SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 16,
1994
Westmoreland Coal Company
(Exact name of registrant as specified in its charter)
Delaware 0-752 23-1128670
(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification No.)
incorporation)
700 The Bellevue, 200 South Broad Street
Philadelphia, Pennsylvania 19102
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (215) 545-2500
Item 2. Acquisition or Disposition of Assets.
On December 22, 1994, Westmoreland Coal Company announced that
it had completed the sale of the assets of its wholly-owned
subsidiary, Kentucky Criterion Coal Company ("Kentucky
Criterion"), to CONSOL of Kentucky Inc.("CONSOL"), a member of the
CONSOL coal group, for $81 million after adjustments. See the
news release filed as an exhibit to this form for additional
information.
Item 3. Bankruptcy or Receivership
(b) On December 16, 1994 the United States Bankruptcy Court
for the District of Delaware entered an order confirming the
Company's plan of reorganization. The Plan approved the
resolution of the dispute with TECO Coal Corporation ("TECO"),
whereby TECO consented to the assignment of two coal supply
subcontracts by Kentucky Criterion to CONSOL, as part of
Westmoreland's sale of the assets of Kentucky Criterion to CONSOL.
Proceeds from the sale were used to pay in full Westmoreland's
outstanding indebtedness to its principal creditors of
approximately $39 million. Westmoreland emerged from bankruptcy
after the sale to CONSOL and debt repayment to the principal
creditors were completed on December 22, 1994.
Westmoreland has 6,956,179 shares of its common stock and
575,000 shares of its preferred stock issued and outstanding. No
shares of either class will be issued in respect of claims and
interests filed and allowed under the Plan.
Item 7. Exhibits.
Press release dated December 16, 1994
Press release dated December 22, 1994
Condensed Consolidated Balance Sheet as of September 30, 1994
and Pro Forma Consolidated Balance Sheet as of September
30,1994
Pro Forma Consolidated Statement of Income for the 12-month
period ended December 31, 1993
Pro Forma Consolidated Statement of Income for the 9-month
period ended September 30, 1994
Plan of Reorganization as confirmed on December 16, 1994
EXHIBIT INDEX
Sequentially
Exhibit Description of Exhibit Numbered
Number Page
1 Press release dated December 16, 1994 5
2 Press release dated December 22, 1994 6
3 Condensed Consolidated Balance Sheet as
of September 30, 1994 and Pro Forma
Consolidated Balance Sheet as of
September 30, 1994 7
4 Pro Forma Consolidated Statement of Income
for the 12-month period ended December 31, 1993 9
5 Pro Forma Consolidated Statement of Income
for the 9-month period ended September 30, 1994 10
6 Plan of Reorganization Confirmed
December 16, 1994 11
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
WESTMORELAND COAL COMPANY
Date: December 30, 1994 By:
Theodore E. Worcester
Senior Vice President
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF DELAWARE
In re )
)
WESTMORELAND COAL COMPANY ) CHAPTER 11
et al., )
Debtors. ) Cases No. 94-1066 through 94-1070
)
) Jointly Administered
FIRST AMENDED JOINT PLAN OF REORGANIZATION
OF WESTMORELAND COAL COMPANY,
WESTMORELAND COAL SALES COMPANY, INC.,
CRITERION COAL COMPANY,
KENTUCKY CRITERION COAL COMPANY
AND DEANE PROCESSING COMPANY
YOUNG, CONAWAY, STARGATT & TAYLOR
James L. Patton, Jr. (No. 2202)
Joel A. Waite (No. 2925)
11th Floor, Rodney Square North
P.O. Box 391
Wilmington, DE 19899-0391
(302) 571-6600
- and -
SIDLEY & AUSTIN
875 Third Avenue
New York, NY 10022
(212) 906-2000
Attorneys for Debtors
Dated: December 9, 1994
FIRST AMENDED JOINT PLAN OF REORGANIZATION
Westmoreland Coal Company, Westmoreland Coal Sales
Company, Inc., Criterion Coal Company, Kentucky Criterion Coal
Company and Deane Processing Company hereby propose the following
joint plan of reorganization pursuant to Chapter 11 of the
Bankruptcy Code.
ARTICLE I
DEFINITIONS
For the purposes of this Plan, the following terms have
the respective meanings specified below. Unless the context
otherwise requires, any other term used herein that is used in
the Bankruptcy Code shall have the meaning assigned to such term
in the Bankruptcy Code.
1.1 "Administrative Claim" means a Claim to the extent
that it is of the kind described in Section 503(b) of the
Bankruptcy Code and is entitled to priority under Section
507(a)(1) of the Bankruptcy Code, including, but not limited to,
any actual and necessary cost and expense of preserving the
Debtor's estate and operating the Debtor's business and all fees
and expenses of Professionals entitled to compensation pursuant
to the Bankruptcy Code and any fees or charges against the estate
under Section 1930, Chapter 123 of Title 28, United States Code.
1.2 "Allowed" means (a) with respect to an
Administrative Claim of the kind described in Section 503(b)(2),
(3), (4), (5) or (6) of the Bankruptcy Code, an Administrative
Claim that has been allowed by a Final Order, (b) with respect to
any other Administrative Claim, an Administrative Claim to which
no objection has been filed; or (c) with respect to a Disputed
Claim, a claim that has been allowed by a Final Order, to the
extent so allowed.
1.3 "Amended and Restated Certification of
Incorporation" means the certificate of incorporation of a
Reorganized Debtor, as amended or amended and restated, as
described in Section 9.15 of the Plan.
1.4 "Asset Purchase Agreement" means that certain
Asset Purchase Agreement incorporated by reference into this
Plan, dated as of July 28, 1994, as amended, among Westmoreland,
Criterion Coal, Kentucky Criterion, Deane and CONSOL pursuant to
which CONSOL will acquire certain of the assets of Westmoreland,
Deane, Kentucky Criterion and Criterion Coal as more particularly
described therein.
1.5 "Bankruptcy Code" means the United States
Bankruptcy Code, 11 U.S.C. Section 101 et seq., as amended from time
to time to the extent applicable to the Reorganization Case.
1.6 "Bankruptcy Court" means the United States
Bankruptcy Court for the District of Delaware or such other Court
as may hereafter exercise original jurisdiction over the
Reorganization Case.
1.7 "Bankruptcy Rules" means the Bankruptcy Rules
promulgated under 28 U.S.C. Section 2075, as amended from time to time
to the extent applicable to the Reorganization Case, and the
local rules of the Bankruptcy Court.
1.8 "Business Day" means any day other than a
Saturday, Sunday or other day on which commercial banks in New
York City are authorized or required by law to close.
1.9 "Claim" means a claim against the Debtor within
the meaning of Section 101(5) of the Bankruptcy Code, as
supplemented by Section 102(2) of the Bankruptcy Code.
1.10 "Class" means a category or group of holders of
Claims or Equity Interests as designated pursuant to Article III
of this Plan.
1.11 "Common Stock" means the duly authorized, validly
issued shares of common stock, par value $2.50 per share, of
Westmoreland outstanding as of the Petition Date.
1.12 "Common Stock Claim" means any Claim with respect
to the Common Stock of the kind described in Section 510(b) of
the Bankruptcy Code.
1.13 "Common Stock Interest" means any Equity Interest
evidenced by share(s) of Common Stock.
1.14 "Confirmation" means entry of the Confirmation
Order.
1.15 "Confirmation Date" means the date upon which the
Confirmation Order is entered on the docket by the Clerk of the
Bankruptcy Court.
1.16 "Confirmation Hearing" means the hearing with
respect to this Plan required by Section 1128(a) of the
Bankruptcy Code.
1.17 "Confirmation Order" means the order of the
Bankruptcy Court confirming this Plan pursuant to Section 1129 of
the Bankruptcy Code.
1.18 "CONSOL" means CONSOL of Kentucky Inc.
1.19 "Criterion Asset Sale" means the sale to CONSOL by
Westmoreland, Deane, Kentucky Criterion and Criterion Coal of
certain of their assets pursuant to the terms of the Asset
Purchase Agreement.
1.20 "Criterion Coal" means Criterion Coal Company.
1.21 "Deane" means Deane Processing Company.
1.22 "Debtor" or "Debtors" means collectively
Westmoreland, WCSC, Criterion, Kentucky Criterion and Deane, as
debtor and as debtor-in-possession under Sections 1107 and 1108
of the Bankruptcy Code.
1.23 "Disclosure Statement" means the disclosure
statement for the Plan approved by the Bankruptcy Court pursuant
to Section 1125 of the Bankruptcy Code, together with any
exhibits thereto and any documents incorporated therein by
reference, as the same may be amended, modified or supplemented
from time to time in accordance with the Bankruptcy Code and the
Bankruptcy Rules.
1.24 "Disputed Claim" means (a) a Rejection Damages
Claim; (b) any Claim as to which a proof of claim has been filed,
and as to which the Debtor files an objection not later than
ninety days after the Effective Date; (c) any Claim listed on any
"Schedule of Disputed Claims" which the Debtor shall file not
later than ninety days after the Effective Date, and (d) any
Claim that is for the actual pecuniary loss associated with a
breach or default the cure of or compensation for which is
required for the assumption of an executory contract or unexpired
lease pursuant to Section 365(b)(1) of the Bankruptcy Code.
1.25 "Distribution Date" means the later of the
Effective Date or the date upon which a Claim becomes an Allowed
Claim.
1.26 "DTA Banks" mean collectively Barclays Bank PLC
and National Westminster Bank PLC, and their legal successors and
assigns.
1.27 "DTA Bank Claim" means a Claim of any of the DTA
Banks for payment of principal, accrued and unpaid interest and
any reasonable fees, costs or charges provided for under the
Repayment Agreement outstanding as of the Petition Date.
1.28 "Effective Date" means a Business Day not more
than fourteen (14) calendar days after all conditions to
consummation set forth in Section 5.2 of the Plan have been
satisfied.
1.29 "Equity Interest" means any right of
Westmoreland's existing equity holders arising from their status
as holders of the Preferred Stock, the Common Stock, or the Other
Equity Securities.
1.30 "Estate" means collectively the estates created in
the Reorganization Case pursuant to Section 541 of the Bankruptcy
Code.
1.31 "Final Order" means an order or judgment of a
court as to which (a) any appeal or petition for certiorari or
review that has been taken or filed has been finally determined,
denied, or dismissed, and (b) the time for initial or further
appeal or petitioning for certiorari or review has expired and no
timely appeal or petition for certiorari or review has been taken
or filed.
1.32 "General Unsecured Claim" means any Unsecured
Claim that is not an Administrative Claim, a Priority Tax Claim,
an Other Priority Claim, a DTA Bank Claim, a Revolver Bank Claim,
a Private Placement Lender Claim, a Miscellaneous Secured Claim,
a Rejection Damages Claim, a Preferred Stock Claim or a Common
Stock Claim.
1.33 "Insurance Company Guaranty" means that certain
Guaranty Agreement dated as of August 25, 1994, as amended or
supplemented, by WCSC, Criterion Coal, Kentucky Criterion and WEI
in favor of the Private Placement Lenders.
1.34 "Insurance Company Loan Agreement" means that
certain Loan Agreement dated as of August 10, 1977, as amended or
supplemented, between Westmoreland, as borrower, and the Private
Placement Lenders (or their predecessors in interest), as
lenders, and all ancillary instruments, agreements and documents
evidencing or securing the indebtedness incurred, or otherwise
covered by, the Loan Agreement, including, without limitation,
the Insurance Company Notes and the Insurance Company Guaranty.
1.35 "Insurance Company Notes" mean collectively those
certain 10.00% (formerly 8.40%) Promissory Notes dated as of
August 10, 1977, as amended or supplemented, issued by
Westmoreland to the Private Placement Lenders (or their
predecessors in interest) evidencing the indebtedness incurred
under the Insurance Company Loan Agreement.
1.36 "Kentucky Criterion" means Kentucky Criterion Coal
Company.
1.37 "Miscellaneous Secured Claim" means (a) a Secured
Claim not held by a Revolver Bank, a Private Placement Lender, or
a DTA Bank, (b) any Unsecured Claim associated with such a
Secured Claim as a deficiency claim if the Debtor elects to leave
such a Claim unimpaired in accordance with Section 1124(2) of the
Bankruptcy Code, and (c) the claims of any collateral trustee.
1.38 "Other Equity Securities" means any equity
security or right to purchase or otherwise acquire any equity
security of Westmoreland not otherwise classified in the Plan,
including any options to purchase Common Stock and any vested
rights based on Westmoreland stock option agreements or plans.
1.39 "Other Equity Securities Interest" means any
Equity Interest evidenced by Other Equity Securities.
1.40 "Other Priority Claim" means any Claim to the
extent entitled to priority in payment under Section 507(a) of
the Bankruptcy Code, other than an Administrative Claim or a
Priority Tax Claim.
1.41 "Parent Company Guaranty" means that certain
Amended and Restated Parent Company Guaranty Agreement dated as
of August 25, 1994, as amended or supplemented, by Westmoreland,
WCSC, Criterion Coal, Kentucky Criterion and WEI in favor of the
DTA Banks.
1.42 "Petition Date" means November 8, 1994.
1.43 "Plan" means this Plan of Reorganization, and any
exhibits hereto and any documents incorporated herein by
reference, as the same may be amended, modified or supplemented
from time to time in accordance with the provisions set forth
herein, the Bankruptcy Code and the Bankruptcy Rules.
1.44 "Preferred Stock" means the duly authorized,
validly issued shares of preferred stock in the form of depo-
sitary shares, par value $.25 per share, of Westmoreland out-
standing as of the Petition Date.
1.45 "Preferred Stock Claim" means any Claim with
respect to the Preferred Stock of the kind described in
Section 510(b) of the Bankruptcy Code.
1.46 "Preferred Stock Interest" means any Equity
Interest evidenced by share(s) of Preferred Stock.
1.47 "Priority Tax Claim" means any Claim to the extent
entitled to priority in payment under Section 507(a)(7) of the
Bankruptcy Code.
1.48 "Private Placement Lenders" mean New York Life
Insurance Company, Nationwide Life Insurance Company, Union
Central Life Insurance Company, The Mutual Life Insurance Company
of New York, and Aid Association for Lutherans.
1.49 "Private Placement Lender Claim" means a Claim of
any Private Placement Lender for payment of principal, accrued
and unpaid interest and any reasonable fees, costs or charges
provided for under the Insurance Company Loan Agreement
outstanding as of the Petition Date.
1.50 "Professionals" means those Persons retained
pursuant to an order of the Bankruptcy Court in accordance with
Sections 327 and 1103 of the Bankruptcy Code.
1.51 "Reorganization Case" means collectively those
cases under Chapter 11 of the Bankruptcy Code commenced by the
Debtors and jointly administered under cases number 94-1066
through 94-1070 in the Bankruptcy Court.
1.52 "Reorganized Debtor" or "Reorganized Debtors"
means collectively Westmoreland, WCSC, Criterion, Kentucky
Criterion and Deane on and after the Effective Date.
1.53 "Rejection Damages Claim" means any Unsecured
Claim that arises as the result of the rejection of an executory
contract or unexpired lease of the Debtor by order of the
Bankruptcy Court in accordance with Article VII of the Plan, as
such claim may be limited by the Bankruptcy Code, including,
without limitation, Section 502(b)(6) thereof.
1.54 "Repayment Agreement" means that certain Repayment
Agreement dated as of August 25, 1994, as amended or
supplemented, between Terminal and the DTA Banks, and all
ancillary instruments, agreements and documents evidencing or
securing the indebtedness incurred, or otherwise covered by, the
Repayment Agreement, including, without limitation, the Parent
Company Guaranty.
1.55 "Revolver Banks" mean collectively PNC Bank,
National Association, Fidelity Bank, National Association, First
Union National Bank of Virginia and National Westminster Bank
PLC, and their legal successors and assigns.
1.56 "Revolver Bank Claim" means a Claim of any
Revolver Bank for payment of principal, accrued and unpaid
interest and any reasonable fees, costs or charges provided for
under the Revolving Credit Agreement outstanding as of the
Petition Date.
1.57 "Revolving Credit Agreement" means that certain
Amended and Restated Revolving Credit Loan Agreement dated as of
April 15, 1993, as amended or supplemented, among Westmoreland,
WCSC, Criterion Coal, Kentucky Criterion and WEI, as borrowers,
Westmoreland, as borrowing agent, the Revolver Banks, as lenders,
and PNC Bank, National Association, as agent for the Revolver
Banks, and all ancillary instruments, agreements and documents
evidencing or securing the indebtedness incurred, or otherwise
covered by, the Amended and Restated Revolving Credit Agreement.
1.58 "Secured Claim" means a Claim that is not an
Administrative Claim or a Priority Tax Claim, but only to the
extent that such Claim is entitled to be a secured claim under
Section 506(a) of the Bankruptcy Code.
1.59 "Solicitation Materials" means the Disclosure
Statement and all ballots and instructions provided by the Debtor
to all holders of Claims and Equity Interests.
1.60 "TECo" means TECo Coal Corporation, a Florida
corporation.
1.61 "TECo Subcontracts" mean, collectively, (a) that
certain ROVA I Coal Supply and Transportation Subcontract among
TECo, WCSC, Kentucky Criterion and Westmoreland dated as of June
21, 1993; (b) that certain ROVA II Coal Supply and Transportation
Subcontract among TECo, WCSC, Kentucky Criterion and Westmoreland
dated as of December 1, 1993; and (c) all agreements ancillary to
such subcontracts which are included among the assets to be sold
to CONSOL pursuant to the Asset Purchase Agreement, including,
without limitation, the Rail Transportation Agreement, as
amended, the ROVA I Three Party Agreement, the ROVA II Three
Party Agreement, and any amendments thereto.
1.62 "Terminal" means Westmoreland Terminal Company.
1.63 "UMWA" means The United Mine Workers of America.
1.64 "Unsecured Claim" means a Claim that is not a
Secured Claim, an Administrative Claim or a Priority Tax Claim.
1.65 "WCSC" means Westmoreland Coal Sales Company, Inc.
1.66 "WEI" means Westmoreland Energy, Inc.
1.67 "Westmoreland" means Westmoreland Coal Company.
ARTICLE II
TREATMENT OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX CLAIMS
2.1 Administrative Claims. Unless otherwise agreed by
the holder of an Allowed Administrative Claim, each Allowed
Administrative Claim shall be paid in full in cash on the
Distribution Date; provided, however, that if by its terms an
Allowed Administrative Claim is payable after the Distribution
Date, such Allowed Administrative Claim may be paid on such later
date or dates.
2.2 Priority Tax Claims. Unless otherwise agreed by
the holder of a Priority Tax Claim, each Priority Tax Claim shall
be paid in full in cash on the Distribution Date; provided,
however, that the Debtor shall have the option to make deferred
cash payments on account of a Priority Tax Claim over a period
not to exceed six (6) years after the date of assessment of such
Priority Tax Claim, of a value, as of the Effective Date, equal
to the amount of such Priority Tax Claim, which option shall be
exercised by written notice to the holder of a Priority Tax Claim
delivered not later than ten (10) days before the Confirmation
Hearing specifying a payment schedule, a rate of interest, and
the date by which an objection to such treatment must be filed
and served.
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
3.1 Class 1 Claims. Class 1 shall consist of all
Other Priority Claims.
3.2 Class 2 Claims. Class 2 shall consist of all
Revolver Bank Claims.
3.3 Class 3 Claims. Class 3 shall consist of all
Private Placement Lender Claims.
3.4 Class 4 Claims. Class 4 shall consist of all DTA
Bank Claims.
3.5 Class 5 Claims. Class 5 shall consist of all
Miscellaneous Secured Claims.
3.6 Class 6 Claims. Class 6 shall consist of all
General Unsecured Claims.
3.7 Class 7 Claims. Class 7 shall consist of all
Rejection Damages Claims.
3.8 Class 8 Equity Interests. Class 8 shall consist
of all Preferred Stock Interests.
3.9 Class 9 Claims. Class 9 shall consist of all
Preferred Stock Claims.
3.10 Class 10 Claims and Equity Interests. Class 10
shall consist of all Common Stock Claims and all Common Stock
Interests.
3.11 Class 11 Equity Interests. Class 11 shall consist
of all Other Equity Securities Interests.
ARTICLE IV
TREATMENT OF CLAIMS AND INTERESTS
4.1 Class 1 (Other Priority Claims). At the option of
the Debtor, either (i) the legal, equitable and contractual
rights to which Class 1 Claims entitle the holders thereof shall
be left unaltered, or (ii) the Class 1 Claims shall be left
unimpaired in the manner described in Section 1124(2) of the
Bankruptcy Code.
4.2 Class 2 (Revolver Bank Claims). The legal,
equitable and contractual rights to which Class 2 Claims entitle
the holders thereof shall be left unaltered inasmuch as on the
Distribution Date: (a) the principal portion of each such Claim
shall be paid in full in cash; (b) accrued and unpaid interest
(through the Petition Date) on the principal portion of such
Claim shall be paid in full in cash at the non-default rate
specified in the Revolving Credit Agreement; (c) accrued and
unpaid interest (from the Petition Date through the Distribution
Date) on the principal portion of such Claim shall be paid in
full in cash at the default rate specified in the Revolving
Credit Agreement; and (d) any reasonable fees, costs or charges
provided for under the Revolving Credit Agreement shall be paid
in full in cash. To the extent that the Debtor and the holder of
a Class 2 Claim cannot agree as to the amount of such fees, costs
or charges, the Bankruptcy Court shall determine what constitutes
a "reasonable" amount.
4.3 Class 3 (Private Placement Lender Claims). The
legal, equitable and contractual rights to which Class 3 Claims
entitle the holders thereof shall be left unaltered inasmuch as
on the Distribution Date: (a) the principal portion of each such
Claim shall be paid in full in cash; (b) accrued and unpaid
interest (through the Petition Date) on the principal portion of
such Claim shall be paid in full in cash at the non-default rate
specified in the Insurance Company Loan Agreement; (c) accrued
and unpaid interest (from the Petition Date through the
Distribution Date) on the principal portion of such Claim shall
be paid in full in cash at the default rate specified in the
Insurance Company Loan Agreement; and (d) any reasonable fees,
costs or charges provided for under the Insurance Company Loan
Agreement shall be paid in full in cash. To the extent that the
Debtor and the holder of a Class 3 Claim cannot agree as to the
amount of such fees, costs or charges, the Bankruptcy Court shall
determine what constitutes a "reasonable" amount.
4.4 Class 4 (DTA Bank Claims). The legal, equitable
and contractual rights to which Class 4 Claims entitle the
holders thereof shall be left unaltered inasmuch as on the
Distribution Date: (a) the principal portion of each such Claim
shall be paid in full in cash; (b) accrued and unpaid interest
(through the Petition Date) on the principal portion of such
Claim shall be paid in full in cash at the non-default rate
specified in the Repayment Agreement; (c) accrued and unpaid
interest (from the Petition Date through the Distribution Date)
on the principal portion of such Claim shall be paid in full in
cash at the default rate specified in the Repayment Agreement;
and (d) any reasonable fees, costs or charges provided for under
the Repayment Agreement shall be paid in full in cash. To the
extent that the Debtor and the holder of a Class 4 Claim cannot
agree as to the amount of such fees, costs or charges, the
Bankruptcy Court shall determine what constitutes a "reasonable"
amount.
4.5 Class 5 (Miscellaneous Secured Claims). At the
option of the Debtor, either (i) the legal, equitable and
contractual rights to which Class 5 Claims entitle the holders
thereof shall be left unaltered or (ii) the Class 5 Claims shall
be left unimpaired in the manner described in Section 1124(2) of
the Bankruptcy Code.
4.6 Class 6 (General Unsecured Claims). At the option
of the Debtor, either (i) the legal, equitable and contractual
rights to which Class 6 Claims entitle the holders thereof shall
be left unaltered or (ii) the Class 6 Claims shall be left
unimpaired in the manner described in Section 1124(2) of the
Bankruptcy Code.
4.7 Class 7 (Rejection Damages Claims). The legal,
equitable and contractual rights to which Class 7 Claims entitle
the holders thereof shall be left unaltered inasmuch as each
Class 7 Claim shall be paid in full in cash on the Distribution
Date.
4.8 Class 8 (Preferred Stock Interests). The legal,
equitable, and contractual rights to which Class 8 Equity
Interests entitle the holders thereof shall be left unaltered.
4.9 Class 9 (Preferred Stock Claims). The legal,
equitable, and contractual rights to which Class 9 Claims entitle
the holders thereof shall be left unaltered.
4.10 Class 10 (Common Stock Claims and Interests). The
legal, equitable, and contractual rights to which Class 10 Claims
and Equity Interests entitle the holders thereof shall be left
unaltered.
4.11 Class 11 (Other Equity Securities Interests). The
legal, equitable, and contractual rights to which Class 11 Equity
Interests entitle the holders thereof shall be left unaltered.
4.12 Unimpaired Classes. By virtue of the foregoing
provisions of Article IV, all Classes of Claims and Equity
Interests are unimpaired under the Plan.
ARTICLE V
CONDITIONS PRECEDENT
5.1 Conditions to Confirmation. It is a condition to
Confirmation of the Plan, unless waived in writing by the Debtor,
that the Confirmation Order contain the following provisions:
(a) authority for the Debtor to assume the Asset
Purchase Agreement in accordance with Article VII of the Plan,
and for the Debtor to consummate the Criterion Asset Sale; and
(b) authority for the Debtor to assume and assign to
CONSOL all unrejected executory contracts and unexpired leases
being transferred to CONSOL pursuant to the Asset Purchase Agree-
ment, including, without limitation, the TECo Subcontracts, in
accordance with Article VII of the Plan and without obtaining
TECo's consent to such assignment; and
(c) making the provisions of the Confirmation Order
non-severable and mutually dependent; and
(d) such other provisions as the Debtor shall deem
necessary or appropriate in its sole discretion.
5.2 Conditions to Consummation. It is a condition to
consummation of the Plan that: (a) all conditions to Confirma-
tion of the Plan shall have been satisfied; (b) the Confirmation
Order shall have been entered and shall not have been vacated,
modified or reversed, and no stay thereof shall be in effect; and
(c) the Criterion Asset Sale shall have been consummated.
ARTICLE VI
MEANS OF EXECUTION OF THE PLAN
6.1. Criterion Asset Sale. As soon as practicable
after the Confirmation Date, the Criterion Asset Sale shall be
consummated.
6.2. Retiree Benefits. On the Effective Date, pursuant
to Section 1129(a)(13) of the Bankruptcy Code, the Reorganized
Debtor will continue to be obligated to pay all retiree benefits,
as that term is defined in Section 1114 of the Bankruptcy Code,
and shall continue to pay such retiree benefits as they become
due at the level(s) established at any time prior to the
Confirmation Date pursuant to Subsection (e)(1)(B) or (g) of said
Section 1114, for the duration of the period the Debtor has
obligated itself to provide such benefits.
6.3. Disputed Claims. (a) Except with respect to those
Claims the holders of which have and preserve the right to
liquidation of such Claims before a court other than the
Bankruptcy Court pursuant to 28 U.S.C. Section 157(b)(5), all Disputed
Claims shall be liquidated and determined, and allowed or
disallowed, by the Bankruptcy Court.
(b) The Bankruptcy Court may, on or prior to the
Confirmation Date or such date or dates thereafter as the
Bankruptcy Court may set, fix or liquidate the amount of any
contingent or unliquidated Claim or Equity Interest pursuant to
Section 502(c) of the Bankruptcy Code, in which event the amount
so fixed or liquidated shall be deemed to be the amount of such
contingent or unliquidated Claim or Equity Interest pursuant to
Section 502(c) of the Bankruptcy Code for purposes of
distribution under the Plan.
(c) The Debtor shall notify all holders of Claims
listed on the Schedule of Disputed Claims that any such claim
shall be disallowed unless the holder thereof files a proof of
claim within sixty days of the receipt of such notice. The
Debtor shall have ninety days from the filing of any such proof
of claim to file an objection thereto, and, if the parties are
thereafter unable to resolve the dispute with respect to such
claim, the claim shall be liquidated and determined, and allowed
or disallowed, by the Bankruptcy Court.
(d) The Debtor shall not be required to create or
maintain any reserves for the payment of Disputed Claims.
(e) The failure of the Debtor to include any claim on
the Schedule of Disputed Claims shall not constitute an admission
that such claim is an undisputed, noncontingent, liquidated claim
and the Debtor reserves all defenses, offsets and counterclaims
with respect to such claim.
ARTICLE VII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
7.1 Assumption and Rejection of Executory Contracts
and Unexpired Leases. (a) On the Effective Date, and to the
extent permitted by applicable law, all executory contracts and
unexpired leases of the Debtor will be assumed in accordance with
the provisions of Section 365 and Section 1123 of the Bankruptcy
Code, including, without limitation, the Asset Purchase
Agreement, the TECo Subcontracts, the collective bargaining
agreement currently in effect between the Debtor and the UMWA and
a certain Settlement Agreement between Westmoreland and the UMWA
dated July 27, 1994, but excluding (i) any and all executory
contracts and unexpired leases which are listed on any "Schedule
of Rejected Executory Contracts" filed by the Debtor on or before
entry of the Confirmation Order, all of which contracts and
leases shall be rejected by order of the Bankruptcy Court
pursuant to the provisions of Section 365 and Section 1123 of the
Bankruptcy Code, (ii) any and all such contracts and leases
rejected by order of the Bankruptcy Court prior to entry of the
Confirmation Order and (iii) any and all such contracts and
leases which are the subject of any motion to reject pending on
the date of entry of the Confirmation Order, but only in the
event that such motion to reject is granted by a Final Order.
Entry of the Confirmation Order by the Bankruptcy Court shall
constitute approval of such assumptions or rejections pursuant to
Sections 365(a) and 1123 of the Bankruptcy Code. Contracts
entered into after the Petition Date will be performed by the
Debtor in the ordinary course of business. Any Claims arising
out of the rejection of contracts or leases under this
Article VII must be filed with the Bankruptcy Court within thirty
(30) days after the later of the Confirmation Date or the date of
any Final Order approving the Debtor's rejection of such contract
or lease or be forever barred.
(b) Unless otherwise agreed by the holder of such a
Claim or otherwise provided in an order of the Bankruptcy Court,
all Claims with respect to payments to cure defaults or to
provide compensation for actual pecuniary loss resulting from
such default or adequate assurance of future performance that may
be required by Bankruptcy Code Section 365(b)(1) shall be paid in
full in cash on the Distribution Date.
(c) Confirmation of the Plan shall not impair or
otherwise affect any lien on property of the Debtor existing in
favor of any lessor of equipment to the Debtor.
7.2 Compensation and Benefit Programs. Except as
otherwise specifically set forth in the Plan, all employment and
severance policies, and all compensation and benefit plans,
policies, and programs of the Debtor applicable generally to its
employees, including without limitation, all savings plans,
retirement plans, health care plans, disability plans, severance
benefit plans, incentive plans and life, accidental death, and
dismemberment insurance plans, are treated as executory contracts
under the Plan and on the Effective Date will be assumed pursuant
to the provisions of Sections 365 and 1123 of the Bankruptcy
Code.
ARTICLE VIII
EFFECTS OF PLAN CONFIRMATION
8.1 Discharge. Except as otherwise expressly provided
in Section 1141 of the Bankruptcy Code or the Plan, the
distributions made pursuant to the Plan will be in full and final
satisfaction, settlement, release and discharge as against the
Debtor of any debt that arose before the Confirmation Date and
any debt of a kind specified in Sections 502(g), 502(h) or 502(i)
of the Bankruptcy Code and all Claims and Equity Interests of any
nature, including, without limitation, any interest accrued
thereon from and after the Petition Date, whether or not (i) a
proof of a Claim or interest based on such debt, obligation or
interest is filed or deemed filed under Section 501 of the
Bankruptcy Code, (ii) such Claim or Equity Interest is allowed
under Section 502 of the Bankruptcy Code, or (iii) the holder of
such Claim or Equity Interest has accepted the Plan. Therefore,
upon the Effective Date or such later date on which a Claim
becomes a Disputed Claim, all holders of Disputed Claims and
Equity Interests shall be precluded from asserting against the
Debtor or the Reorganized Debtor, or against any assets or
properties of the Debtor or the Reorganized Debtor, any other or
further Claims or Equity Interests based upon any act or
omission, transaction or other activity of any kind or nature
that occurred prior to the Effective Date, and the Confirmation
Order shall permanently enjoin said holders of Disputed Claims
and Equity Interests, their successors and assigns, from
enforcing or seeking to enforce any such Disputed Claims or
Equity Interests against the Debtor, the Reorganized Debtor, or
their respective assets or property.
8.2 Revesting. On the Effective Date, except as
otherwise expressly provided in the Plan or the Confirmation
Order, the Debtor will be vested with all of the property of the
Estate free and clear of all Claims, liens, encumbrances, charges
and other interests of creditors and equity security holders, and
may operate its businesses free of any restrictions imposed by
the Bankruptcy Code or by the Bankruptcy Court.
8.3 Retention and Enforcement of Causes of Action.
Except as otherwise provided in the Confirmation Order, nothing
contained in the Plan shall be deemed to be a waiver or
relinquishment of any claims, rights, or causes of action that
constitute property of the Estate or of the Debtor, whether
arising under the Bankruptcy Code or under nonbankruptcy law,
including, without limitation, all fraudulent conveyance claims
under Section 548 of the Bankruptcy Code or under applicable
nonbankruptcy law as applied through Section 544(b) of the
Bankruptcy Code, all of which are expressly (a) retained and may
be enforced by the Debtor and any successors in interest,
including the Reorganized Debtor, and (b) may be pursued, as
appropriate, in accordance with the best interests of the Debtor,
the Reorganized Debtor, or such successors; provided, however,
that the Confirmation Order shall state that the Debtor hereby
waives all claims for recovery of voidable preferences under
Section 547 of the Bankruptcy Code or under applicable nonbank-
ruptcy law as applied through Section 544(b) of the Bankruptcy
Code.
8.4 Retention of Jurisdiction. Notwithstanding entry
of the Confirmation Order or the Effective Date having occurred,
the Bankruptcy Court, to the extent permitted under the
applicable sections of Title 28 of the United States Code, will
retain jurisdiction (a) to determine any Disputed Claims, (b) to
determine requests for payment of Claims entitled to priority
under Section 507(a)(1) of the Bankruptcy Code, including
compensation of and reimbursement of expenses of parties entitled
thereto, (c) to resolve controversies and disputes regarding
interpretation and implementation of the Plan, (d) to enter
orders in aid of the Plan, including, without limitation,
appropriate orders (which may include contempt or other
sanctions) to protect the Debtor, (e) to modify the Plan pursuant
to Section 9.1 of the Plan, (f) to determine any and all
applications, Claims, Equity Interests, adversary proceedings and
contested or litigated matters pending on the Effective Date or
commenced after the Effective Date as contemplated in the Plan,
including, without limitation, matters relating to the Asset
Purchase Agreement or TECo Subcontracts, (g) to allow, disallow,
estimate, liquidate or determine any Claim or Equity Interest
(including, without limitation, Claims that are either not
Allowed Claims or Disputed Claims) and to enter or enforce any
order requiring the filing of any such Claim before a particular
date, (h) to determine any and all pending applications for the
rejection or disaffirmance of executory contracts or leases, or
for the assumption or assignment of executory contracts and
leases, and to hear and determine, and if need be to liquidate,
any and all Claims arising therefrom, (i) to determine any
actions or controversies described in Section 8.3 of the Plan,
and (j) to enter a final decree closing the Reorganization Case.
8.5 Post-Consummation Effect of Evidences of Claims.
All evidences of Claims against the Debtor shall, effective upon
the Effective Date, represent only the right to participate in
the distributions contemplated by the Plan.
8.6 Failure of Court to Exercise Jurisdiction. If the
Court abstains from exercising or declines to exercise
jurisdiction, or is otherwise without jurisdiction over any
matter arising out of the Reorganization Case, including the
matters set forth in this Article VIII, this Article VIII shall
not prohibit or limit the exercise of jurisdiction by any other
court having competent jurisdiction with respect to such matter.
8.7 Term of Injunctions or Stays. Unless otherwise
provided, all injunctions or stays provided for in the
Reorganization Case pursuant to Section 105 or Section 362 of the
Bankruptcy Code or otherwise and in effect on the Confirmation
Date shall remain in full force and effect until the Effective
Date.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Modification of Plan. The Debtor reserves the
right, in accordance with and subject to Section 1127 of the
Bankruptcy Code, to amend or modify the Plan prior to the entry
of the Confirmation Order. After the Effective Date, the
Reorganized Debtor may, upon order of the Court, amend or modify
the Plan in accordance with Section 1127(b) of the Code, or
remedy any defect or omission or reconcile any inconsistency in
the Plan in such manner as may be necessary to carry out the
purpose and intent of the Plan.
9.2 Additional Proponents of the Plan. In the event
that following the Petition Date but prior to the Confirmation
Hearing a subsidiary or affiliate of any Debtor commences a case
under Chapter 11 of the Bankruptcy Code which is jointly
administered along with cases number 94-1066 through 94-1070 in
the Bankruptcy Court, the Debtor shall have the option to add
such subsidiary or affiliate as a proponent of the Plan by filing
a notice in writing of the same with the Bankruptcy Court and
serving a copy of the same on all creditors and equity security
holders in the Reorganization Case, in which event such
subsidiary or affiliate shall, without further order of the
Bankruptcy Court, be deemed to constitute a "Debtor" and a
"Reorganized Debtor" under this Plan and its case commenced under
Chapter 11 of the Bankruptcy Code shall be deemed to be included
in the defined term "Reorganization Case."
9.3 Withdrawal of Plan. The Debtor reserves the
right, at any time prior to entry of the Confirmation Order, to
revoke and withdraw the Plan. If the Debtor revokes or withdraws
the Plan under this Section, or if entry of the Confirmation
Order does not occur, then the Plan shall be deemed null and
void. In that event, nothing contained in the Plan shall be
deemed to constitute a waiver or release of any Claims by or
against the Debtor or any other person, or to prejudice in any
manner the rights of the Debtor or any other person in any
further proceedings involving the Debtor or any other person.
9.4 Releases. Holders of Claims which receive
distributions under the Plan shall be deemed to release each of
the Reorganized Debtors and their respective present and former
directors, officers, employees, agents and representatives from
any and all Claims and liabilities relating to or against any of
them arising from the Petition Date up to the Effective Date,
including Claims and causes of action arising in or under the
Bankruptcy Code, but excluding (a) any claim of a Private
Placement Lender relating to any such Private Placement Lender's
ordinary course business relationship with the Debtor but which
is not related to a Private Placement Lender Claim and (b) any
claim of any party in interest who objects to such release prior
to the Confirmation Hearing.
9.5 Cancellation of Certain Agreements. On the
Effective Date, the Revolving Credit Agreement, the Private
Placement Loan Agreement and the Repayment Agreement shall,
except for purposes of making distributions under the Plan, be
deemed cancelled, terminated, and of no further force or effect,
and such cancellation shall extinguish the rights and obligations
of the Debtors and of the Revolver Banks, the Private Placement
Lenders and the DTA Banks thereunder.
9.6 Limitation of Liability. Neither the Reorganized
Debtors, nor any of their employees, officers, directors, agents
or representatives, nor any professional persons employed by any
of them, shall have or incur any liability to any person or
entity for any act taken or omission made in good faith in
connection with or related to formulating, implementing,
confirming or consummating this Plan, the Solicitation Materials
and Disclosure Statement, or any contract, instrument, release or
other agreement or document created in connection with this Plan.
9.7 Saturday, Sunday, or Legal Holiday. If any
payment or act under the Plan is required to be made or performed
on a date that is not a Business Day, then the making of such
payment or the performance of such act may be completed on the
next succeeding Business Day, but shall be deemed to have been
completed as of the required date.
9.8 Means of Cash Payment. Cash payments made pur-
suant to the Plan to holders of Class 2, Class 3, and Class 4
Claims shall be in U.S. funds and shall be made by wire transfer.
9.9 Severability of Provisions. If prior to
Confirmation any term or provision of the Plan, which does not
govern the treatment of Claims or Equity Interests or the
conditions to the Effective Date, is held by the Bankruptcy Court
to be invalid, void, or unenforceable, the Bankruptcy Court shall
have the power to alter and interpret such term or provision to
make it valid or enforceable to the maximum extent practicable,
consistent with the original purpose of the term or provision
held to be invalid, void, or unenforceable, and such term or
provision shall then be applicable as altered or interpreted.
Notwithstanding any such holding, alteration or interpretation,
the remainder of the terms and provisions of the Plan will remain
in full force and effect and will in no way be affected,
impaired, or invalidated by such holding, alteration, or
interpretation. The Confirmation Order shall constitute a
judicial determination and shall provide that each term and
provision of the Plan, as it may have been altered or interpreted
in accordance with the foregoing, is valid and enforceable
pursuant to its terms.
9.10 Headings. Headings are used in the Plan for
convenience and reference only, and shall not constitute a part
of the Plan for any other purpose.
9.11 Binding Effect. The Plan shall be binding upon
and inure to the benefit of each of the Reorganized Debtors, its
creditors, the holders of Equity Interests, and their respective
successors and assigns.
9.12 Governing Law. Unless a rule of law or procedure
is supplied by federal law (including the Bankruptcy Code and
Bankruptcy Rules) or the Delaware General Corporation Law, the
laws of the State of New York shall govern the construction and
implementation of the Plan and any agreements, documents, and
instruments executed in connection with the Plan.
9.13 Filing of Additional Documents. On or before
substantial consummation of the Plan, the Reorganized Debtor
shall file with the Bankruptcy Court such agreements and other
documents as may be necessary or appropriate to effectuate and
further evidence the terms and conditions of the Plan.
9.14 Withholding and Reporting Requirements. In
connection with the Plan and all instruments issued in connection
therewith and distributions thereon, the Debtor shall comply with
all withholding and reporting requirements imposed by any
federal, state, local, or foreign taxing authority and all
distributions hereunder shall be subject to any such withholding
and reporting requirements.
9.15 Charter. On the Effective Date, each Reorganized
Debtor will file its Amended and Restated Certificate of
Incorporation with the Secretary of State of the State of
Delaware in accordance with Sections 228, 242 and 245 of the
Delaware General Corporation Law. The Amended and Restated
Certificate of Incorporation of each Reorganized Debtor will,
among other things, prohibit the issuance of non-voting equity
securities as required by Section 1123(a)(6) of the Bankruptcy
Code.
Date: December , 1994
WESTMORELAND COAL COMPANY
By:_______________________________
Name:
Title:
WESTMORELAND COAL SALES COMPANY,
INC.
By:_______________________________
Name:
Title:
CRITERION COAL COMPANY
By:_______________________________
Name:
Title:
KENTUCKY CRITERION COAL COMPANY
By:_______________________________
Name:
Title:
DEANE PROCESSING COMPANY
By:_______________________________
Name:
Title:
CGS94A04.DUP (12/29/94 10:34AM)
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS 1
1.1 "Administrative Claim" 1
1.2 "Allowed" 2
1.3 "Amended and Restated Certification of
Incorporation" 2
1.4 "Asset Purchase Agreement" 2
1.5 "Bankruptcy Code" 2
1.6 "Bankruptcy Court" 3
1.7 "Bankruptcy Rules" 3
1.8 "Business Day" 3
1.9 "Claim" 3
1.10 "Class" 3
1.11 "Common Stock" 3
1.12 "Common Stock Claim" 4
1.13 "Common Stock Interest" 4
1.14 "Confirmation" 4
1.15 "Confirmation Date" 4
1.16 "Confirmation Hearing" 4
1.17 "Confirmation Order" 4
1.18 "CONSOL" 4
1.19 "Criterion Asset Sale" 4
1.20 "Criterion Coal" 5
1.21 "Deane" 5
1.22 "Debtor" or "Debtors" 5
1.23 "Disclosure Statement" 5
1.24 "Disputed Claim" 5
1.25 "Distribution Date" 6
1.26 "DTA Banks" 6
1.27 "DTA Bank Claim" 6
1.28 "Effective Date" 6
1.29 "Equity Interest" 6
1.30 "Estate" 7
1.31 "Final Order" 7
1.32 "General Unsecured Claim" 7
1.33 "Insurance Company Guaranty" 7
1.34 "Insurance Company Loan Agreement" 7
1.35 "Insurance Company Notes" 8
1.36 "Kentucky Criterion" 8
1.37 "Miscellaneous Secured Claim" 8
1.38 "Other Equity Securities" 8
1.39 "Other Equity Securities Interest" 9
1.40 "Other Priority Claim" 9
1.41 "Parent Company Guaranty" 9
1.42 "Petition Date" 9
1.43 "Plan" 9
1.44 "Preferred Stock" 10
1.45 "Preferred Stock Claim" 10
1.46 "Preferred Stock Interest" 10
1.47 "Priority Tax Claim" 10
1.48 "Private Placement Lenders" 10
1.49 "Private Placement Lender Claim" 10
1.50 "Professionals" 11
1.51 "Reorganization Case" 11
1.52 "Reorganized Debtor" or "Reorganized Debtors" 11
1.53 "Rejection Damages Claim" 11
1.54 "Repayment Agreement" 11
1.55 "Revolver Banks" 12
1.56 "Revolver Bank Claim" 12
1.57 "Revolving Credit Agreement" 12
1.58 "Secured Claim" 12
1.59 "Solicitation Materials" 13
1.60 "TECo" 13
1.61 "TECo Subcontracts" 13
1.62 "Terminal" 13
1.63 "UMWA" 13
1.64 "Unsecured Claim" 13
1.65 "WCSC" 13
1.66 "WEI" 14
1.67 "Westmoreland" 14
ARTICLE II
TREATMENT OF ADMINISTRATIVE CLAIMS AND PRIORITY TAX
CLAIMS 14
2.1 Administrative Claims. 14
2.2 Priority Tax Claims. 14
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS 15
3.1 Class 1 Claims 15
3.2 Class 2 Claims 15
3.3 Class 3 Claims 15
3.4 Class 4 Claims 15
3.5 Class 5 Claims 15
3.6 Class 6 Claims 15
3.7 Class 7 Claims 15
3.8 Class 8 Equity Interests 16
3.9 Class 9 Claims 16
3.10 Class 10 Claims and Equity Interests 16
3.11 Class 11 Equity Interests 16
ARTICLE IV
TREATMENT OF CLAIMS AND INTERESTS 16
4.1 Class 1 (Other Priority Claims) 16
4.2 Class 2 (Revolver Bank Claims) 16
4.3 Class 3 (Private Placement Lender Claims) 17
4.4 Class 4 (DTA Bank Claims) 18
4.5 Class 5 (Miscellaneous Secured Claims) 18
4.6 Class 6 (General Unsecured Claims) 19
4.7 Class 7 (Rejection Damages Claims) 19
4.8 Class 8 (Preferred Stock Interests) 19
4.9 Class 9 (Preferred Stock Claims) 19
4.10 Class 10 (Common Stock Claims and Interests) 19
4.11 Class 11 (Other Equity Securities Interests) 20
4.12 Unimpaired Classes 20
ARTICLE V
CONDITIONS PRECEDENT 20
5.1 Conditions to Confirmation 20
5.2 Conditions to Consummation 21
ARTICLE VI
MEANS OF EXECUTION OF THE PLAN 21
6.1. Criterion Asset Sale 21
6.2. Retiree Benefits 21
6.3. Disputed Claims 22
ARTICLE VII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES 23
7.1 Assumption and Rejection of Executory Contracts
and Unexpired Leases 23
7.2 Compensation and Benefit Programs 25
ARTICLE VIII
EFFECTS OF PLAN CONFIRMATION 25
8.1 Discharge 25
8.2 Revesting 26
8.3 Retention and Enforcement of Causes of Action 27
8.4 Retention of Jurisdiction 27
8.5 Post-Consummation Effect of Evidences of Claims 29
8.6 Failure of Court to Exercise Jurisdiction 29
8.7 Term of Injunctions or Stays 29
ARTICLE IX
MISCELLANEOUS PROVISIONS 30
9.1 Modification of Plan 30
9.2 Additional Proponents of the Plan 30
9.3 Withdrawal of Plan 31
9.4 Releases 31
9.5 Cancellation of Certain Agreements 32
9.6 Limitation of Liability 32
9.7 Saturday, Sunday, or Legal Holiday 32
9.8 Means of Cash Payment 33
9.9 Severability of Provisions 33
9.10 Headings 33
9.11 Binding Effect 34
9.12 Governing Law 34
9.13 Filing of Additional Documents 34
9.14 Withholding and Reporting Requirements 34
9.15 Charter 35
(..continued)
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Westmoreland Settles Assignment
Dispute with TECO; Court
Approves Westmoreland's Plan
Of Reorganization
Philadelphia, PA - December 16, 1994 - Westmoreland Coal
Company (NYSE:WCX) announced today that it had reached
agreement with TECO Coal Corporation whereby TECO will
consent to the assignment of two coal supply subcontracts by
Kentucky Criterion Coal Company to CONSOL of Kentucky, Inc.
as a part of Westmoreland's sale of the assets of Kentucky
Criterion to CONSOL.
The resolution of this dispute was approved by the United
States Bankruptcy Court for the District of Delaware today
as a part of that Court's approval of Westmoreland's Plan of
Reorganization in its "prepackaged" Chapter 11 proceeding.
The approval of the Plan will permit Westmoreland and CONSOL
to proceed as soon as possible with the closing of the sale
of the Kentucky Criterion Assets. Westmoreland will emerge
from Bankruptcy upon the completion of the Criterion sale.
The proceeds from the sale will be used by Westmoreland to
pay in full its outstanding indebtedness to its principal
creditors of approximately $39 million, fund equity
contributions through 1995 of approximately $28 million for
a current power plant projects of Westmoreland's wholly-
owned subsidiary, Westmoreland Energy, Inc., and to meet
other needs related to Westmoreland's strategic
repositioning.
Christopher K. Seglem, Westmoreland's President and Chief
Executive Officer said, "The resolution of our dispute with
TECO and the approval of our Plan of Reorganization to
enable Westmoreland to proceed with the closing of the
Kentucky Criterion asset sale are major milestones for
Westmoreland. The way is cleared for us to retire our
burdensome debt obligations which have threatened our short
term viability and hampered our ability to stabilize the
Company. Having the cash to make full equity contributions
in our independent power projects maximizes our opportunity
for strong operating profits from that sector of our
Company."
For information contact R. Page Henley (215) 545-2500
Westmoreland Completes Sale of Kentucky Criterion
Assets to CONSOL, of Kentucky, Inc.
And Emerges From Bankruptcy
Philadelphia, PA - December 22, 1994 - Westmoreland Coal
Company (NYSE:WCX) announced today that it had completed the
sale of the assets of its wholly-owned subsidiary, Kentucky
Criterion Coal Company, to CONSOL of Kentucky, Inc., a
member of the CONSOL, coal group, for $81 million after
adjustments to reflect the settlement with TECO Coal
Corporation and the sale of a parcel of land at Kentucky
Criterion for which Westmoreland has received full payment.
The price is also subject to certain normal post closing
adjustments.
As previously announced Westmoreland will use the proceeds
from this sale to pay in full its outstanding indebtedness
to its principal creditors of approximately $39 million. At
that point Westmoreland will emerge from bankruptcy. The
Company also will use the proceeds to meet near term
expenses, including taxes, related to the sale of
approximately $6 million. Other proceeds will be used to
fund, when due, equity contributions of approximately $28
million for current power plant projects of Westmoreland's
wholly-owned subsidiary, Westmoreland Energy, Inc. and for
other corporate purposes.
For information contact R. Page Henley (215) 545-2500
Westmoreland Coal Company and Subsidiaries
Pro Forma Consolidated Statment of Income
For the 9 months ended September 30, 1994
Historical Adjustments ProForma
Revenues:
Coal 295,444 (43,777) 251,667
Cogeneration 7,437 7,437
Other 1,868 1,868
304,749 (43,777) 260,972
Costs and expenses:
Cost of coal sold 270,378 (34,435) 235,943
Cost of sales - Cogeneration 1,893 1,893
Cost of sales Other 1,827 1,827
Depreciation, depletion and
amortization 12,695 (1,779) 10,916
Selling and administrative 21,103 (1,137) 19,966
307,896 (37,351) 270,545
Gain on sale of assets 0 0
Income (loss) from operations (3,147) (6,426) (9,573)
Interest expense 3,877 (2,224) 1,653
Interest income 793 (4) 789
Other income 977 (497) 480
Loss from operations before income
taxes (benefit) and minority
interest (5,254) (4,703) (9,957)
Income taxes (benefit):
Current 1,106 (2,063) (957)
Deferred 324 324
1,430 (2,063) (633)
Minority Interest 518 518
Net income (loss) (7,202) (2,640) (9,842)
Less preferred stock dividends 1,222 1,222
Net loss applicable to common
shareholders (8,424) ( 2,640) (11,064)
Net loss per share applicable to
common shareholders (1.21) (.38) (1.59)
The Pro Forma statement removes the impact of Kentucky Criterion Coal
Co.'s operations and also removes interest expense associated with the
debt owed to the Company's principal creditors. Income and expense
related to the sale of the assets of Kentucky Criterion Coal Co. are
not shown.
Westmoreland Coal Company and Subsidiaries
Pro Forma Consolidated Statement of Income
For the 12 months ended December 31, 1993
Historical* Adjustments ProForma
Revenues:
Coal 461,593 (51,837) 409,756
Cogeneration 4,643 4,643
Other 3,662 3,662
469,898 (51,837) 418,061
Costs and expenses:
Cost of coal sold 430,790 (38,450) 392,340
Cost of sales - Cogeneration 2,552 2,552
Cost of sales - Other 2,337 2,337
Depreciation, depletion and
amortization 21,503 (2,192) 9,311
Selling and administrative 28,696 (1,205) 27,491
85,878 (41,847) 444,031
Unusual charges (79,250) (79,250)
Gain on sale 2,000 2,000
Income (loss) from operations (93,230) (9,990) (103,220)
Interest expense 4,936 (2,361) 2,575
Interest income 783 (16) 767
Other income 1,972 84 2,056
Loss from operations before income
taxes (benefit) and minority
interest (95,411) (7,561) (102,972)
Income taxes (benefit) 1,487 (3,122) (1,635)
Minority interest 748 748
Net income (loss) (97,646) (4,439) (102,085)
Less preferred stock dividends 4,888 4,888
Net loss applicable to common
shareholders (102,534) (4,439) (106,973)
Net loss per share applicable to
common shareholders (14.74) (.64) (15.38)
* Restated to include Westmoreland Energy, Inc. as part of
continuing operations.
The Pro Forma statement removes the impact of Kentucky Criterion Coal
Co.'s operations and also removes interest expense associated with the
debt owed to the Company's principal creditors. Income and expense
related to the sale of the assets of Kentucky Criterion Coal Co. are
not shown.
The purpose of the Pro Forma financial statements presented herein is to
show how the sale of the assets of Kentucky Criterion Coal Co. might
have affected historical financial statements if the sale had been
consummated at January 1, 1993 for the income statements and at
September 30, 1994 for the balance sheet. These statements are provided
only for the reason stated above and are not provided for any other
purpose.
Westmoreland Coal Company and Subsidiaries
Pro Forma Consolidated Balance Sheet
As of September 30, 1994
Historical Adjustments ProForma
Current Assets
Cash and cash equivalents 16,341 11,631 a 27,972
Notes and accounts receivable:
Trade 29,612 29,612
Notes 5,654 5,564
Other 1,103 1,103
36,369 0 36,369
Less allowance for
doubtful accounts 5,786 5,786
30,583 0 30,583
Inventories:
Coal 3,024 3,024
Mine supplies 5,826 5,826
8,850 0 8,850
Assets of Kentucky Criterion held
for sale 39,330 (39,330) b 0
Other current assets 2,034 2,034
Total current assets 97,138 (27,699) 69,439
Property, Plant and equipment
Land and mineral rights 30,324 30,324
Plant and equipment 293,437 293,437
323,761 0 323,761
Less accumulated depreciation
and depletion 223,695 223,695
100,066 0 100,066
Investment in cogeneration 20,234 22,376 c 42,610
Investment in DTA 19,967 19,967
Other assets 16,171 197 d 16,368
Total assets 253,576 5,126 248,450
Current Liabilities
Current portion of long-term debt 47,886 (44,336) e 3,550
Accounts payable and accrued expenses 38,603 5,328 f 43,931
Accrual for postretirement medical costs 8,075 8,075
Taxes on income 3,457 700 g 4,157
Total current liabilities 98,021 38,308 59,713
Long-term debt 13,239 13,239
Accrual for pneumoconiosis benefits 16,500 16,500
Accrual for workers' compensation 22,696 22,696
Accrual for postretirement medical costs 34,414 34,414
Other liabilities 19,604 19,604
Deferred income taxes 15,196 15,196
Minority Interest 10,536 10,536
Shareholders' equity
Preferred stock of $1.00 par value
Authorized 5,000,000 shares;
Issued 575,000 shares 575 575
Common stock of $2.50 par value
Authorized 20,000,000 shares;
Issued 6,956,179 shares 17,390 17,390
Other paid-in capital 94,653 94,653
Retained earnings (Accumulated deficit) (89,248) 33,182 h (56,066)
Total shareholders' equity 23,370 33,182 56,552
Total liabilities and shareholders'
equity 253,576 (5,126) 248,450
a - Net proceeds of $80,790 less $2,250 heldback by CONSOL pending the
resolution of certain issues, $44,336 debt repaid, $197 placed
into Aetna Cash Collateral account and $22,376 used for funding
equity required for two cogeneration projects.
b - Assets of Kentucky Criterion Coal Co. sold.
c - Equity funding required on December 30, 1994 for two cogeneration
projects.
d - Cash transferred into Aetna Cash Collateral account.
e - Debt repaid - $25,060 DTA banks, $12,088 Private Placement and
$7,188 Revolver.
f - Represents certain amounts accrued and due out of the sale
transaction.
g - Represents tax on the gain on sale of the assets of
Kentucky Criterion Coal Co.
h - Represents the approximate gain on sale of the assets of
Kentucky Criterion Coal Co.
