protecting the reserved rights of Lessor.
ARTICLE XII
REMOVAL ON TERMINATION
12.1 Removal of Equipment, Buildings and Structures. Upon termination of
this lease by the mining of all of the mineable and merchantable coal hereby
leased and if all rents, royalties and other sums required to be paid hereunder
shall have been fully paid by Lessee, and all covenants on Lessee's part have
been fully kept and performed, Lessee may remove, within six (6) months after
such termination and not thereafter, all moveable mining machinery and equipment
and all buildings and structures which have been placed upon the demised
premises by Lessee or any person claiming under Lessee. Any of such property not
removed within said six (6) months period shall become the sole property of
Lessor without charge or payment therefor. Lessee shall leave the demised
premises on such termination in a neat and orderly condition and reclaimed in
accordance with all laws, rules, regulations, and ordinances.
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ARTICLE XIII
LIENS
13.1 Lessor's Lien. The tonnage royalties, minimum annual royalties,
payment for taxes and other sums of money required by this lease to be paid by
Lessee to Lessor shall be treated as rent reserved for the demised premises and
Lessor shall have, for the collection thereof, all of the rights and remedies
which landlords now have or may have for the collection of rent reserved under
contract under the laws of the State of West Virginia.
13.2 Lessee's Liens. Lessee shall at all times pay when due all claims for
labor, materials, machinery, equipment, and services furnished by any party for
and on behalf of or at the request of Lessee, or any sums of money required to
be paid by Lessee under any law, rule, regulation, or ordinance. Lessee shall
keep the demised premises and the leasehold estate created by this lease, free
from all liens, security interests, and encumbrances (including without
limitation mechanic's and materialmen's liens) (collectively "Liens") in any way
arising out of, connected with, or related to the failure of Lessee to make any
payment referred to in the immediate preceding sentence or in any way created as
a result of, arising out of, or relating to Lessee's operations on the demised
premises or other activities on or off the demised premises which may in any way
give use to any such Lien. Lessee shall indemnify Lessor and hold Lessor
harmless from and against (a) all such Liens, (b) the removal of all such Liens
and any actions, suits, or proceedings related thereto, and (c) all liabilities,
costs, and expenses (including without limitation reasonable attorneys' fees,
and costs and expenses of litigation or alternative dispute resolution methods)
in any way related or connected to the foregoing. If Lessee fails to keep the
demised premises free from Liens, then in addition to any other rights or
remedies available to Lessor under this lease or at law or in equity, Lessor may
take any action Lessor
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deems necessary or desirable to discharge any such Lien, including but not
limited to payment to the claimant claiming under any such Lien.
ARTICLE XIV
ASSIGNMENT, SUBLETTING, ETC.
14.1 Assignment, Subletting, etc. Lessee shall not, without Lessor's prior
written consent, which shall not be unreasonably withheld, assign, sublease,
transfer, mortgage or encumber this lease, or the leasehold estate created
hereby, in whole or in part. If Lessor should grant such consent then the
assignee, sublessee, transferee, mortgagee, or beneficiary of such encumbrance
shall enter into a direct covenant with Lessor to keep and perform the terms and
conditions of this lease and copies of any such assignment, sublease, transfer
instrument, mortgage, or encumbering instrument shall be delivered to Lessor and
no such assignment, sublease, transfer, mortgage or encumbrance shall relieve
Lessee of its obligations hereunder. In the event Lessor should consent to any
specific assignment, subletting, transfer, mortgage or encumbrance such
assignee, sublessee, transferee, mortgagee or beneficiary of such encumbrance
may not further assign, sublease, transfer, mortgage or encumber this lease
without the specific prior written consent of Lessor.
14.2 Transfer of Stock. A transfer of fifty percent (50%) or more of the
capital stock of Lessee without Lessor's prior written consent shall constitute
a breach of this Article.
ARTICLE XV
FORFEITURE
15.1 Events of Default Defined. The following shall be Events of Default
under the terms of this lease and the terms "Events of Default" and "default"
shall mean, whenever they are used in this lease, any one or more of the
following events:
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(a) The failure of Lessee to pay or cause to be paid any sums of money due
to Lessor for a period of ten (10) days after such sums of money became due and
owing to Lessor, after notice was received by Lessee by certified/registered
mail;
(b) The failure of Lessee to keep and perform or be guilty of a breach of
other terms and conditions of this lease continuing for a period of sixty (60)
days after Lessor shall have given written notice thereof to Lessee, which
failure shall include, but not be limited to, any of the following: improper
destruction of timber; failure to obtain waiver from persons owning outstanding
surface interests; failure to comply with regulations and limitations of Lessor
and laws, rules, regulations and ordinances in respect to the dumping of refuse
and waste water; failure to obtain waiver of maintenance of barrier pillars from
adjoining or contiguous property owners; use of the demised premises in
connection with operations on other lands; failure to reclaim surface areas;
failure to permit Lessor to inspect Lessee's operations; failure to account
properly for coal mined; failure to maintain accurate truck scales or to have
them inspected, calibrated and certified; ; failure to provide monthly reports;
failure to make books and records available; failure to prosecute mining
operations in an energetic, efficient and skillful manner according to approved
and modern methods of mining using sufficient and efficient machinery and
equipment; failure to provide plans and projections and deviation from same;
failure to provide maps; failure to obtain permits, bonds and pay reclamation
and other expenses; failure to furnish copies as required in Section 7.7;
failure to work around faults and other conditions; failure to maintain roads;
failure to permit Lessor's inspection; failure to indemnify and to obtain
general liability and property damage, workers' compensation, or fire and
property damage insurance; failure to provide certificate of insurance naming
Lessor as an additional insured; failure to pay taxes and other assessments;
failure to comply with all federal and state laws, rules,
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regulations and ordinances; failure to provide black lung benefits; or improper
assignment, subletting or mortgaging, transferring or encumbering.
(c) The bankruptcy of Lessee or a receiver being appointed for Lessee's
business and affairs or an assignment being made for the benefit of Lessee's
creditors.
15.2 Forfeiture of Lease and Right of Re-entry. If any of the Events of
Default listed in Section 15.1 occurs, Lessor may at its election cancel and
terminate this lease and re-enter and repossess the demised premises as of
Lessor's former estate and all rights of Lessee in respect thereto shall cease.
15.3 Waiver. Any failure of Lessor to exercise the rights herein granted
in respect to any particular matter of default shall not constitute a waiver
thereof nor as a waiver of the same or any other default by Lessee subsequently
occurring and shall not prevent the forfeiture or cancellation of this lease for
any other cause of forfeiture or for the same causes occurring at any other
time.
ARTICLE XVI
SUCCESSORS AND ASSIGNS
16.1 Successors and Assigns. Except where provided otherwise herein, this
lease and all its terms, provisions, covenants, conditions and agreements shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective permitted successors and assigns.
ARTICLE XVII
NOTICES
17.1 Notice. Any notice which Lessee may desire to serve upon Lessor may
be served by mailing the same by certified mail, postage prepaid, addressed to
H. R. Deitz, P. O. Box X, Summersville, WV 26651, who is duly appointed agent of
Lessor for purposes of receiving notice and approving mining plans and changes
thereto, for the following:
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NGHD LANDS, INC.
P.O. BOX X
SUMMERSVILLE, WV 26651
T. C. LANDS, INC.
P.O. BOX X
SUMMERSVILLE, WV 26651
WHITE PINE, INC.
P.O. BOX 485
SUMMERSVILLE, WV 26651
LARRY A. DEITZ, TRUSTEE FOR
ANNE ELIZABETH DEITZ
P.O. BOX X
SUMMERSVILLE, WV 26651
LARRY A. AND GLORIA K. DEITZ
HC 71, BOX 12B
AUGUSTA, WV 26704
G. D. HEROLD ESTATE
C/O JAMES H. WOLVERTON
1 CHARLES DRIVE
SUMMERSVILLE, WV 26651
MAXEY ANN TULLY
1801 WEBSTER ROAD
SUMMERSVILLE, WV 26651
Should the said H. R. Deitz become unable for any reason to so serve, or
for any reason elect not to so serve, then and in that event the Lessors do
hereby nominate and appoint John H. McCutcheon, II, P. O. Box 485, Summersville,
West Virginia 26651, to serve as such agent for the purposes of receiving notice
and approving mining plans and changes thereto.
The agent for Lessor may be removed or replaced by written agreement of
the owners of fifty-one percent (51%) of the total ownership under this
agreement.
Any notice which Lessor may desire to serve upon Lessee may be served by
mailing the same by certified mail, postage prepaid, addressed to Lessee at:
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COASTAL COAL-WEST VIRGINIA, LLC
Brooks Run Operations
61 Missouri Run Road
Cowen, WV 26206
Either party hereto may change its designation of the place for such
notice only by an instrument in writing executed by the party desiring to make
such change and delivered to the other party.
ARTICLE XVIII
RELATIONSHIP OF THE PARTIES
18.1 Relationship. The relationship between the parties hereto shall be
that of landlord and tenant, governed by the present or future laws of the State
of West Virginia, and such relationship shall never be interpreted or
established as that of partners, joint venturers, co-tenants, principal and
agent, joint enterprisers, or any relationship other than that of landlord and
tenant.
ARTICLE XIX
MISCELLANEOUS
19.1 Construction of Lease. The titles of articles and sections are for
the purpose of convenience of reference only and shall not be considered or
construed as affecting, in any way, the meaning of the provisions hereof. No
consideration shall be given to the fact or presumption that one party had a
greater or lesser hand in drafting this lease.
19.2 Time Is Of The Essence. The parties recognize that time is of the
essence in the performance of all of the obligations required under this lease.
19.3 Complete Agreement. This lease, together with all exhibits hereto,
contains all of the agreements, conditions and understandings made between the
parties hereto and may not be
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modified or changed in whole or in part, orally or in any other manner than an
agreement in writing signed by all the parties hereto or their respective
successors in interest.
19.4 Governing Law. This lease shall be construed, interpreted and the
rights of the parties determined in accordance with the laws of the State of
West Virginia (without reference to the choice of law provisions of West
Virginia law). Lessor and lessee hereby irrevocably submit to the jurisdiction
of the Courts of Webster County, West Virginia, and to the jurisdiction of the
United States District Court for the Southern District of West Virginia for the
purposes of any suit, action, or other proceeding in any way arising out of,
relating to, or connected with this lease. Lessor and Lessee agree not to assert
that any such suit, action, or other proceeding under such jurisdiction is in an
inconvenient forum or that venue is improper.
19.5 Invalidity. In the event any one or more of the provisions of this
lease shall, for any reason, be held to be invalid, illegal or unenforceable in
any respect, then to the maximum extent possible, such invalidity, illegality,
or enforceability shall not affect any other provision of this lease.
19.6 Prior Leases. The parties hereto agree that this lease and all
provisions herein replaces and supersedes and renders null and void any and all
prior leases, supplemental agreements and/or amendments between the parties
hereto, including but not limited to a lease dated the 1st day of July, 1978,
between ANR Coal Development Company and H. R. Deitz, etal.
19.7 Ownership. If Lessee finds that Lessor does not have One Hundred
Percent (100%) ownership in any tract, Lessee will notify Lessor and Lessor will
have the right, but not the obligation, during the three (3) months following
such notice within which to acquire
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unowned interest. Further, if Lessor acquires such interest, said newly acquired
interest will become part of this Lease under the same terms and conditions
herein contained.
19.8 Payment Procedures. The parties hereto agree that all payments
hereunder shall be made to each individual Lessor/Owner in her/his/its prorata
share as shown on Schedule A which is attached hereto and made a part hereof.
19.9 Counterparts. This Lease may be executed in any one or more
counterparts, each of which shall be deemed an original and it shall not be
necessary in making proof of this Lease to produce or account for more than one
such counterpart.
19.10 Memorandum of Lease. Lessor and Lessee agree to execute a Memorandum
of Lease suitable for recording.
19.11 Arbitration. In the case of any disagreement or dispute between the
parties as to matters covered by Sections 5.5 Weighing of Coal, 5.6 Commingling,
or 7.9 Lost or Abandoned Coal, of this Lease, all such disagreements or disputes
shall be settled from time to time by arbitration as follows: Either the Lessee
or the Lessor may undertake to have the controversy settled by arbitration
before a single arbitrator in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, as now existing or hereinafter amended,
and judgment upon the award rendered by the arbitrator will be binding on both
parties and may be entered in any court having jurisdiction thereof. Submission
to arbitration shall be a condition precedent to the resort to litigation by
either Party to this Lease with respect to any controversy or claim arising out
of or relating thereto.
This Lease Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective successors and assigns.
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ARTICLE XX
SURFACE
20.1 Surface. By surface lease of even date herewith, certain of the
parties comprising Lessor have leased to Lessee their interest in certain
surface tracts on, above, over, and across certain seams of coal as more
particularly described in said surface lease. Lessee specifically agrees that
upon termination of such surface lease for any reason whatsoever, this coal
lease shall automatically terminate without any further act or deed by Lessor.
The Parties hereto understand and agree that this Lease of the coal in, on
and underlying certain tracts of land herein described is executed
simultaneously with another lease on the surface over said tracts and it is
agreed by and between all Parties hereto that in case of conflict or ambiguity
between the provisions of this Lease and said Surface Lease, the provisions of
this Coal Lease shall control.
IN WITNESS WHEREOF, the corporate parties hereto have caused their
corporate names to be hereunto signed and their corporate seals to be hereunto
affixed by their proper officers thereunto duly authorized as of the day and
year first above written.
LESSEE: LESSOR:
COASTAL COAL-WEST VIRGINIA, LLC NGHD LANDS, INC.
a West Virginia Corporation
By: /s/ James W. Copley By: /s/ H. R. Deitz
------------------------------ ---------------------------
Its: Vice Pres Its: President
FEIN: 55-0698542
ATTEST:
BY: /s/ William S. Hedgin, Jr.
------------------------------------
Its: Assistant Secretary
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T.C. LANDS, INC.
a West Virginia Corporation
By: /s/ Anne E. Deitz
---------------------------
Its: President
FEIN: 55-0690537
/s/ Larry A. Deitz
-------------------------------
LARRY A. DEITZ
SSN: 235-78-3680
/s/ Gloria K. Deitz
-------------------------------
GLORIA K. DEITZ
SSN: 234-72-2287
WHITE PINE, INC.
a West Virginia Corporation
By: John H. McCutcheon
------------------------------
Its: President
FEIN: 55-0738427
G. D. HEROLD ESTATE
FEIN: 55-0632612
By: /s/ James H. Wolverton
-------------------------------
James H. Wolverton, Co-Executor
By: /s/ Doris E. Loria,
-------------------------------
Attorney-in-Fact for
Eugenia P. Herold, Co-Executor
/s/ Maxey Ann Tully
-------------------------------
MAXEY ANN TULLY, Widow
SSN: 236-24-0661
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STATE OF WEST VIRGINIA
COUNTY OF NICHOLAS, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 21st day of August, 1999, by NGHD LANDS, INC., a West Virginia
Corporation, by H. R. Deitz, its President, for and on behalf of said
Corporation.
My commission expires: November 28, 2006.
(Notarial Seal) /s/ Mary Jo Bragg
-----------------------------
Notary Public
STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
____________, by T.C. LANDS, INC., a West Virginia Corporation, by
_________________________________, its _______________________, for and on
behalf of said Corporation.
My commission expires: _____________________________________
(Notarial Seal) ____________________________
Notary Public
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STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
______________, by NGHD LANDS, INC., a West Virginia Corporation, by
_____________________________, its _______________________, for and on behalf of
said Corporation.
My commission expires: ________________________________________________
(Notarial Seal) ______________________________________
Notary Public
STATE OF WASHINGTON
COUNTY OF KING, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 24th day of August, 1999, by T.C. LANDS, INC., a West Virginia
Corporation, by Anne E. Deitz, its President, for and on behalf of said
Corporation. My commission expires: October 27, 1999.
(Notarial Seal) /s/ Antoinette Russell
-------------------------------
Notary Public
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STATE OF WEST VIRGINIA
COUNTY OF NICHOLAS, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 25th day of August, 1999, by LARRY A. DEITZ and GLORIA K. DEITZ,
husband and wife.
My commission expires: November 28, 2006.
(Notarial Seal) /s/ Mary Jo Bragg
-------------------------------
Notary Public
STATE OF WEST VIRGINIA
COUNTY OF NICHOLAS, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 25th day of August, 1999, by WHITE PINE, INC., a West Virginia
Corporation, by John H. McCutcheon II, its President, for and on behalf of said
Corporation.
My commission expires: November 28, 2006.
(Notarial Seal) /s/ Mary Jo Bragg
-------------------------------
Notary Public
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STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
______________, by LARRY A. DEITZ and GLORIA K. DEITZ, husband and wife.
My commission expires: ________________________________________________
(Notarial Seal) ______________________________________
Notary Public
STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
______________, by WHITE PINE, INC., a West Virginia Corporation, by
_____________________________, its _______________________, for and on behalf of
said Corporation.
My commission expires: ________________________________________________
(Notarial Seal) ______________________________________
Notary Public
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STATE OF WEST VIRGINIA
COUNTY OF NICHOLAS, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 24 day of August, 1999, by JAMES H. WOLVERTON, Co-Executor in
the Last Will and Testament of G. D. HEROLD.
My commission expires: March 11, 2002.
(Notarial Seal) /s/ Betty R. Losch
------------------------------------
Notary Public
STATE OF OHIO
COUNTY OF COLUMBIANA, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 1st day of September, 1999, by EUGENIA P. HEROLD, Co-Executor in
the Last Will and Testament of G. D. HEROLD. (Doris E. Loria, Attorney-In-Fact
For Eugenia P. Herold)
My commission expires: November 5, 2002.
(Notarial Seal) /s/ Christine A. Wilson
------------------------------------
Notary Public
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STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
______________, by JAMES H. WOLVERTON, Co-Executor in the Last Will and
Testament of G. D. HEROLD.
My commission expires: ________________________________________________
(Notarial Seal) ______________________________________
Notary Public
STATE OF _________________________
COUNTY OF________________________, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this ___ day of _____________________________________________,
______________, by EUGENIA P. HEROLD, Co-Executor in the Last Will and Testament
of G. D. HEROLD.
My commission expires: ________________________________________________
(Notarial Seal) ______________________________________
Notary Public
C-39
<PAGE>
STATE OF WEST VIRGINIA
COUNTY OF NICHOLAS, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 26th day of August, 1999, by MAXEY ANN TULLY, widow.
My commission expires: November 28, 2006.
/s/ Mary Jo Bragg
------------------------------------
Notary Public
STATE OF WEST VIRGINIA
COUNTY OF BRAXTON, TO-WIT:
The foregoing instrument was acknowledged before me, the undersigned
authority, this 12th day of August, 1999, by COASTAL COAL-WEST VIRGINIA, LLC, a
limited liability company, by James W. Copley, Jr., its Vice President, for and
on behalf of said Limited Liability Company.
My commission expires: April 7, 2009.
(Notarial Seal) /s/ Melody A. Martin
------------------------------------
Notary Public
THIS INSTRUMENT PREPARED BY:
This lease was prepared jointly by attorneys for Lessor and Lessee.
C-40
<PAGE>
LEASE AND SUBLEASE AGREEMENT
THIS LEASE AND SUBLEASE AGREEMENT (this "Agreement") made and entered into
this 14 day of March, 2001, by and between COASTAL COAL-WEST VIRGINIA, LLC, a
Delaware limited liability company, (hereinafter referred to as "Lessor");
COASTAL COAL COMPANY, LLC, a Delaware limited liability company, (hereinafter
referred to as "Coastal"); EAST KENTUCKY ENERGY CORPORATION, a Kentucky
corporation, (hereinafter referred to as "Lessee"); and AEI RESOURCES, INC., a
Kentucky Corporation (hereinafter referred to as "AEI").
W I T N E S S E T H:
Lessor is the owner of certain surface properties located in the Glade
District of Webster County, West Virginia, as more fully identified on Exhibit A
attached hereto and made a part hereof (collectively, the "Owned Tracts"). In
addition, Lessor is the lessee of certain coal and coal mining rights on certain
tracts or parcels of land located in the Glade District of Webster County, West
Virginia, as more fully identified on Exhibit B attached hereto (collectively
the "Leased Tracts"). The Owned Tracts and the Leased Tracts are herein
collectively referred to as the "Property", and are more particularly defined as
shown on the map attached hereto and made a part hereof as Exhibit C. Lessee
acknowledges receipt of copies of the documents by which Lessor is currently the
lessee of the Leased Tracts and copies of the documents by which Lessor is
obligated to pay an overriding royalty on all but two (2) of the Owned Tracts,
all of which are identified on Exhibit B attached hereto. The Leased Tracts
documents and the Owned Tracts documents are herein collectively referred to as
the "Property Documents."
<PAGE>
By this Agreement, Lessor desires to lease and sublease to Lessee and
Lessee desires to obtain from Lessor, rights to mine the coal on and under the
Property as more fully specified hereinafter.
NOW, THEREFORE, in consideration of One Dollar ($1.00) in hand paid by
Lessee to Lessor and of the terms, conditions, covenants and royalties
hereinafter set forth, Lessor does hereby lease and sublease, as appropriate, to
Lessee the exclusive right to mine and remove the coal on or under the Property,
together with mining rights with respect thereto, by the mining methods and in
the seams as specified in the Property Documents.
ARTICLE ONE. RIGHTS AND OBLIGATIONS.
1.1 Reference is made to Exhibits A, B and C attached hereto and which
identify the tracts which comprise the Property. If Lessee determines in its
reasonable discretion that any right owned or controlled by Lessor (by lease or
otherwise) within the tracts identified on Exhibits A and B should be terminated
or not renewed, it shall first consult with Lessor and if Lessor agrees, the
parties shall mutually cooperate to terminate or not renew such right. If the
parties do not agree that such right should be terminated or not renewed, Lessee
shall cause such right to be surrendered to Lessor and Lessor shall thereupon
acquire all rights related thereto, including the benefit of any recoupable
amounts without reimbursement to Lessee, and shall assume all obligations
related thereto accruing after the date of such surrender. Except as otherwise
expressly provided herein, Lessor shall take all action required to maintain its
leasehold rights in full force and effect in order to protect the concurrent
right of Lessee.
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<PAGE>
1.2 Lessor does hereby lease unto Lessee its mining rights and privileges
with respect to the coal on the Property together with rights of ingress, egress
and regress and other rights and privileges incidental to operation and
production of coal from the Property.
1.3 Lessor does not undertake to lease to Lessee any greater or other
rights in the Property than it has by virtue of (i) deeds or leases pursuant to
which it acquired its interests in the Property, and (ii) all right, title and
interest which Lessor may have acquired by operation of law.
1.4 Excluded from the scope of this Agreement and reserved by Lessor for
all purposes other than those for which this Agreement is made, are all of the
rights and remedies of the underlying lessor(s) or granting party under the
Property Documents with respect to all operations on the Property in the same
manner as if Lessor were the original lessor or granting party under the
Property Documents.
1.5 Lessee covenants to commence mining the mineable and merchantable coal
in and on the Property as soon as practicable (presently projected to be within
five years) and to thereafter continue mining the same with due diligence during
the term of this Agreement except when prevented by circumstances beyond
Lessee's control. The term "mineable and merchantable coal" as used in this
Agreement shall be the definition as ascribed to it in the Property Documents
for each tract. Provided, however, Lessor and Lessee recognize and agree that
the Property covered hereby forms a part of a larger mining area and that from
time to time prudent mining practices and the logical and practical sequence of
Lessee's operations within such mining area will cause Lessee to commence and
discontinue from time to time its coal removal operations on the Property.
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<PAGE>
1.6 Lessee hereby assumes all of the obligations and conditions contained
in the Property Documents with respect to all of its operations on the Property
in the same manner as if Lessee were the original lessee or party under the
Property Documents, except as otherwise specifically set forth herein. Lessee
acknowledges that it has received of a copy of the Property Documents, has read
and examined same, and hereby agrees that all operations in the exercise of
Lessee's mining rights under this Agreement shall be in compliance with all the
terms, conditions and obligations of the Property Documents. If there is any
conflict or inconsistency between this Agreement and any provision in any one or
more of the Property Documents, the provisions of the applicable Property
Document shall be controlling to determine obligations hereunder.
1.7 Except as set forth in Section 2.1 of this Agreement, payments due
under the Property Documents shall be paid by Lessee directly to the party
entitled to the same at the times required by the Property Documents and Lessee
shall, at the same time, provide to Lessor evidence that all such payments have
been made in a timely manner. Lessee has this day paid to Lessor the sum of One
Hundred Fifty Four Thousand Two Hundred Sixty-Two Dollars ($154,262.00) to
reimburse Lessor for recoupable amounts heretofore paid by Lessor under the
Property Documents as set forth on Exhibit B attached hereto and Lessee shall
hereafter have the benefit of such recoupable amounts. Lessor warrants to Lessee
that the amounts set forth on Exhibit B are true and correct and are recoupable
in accordance with the applicable Property Documents.
1.8 The parties acknowledge that Lessor has reserved certain rights
hereunder and imposed certain requirements on Lessee hereunder solely for the
purpose of
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<PAGE>
insuring that the mineable and merchantable coal is recovered from the
Property and that Lessor (to the extent applicable) and its lessor(s) each
receive payments due it; and nothing herein shall be construed in such a way as
to express or imply any right of Lessor to control Lessee or its mining or other
activities under this Agreement.
ARTICLE TWO. SHARING OF MINIMUM ROYALTY OBLIGATIONS.
2.1 Under the Property Documents whereby Lessee is subleasing only a
portion of the lease area, the portion of the minimum royalty obligation to be
paid by Lessee is set forth on Exhibit B and Lessee shall pay its share directly
to the party entitled to the same as set forth in Section 1.7 of this Agreement.
Lessor and Lessee hereby agree that, in the event either party is able to recoup
all of its portion of the prepaid minimum royalty balance, prior to paying the
underlying lessor royalties in excess of said minimum royalty balance, it shall
consult with the other to determine if Lessor or Lessee, as the case may be, has
any outstanding recoupable prepaid minimum royalty on said lease. If so, Lessor
or Lessee, as the case may be, shall recoup such balance from the underlying
lessor's tonnage royalty and shall reimburse the other any amounts so recouped.
2.2 At such time as Lessor or Lessee, as the case may be, has mined and
removed all of the mineable and merchantable coal from its portion of the area
under the Property Documents where Lessee is subleasing only a portion of the
underlying area, the party with mineable and merchantable coal remaining shall
be obligated thereafter to pay the full amount of the minimum royalty due under
the applicable Property Document in order to keep said Property Document in full
force and effect. Lessor or Lessee, as the case may be,
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<PAGE>
shall notify the other party of such event no less than sixty (60) days prior to
the date the next minimum royalty would be due under such Property Document to
the underlying lessor(s).
ARTICLE THREE. TERM.
3.1 The term of this Agreement shall terminate with respect to each
Property Document upon (i) exhaustion of all the mineable and merchantable coal
from the tract(s) in the Property covered thereby, or (ii) the surrender or
termination thereof in accordance with Section 1.1 hereof, or (iii) the
expiration of the term of such Property Document, whichever occurs sooner. This
Agreement shall likewise terminate upon exhaustion of all of the mineable and
merchantable coal in all tracts in the Property. To the extent that Lessor has
the right under the Property Documents to grant such right, Lessee shall have
the right of entry (to any such tract(s)) following the term of this Agreement
to perform reclamation required by law and Lessor shall not interfere with the
same.
3.2 Upon termination of this Agreement, Lessee shall be in compliance with
all terms of this Agreement including, without limitation, the payment of
tonnage royalties, minimum annual royalties, taxes and all other payments due
under the Property Documents, prorated to the date of such termination.
Notwithstanding the surrender or other termination of this Agreement (in whole
or in part), Lessee shall remain responsible for and perform all reclamation
upon the Property as may be required by law, subject to the provisions of
Section 3.3 hereof. Any recoupable balance pertaining to any minimum royalty
under the Property Documents, to the extent of the portions of the Property
affected by any such surrender or
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<PAGE>
termination, shall become the sole and absolute property of Lessor without any
reimbursement to Lessee.
3.3 (a) At such time as Lessee shall have mined and removed all of the
mineable and merchantable coal in and underlying the Property or upon
termination of Lessee's right to mine, process and ship coal as provided herein
or upon termination of this Agreement with respect to any portion of the
Property, at Lessor's election made within 60 days thereof, Lessee either (i)
shall commence and within a reasonable period thereafter fully reclaim and
restore such portions of the Property in accordance with all applicable laws,
regulations and permits or (ii) shall leave such portions of the Property in
such condition that mining by another may begin immediately after termination
hereof, each as hereinafter more fully described. Lessor in its sole discretion
may elect option (i) for parts or portions of the Property and option (ii) for
other parts or portions of the Property.
(b) If Lessor elects to have any part of the Property reclaimed and
restored, Lessee at its sole cost and expense shall reclaim and restore such
Property as required by applicable laws, regulations and permits (except as
directed by Lessor to accommodate the continued presence of any facilities or
other alterations or improvements on the Property if such accommodation is
permissible under applicable law or permits) and shall initiate and diligently
pursue and complete all things necessary to terminate all permits and
authorizations held by Lessee regarding such Property.
(c) If Lessor elects to have Lessee leave any part of the Property
in such condition that mining by another may begin immediately, Lessee, at its
sole cost and expense, promptly upon receipt of notice of such election, shall
initiate and diligently pursue
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<PAGE>
and complete all things reasonably necessary, effective as soon as possible
after such election is made, to accommodate Lessor's election. Lessee shall do
all things requested by Lessor, if such request be made, to permit immediate
mining by another, including but not limited to the transfer or assignment to
Lessor or its designee of applicable permits (subject to the replacement of all
bonds or other security required to be posted in connection with such permits),
except to the extent Lessee is not in compliance with such permits. No mining by
Lessor or another shall occur, without the prior written consent of Lessee being
first had and obtained, prior to the transfer of such permits on that portion of
the Property covered by the transfer of such permits. The parties agree that any
noncompliance by Lessee under any applicable laws or permits shall be determined
by a final inspection by the State compliance inspector(s) as close as possible
to, but prior to, the time of transfer. Once the activity, if any, which is not
in compliance has been corrected by Lessee, such transferee shall be responsible
for all future obligations with respect to such activity.
3.4 Notwithstanding any other provision of this Article, this Agreement
shall automatically terminate with respect to any Property Document pertaining
to the Property upon termination or expiration of such Property Document, or any
extensions thereof.
ARTICLE FOUR. TAXES.
4.1 Lessee shall pay all severance taxes, unmined minerals tax, black lung
fees and reclamation fees assessed by the state, federal or local governments
upon the coal or the Property for all periods during which the Agreement is in
effect with respect thereto and
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<PAGE>
shall pay or reimburse Lessor for all taxes payable by Lessor with respect
to all interests owned or controlled by Lessor in the Property for all periods
during which this Agreement is in effect with respect thereto (it being
recognized that some of the leases or other documents pertaining to the Leased
Tracts may not require Lessor to pay real estate taxes). Lessee shall also pay
all taxes payable with respect to all the improvements and property of Lessee
upon the Property for all periods during which this Agreement is in effect.
4.2 Taxes assessed against Lessor for which Lessee is responsible may be
paid by Lessor initially and reimbursed by Lessee to Lessor on presentment of a
copy of receipted invoice or canceled check for same. In the alternative, Lessor
may present such tax invoices to Lessee which shall promptly pay them.
ARTICLE FIVE. REMOVAL OF IMPROVEMENTS ON TERMINATION.
5.1 At the termination of this Agreement, whether by termination,
expiration, or otherwise, other than termination by forfeiture, provided Lessee
is not then in default hereunder in which case such default shall be remedied
before anything is removed, Lessee shall have for a period of ninety (90) days
thereafter the right and privilege of removing all of the personal property,
machinery, equipment, and improvements placed by Lessee in, under, or upon the
Property.
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<PAGE>
ARTICLE SIX. WARRANTIES.
6.1 Lessor disclaims and makes no warranty, express or implied, whether of
merchantability, quality, quantity, recoverability, title or otherwise as to the
Property or interests therein, or coal reserves, or mining rights owned by, or
leased to Lessor, or as to the condition of the Property and Lessee shall rely
upon its own examination thereof through engineers and other representatives
selected and employed solely by Lessee.
ARTICLE SEVEN. INDEMNITY; INSURANCE.
7.1 (a) (i) In addition to the indemnity set forth in the Property
Documents which shall run to the Lessor, Lessee and AEI agree to indemnify,
defend and hold the Lessor and Coastal and their members, shareholders,
directors, officers and agents (the "Indemnified Party") harmless from and
against any and all claims, demands, actions, causes of action, losses, lost
coal claims, costs and expenses of any kind whatsoever, arising out of, relating
to or resulting from Lessee's breach or failure to keep, maintain or perform any
terms or conditions of this Agreement or any of the Property Documents.
(ii) The foregoing covenant of indemnity shall survive the
cancellation or termination of this Agreement or any of the Property Documents.
This indemnification by Lessee and AEI shall not be negated or reduced by
Lessee's and AEI's insurance carrier's denial of insurance coverage for the
occurrence or event which is the subject matter of the claim or refusal to
defend Lessee and AEI or Lessor and Coastal. Simultaneous with the execution of
this Agreement, AEI will execute and deliver to Lessor and Coastal the Guaranty
attached hereto and made a part hereof as Exhibit D.
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<PAGE>
(b) In addition to the insurance requirements of the Property
Documents, Lessee and AEI shall maintain and carry, during the term of the this
Agreement and for so long thereafter until final bond release on any Property
disturbed, Environmental Impairment Liability insurance covering environmental
damages resulting from Lessee's operations under this Agreement, including clean
up and third party liability of not less than $5,000,000 per occurrence and
$10,000,000 annual aggregate, and shall name Lessor and Coastal as an additional
insureds with respect thereto. Failure to maintain such coverage shall be
considered a default of this Agreement. Lessor and Coastal shall be named as
additional insureds with respect to the coverages required in the Property
Documents and this paragraph; shall contain a waiver of subrogation in favor of
Lessor and Coastal; and shall require thirty (30) days advance notice to Lessor
and Coastal of any proposed cancellation or material change in coverage. If at
any time Lessee and AEI fail to maintain the aforesaid insurance coverages
Lessor and/or Coastal, their successors and assigns, shall have the right to
cause all activities under this Agreement to cease until such coverage(s) are
reinstated or to procure such insurance coverage and to be reimbursed for the
cost therefor by either Lessee or AEI. The insurance requirement set forth in
the Property Documents and herein are minimum requirements and shall not limit
Lessee and AEI's liability in any manner.
(c) Lessee further covenants and agrees that all employees of Lessee
and/or any and all other persons performing work on the Property pursuant to the
rights granted in this Agreement will be fully covered by or insured at all
times by Workers' Compensation, and to that end Lessee shall comply with all
applicable Workers' Compensation laws, rules and regulations and shall make all
necessary contributions and/or premium or other
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<PAGE>
payments. In addition, Lessee shall comply with all laws pertaining to payment
of employees including without limitation the provision of W. Va. Code Section
21-5-1, et. seq. and provide Lessor evidence of posting of any bond required by
W. Va. Code Section 21-5-14 or other similar law.
(d) (i) Lessee agrees that it shall comply with all of the terms
and provisions of all of the "black lung laws." Lessee acknowledges that, as
between itself and Lessor, it is, and shall be deemed to be, the operator of any
coal mine or coal preparation facility or facility used for the extraction,
preparation or transportation of coal produced from the Property and of all
related activities, including, but not limited to, coal mine construction or
maintenance engaged in by Lessee pursuant to the terms of this Agreement with
respect to any claim for black lung benefits filed by or on account of any of
its employees or former employees. Lessee shall secure and shall require any
other person or entity claiming by, through or under Lessee who operates,
controls, or supervises a coal mine or coal preparation facility on the Property
or performs services of construction, maintenance, transportation, or other
activities related to coal mining or preparation under the terms of this
Agreement, or who otherwise may be liable for the payment of black lung
benefits, to secure the payment of such black lung benefits to or on account of
employees or former employees in accordance with the black lung laws and shall
provide Lessor, upon request, with appropriate certification that each of them
has provided security in compliance with all black lung laws for the payment of
such black lung benefits.
(ii) Without limiting the generality of Lessee's obligations
to comply with all other provisions of this Agreement, Lessee does hereby agree
that it will
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indemnify and hold Lessor and Coastal harmless from any liability and expenses,
including reasonable attorney fees and expenses, which Lessor or Coastal may
suffer directly or indirectly, as a result of or with respect to any claim for
black lung benefits filed by or on account of any of Lessee's employees or
former employees, or employees or former employees of others who may be required
to secure the payment of black lung benefits with respect to the mining or other
activities under or pursuant to this Agreement.
(iii) "Black lung laws" mean the Black Lung Benefits Act,
Title IV of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 901 et
seq., and the Internal Revenue Code, 26 U.S.C. 1 et seq., Black Lung Benefits
Reform Act of 1977 (P.L. 95-239), Black Lung Benefits Revenue Act of 1977 (P.L.
75-227), Black Lung Benefits Revenue Act of 1981 (P.L. 97-119), and the Black
Lung Benefits Amendments Act of 1981 (P.L. 97-119), as now or hereafter amended
or replaced, and all rules and regulations adopted pursuant thereto.
7.2 AEI will cause that certain Irrevocable Standby Letter of Credit No.
Y022207 established by UBS AG, Stamford Branch, to be amended to allow Coastal
to draw on the Letter of Credit for any costs and expenses of every kind and
nature (including, but not limited to, reasonable attorney's fees) which may be
imposed upon or incurred by Lessor or Coastal as a result of or in connection
with Lessee's performance of or activities under this Agreement or as a result
of the breach or default by Lessee of the terms and conditions of the Property
Documents or this Agreement for which Lessee or AEI fail to indemnify Lessor
and/or Coastal.
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<PAGE>
ARTICLE EIGHT. DEFAULT, FORFEITURE; REMEDIES CUMULATIVE.
8.1 (a) In any of the following events, that is to say:
(i) Lessee shall fail for a period of five (5) days after
written demand therefor (or such shorter period as may be set out in any
applicable Property Document) to pay any installment of rent or royalty or other
payment due hereunder after the same becomes due and payable; or
(ii) Lessee shall abandon the Property; or
(iii) Lessee shall fail to
A. conduct its operations as required in Section 1.5
hereof;
B. provide insurance as required in Article 7 hereof;
C. pay taxes as provided in Article 4 hereof; or
D. keep and perform any of the other terms, conditions,
covenants and agreements of this Agreement to be kept and performed;
and if any such failure as specified in this subpart (iii) shall continue
without Lessee diligently pursuing the cure of any such failure for a period of
30 days after Lessor shall have given written notice of such failure to Lessee
(or for a period 15 days less than any period set out in any applicable Property
Document);
(iv) Lessee is in default of any condition of default as set
forth in the Property Documents, which are incorporated herein by reference; or
(v) Lessee be adjudicated a bankrupt or discharged by the
Court as an insolvent debtor, or if any receiver or assignee or other person or
persons be
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<PAGE>
appointed by any court to take charge of the Property or the property of
Lessee, or the mines and equipment upon the same;
then in any such event this Agreement and the estate hereby created, and all
rights of the Lessee hereunder with respect to the Property shall at the option
of Lessor, become forfeited and cease and terminate, and Lessor shall have the
right to reenter the Property and to exclude Lessee therefrom, and to hold the
Property and all improvements thereon free of any claims of Lessee, anything
herein contained to the contrary notwithstanding; provided that in any such
event, Lessee shall have a right of access to the Property (to the extent Lessor
can grant such right) to perform any reclamation required by this Agreement or
by applicable law or permits.
(b) Upon any forfeiture, all estate, rights and privileges of Lessee
hereunder with respect to the Property shall cease and terminate, and Lessor may
thereupon or at any time thereafter, without further notice, demand or action by
any of its agents, reenter and take possession of the Property, or any part
thereof in the name of Lessor, to the extent and with like effect as though this
Agreement had never been made, and Lessor in making said reentry and taking
possession of said property shall have the right to do so without legal action,
or without notice or process, as may be required by the laws of the State of
West Virginia, as amended.
(c) All provisions herein contained for the collection of rents,
royalties or other payments, or concerning the remedy of Lessor in case of
breach by Lessee of any condition, covenant or agreement herein contained, or
contained in any other Property Document, shall be deemed to be cumulative and
not exclusive, and shall not deprive Lessor
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of any of its other legal or equitable remedies which may now or hereafter be
provided under the laws of the State of West Virginia.
(d) A waiver by Lessor of any particular default upon the part of
Lessee which would entitle Lessor to forfeit and terminate this Agreement and
reenter and take possession, shall not prevent Lessor from forfeiting and
terminating this Agreement for any other cause, or for the same cause occurring
at any other time. The receipt by Lessor from Lessee of payments of rentals,
royalties, or other sums after the occurrence of any default that would
authorize Lessor to declare a forfeiture of this Agreement, or the continued
recognition of Lessor of Lessee as its subtenant after the occurrence of any
default entitling Lessor to declare a forfeiture shall not be deemed a waiver of
Lessor's right of forfeiture, so long as the cause of forfeiture continues to
exist.
(e) It is understood and agreed that Lessor does hereby reserve such
rights and remedies as were reserved to the original lessor(s) in the Property
Documents, as if such rights and remedies were fully set out herein.
ARTICLE NINE. ASSIGNMENT PROHIBITED.
9.1 Lessee agrees that it will not assign, sublet or otherwise transfer
its rights hereunder, either voluntarily or by operation of law, without the
prior written consent of Lessor. Nothing herein contained shall prevent or
hinder the right of Lessee to sublease to its affiliated company, Evergreen
Mining Company, or contract any part or portion of its operations under this
Agreement in the usual and ordinary course of its business but such subleasing,
contracting or subcontracting shall not release or relieve Lessee or AEI from
any of its obligations or liabilities under this Agreement or Guaranty of even
date herewith.
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ARTICLE TEN. NOTICES.
10.1 Any notice which Lessee may desire to serve upon Lessor and/or
Coastal may be made by mailing the same postage prepaid by registered or
certified mail, return receipt requested, or express mail, addressed to Lessor
and/or Coastal at P. O. Box 1871, Roanoke, Virginia 24008. Any notice which
Lessor may desire to serve upon Lessee and/or AEI may be made mailing the same
postage prepaid by registered or certified mail, return receipt requested, or
express mail, addressed to Lessee and/or AEI at 2000 Ashland Drive, Ashland,
Kentucky 41101.
ARTICLE ELEVEN. APPLICABLE LAW.
11.1 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of West Virginia.
ARTICLE TWELVE. SUCCESSORS AND ASSIGNS.
12.1 The covenants, agreements, terms and conditions of this Agreement
shall inure to the benefit of, and shall be binding upon the parties hereto,
their respective successors and assigns.
ARTICLE THIRTEEN. MODIFICATION OR AMENDMENT.
13.1 This Agreement may not be modified, altered or amended in any manner
except by written agreement executed by Lessor and Lessee.
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ARTICLE FOURTEEN. ARTICLE HEADINGS.
14.1 The headings of, or captions to each article of this Agreement are
for convenience only and are not to be used to interpret, amend, or alter any of
the provisions hereof.
ARTICLE FIFTEEN. COUNTERPARTS.
15.1 This Agreement may be executed in any one or more counterparts, each
of which shall be deemed an original and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
IN WITNESS WHEREOF, Lessor, Coastal, Lessee and AEI have hereunto caused
this Agreement to be executed as of the day and year first above written.
COASTAL COAL-WEST VIRGINIA, LLC
By: /s/ James W. Copley
-----------------------------------------------
Its: Vice Pres.
COASTAL COAL COMPANY, LLC
By: /s/ James W. Copley
-----------------------------------------------
Its: Vice Pres.
EAST KENTUCKY ENERGY CORPORATION
By: /s/ Gary Colley
-----------------------------------------------
Its: Attorney-in-Fact
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AEI RESOURCES, INC.
By: /s/ Gary Colley
-----------------------------------------------
Its: Attorney-in-Fact
STATE OF WEST VIRGINIA )
COUNTY OF WEBSTER ), to-wit:
The foregoing instrument was acknowledged before me this 14th day of
March, 2001, by James W. Copley, Jr., the Vice President of COASTAL COAL-WEST
VIRGINIA, LLC, a Delaware limited liability company, on behalf of the
organization.
/s/ Arley M. Johnson
-----------------------------------------------
Notary Public
My commission expires: 01/17/2011 [Notary Seal]
STATE OF WEST VIRGINIA )
COUNTY OF WEBSTER ), to-wit:
The foregoing instrument was acknowledged before me this 14th day of
March, 2001, by James W. Copley, Jr., the Vice President of COASTAL COAL
COMPANY, LLC, a Delaware limited liability company, on behalf of the
organization.
/s/ Arley M. Johnson
-----------------------------------------------
Notary Public
My commission expires: 01/17/2011 [Notary Seal]
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<PAGE>
STATE OF WEST VIRGINIA )
COUNTY OF WEBSTER ), to-wit:
The foregoing instrument was acknowledged before me this 14th day of
March, 2001, by Gary L. Colley, the Attorney-in-Fact of EAST KENTUCKY ENERGY
CORPORATION, a Kentucky corporation, on behalf of the corporation.
/s/ Arley M. Johnson
-----------------------------------------------
Notary Public
My commission expires: 01/17/2011 [Notary Seal]
STATE OF WEST VIRGINIA )
COUNTY OF WEBSTER ), to-wit:
The foregoing instrument was acknowledged before me this 14th day of
March, 2001, by Gary L. Colley, the Attorney-in-Fact of AEI RESOURCES, INC., a
Kentucky corporation, on behalf of the corporation.
Arley M. Johnson
-----------------------------------------------
Notary Public
My commission expires: 01/17/2011 [Notary Seal]
This instrument was prepared by:
Coastal Coal-West Virginia, LLC
Legal Department
P. O. Box 1871
Roanoke, VA 24008
eastky.las
-20-
<PAGE>
EXHIBIT A - OWNED TRACTS
TRACT# ACREAGE REMARKS
------ ------- -------
WE44 25 Johnson Property
WE45 35 Bragg Property
WE46 & WE46A 137.5 Norman Heirs Property (188 acres)
less exceptions of 36 acres and 14 acres
WE46A 36 Selman Property
WE47 75 McAvoy Property
WE48 69.5 McAvoy Property (part of 129 acres)
WE48 35 McAvoy Property (part of 129 acres)
WE50 24 Selman Property
WE51 50 Selman Property (part of 83 acres)
WE51 33 Selman Property (part of 83 acres)
NOTE: All of the above tracts are subject to minimum and per ton overriding
royalties See Exhibit B
WE46 13.6 Wilson/Jackson Property
WE49 50 Wilson/Jackson Property
-21-
<PAGE>
EXHIBIT B - LEASED TRACTS
SUBLEASE OF TOTAL LEASE AREA:
1. That certain Coal Lease dated July 1, 1999, from NGHD Lands, Inc.; T. C.
Lands, Inc.; Larry A. Deitz and Gloria K. Deitz; White Pine, Inc.; G. D.
Herold Estate by James H. Wolverton and Eugenia P. Herold, Co-executors;
and Maxey Ann Tulley to Coastal Coal-West Virginia, LLC.
TRACT #: WE45, WE46, WE47, WE48, WE50, WE51, WE52
Acreage: 28, 188, 73, 202, 20.75, 76, 43.54
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $41,580.00
2. That certain Coal Lease dated July 1, 1999, from NGHD Lands, Inc.; T. C.
Lands, Inc.; White Pine, Inc.; B & W Land Company; Ottaway Trent, Trustee;
Ernestine Trent; and Ottaway Trent and Tinia Faye Trent to Coastal
Coal-West Virginia, LLC.
TRACT #: WE49
Acreage: 50
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $3,500.00
3. That certain Coal and Surface Lease Agreement dated October 19, 1978, from
Boyd F. Selman (successor in interest to Maggie White Selman and Herold
Selman) to Coastal Coal-West Virginia, LLC (successor in interest to ANR
Coal Development Company), of record in the clerk's office of Webster
County, West Virginia, in Book 12, at page 430, as supplemented by
Supplement to Lease dated October 19, 1978, of record in the aforesaid
clerk's office in Book 12, at page 445, and amended by Amendment of Coal
and Surface Lease Agreement dated November 28, 1983, of record in the
aforesaid clerk's office in Book 18, at page 387.
TRACT #: WE52
Acreage: 69
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $.00
4. That certain Lease dated July 13, 1976, from Lavonne Cobb, Keith S.
Roberts, Edsel F. Roberts, Wayland S. Roberts, and Kay Vannest (successors
in interest to Glen Roberts and Ruby Roberts) to Coastal Coal-West
Virginia, LLC (successor in interest to Harold Roberts), as amended by
that certain Supplement to Lease dated October 25, 1978, of record in the
clerk's office of Webster County, West Virginia, in Book 42, at page 422,
and that certain Supplement to Lease dated December 5, 1978 [unrecorded],
and those certain extension letters dated September 9, 1988 and August 31,
1998.
-22-
<PAGE>
TRACT #: WE53
Acreage: 1/2 of 28
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $76,200.00
5. That certain Surface Lease dated July 1, 1999, from NGHD Lands, Inc.;
White Pine, Inc.; B & W Land Company; Ottaway Trent, Trustee; Ernestine
Trent; and Ottaway Trent and Tinia Faye Trent to Coastal Coal-West
Virginia, LLC
TRACT #: WE48A
Acreage: 77
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $1,540.00
SUBLEASE OF PARTIAL LEASE AREA:
1. That certain Coal Lease Agreement dated April 25, 1978, from Charles A.
Roberts and Marlene R. Roberts and Orlen P. Roberts and Mary Jane Roberts
to Coastal Coal-West Virginia, LLC (successor in interest to ANR Coal
Development Company), as evidenced by Memorandum of Lease of record in the
clerk's office of Webster County, West Virginia, in Book 13, page 306, as
amended by Amendment dated August 30, 1996.
TRACT #: WE44
Acreage: 25
Recoupable Prepaid Balance: $8,000.00
Portion of Balance Reimbursed by Lessee (Section 1.5): $1,325.00
Portion of Annual Minimum to be paid by Lessee Effective 04-04-2001:
$662.00
2. That certain Lease dated July 3, 1978, from Estle D. Boggs or Margaret
Boggs to Coastal Coal-West Virginia, LLC (successor in interest to ANR
Coal Development Company), as amended by that certain Amendment of Lease
executed on July 1, 1983, of record in the clerk's office of Nicholas
County, West Virginia, in Book 55, at page 282.
TRACT #: WE52, WE100 (Partial)
Acreage: 95.8, Part of 26
Recoupable Prepaid Balance: $64,000.00
Portion of Balance Reimbursed by Lessee (Section 1.5): $.00
Portion of Annual Minimum to be paid by Lessee Effective 07-03-2001:
$1,350.00
-23-
<PAGE>
3. That certain Lease dated September 22, 1977, from Evelyn Boggs and Ronald
S. Boggs and Linda G. Boggs (successors in interest to Roy Boggs and
Evelyn Boggs) to Coastal Coal-West Virginia, LLC (successor in interest to
Revere Coal Company), of record in the clerk's office of Webster County,
West Virginia, in Book 12, at page 64, as amended by those certain
Supplements to Lease dated November 3, 1977, October 19, 1978, and
December 1, 1978, and those certain extension letters dated July 17, 1987
and August 8, 1997.
TRACT #: WE53,
Acreage: 1/2 of 28
Recoupable Prepaid Balance: $72,000.00
Portion of Balance Reimbursed by Lessee (Section 1.5): $19,237.00
Portion of Annual Minimum to be paid by Lessee Effective 01-25-2001:
$1,924.00
4. That certain Lease dated October 14, 1977, from M-B, LLC (successor to M-B
Partners, Ltd.) to Coastal Coal-West Virginia, LLC (successor in interest
to ANR Coal Development Company), as evidenced by Memorandum of Lease of
record in the clerks' office of Webster County, Nicholas County, and
Braxton County, West Virginia, in Book 13, page 283; Book 50, page 223;
and Book 380, page 727, respectively.
TRACT #: WE54, WE55
Acreage: 735.15, 28.88 (portions of 838 and 107 acre tracts located east
of Barnett Run and south of Birch River only)
Recoupable Prepaid Balance: $.00
Portion of Balance Reimbursed by Lessee (Section 1.5): $.00
Portion of Annual Minimum to be paid by Lessee: $.00
OVERRIDING ROYALTY ON OWNED TRACTS
1. That certain Surface Lease dated February 23, 2000, from NGHD Lands, Inc.;
T. C. Lands, Inc.; AED, LLC, Larry A. Deitz and Gloria K. Deitz; and Maxey
Ann Tulley to Coastal Coal-West Virginia, LLC
TRACT #: WE44, WE45, WE46 and 46A, WE46A, WE47,WE48, WE48, WE50, WE51,
WE51
Acreage: 25, 35, 137.5, 36, 75, 69.5, 35, 24, 50, 33
Recoupable Prepaid Balance Reimbursed by Lessee (Section 1.5): $10,880.00
-24-
<PAGE>
MEMORANDUM OF LEASE AND SUBLEASE AGREEMENT
THIS MEMORANDUM OF LEASE AND SUBLEASE AGREEMENT is made and entered into
as of the 1st day of June, 2001 (the "Effective Date"), by and among COASTAL
COAL-WEST VIRGINIA, L.L.C., a Delaware limited liability company, hereinafter
referred to as LESSOR; COASTAL COAL COMPANY, L.L.C., a Delaware limited
liability company, hereinafter referred to as "COASTAL"; EAST KENTUCKY ENERGY
CORPORATION, a Kentucky corporation, hereinafter referred to as "LESSEE"; and
AEI RESOURCES, INC., a Kentucky corporation, hereinafter referred to as "AEI."
W I T N E S S E T H:
WHEREAS, Lessor is the owner in fee of certain surface properties located
in the Glade District of Webster County, West Virginia, as more fully identified
on Exhibit A attached hereto and made a part hereof (collectively the "Owned
Tracts"); and,
WHEREAS, Lessor is the lessee of certain coal and coal mining rights on
certain tracts or parcels of land located in the Glade District of Webster
County, West Virginia, as more fully identified on Exhibit B attached hereto
(collectively the "Leased Tracts"); and,
WHEREAS, the Owned Tracts and Leased Tracts are more particularly defined
as shown on the map attached hereto and made a part hereof as Exhibit C; and,
WHEREAS, the parties entered into a Lease and Sublease Agreement dated
March 14, 2001, (the "Agreement") by which Lessee has been granted certain
mining and transportation rights in and to the Owned Tracts and Leased Tracts;
and,
WHEREAS, the Leased Tracts documents and the Owned Tracts documents are
herein collectively referred to as the "Property Documents;" and,
WHEREAS, the parties desire to execute a memorandum of the Agreement to be
recorded in order to give notice of its existence and certain of its terms and
conditions, however, reference is hereby made to said Agreement for a complete
explanation of all rights and obligations of the parties thereto.
NOW, THEREFORE, notice is hereby given of the existence of the Agreement,
and that the Agreement contains, inter alia, the following terms and provisions:
1. Lessor does not undertake to lease to Lessee any greater or other
rights in the Property than it has by virtue of (i) deeds or leases
pursuant to which it acquired its interests in the Property, and
(ii) all right, title and interest which Lessor may have acquired by
operation of law.
<PAGE>
2. Excluded from the scope of this Agreement and reserved by Lessor for
all purposes other than those for which this Agreement is made, are
all of the rights and remedies of the underlying lessor(s) or
granting party under the Property Documents with respect to all
operations on the Property in the same manner as if Lessor were the
original lessor or granting party under the Property Documents.
3. Lessee covenants to commence mining the mineable and merchantable
coal in and on the Property as soon as practicable (presently
projected to be within five years) and to thereafter continue mining
the same with due diligence during the term of this Agreement except
when prevented by circumstances beyond Lessee's control. The term
"mineable and merchantable coal" as used in this Agreement shall be
the definition as ascribed to it in the Property Documents for each
tract. Provided, however, Lessor and Lessee recognize and agree that
the Property covered hereby forms a part of a larger mining area and
that from time to time prudent mining practices and the logical and
practical sequence of Lessee's operations within such mining area
will cause Lessee to commence and discontinue from time to time its
coal removal operations on the Property.
4. Lessee hereby assumes all of the obligations and conditions
contained in the Property Documents with respect to all of its
operations on the Property in the same manner as if Lessee were the
original lessee or party under the Property Documents, except as
otherwise specifically set forth herein. Lessee acknowledges that it
has received a copy of the Property Documents, has read and examined
same, and hereby agrees that all operations in the exercise of
Lessee's mining rights under this Agreement shall be in compliance
with all the terms, conditions and obligations of the Property
Documents. If there is any conflict or inconsistency between this
Agreement and any provision in any one or more of the Property
Documents, the provisions of the applicable Property Document shall
be controlling to determine obligations hereunder.
5. The term of this Agreement shall terminate with respect to each
Property Document upon (i) exhaustion of all the mineable and
merchantable coal from the tract(s) in the Property covered thereby,
or (ii) the surrender or termination thereof in accordance with
Section 1.1 hereof, or (iii) the expiration of the term of such
Property Document, whichever occurs sooner. This Agreement shall
likewise terminate upon exhaustion of all of the mineable and
merchantable coal in all tracts in the Property. To the extent that
Lessor has the right under the Property Documents to grant such
right, Lessee shall have the right of entry (to any such tract(s))
following the term of this Agreement to perform reclamation required
by law and Lessor shall not interfere with the same.
6. Notwithstanding any other provision of this Article, this Agreement
shall automatically terminate with respect to any Property Document
pertaining to the Property upon termination or expiration of such
Property Document, or any extensions thereof.
2
<PAGE>
7. At the termination of this Agreement, whether by termination,
expiration, or otherwise, other than termination by forfeiture,
provided Lessee is not then in default hereunder in which case such
default shall be remedied before anything is removed, Lessee shall
have a period of ninety (90) days thereafter the right and privilege
of removing all of the personal property, machinery, equipment, and
improvements placed by Lessee in, under, or upon the Property.
8. Lessee agrees that it will not assign, sublet or otherwise transfer
its rights hereunder, either voluntarily or by operation of law,
without the prior written consent of Lessor. Nothing herein
contained shall prevent or hinder the right of Lessee to sublease to
its affiliated company, Evergreen Mining Company, or contract any
part or portion of its operations under this Agreement in the usual
and ordinary course of its business but such subleasing, contracting
or subcontracting shall not release or relieve Lessee or AEI from
any of its obligations or liabilities under this Agreement or
Guaranty of even date herewith.
9. By its express terms, the Agreement is binding upon the parties,
their respective successors and assigns.
10. Each party has an executed copy of the Agreement and all terms and
conditions of said Agreement are incorporated herein by reference
and made a part hereof as if fully set forth.
IN TESTIMONY WHEREOF, witness the signatures of the parties hereto this
day and year first above written.
LESSOR:
COASTAL COAL-WEST VIRGINIA, L.L.C.
BY: /s/ James W. Copley
--------------------------------------
ITS: Vice Pres.
COASTAL COAL COMPANY, L.L.C.
BY: /s/ James W. Copley
--------------------------------------
ITS: Vice Pres.
3
<PAGE>
LESSEE:
EAST KENTUCKY ENERGY CORPORATION
BY: /s/ Bernie Mason
--------------------------------------
ITS: Vice President
AEI RESOURCES, INC.
BY: /s/ Bernie Mason
--------------------------------------
ITS: Vice President
STATE OF WEST VIRGINIA
COUNTY OF WEBSTER
The foregoing instrument was subscribed, sworn to and acknowledged before
me this 1st day of June, 2001, by James W. Copley, Jr. as Vice President of
COASTAL COAL-WEST VIRGINIA, L.L.C., a Delaware limited liability company, for
and on behalf of said entity.
My Commission Expires: April 7, 2009
[NOTARY SEAL]
/s/ Melody Martin
--------------------------------------
Notary Public
STATE OF WEST VIRGINIA
COUNTY OF WEBSTER
The foregoing instrument was subscribed, sworn to and acknowledged before
me this 1st day of June, 2001, by James W. Copley, Jr. as Vice President of
Coastal Coal Company, LLC, a Delaware limited liability company, for and on
behalf of said entity.
My Commission Expires: April 7, 2009
[NOTARY SEAL]
/s/ Melody Martin
--------------------------------------
Notary Public
4
<PAGE>
STATE OF KENTUCKY
COUNTY OF GREENUP
The foregoing instrument was subscribed, sworn to and acknowledged before
me this 25th day of May, 2001, by Bernie Mason as Vice President of EAST
KENTUCKY ENERGY CORPORATION, a Kentucky corporation, for and on behalf of said
corporation.
My Commission Expires: 11-14-03
[NOTARY SEAL]
/s/ Denise G. Mitchell
--------------------------------------
Notary Public
STATE OF KENTUCKY
COUNTY OF GREENUP
The foregoing instrument was subscribed, sworn to and acknowledged before
me this 25th day of May, 2001, by Bernie Mason as Vice President of AEI
RESOURCES, INC., a Kentucky corporation, for and on behalf of said corporation.
My Commission Expires: 11-14-03
[NOTARY SEAL]
/s/ Denise G. Mitchell
--------------------------------------
Notary Public
THIS INSTRUMENT PREPARED BY:
/s/ George M. Hogg
---------------------------
George M. Hogg, Attorney
Addington Corporate Center
2000 Ashland Drive
Ashland, Kentucky 41101
(606) 920-7890
5
<PAGE>
EXHIBIT A - OWNED TRACTS
TRACT# ACREAGE REMARKS
------ ------- -------
WE44 25 Johnson Property
WE45 35 Bragg Property
WE46 & WE46A 137.5 Norman Heirs Property (188 acres) less
Exceptions of 36 acres and 14 acres
WE46A 36 Selman Property
WE47 75 McAvoy Property
WE48 69.5 McAvoy Property (part of 129 acres)
WE48 35 McAvoy Property (part of 129 acres)
WE50 24 Selman Property
WE51 50 Selman Property (part of 83 acres)
WE51 33 Selman Property (part of 83 acres)
WE46 13.6 Wilson/Jackson Property
WE49 50 Wilson/Jackson Property
The above described and set forth properties were acquired by Lessor, or its
predecessor(s) by and through the following Deeds, namely:
Deed dated January 25, 2000, from Larry A. Deitz and Gloria Deitz, his
wife, to Coastal Coal-West Virginia, L.L.C., such Deed appearing of record
in Deed Book 249, at Page 313, in the Office of the Clerk of the County
Commission for Webster County, West Virginia.
Deed dated February 25, 2000, from T. C. Lands, Inc. to Coastal Coal-West
Virginia, LLC, such Deed appearing of record in Deed Book 249, at Page
337, in said Clerk's office.
Deed dated February 25, 2000, from NGHD Lands, Inc. to Coastal Coal-West
Virginia, LLC, such Deed appears of record in Deed Book 349, at Page 327,
in said Clerk's office.
Deed dated February 25, 2000, from AED, LLC, to Coastal Coal-West
Virginia, LLC, such Deed appearing of record in Deed Book 249, at Page
304, in said Clerk's Office.
Deed dated October 2, 1979, from Charles Russell Jackson and Edith M.
Jackson, his wife, to ANR Coal Development Company, such Deed appearing of
record in Deed Book 186, at Page 638, in said Clerk's Office.
6
<PAGE>
Deed dated September 18, 1978, between William Hunt Real Estate, Inc. and
ANR Coal Development Company, such Deed appearing of record in Deed Book
183, at Page 98, in said Clerk's Office.
7
<PAGE>
EXHIBIT B - LEASED TRACTS
SUBLEASE OF TOTAL LEASE AREA:
1. That certain Coal Lease dated July 1, 1999, from NGHD Lands, Inc.; T. C.
Lands, Inc.; Larry A. Deitz and Gloria K. Deitz; White Pine, Inc.; G. D.
Herold Estate by James H. Wolverton and Eugenia P. Herold, Co-executors;
and Maxey Ann Tulley to Coastal Coal-West Virginia, LLC.
TRACT #: WE45, WE46, WE47, WE48, WE50, WE51, WE52
Acreage: 28, 188, 73, 202, 20.75, 76, 43.54
2. That certain Coal Lease dated July 1, 1999, from NGHD Lands, Inc.; T. C.
Lands, Inc.; White Pine, Inc.; B & W Land Company; Ottaway Trent, Trustee;
Ernestine Trent; and Ottaway Trent and Tinia Faye Trent to Coastal
Coal-West Virginia, LLC.
TRACT #: WE49
Acreage: 50
3. That certain Coal and Surface Lease Agreement dated October 19, 1978, from
Boyd F. Selman (successor in interest to Maggie White Selman and Herold
Selman) to Coastal Coal-West Virginia, LLC (successor in interest to ANR
Coal Development Company), of record in the clerk's office of Webster
County, West Virginia, in Book 12, at page 430, as supplemented by
Supplement to Lease dated October 19, 1978, of record in the aforesaid
clerk's office in Book 12, at page 445, and amended by Amendment of Coal
and Surface Lease Agreement dated November 28, 1983, of record in the
aforesaid clerk's office in Book 18, at page 387.
TRACT #: WE52
Acreage: 69
4. That certain Lease dated July 13, 1976, from Lavonne Cobb, Keith S.
Roberts, Edsel F. Roberts, Wayland S. Roberts, and Kay Vannest (successors
in interest to Glen Roberts and Ruby Roberts) to Coastal Coal-West
Virginia, LLC (successor in interest to Harold Roberts), as amended by
that certain Supplement to Lease dated October 25, 1978, of record in the
clerk's office of Webster County, West Virginia, in Book 42, at page 422,
and that certain Supplement to Lease dated December 5, 1978 [unrecorded],
and those certain extension letters dated September 9, 1988 and August 31,
1998.
8
<PAGE>
TRACT #: WE53
Acreage: 1/2 of 28
5. That certain Surface Lease dated July 1, 1999, from NGHD Lands, Inc.;
White Pine, Inc.; B & W Land Company; Ottaway Trent, Trustee; Ernestine
Trent; and Ottaway Trent and Tinia Faye Trent to Coastal Coal-West
Virginia, LLC
TRACT #: WE48A
Acreage: 77
SUBLEASE OF PARTIAL LEASE AREA:
1. That certain Coal Lease Agreement dated April 25, 1978, from Charles A.
Roberts and Marlene R. Roberts and Orlen P. Roberts and Mary Jane Roberts
to Coastal Coal-West Virginia, LLC (successor in interest to ANR Coal
Development Company), as evidenced by Memorandum of Lease of record in the
clerk's office of Webster County, West Virginia, in Book 13, page 306, as
amended by Amendment dated August 30, 1996.
TRACT #: WE44
Acreage: 25
2. That certain Lease dated July 3, 1978, from Estle D. Boggs or Margaret
Boggs to Coastal Coal-West Virginia, LLC (successor in interest to ANR
Coal Development Company), as amended by that certain Amendment of Lease
executed on July 1, 1983, of record in the clerk's office of Nicholas
County, West Virginia, in Book 55, at page 282.
TRACT #: WE52, WE100 (Partial)
Acreage: 95.8, Part of 26
9
<PAGE>
3. That certain Lease dated September 22, 1977, from Evelyn Boggs and Ronald
S. Boggs and Linda G. Boggs (successors in interest to Roy Boggs and
Evelyn Boggs) to Coastal Coal-West Virginia, LLC (successor in interest to
Revere Coal Company), of record in the clerk's office of Webster County,
West Virginia, in Book 12, at page 64, as amended by those certain
Supplements to Lease dated November 3, 1977, October 19, 1978, and
December 1, 1978, and those certain extension letters dated July 17, 1987
and August 8, 1997.
TRACT #: WE53,
Acreage: 1/2 of 28
4. That certain Lease dated October 14, 1977, from M-B, LLC (successor to M-B
Partners, Ltd.) to Coastal Coal-West Virginia, LLC (successor in interest
to ANR Coal Development Company), as evidenced by Memorandum of Lease of
record in the clerks' office of Webster County, Nicholas County, and
Braxton County, West Virginia, in Book 13, page 283; Book 50, page 223;
and Book 380, page 727, respectively.
TRACT #: WE54, WE55
Acreage: 735.15, 28.88 (portions of 838 and 107 acre tracts located east
of Barnett Run and south of Birch River only)
10
<PAGE>
[MAP]
<PAGE>
ASSIGNMENT OF REAL PROPERTY AGREEMENTS
This Assignment of Real Property Agreements (this "Agreement"), dated as
of September 30, 2004, is among (1) ICG Natural Resources, LLC, ICG ADDCAR
Systems, LLC, ICG East Kentucky, LLC, ICG Illinois, LLC, ICG Eastern, LLC, ICG
Hazard, LLC, ICG Knott County, LLC, ICG Hazard Land, LLC, ICG Eastern Land, LLC,
each a Delaware limited liability company, with an address of 2000 Ashland
Drive, Ashland, Kentucky 41101 (collectively, the "Buyers"); and (2) Appalachian
Realty Company, a Kentucky corporation; Ayrshire Land Company, a Delaware
corporation; Bluegrass Coal Development Company, a Delaware corporation;
Evergreen Mining Company, a West Virginia corporation; Fairview Land Company,
LLC, a Delaware limited liability company; Horizon Natural Resources Sales
Company, a Kentucky corporation; Horizon NR LLC, a Delaware limited liability
corporation; Leslie Resources, Inc., a Kentucky corporation; Leslie Resources
Management, Inc., a Kentucky corporation; Aceco, Inc., a Kentucky corporation;
Pro-Land, Inc. d/b/a Kem Coal Company, a Kentucky corporation; River Coal
Company, Inc., a Kentucky corporation; Highland Coal, Inc., a Kentucky
corporation; Mountain-Clay, Incorporated d/b/a Mountain Clay, Inc., a Kentucky
corporation; Sunny Ridge Enterprises, Inc., a Kentucky corporation; Sunny Ridge
Mining Company, Inc., a Kentucky corporation; Turris Coal Company, a Delaware
corporation; Ikerd-Bandy Co., a Kentucky corporation; Shipyard River Coal
Terminal Company, a South Carolina corporation; Franklin Coal Sales Company, a
Delaware corporation; Kentucky Prince Mining Company, a New York corporation; RP
Terminal, LLC, a Kentucky limited liability corporation; Mining Technologies,
Inc., a Kentucky corporation; East Kentucky Energy Company, a Kentucky
corporation; CC Coal Company, a Kentucky corporation; Meadowlark, Inc., an
Indiana corporation; Old Ben Coal Company, a Delaware corporation; Zeigler Coal
Holding Company, a Delaware corporation; HNR Mining, Inc., a Kentucky
corporation; Mountaineer Coal Development Company, a West Virginia corporation;
Kermit Coal Company, an West Virginia corporation; Horizon Natural Resources
Company, a Delaware corporation; 17 West Mining, Inc., a Delaware corporation;
Princess Beverly Coal Company, a West Virginia corporation; Mountain Coals
Corporation, a Delaware corporation; Cannelton Industries, Inc., a West Virginia
corporation; Mid-Vol Leasing, Inc., a West Virginia corporation; West
Virginia-Indiana Coal Holding Company, Inc., a Delaware corporation; Kindill
Mining, Inc., an Indiana corporation; McCoy Coal Company, a Kentucky
corporation; and Horizon Natural Resources Holding Company, LLC, a Delaware
limited liability corporation; each with an address of 2000 Ashland Drive,
Ashland, Kentucky 41101 (collectively, the "Sellers").
RECITALS
A. This Agreement is being entered into to effect the transactions
contemplated by the Amended and Restated Asset Purchase Agreement, dated June 2,
2004 (as the same may be hereafter amended or supplemented, the "Purchase
Agreement"), between Newcoal, LLC and the Complete Sellers, the Partial Sellers,
the Coal Inventory Sellers and Parent (collectively, the "Sellers"). Capitalized
terms not otherwise defined herein shall have the meanings given to such terms
in the Purchase Agreement.
<PAGE>
B. Each Seller is a party to certain of those real property agreements set
forth on Schedules A - H hereto, which pertain to real property located in those
counties and states identified on such Schedules (the "Real Property
Agreements").
C. The Sellers desire to assign to the Buyers in the manner set forth
below, and the respective Buyers desire to assume, all of the Sellers' right,
title and interest in and to the Real Property Agreements, pursuant to the terms
of the Purchase Agreement as set forth herein.
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 Sellers hereby grant, assign, transfer, convey, deliver
and set over unto the respective Buyers all of their right, title, interest,
duties and obligations in, to and under the Real Property Agreements as set
forth below:
(a) Each Seller who is a party to any of the Real Property
Agreements set forth on Schedule A hereby grants, assigns, transfers, conveys,
delivers, and sets over unto ICG Natural Resources, LLC all of its fight, title,
interest, duties and obligations in, to and under those Real Property Agreements
set forth on such Schedule A to the extent that any such Real Property
Agreements are not being assigned to ICG Natural Resources, LLC pursuant to any
other instrument dated as of even date herewith.
(b) Each Seller who is a party to the Real Property Agreements set
forth on Schedule B hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG East Kentucky, LCC all of its right, title, interest, duties
and obligations in, to and under those Real Property Agreements set forth on
such Schedule B to the extent that any such Real Property Agreements are not
being assigned to ICG East Kentucky, LLC pursuant to any other instrument dated
as of even date herewith.
(c) Each Seller who is a party to the Real Property Agreements set
forth on Schedule C hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Illinois, LLC all of its right, title, interest, duties and
obligations in, to and under those Real Property Agreements set forth on such
Schedule C to the extent that any such Real Property Agreements
2
<PAGE>
are not being assigned to ICG Illinois, LLC pursuant to any other instrument
dated as of even date herewith.
(d) Each Seller who is a party to the Real Property Agreements set
forth on Schedule D hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Eastern, LLC all of its right, title, interest, duties and
obligations in, to and under those Real Property Agreements set forth on such
Schedule D to the extent that any such Real Property Agreements are not being
assigned to ICG Eastern, LLC pursuant to any other instrument dated as of even
date herewith.
(e) Each Seller who is a party to the Real Property Agreements set
forth on Schedule E hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Hazard, LLC all of its right, title, interest, duties and
obligations in, to and under those Real Property Agreements set forth on such
Schedule E to the extent that any such Real Property Agreements are not being
assigned to ICG Hazard, LLC pursuant to ay other instrument dated as of even
date herewith.
(f) Each Seller who is a party to the Real Property Agreements set
forth on Schedule F hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Knott County, LLC all of its right, title, interest, duties
and obligations in, to and under those Real Property Agreements set forth on
such Schedule F to the extent that any such Real Property Agreements are not
being assigned to ICG Knott County, LLC pursuant to any other instrument dated
as of even date herewith.
(g) Each Seller who is a party to the Real Property Agreements set
forth on Schedule G hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Hazard Land, LLC all of its right, title, interest, duties
and obligations in, to and under those Real Property Agreements set forth on
such Schedule G to the extent that any such Real Property Agreements are not
being assigned to ICG Hazard Land, LLC pursuant to any other instrument dated as
of even date herewith.
(h) Each Seller who is a party to the Real Property Agreements set
forth on Schedule H hereby grants, assigns, transfers, conveys, delivers, and
sets over unto ICG Eastern Land, LLC all of its right, title, interest, duties
and obligations in, to and under those Real Property Agreements set forth on
such Schedule H to the extent that any such Real Property Agreements are not
being assigned to ICG Eastern Land, LLC pursuant to any other instrument dated
as of even date herewith.
2. Assumption. Each Buyer hereby assumes the Sellers' right, title,
interest, duties and obligations in, to and under those Real Property Agreements
assigned to such Buyer pursuant to Section 1 hereof and agrees to be bound by
all of the terms and conditions of such Real Property Agreements and to pay,
perform and discharge when due, all duties and obligations of the respective
Seller under the Real Property Agreements assigned to such Buyer pursuant to
Section 1 hereof, in each case, however, only to the extent such obligations are
Assumed Liabilities.
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<PAGE>
3. Conflict. This Agreement is subject to all the terms and conditions of
the Purchase Agreement and Sale Order. No provision of this Agreement shall be
deemed to enlarge, alter or amend the terms or provisions of the Purchase
Agreement or the Sale Order. Notwithstanding anything to the contrary set forth
herein, if there is any conflict between the terms and conditions of this
Agreement and the terms and conditions of the Purchase Agreement and the Sale
Order, the terms and conditions of the Purchase Agreement and the Sale Order
shall control.
4. Governing Law. Except to the extent inconsistent with the United States
Bankruptcy Code, this Agreement shall be governed by and construed according to
the laws of the State of Delaware, without regard to or application of its
conflict of laws rules. The parties to this Agreement agree that the Bankruptcy
Court shall have exclusive jurisdiction, and the parties hereby submit to such
jurisdiction, of any dispute arising under or related to this Agreement.
5. Counterparts. This Agreement may be executed in one or more
counterparts (including by means of facsimile signature pages) and all such
counterparts taken together shall constitute one and the same Agreement.
6. Severability. If any provision of this Agreement or its application is
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of all other applications of that provision, and of all other
provisions and applications hereof, will not in any way be affected or impaired.
If any court shall determine that any provision of this Agreement is in any way
unenforceable, such provision shall be reduced to whatever extent is necessary
to make such provision enforceable.
7. Entire Agreement. All prior negotiations and agreements by and among
the parties hereto with respect to the subject matter hereof are superseded by
this Agreement, the Purchase Agreement, the Sale Order and the Related
Agreements, and there are no representations, warranties, understandings or
agreements with respect to the subject matter hereof other than those expressly
set forth in this Agreement, the Purchase Agreement, the Sale Order and the
Related Agreements.
8. Headings. Section headings are not to be considered part of this
Agreement, are solely for convenience of reference, and shall not affect the
meaning or interpretation of this Agreement or any provision in it.
9. No Third-Party Beneficiaries. Nothing in this Agreement shall confer
any rights upon any person or entity other than the parties hereto and their
respective successors and permitted assigns.
10. Successors and Assigns. The terms of this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11. Further Assurances. Each party hereto agrees, upon the reasonable
request of the other party hereto, to make, execute and deliver any and all
documents or instruments of any kind or character, and to perform all such other
actions, that may be reasonably necessary or
4
<PAGE>
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]
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this Agreement as of the date first set forth above.
ICG NATURAL RESOURCES, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG ADDCAR SYSTEMS, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG EAST KENTUCKY, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG ILLINOIS, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
S-1
<PAGE>
ICG EASTERN, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG HAZARD, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG KNOTT COUNTY, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
ICG HAZARD LAND, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
S-2
<PAGE>
ICG EASTERN LAND, LLC:
By: /s/ David Wax
-----------------------------------------
Name: David Wax
Title: Vice President
APPALACHIAN REALTY COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
AYRSHIRE LAND COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
BLUEGRASS DEVELOPMENT COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
EVERGREEN MINING COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-3
<PAGE>
FAIRVIEW LAND COMPANY, LLC
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
HORIZON NATURAL RESOURCES SALES COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
HORIZON NR, LLC
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
LESLIE RESOURCES, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
LESLIE RESOURCES MANAGEMENT, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-4
<PAGE>
ACECO, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
PRO-LAND, INC. d/b/a KEM COAL COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
RIVER COAL COMPANY, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
HIGHLAND COAL, INC
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
MOUNTAIN-CLAY, INCORPORATED
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-5
<PAGE>
SUNNY RIDGE ENTERPRISES, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
SUNNY RIDGE MINING COMPANY, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
TURRIS COAL COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
IKERD-BANDY CO.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
SHIPYARD RIVER COAL TERMINAL COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-6
<PAGE>
FRANKLIN COAL SALES COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
KENTUCKY PRICING MINING COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
RP TERMINAL LLC
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
MINING TECHNOLOGIES, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
EAST KENTUCKY ENERGY CORPORATION
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-7
<PAGE>
CC COAL COMPANY
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
MEADOWLARK, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
OLD BEN COAL COMPANY
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
ZEIGLER COAL HOLDING COMPANY
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
HNR MINING INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-8
<PAGE>
MOUNTAINEER COAL DEVELOPMENT COMPANY
By: /s/ Dan Strickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
KERMIT COAL COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
HORIZON NATURAL RESOURCES COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
17 WEST MINING, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
PRINCESS BEVERLY COAL COMPANY
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
S-9
<PAGE>
MOUNTAIN COALS CORPORATION
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
CANNELTON INDUSTRIES, INC.
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
MID-VOL LEASING, INC.
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
WEST VIRGINIA-INDIANA COAL HOLDING COMPANY,
INC.
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
KINDILL MINING, INC.
By: /s/ Dan Stickler
-----------------------------------------
Name: Dan Stickler
Title: Secretary
S-10
<PAGE>
MCCOY COAL COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
HORIZON NATURAL RESOURCES HOLDING COMPANY
By: /s/ Scott Tepper
-----------------------------------------
Name: Scott Tepper
Title: President
S-11
<PAGE>
SCHEDULE H
NEWCO
LMS - CONTRACTS BY COMPANY & COUNTY REPORT
ICG EASTERN LAND, LLC
5/16/2004
8:08:25 P.M.
Company Type: NewCo Active: Active Area ICG Eastern, LLC-Lessor
Company No: (AI) Starts (AI) Page 1 of 1
CONTRACT CONTRACT CONTRACT
CO NO. TYPE STATUS AREA COMPANY/LESSEE LESSOR COUNTY ST DATE VOL PAGE DOCUMENT
------------------------------------------------------------------------------------------------------------------------------------
New WV-N-4 Surface Producing Evergreen East Kentucky Energy Night Lands, Inc. EtA1 Webster WV 02/23/2000
Lease Corp. (434)
New WV-N-3 Surface Future Evergreen East Kentucky Energy Night Lands, Inc. EtA1 (Base Webster WV 07/01/1999
Lease Prod Corp. (434) Lessors)
New WV-N-6 Coal Producing Evergreen East Kentucky Energy Night Lands, Inc. EtA1 (Base Webster WV 07/01/1999
Lease Corp. (434) Lessors)
New WV-N-5 Coal Producing Evergreen East Kentucky Energy Night Lands, Inc. EtA1 (Base Webster WV 07/01/1999
Lease Corp. (434) Lessors