Share Purchase Agreement
P&L Coal Holdings Corporation
Gold Fields Mining Corporation
and
Coal & Allied Industries Limited
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Table of contents
Clause Page
1 Definitions and interpretation 1
1.1 Definitions 1
1.2 Interpretation 9
1.3 Business Day 11
1.4 Exchange rate 11
2 Conditions for Completion 11
2.1 Conditions 11
2.2 Reasonable endeavours 12
2.3 Notices 12
2.4 Waiver 12
2.5 Cut-off date 12
3 Sale and purchase 13
3.1 Sale of Shares 13
3.2 Title 13
4 Provisional and Final Purchase Price 13
4.1 Amount 13
4.2 Provisional Purchase Price 13
4.3 Final Purchase Price 13
4.4 Allocation of Final Purchase Price 14
5 Intentionally omitted 14
6 Period before Completion 14
6.1 Carrying on of business 14
6.2 Permitted acts 15
6.3 Access 16
6.4 Procedure 16
6.5 Rights of pre-emption 17
7 Completion 18
7.1 Date and place for Completion 18
7.2 Obligations on Completion 18
7.3 Completion Accounts 18
8 Seller's Warranties 20
8.1 Seller's Warranties 20
8.2 Indemnity 20
8.3 Tax Warranty 20
8.4 Reimbursement of Tax 20
8.5 Limitation on claims 21
8.6 No termination 21
8.7 To the best knowledge 21
8.8 Reduction in Final Purchase Price 21
8.9 Seller's Guarantor's warranties 21
8.10 Scope of Warranties 22
8.11 Materiality 23
8.12 Benefit of Warranties and indemnities 23
8.13 Reviews 23
9 Buyer's warranties and related acknowledgments and agreements 24
9.1 Warranties 24
9.2 Implied warranties 25
10 Seller's undertakings 25
10.1 Insurance 25
10.2 Company indebtedness 26
10.3 Payments under Specified Contracts 26
10.4 Indemnities 27
11 Buyer's undertakings 27
11.1 Branding 27
11.2 Insurance 27
11.3 Agency arrangements 28
11.4 Action in relation to Tax matters 29
11.5 Archveyor 30
12 Announcements 30
12.1 Agreed announcement 30
12.2 Legal requirements 30
12.3 Disclosure to officers and professional advisors 31
12.4 Further publicity 31
13 Duties, costs and expenses 31
13.1 Duties 31
13.2 Costs and expenses 31
13.3 Costs of performance 31
14 Intentionally omitted 32
15 Seller's guarantee and indemnity 32
15.1 Guarantee 32
15.2 Performance 32
15.3 Indemnity 32
15.4 Extent of guarantee and indemnity 32
15.5 Avoidance of payments 33
15.6 Principal and independent obligation 33
15.7 No competition 33
15.8 Continuing guarantee and indemnity 34
16 General 34
16.1 Notices 34
16.2 Governing law and jurisdiction 35
16.3 Prohibition or enforceability 36
16.4 Variation 36
16.5 Non-merger and survival of Warranties 36
16.6 Default interest 36
16.7 Further assurances 36
16.8 Specific performance 37
16.9 Entire agreement 37
16.10 Third party rights 37
16.11 Enforcement by Seller 37
16.12 Assignment 38
16.13 Waiver 38
16.14 Counterparts 38
Schedule 1 - Companies 39
Schedule 2 - Company Group and Associated Companies 41
Schedule 3 - Completion Steps 44
Schedule 4 - Warranties 46
Schedule 5 - Limitations on liability 62
Schedule 6 - Properties 68
Schedule 7 - Mining Authorities and Applications 88
Schedule 8 - Principles for calculating Final Purchase Price 90
Schedule 9 - Specified Persons 99
Schedule 10 - Joint Ventures 1
Annexure A - Company Group Accounts
Annexure B - Existing Logo
Annexure C - Costain Assignment Deed
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This share purchase agreement
is made on 26 December 2000 between the following parties:
1. P&L Coal Holdings Corporation
of 701 Market Street, Suite 760, St Louis, Missouri, 63101,
United States of America
(Seller's Guarantor)
2. Gold Fields Mining Corporation
of 14062 Denver West Parkway, Suite 110, Golden, Colorado, 80401,
United States of America
(Seller)
3. Coal & Allied Industries Limited
ACN 008 416 760
of Lemington Road, Ravensworth via Singleton, New South Wales,
2330, Australia
(Buyer)
Recitals
A. The Seller is the owner of the Shares.
B. The Seller agrees to sell and the Buyer agrees to buy the Shares
on the terms and conditions set out in this agreement.
C. The Seller's Guarantor agrees to guarantee the obligations of the
Seller under this agreement.
The parties agree
in consideration of, among other things, the mutual promises contained
in this agreement:
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1 Definitions and interpretation
1.1 Definitions
In this agreement:
A$ or Australian Dollars means the lawful currency of the Commonwealth
of Australia;
Accounting Standards means:
(a) in relation to each Company, United Kingdom generally accepted
accounting principles; and
(b) in relation to each member of the Company Group (other than the
Companies):
(1) the accounting standards required under the Corporations
Law;
(2) if no accounting standard applies under the Corporations Law
in relation to an accounting practice, the standards
acceptable to the Australian Accounting Standards Board,
including:
(A) the Australian Accounting Concepts;
(B) the Australian Accounting Standards issued by the
Australian Accounting Standards Board;
(C) Urgent Issues Group Consensus Views; and
(D) other mandatory professional reporting requirements;
and
(3) if no accounting standard applies under paragraph (1) or (2)
of this definition, generally accepted Australian accounting
standards and practices;
Accounts means the Company Accounts and the Company Group Accounts;
Accounts Date means:
(a) in relation to each Company, 31 March 2000; and
(b) in relation to each member of the Company Group (other than the
Companies), 28 October 2000;
Agreed Form means, in relation to any document or other information,
the form of that document or information which has been initialled for
the purposes of identification by the Seller's Solicitors on behalf of
the Seller and the Buyer's Solicitors on behalf of the Buyer;
Agreed Rate means the rate per annum equal to the aggregate of LIBOR
and 1%;
Applications means the applications for mining leases, licences,
permits and other authorities applied for in the name of one or more
members of the Company Group or an Associated Company and which are
listed in part 2 of schedule 7;
Associated Company means each company described in part 2 of schedule
2, being a company in which a member of the Company Group is a
shareholder but which is not a Subsidiary of either Company, and
Associated Companies has a corresponding meaning;
Archveyor Technology Agreement means the Assignment and License Back
of Technology, Improvements and Trade Mark Agreement dated the date of
this agreement between Archveyor Pty Limited and Peabody Archveyor
LLC;
Auditor means Ernst & Young, Sydney;
Beneficiary has the meaning given in clause 16.9(c) and Beneficiaries
has a corresponding meaning;
Business means the businesses and activities of the members of the
Company Group and the Associated Companies as at the date of this
agreement;
Business Day means:
(a) for the purposes of clause 16.1, a day on which banks are open
for business in the city where the notice or other communication
is received, excluding a Saturday or a Sunday or a public
holiday; and
(b) for all other purposes, a day on which banks are open for
business in London, New York and Sydney, excluding a Saturday or
a Sunday or a public holiday;
Buyer's Account means such account as the Buyer nominates to the
Seller within 14 days of the date of this agreement;
Buyer's Group means the Buyer and all Related Corporations of the
Buyer and includes the Company Group and the Associated Companies
after Completion;
Buyer's Solicitors means Arthur Robinson & Hedderwicks of Stock
Exchange Centre, 530 Collins Street, Melbourne, Victoria, Australia
3000;
Claim means any claim or cause of action including:
(a) in contract (including breach of any Warranty);
(b) in tort (including misrepresentation or negligence); or
(c) under statute (including Part V or VI of the Trade Practices Act
1974 (Cth) or similar provisions in legislation of any state or
territory of Australia),
under or in connection with this agreement or the transactions it
contemplates or the conduct of the parties prior to its execution;
Company means each of Peabody Australia Limited and Darex Capital,
Inc., general details in respect of which are set out in schedule 1,
and Companies has a corresponding meaning;
Company Accounts means the audited balance sheet of each Company as at
the Accounts Date and the audited profit and loss account of each
Company for the year ending on the Accounts Date amended to reflect
the reorganisation of the Company Group with respect to Peabody
Turkish Investments Limited which has taken place between the Accounts
Date and the date of this agreement, a copy of which is located at
documents COR2.02.00092 (PAL) and COR2.02.00095 (Darex) of the Data
Room Index;
Company Group means each Company and each Subsidiary of each Company
described in part 1 of schedule 2 and, as the context requires, one or
more or all of them;
Company Group Accounts means the consolidated unaudited balance sheet
of PRH as at the Accounts Date and the consolidated unaudited profit
and loss account of PRH for the period from 1 April 2000 to the
Accounts Date (each denominated in Australian Dollars), a copy of
which is attached to this agreement as annexure A;
Company Group Intellectual Property Rights means any Intellectual
Property Rights the Company Group use to carry on the Business;
Completion means completion of the sale and purchase of the Shares
under clauses 3 and 7 and the Completion Steps;
Completion Accounts means the consolidated audited balance sheet of
PRH as at the Effective Date and the consolidated audited profit and
loss account of PRH for the period from 1 April 2000 to the Effective
Date prepared in accordance with clause 7.3 and schedule 8;
Completion Date means the later of 29 January 2001 and the day which
is 2 Business Days after satisfaction of all conditions precedent
other than the condition specified in clause 2.1(a) or such other date
as the parties agree in writing;
Completion Steps means the steps which the Seller and the Buyer must
carry out which are set out in schedule 3;
Completion Support Statement means a statement which is based on the
Completion Accounts and which identifies the following items:
(a) Net Equity in the Company Group Accounts;
(b) Net Equity in the Completion Accounts;
(c) Unpaid Dividends;
(d) amortisation of Mining Tenements for the period from the Accounts
Date referable to a member of the Company Group (other than the
Companies) to the Effective Date; and
(e) the Final Purchase Price;
Confirmed Electronic Transfer means the electronic transfer of funds
directly from one bank account to another with the receipt of funds
being acknowledged verbally or in writing by the bank operating the
receiving account;
Consol Technology means the technology which Consol Inc has licensed
Archveyor Pty Limited to use under a consent to assignment dated 11th
October 1999 between Consol Inc and Arch Coal Inc;
Costain Assignment Deed means the deed to be entered into between the
Seller's Guarantor and the Buyer or its nominee as a Completion Step
in the form attached as annexure C;
Costain Indemnity means the indemnities given by Costain Group PLC
originally in favour of Peabody Resources (UK) Limited under the Share
Purchase Agreement dated 20 October 1992 between Costain Group PLC and
Peabody Resources (UK) Limited (as subsequently amended);
Darex Proportion means 99.8996%;
Data Room Documents means:
(a) the documents and other information referred to in the Data Room
Index (which the parties acknowledge includes the information
referred to by the Seller as the "black box" information); and
(b) the Seller's Responses;
Data Room Index means the index of the Data Room Documents, a copy of
which is attached to the Disclosure Letter and is to be reviewed by
the Seller and the Buyer in accordance with clause 8.13;
Disclosure Letter means the letter from the Seller to the Buyer dated
the same date as this agreement and which contains disclosures in
respect of the Warranties;
Dollars, US$ and $ mean the lawful currency of the United States of
America;
Duty means any stamp, transaction or registration duty or similar
charge imposed by any Government Agency and includes any interest,
fine, penalty, charge or other amount imposed in respect of the above
but excludes any Tax;
Economic Entity has the meaning given in paragraph 2(c) of schedule 8;
Effective Date means 11pm Sydney time on the Saturday immediately
prior to the Completion Date;
Employees means the employees of the members of the Company Group and
the Associated Companies as at the date of this agreement;
Environmental Law means any law in force on or before the date of this
agreement (whether statute or common law) concerning environmental or
planning matters and includes law concerning land and water use,
development, pollution, waste disposal, toxic and hazardous
substances, conservation of natural resources and resource allocation
including any law relating to development or exploitation of any
natural resource but excludes any law in force on or before the date
of this agreement (whether statute or common law) concerning cultural
heritage or native title matters;
Environmental Liability means any liability, obligation, expense,
penalty or fine under an Environmental Law which would or could be
imposed upon any member of the Buyer's Group as a result of activities
carried on during the ownership or occupation of the Properties or the
Mining Authorities by members of the Company Group or any Associated
Company;
Existing Coal Customer means a customer who is supplied with coal
under a sales contract in force as at the date of this agreement by a
member of the Company Group or an Associated Company;
Existing Logo means the unregistered logo in the form contained in
annexure B;
Expert has the meaning given in paragraph (b) of the definition of
"Expert Determination";
Expert Determination means the following procedure in relation to a
dispute under clause 7.3:
(a) either the Seller or the Buyer requests a person nominated by the
President for the time being of the Institute of Chartered
Accountants in Australia to determine the dispute;
(b) the person nominated under paragraph (a) of this definition
(Expert) will act as an expert, not as an arbitrator in
determining the dispute;
(c) the determination of the Expert in relation to the dispute must
be made as soon as possible after the Expert has been referred
the dispute for determination or in accordance with a direction
given by the Buyer and the Seller to the Expert under clause
7.3(j) and the Expert's decision shall be final, conclusive and
binding on the parties; and
(d) the cost of the Expert will be paid by the party against whom the
determination of the Expert is made and the Expert must make a
decision on this matter. A decision so made will be final,
conclusive and binding on the parties. In the event that the
Expert is, for any reason whatsoever, unable to make a decision
on the matter and so certifies to the parties, the cost of the
Expert must be shared equally and paid by the Seller and the
Buyer;
Final Darex Purchase Price means the Darex Proportion of the Final
Purchase Price;
Final PAL Purchase Price means the PAL Proportion of the Final
Purchase Price;
Final Purchase Price means an amount calculated in accordance with
schedule 8;
Freehold Properties means the freehold properties at which the
Business is carried on listed in part 1 of schedule 6;
Government Agency means any government or governmental,
semi-governmental, administrative, fiscal, or judicial body,
department, commission, authority, tribunal, agency or entity in any
part of the world;
Guarantee means any guarantee, suretyship, letter of credit, letter of
comfort or any other obligation (whatever called and of whatever
nature):
(a) to provide funds (whether by the advance or payment of money, the
purchase of or subscription for shares or other securities, the
purchase of assets or services, or otherwise) for the payment or
discharge of;
(b) to indemnify any person against the consequences of default in
the payment of; or
(c) to be responsible for,
any debt or monetary liability of another person or the assumption of
any responsibility or obligation in respect of the insolvency or the
financial condition of any other person;
Improvements has the same meaning as defined in the Archveyor
Technology Agreement;
Information Memorandum means the descriptive memorandum dated October
2000 in relation to the Business issued by J.P. Morgan Australia
Securities Limited and Lehman Brothers Inc. on behalf of the Seller's
Guarantor, a copy of which has been provided to the Buyer and is
included in the Data Room Documents;
Insurance Policies means the policies located at documents
COR1.09.00002 to 00015, COR1.09.00017 and 00018, COR1.09.00020 to
00028, COR1.09.00030, COR1.09.00032 to 00039 in the Data Room Index;
Intellectual Property Rights means, either in Australia or elsewhere
in the world and for the duration of those rights, all industrial and
intellectual property rights and interests, whether protectable by
statute, at common law or in equity, including:
(a) any patents and patent applications, copyrights and similar
rights which subsist or may subsist in works and other subject
matter, rights in relation to designs (whether or not
registrable), plant variety rights, utility models and eligible
layout rights;
(b) trade marks or service marks, trade names, brand names, internet
domain names and e-mail address names, metatags, indications of
source or appellations of origin and commercial names and
designations and any intellectual property rights arising
therefrom;
(c) any invention, discovery, trade secret, know-how, computer
software, source code and object code, confidential information
including all technical data, research and development
information, techniques, specifications, processes, manufacturing
procedures and secret information, and any intellectual property
rights arising therefrom (including the right to apply for and
secure registration in relation thereto);
(d) any improvements or adaptions of any of the foregoing and any
intellectual property rights arising therefrom; and
(e) any other rights now existing or which come into existence in the
future resulting from intellectual activity,
in each case whether registered or unregistered and any similar or
equivalent rights and interests in Australia or anywhere in the world;
and
(f) any licence or other right to use or grant the use of any of the
foregoing or to be the registered proprietor or user of any of
the foregoing;
Joint Venture means each of the joint venture and partnership
arrangements details in respect of which are set out in schedule 10,
and Joint Ventures has a corresponding meaning;
Joint Venture Agreement means each agreement establishing a Joint
Venture (details in respect of which are set out in schedule 10), and
every agreement or document entered into under or in connection with
each such Joint Venture Agreement;
LIBOR means, in relation to any period in which an interest rate is to
be determined pursuant to this agreement, the rate per cent per annum
quoted on the page entitled "LIBOR - US$ Libor Fix" on the Money Rate
Monitors page of the Bloomberg Terminal at or about 11.00am (New York
time) on the relevant date for the determining of interest rates under
this agreement for 3 month deposits;
Loss means any loss, damage, claim, action, liability, cost, expense,
charge, outgoing or payment;
Mining Authorities means the mining leases, licences, permits and
other authorities held by one or more members of the Company Group or
an Associated Company and which are listed in part 1 of schedule 7;
Mining Tenements has the meaning given in part 1 of schedule 8;
Net Equity has the meaning given in part 1 of schedule 8;
PAL Proportion means 0.10040%;
Permitted Security Interest means:
(a) every lien created by operation of law securing an obligation
that is not yet due;
(b) every lien for the unpaid balance of purchase moneys under an
instalment contract entered into in the ordinary course of
business; and
(c) every lien for the unpaid balance of moneys owing for repairs,
which affects or relates to any of the assets of any member of
the Company Group or of any Associated Company;
Pounds Sterling or Pounds means the lawful currency of Great Britain;
Power means any right, power, authority, discretion or remedy
conferred on a party by this agreement or any applicable law;
PRH means Peabody Resources Holdings Pty Limited ACN 072 075 202;
Properties means the Freehold Properties, the properties leased under
the Property Leases and any properties occupied under licence by
members of the Company Group and the Associated Companies;
Property Leases means the leases of real property at which the
Business is carried on, being those listed in part 2 of schedule 6;
Provisional Purchase Price means $455,000,000;
Related Corporation means a "related body corporate" as that
expression is defined in the Corporations Law and includes:
(a) a body corporate which is at any time after the date of this
agreement a "related body corporate" but ceases to be a "related
body corporate" because of an amendment, consolidation or
replacement of the Corporations Law; and
(b) in the case of the Buyer, Rio Tinto Limited ACN 004 458 404, Rio
Tinto plc and each of their respective related bodies corporate;
Security Interest means an interest or power:
(a) reserved in or over an interest in any asset including any
retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a bill of sale, mortgage, charge, lien, pledge, trust or
power, by way of security for the payment of a debt, any other
monetary obligation or the performance of any other obligation
and includes any agreement to grant or create any of the above
but, other than for the purposes of clause 3.1 and paragraphs
2.1, 3.3, 4.3 and 5.3 of schedule 4, excludes any Permitted
Security Interest;
Seller's Account means the Seller's account with Bank One, Chicago,
account: Gold Fields Mining Corp, ABA# 07000013, account no:
#51-63722;
Seller's Fund means the Peabody Resources Staff Retirement Fund;
Seller's Group means the Seller and all Related Corporations of the
Seller but excluding the Company Group and the Associated Companies;
Seller's Responses means the written responses given by or on behalf
of the Seller to written requests for information issued by the Buyer
prior to the date of this agreement and comprising the documents
located in document number COR4.01.00001 of the Data Room List;
Seller's Solicitors means Freehills of Level 38, MLC Centre, 19-29
Martin Place, Sydney, NSW Australia 2000 and/or Simmons & Simmons of
CityPoint, One Ropemaker Street, London EC2Y 955, United Kingdom;
Shares means all the shares in the capital of each Company;
Specified Contracts means the employee change of control contracts
located at documents COR3.01.00009 in the Data Room Index;
Specified Payment has the meaning given in clause 10.3(c);
Specified Persons means the persons listed in schedule 9;
Subsidiary has the meaning given in the Corporations Law;
Tax means any tax, levy, charge, impost, duty, fee, deduction, goods
and services tax, compulsory loan or withholding, which is assessed,
levied, imposed or collected by any Government Agency and includes any
interest, fine, penalty, charge, fee or other amount imposed on, or in
respect of any of the above but excludes any Duty;
Tax Discussions has the meaning given in clause 11.4(a)(2);
Tax Documents has the meaning given in clause 11.4(a)(1);
Tax Law means any law relating to either Tax or Duty as the context
requires;
Tax Warranty means the warranties contained in clause 23 of schedule
4;
Technology means the subject matter assigned by Archveyor Pty Limited
to Peabody Archveyor LLC under the Archveyor Technology Agreement and
as defined in the Archveyor Technology Agreement;
Termination Date has the meaning given in clause 2.3(b);
Title Claim means any Claim in relation to any of the Warranties set
out in Warranty 1 or paragraphs 2.1, 2.2, 2.4, 2.6, 3.1, 3.2, 3.3,
3.4, 4.1, 4.2, 4.3, 4.4 or 8.1(a) of schedule 4 or any of the
warranties set out in clause 8.9;
Trade Mark means the trade mark assigned by Archveyor Pty Limited to
Peabody Archveyor LLC under the Archveyor Technology Agreement and as
defined in the Archveyor Technology Agreement;
Unpaid Dividends has the meaning given in part 1 of schedule 8; and
Warranties means the warranties and representations set out in
schedule 4.
1.2 Interpretation
In this agreement, headings and boldings are for convenience only and
do not affect the interpretation of this agreement and, unless the
context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and any Government Agency;
(e) a reference to any thing (including any right) includes a part of
that thing but nothing in this clause 1.2(e) implies that
performance of part of an obligation constitutes performance of
the obligation;
(f) a reference to a clause, party, annexure, exhibit or schedule is
a reference to a clause of, and a party, annexure, exhibit and
schedule to, this agreement and a reference to this agreement
includes any annexure, exhibit and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
(h) a reference to a document includes all amendments or supplements
to or replacements, assignments or novations of that document;
(i) a reference to a party to a document includes that party's
successors and permitted assigns;
(j) no provision of this agreement will be construed adversely to a
party solely on the ground that the party was responsible for the
preparation of this agreement or that provision;
(k) a covenant or agreement on the part of two or more persons binds
them jointly and severally;
(l) a reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement
or understanding, whether or not in writing;
(m) a reference to an asset includes all property of any nature,
including a business, and all rights, revenues and benefits;
(n) a reference to a document includes any agreement in writing, or
any certificate, notice, instrument or other document of any
kind;
(o) a reference to liquidation includes official management,
appointment of an administrator, compromise, arrangement, merger,
amalgamation, reconstruction, winding-up, dissolution,
deregistration, assignment for the benefit of creditors, scheme,
composition or arrangement with creditors, insolvency,
bankruptcy, or any similar procedure or, where applicable,
changes in the constitution of any partnership or person, or
death;
(p) a reference to a body, other than a party to this agreement
(including an institute, association or authority), whether
statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions; and
(q) "including" means including without limitation and "include" and
"includes" have corresponding meanings.
1.3 Business Day
Where the day on or by which any thing is to be done is not a Business
Day, that thing must be done on or by the preceding Business Day.
1.4 Exchange rate
Subject to the definition of "USD Equivalent" in part 1 of schedule 8,
in the event of:
(a) any amount being paid or payable; or
(b) Claims being made,
in Australian Dollars or Pounds Sterling, the value of such amounts or
Claims for the purpose of this agreement will be converted into
Dollars at:
(c) in respect of amounts or Claims in Australian Dollars, the
Australian Dollar/Dollar exchange rate displayed on the HSRA page
of the Reuters Monitor System at 9.50am (Sydney time); and
(d) in respect of amounts or Claims in Pounds Sterling, the Pounds
Sterling/Dollar exchange rate displayed on the Bank of England
Sterling Rate Index page of the Reuters Monitor System at 10.00am
(Sydney time),
in the case of amounts payable, on the day immediately preceding the
date of payment and, in relation to determining whether any Claims
made meet the applicable thresholds in schedule 5, on the date of
notification of the Claim in accordance with clause 3 of schedule 5.
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2 Conditions for Completion
2.1 Conditions
Completion will not proceed unless:
(a) the Seller's Group has obtained a full and final release from
Bank One N.A., as administrative agent, of the Security Interest
which it holds in respect of the Shares; and
(b) the Treasurer of the Commonwealth of Australia:
(1) does not make an order under the Foreign Acquisitions and
Takeovers Act 1975 within the time limit specified in
section 26 of that Act in relation to the acquisition of the
Shares by the Buyer; or
(2) issues, or an authorised person on behalf of the Treasurer
issues, a notice in writing (without any term or condition
which the Buyer reasonably considers to be unacceptable)
stating or to the effect that the Government of the
Commonwealth of Australia does not object to the Buyer
entering into and completing this agreement or acquiring an
interest in the Shares,
whichever first occurs.
2.2 Reasonable endeavours
(a) The Seller must use all reasonable endeavours to ensure that:
(1) the condition for Completion set out in clause 2.1(a) is
satisfied on the Completion Date; and
(2) it and its Related Corporations, at the Buyer's cost, supply
all information reasonably required by the Buyer for the
purpose of fulfilling the condition for Completion set out
in clause 2.1(b).
(b) The Buyer must use all reasonable endeavours to ensure that:
(1) the condition set out in clause 2.1(b) is satisfied as
expeditiously as possible; and
(2) the Buyer's Group, at their cost, makes all applications and
supplies all information required for the purpose of
fulfilling the condition for Completion set out in clause
2.1(b).
2.3 Notices
(a) The Buyer must give notice to the Seller immediately upon
satisfaction of the condition set out in clause 2.1(b).
(b) Each of the Buyer and the Seller must immediately give notice to
the other of anything which will or is likely to prevent any of
the conditions set out in clause 2.1 from being satisfied on or
before the date which is 3 months after the date of this
agreement (the Termination Date) immediately upon it coming to
the notice of that party.
(c) Each of the Buyer and the Seller (the Disclosing Party)
undertakes, at the request of the other (the Requesting Party),
to keep the Requesting Party fully informed as to the conduct of
discussions and progress being made in connection with the
satisfaction of the conditions for which the Disclosing Party is
responsible as set out in clause 2.2.
2.4 Waiver
(a) The condition for Completion in clause 2.1(a) may only be
waived by the Seller.
(b) The condition for Completion in clause 2.1(b) may only be
waived by the Buyer.
2.5 Cut-off date
If the conditions for Completion set out in clauses 2.1(a) and (b) are
not satisfied or waived on or before the Termination Date the Buyer or
the Seller may, by not less than 5 Business Days' written notice to
the other, terminate this agreement. Upon termination, the obligations
of the parties shall cease to have effect, except that termination
shall not affect the accrued rights and obligations of the parties at
the date of termination.
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3 Sale and purchase
3.1 Sale of Shares
Subject to clause 2.1, on the Completion Date the Seller must sell and
the Buyer must buy the Shares free of Security Interests and other
third party rights or claims.
3.2 Title
Title to the Shares passes to the Buyer on the Completion Date.
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4 Provisional and Final Purchase Price
4.1 Amount
The price payable for the Shares is an amount equal to the Final
Purchase Price.
4.2 Provisional Purchase Price
On Completion the Buyer must pay to the Seller by Confirmed Electronic
Transfer to the Seller's Account an amount equal to the Provisional
Purchase Price.
4.3 Final Purchase Price
(a) If the Final Purchase Price is greater than the Provisional
Purchase Price, the Buyer must pay to the Seller an amount equal
to the difference, together with an additional payment as
determined and calculated in accordance with clause 4.3(c), by
Confirmed Electronic Transfer to the Seller's Account no later
than 5 Business Days after the date on which the Final Purchase
Price is agreed or determined in accordance with clause 7.3 and
schedule 8.
(b) If the Final Purchase Price is less than the Provisional Purchase
Price the Seller must pay to the Buyer an amount equal to the
difference, together with an additional payment as determined and
calculated in accordance with clause 4.3(c), by Confirmed
Electronic Transfer to the Buyer's Account no later than 5
Business Days after the date on which the Final Purchase Price is
agreed or determined in accordance with clause 7.3 and schedule
8.
(c) A party must pay under clause 4.3(a) (in the case of the Buyer)
or clause 4.3(b) (in the case of the Seller) an additional
payment equal to the difference between the Final Purchase Price
and the Provisional Purchase Price multiplied by the Agreed Rate
and then further multiplied by a fraction the denominator of
which is 360 and the numerator of which is the number of days
from and including the Effective Date to, but excluding, the due
date for payment under clause 4.3(a) or (b) (as the case may be).
4.4 Allocation of Final Purchase Price
The Final Purchase Price must be allocated among the Shares as
follows:
(a) the Final PAL Purchase Price must be allocated to all the issued
shares in Peabody Australia Limited; and
(b) the Final Darex Purchase Price must be allocated to all the
issued shares in Darex Capital, Inc.
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5 Intentionally omitted
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6 Period before Completion
6.1 Carrying on of business
Before Completion and subject to clause 6.2, the Seller must:
(a) in the case of each member of the Company Group, ensure that; and
(b) in the case of any Associated Company, use its reasonable
endeavours to ensure that,
the Business is conducted in the ordinary course of business and that:
(c) without the prior written consent of the Buyer no member of the
Company Group and no Associated Company:
(1) disposes of, agrees to dispose of any interest in or creates
a Security Interest over, any of its assets other than in
the ordinary course of business;
(2) sells, assigns, transfers, declares itself trustee of or
otherwise disposes of any share held by it in the share
capital of any other member of the Company Group or any
Associated Company;
(3) issues or allots any shares, options or securities which are
convertible into shares or loan capital convertible to
shares in the relevant member's or Associated Company's
share capital to any person;
(4) alters its constitution;
(5) to the extent within its control, alters or permits the
alteration of the trust deed and rules governing the
Seller's Fund;
(6) does anything to merge or consolidate with any other
corporation;
(7) enters into any material arrangement or understanding in
respect of the provision of any loan or other financial
facilities (including any speculative currency, interest
rate or commodity arrangements) or any agency or
distribution arrangement or understanding;
(8) enters into any agreement (conditional or otherwise) to do
anything mentioned in this clause 6.1(c); or
(9) exercises any voting right under a Joint Venture Agreement
in a manner inconsistent with the provisions of this clause
6.1(c); and
(d) the Buyer is notified of any material claims which are brought or
threatened against any member of the Company Group or any
Associated Company by a third party.
6.2 Permitted acts
Notwithstanding clause 6.1, before Completion PRH or any of its
Subsidiaries may borrow money to finance any payment referred to in
clause 6.2(h) and the Seller or any member of the Company Group may
do, and may cause an Associated Company to do, any of the following:
(a) any matter contemplated by another provision of this agreement;
(b) any matter undertaken by the Seller or any member of the Company
Group in the event of an emergency or disaster situation,
provided that the Seller notifies the Buyer of the situation and
matter undertaken as soon as reasonably practicable;
(c) in the case of an Existing Coal Customer, the entering into of
any rollover contract for the sale of coal in the ordinary course
of business and on arm's length terms and not increasing the
nominated tonnage under the existing contract by more than 20%;
(d) in the case of a customer other than an Existing Coal Customer,
the entering into of any contract for the sale of less than
150,000 tonnes of coal per year and for a term of less than 1
year commencing on the date of signing the relevant contract;
(e) the entering into of any agreement, arrangement or understanding
in respect of a proposal the subject of a tender submitted by or
to any member of the Company Group or an Associated Company to or
by a third party prior to the date of this agreement and included
in the Data Room Documents;
(f) incur any capital expenditure in respect of which details are set
out in approved budgets or capital expenditure applications
contained in the Data Room Documents;
(g) incur any unbudgeted capital expenditure:
(1) on any one item or related group of items in an amount less
than or equal to $3 million; or
(2) in the ordinary course of business (which includes carrying
out emergency repairs),
provided that the total of all unbudgeted capital expenditure so
incurred does not exceed $5 million; or
(h) prior to the Effective Date, pay any dividend or make any other
shareholder distribution or repay (but not forgive) any
indebtedness, so long as any dividend or distribution paid or
made by a member of the Company Group other than PRH or one of
its Subsidiaries is wholly sourced from a dividend or
distribution made or paid by PRH or its Subsidiaries, and so long
as any franked dividend is not franked in excess of the required
franking amount for the dividend.
6.3 Access
(a) Before the Completion Date, the Seller must use its reasonable
endeavours to ensure that the Buyer and any persons authorised by
the Buyer are:
(1) given reasonable access, during normal business hours and on
reasonable notice, to inspect the assets, Properties, books
of account, records and documents of any member of the
Company Group and of any Associated Company;
(2) given reasonable opportunity to meet with any party to a
Joint Venture; and
(3) furnished with all such information as may reasonably be
requested concerning any member of the Company Group and any
Associated Company,
provided that any access, opportunity or information provided
under this clause 6.3(a) is to be subject to compliance by the
Buyer and any persons authorised by the Buyer with such
conditions as the Seller reasonably determines which, for the
purposes of clause 6.3(a)(2), includes the presence of a
representative nominated by the Seller at any meeting held with a
Joint Venture party.
(b) Without limitation to clause 6.3(a), before the Completion Date
no member of the Buyer's Group will contact (whether directly or
indirectly):
(1) any representative of any union or industrial organisation
of which an Employee is a member; or
(2) any supplier or customer of any member of the Company Group,
Associated Company or Joint Venture,
without the prior written consent of the Seller other than in
respect of matters which do not relate either directly or
indirectly to the Business, the Company Group or an Associated
Company.
(c) The Seller may withhold its consent under clause 6.3(b) or give
it conditionally or unconditionally, including requiring that
representatives of the Seller attend any meeting with any
representative of any union, industrial organisation, supplier or
customer. Any conditions must be complied with by the Buyer.
6.4 Procedure
(a) For the purposes of clauses 6.1 and 6.3, the 'reasonable
endeavours' of the Seller in respect of an Associated Company
includes exercising all voting rights at shareholders' and
directors' meetings of the Associated Company which the Seller or
a member of the Company Group is capable of exercising, including
rights to convene meetings, in order to endeavour to ensure that
clause 6.1 is complied with in respect of the Associated Company.
It does not, however, require the Seller to do anything beyond
its control.
(b) Where the Seller or any member of the Company Group makes a
written request to the Buyer for consent to a particular matter
referred to in clause 6.1(c), the request must be accompanied by
such information which is, in the reasonable opinion of the
Seller, sufficient to enable the Buyer to properly evaluate the
matter. If a written refusal of such consent has not been
received by the Seller or such member of the Company Group, as
the case may be, within 10 Business Days after the date of
service of such request, the Buyer shall be deemed to have
consented to the matter in question.
(c) The Seller will promptly notify the Buyer of any material act
done in accordance with clause 6.2.
6.5 Rights of pre-emption
If, during the period between the date of this agreement and the
Completion Date, any member of the Company Group receives a notice
which entitles it, or otherwise becomes entitled, to exercise a right
of pre-emption or first refusal under any Joint Venture Agreement then
the Seller must procure that (subject to the fiduciary duties of the
directors of members of the Company Group and to existing contractual,
statutory and common law obligations of members of the Company Group)
the relevant member of the Company Group:
(a) provides a copy to the Buyer of the notice (if any) giving rise
to, and all correspondence with the selling participant in
respect of, the right of pre-emption or first refusal;
(b) preserves and delays exercising any right of, or directly related
to, pre-emption or first refusal (as applicable) for as long as
is permissible under the relevant Joint Venture Agreement
provided that, in preserving or exercising that right, no member
of the Company Group will be obliged to take any step, by act or
omission, which constitutes a full or partial exercise of the
right from which the relevant member of the Company Group cannot
later resile or can resile but only upon paying a penalty or
making any other payment;
(c) consults with the Buyer in respect of any course of action which
it proposes to take or suggests should be taken; and
(d) does not waive or exercise any right of pre-emption or first
refusal (as applicable) unless it can no longer preserve or delay
in exercising that right,
except in any case as may be otherwise agreed with the Buyer.
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7 Completion
7.1 Date and place for Completion
Completion must take place at the offices of the Seller's Solicitors
(in Sydney) at 10am on the Completion Date or any other place and time
as the Buyer and Seller agree.
7.2 Obligations on Completion
On or before Completion each of the Seller and the Buyer must carry
out the Completion Steps referable to it in accordance with schedule
3.
7.3 Completion Accounts
(a) As soon as possible after Completion and in any event no later
than 30 Business Days after the Completion Date, the Buyer must
procure that draft Completion Accounts and the Completion Support
Statement are prepared by or on behalf of PRH and that the
Completion Accounts are audited by the Auditor (draft Completion
Accounts).
(b) The draft Completion Accounts prepared under clause 7.3(a) must
be prepared and audited in accordance with the following:
(1) the principles and policies set out in parts 2 and 3 of
schedule 8, interpreted and applied on a basis consistent
with PRH's past practice;
(2) to the extent not covered by clause 7.3(b)(1), adopting, on
a consistent basis, the accounting standards and practices
applied in the preparation of the Company Group Accounts;
and
(3) to the extent not covered by clause 7.3(b)(1) and (2), the
relevant Accounting Standards,
but,
(4) without making any provision for any Specified Payments
which may be required to be made; and
(5) without regard to the transactions contemplated by this
agreement or any plans of the Buyer's Group after
Completion.
(c) The Buyer must cause PRH to deliver to the Seller the draft
Completion Accounts as audited by the Auditor and the Completion
Support Statement as soon as possible after Completion and in any
event by no later than 30 Business Days following Completion.
(d) The Seller and the Buyer each have 10 Business Days from the date
the Seller is provided a copy of the draft Completion Accounts
and Completion Support Statement (review period) to agree or
dispute the draft Completion Accounts and the Completion Support
Statement.
(e) During the review period, the Buyer must provide the Seller and
its advisors with access to all documents and working papers
which have been prepared, used or relied on in the preparation of
the draft Completion Accounts and Completion Support Statement
and the Buyer must use reasonable endeavours to procure access
for the Seller and its advisors to the Auditor, its documents,
working papers and personnel.
(f) If neither the Seller nor the Buyer disputes the draft Completion
Accounts or the Completion Support Statement within the review
period, then the draft Completion Accounts and Completion Support
Statement will be deemed to be the "Completion Accounts" and the
"Completion Support Statement", respectively, for the purposes of
this agreement.
(g) If either or both of the Seller and the Buyer dispute the draft
Completion Accounts or Completion Support Statement within the
review period then:
(1) the disputing party must give notice to the other (dispute
notice); and
(2) the Seller and the Buyer must, in good faith and for a
period of 10 Business Days following the date of the dispute
notice (or, if both the Seller and the Buyer give dispute
notices, the later of those notices), attempt to negotiate a
resolution of the dispute or disputes.
If the Seller and the Buyer agree a resolution of the dispute or
disputes then the draft Completion Accounts and Completion
Support Statement, as amended (if applicable) by agreement
between the Seller and the Buyer, will be deemed to be the
"Completion Accounts" and the "Completion Support Statement",
respectively, for the purposes of this agreement.
(h) If all the disputes are not resolved during the time referred to
in clause 7.3(g), all outstanding disputes shall immediately be
referred for Expert Determination.
(i) Within 5 Business Days of the referral to the Expert:
(1) the Buyer must provide or cause PRH to provide to the
Expert:
(A) the draft Completion Accounts;
(B) the draft Completion Support Statement;
(C) access to all documents and working papers which have
been prepared, used or relied on in the preparation of
the draft Completion Accounts and Completion Support
Statement including, to the extent possible, access to
the Auditor, its documents, working papers and
personnel; and
(D) any submissions it wishes the Expert to consider; and
(2) the Seller must provide to the Expert:
(A) any submissions it wishes the Expert to consider; and
(B) access to the Data Room Documents.
(j) Without limitation to clause 7.3(i), the Buyer and the Seller
will direct the Expert to make his or her determination as soon
as is reasonably practicable and will give the Expert all
reasonable assistance as appropriate or as requested by the
Expert from time to time.
(k) In making a determination, the Expert must have regard to the
matters set out or referred to in clause 7.3(b).
(l) The draft Completion Accounts and Completion Support Statement,
as amended (if applicable) in accordance with the Expert's
determination, will be deemed to be the "Completion Accounts" and
the "Completion Support Statement", respectively, for the
purposes of this agreement.
(m) For the avoidance of doubt, to the extent that there is any
adjustment which impacts upon the Net Equity in the Completion
Accounts where such adjustment would have been reflected in the
Company Group Accounts had they been prepared taking into account
the provisions of clause 7.3(b)(1) and (3), there will be a
corresponding adjustment made to the Net Equity in the Company
Group Accounts.
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8 Seller's Warranties
8.1 Seller's Warranties
The Seller gives the Warranties in favour of the Buyer as at the date
of this agreement and at Completion.
8.2 Indemnity
(a) Subject to clause 8.3, the Seller indemnifies the Buyer against
any Loss which the Buyer pays, suffers, incurs or is liable for
as a result of any breach of Warranty.
(b) The Buyer acknowledges and agrees that proceeding under clause
8.2(a) is the Buyer's sole remedy in respect of any breach of
Warranty.
8.3 Tax Warranty
(a) The Seller is only liable to the Buyer for breach of the Tax
Warranty when the relevant Tax or Duty becomes due and payable by
the Buyer or any member of the Company Group.
(b) The Buyer must promptly notify the Seller of the receipt of any
assessment of Tax or Duty referred to in clause 8.3(a).
8.4 Reimbursement of Tax
(a) Subject to clause 8.4(b), the Buyer must procure that an amount
equal to any reimbursement by a relevant Government Agency of any
Tax paid by a member of the Company Group in any period prior to
the Accounts Date is, upon receipt by the relevant member of the
Company Group, paid to a person nominated by the Seller.
(b) Clause 8.4(a) does not apply (and no payment is required to be
made under that clause) to the extent that the reimbursement was
taken into account in determining any provision for Tax in the
Accounts or the Completion Accounts, or to the extent that the
reimbursement only arises from an alteration in the timing rather
than the quantum of a Tax liability, or to the extent that the
circumstances giving rise to the reimbursement mean that the Tax
will have to be repaid, or another amount of Tax will have to be
paid, whether at the time of reimbursement or at some other time.
8.5 Limitation on claims
The liability of the Seller under or in relation to any Claim is
limited as set out in schedule 5.
8.6 No termination
Breach of Warranty shall not entitle the Buyer to rescind or terminate
this agreement, whether before or after Completion.
8.7 To the best knowledge
Where Warranties are given by the Seller to the best of its knowledge,
or so far as it is aware, the Seller will only be deemed to know or be
aware of a particular fact or matter if any person who is one of the
Specified Persons is actually aware of the fact or matter.
8.8 Reduction in Final Purchase Price
Any moneys paid by the Seller to the Buyer with respect to a Claim
under the Warranties shall be treated as:
(a) in respect of a Claim relating to Peabody Australia Limited or
Peabody Investments (Australia) Pty Limited ACN 004 837 370, a
reduction in the Final PAL Purchase Price;
(b) in respect of a Claim relating to Darex Capital, Inc., a
reduction in the Final Darex Purchase Price; or
(c) in respect of any other Claim, a reduction in:
(1) the Final PAL Purchase Price by an amount equal to the PAL
Proportion of the amount of that Claim; and
(2) the Final Darex Purchase Price by an amount equal to the
Darex Proportion of the amount of that Claim.
8.9 Seller's Guarantor's warranties
The Seller's Guarantor unconditionally represents and warrants that as
at the date of this agreement and at Completion:
(a) status: it is duly incorporated in the State of Delaware, United
States of America, and is validly existing and in good standing
under the laws of such state;
(b) corporate power: it has the corporate power to own its assets and
to carry on its business as it is now being conducted;
(c) authority: it has full power and authority to enter into and
perform its obligations under this agreement;
(d) authorisations: it has taken all necessary action to authorise
the execution, delivery and performance of this agreement;
(e) binding obligations: this agreement constitutes its legal, valid
and binding obligations and, subject to any necessary stamping
and registration, is enforceable in accordance with its terms
subject to laws generally affecting creditors' rights and to
principles of equity; and
(f) transaction permitted: the execution, delivery and performance by
it of this agreement does not and will not violate, breach, or
result in a contravention of:
(1) any law, regulation or authorisation;
(2) its constitution or other constituent documents;
(3) any Security Interest or document which is binding upon it
or on any of its assets; or
(4) any order, judgment or decree of any court or Government
Agency to which the Seller's Guarantor is a party or by
which the Seller's Guarantor is bound and which is material
in the context of the transactions contemplated by this
agreement,
and do not and will not result in:
(5) the creation or imposition of any Security Interest or
restriction of any nature on any of its assets; or
(6) the acceleration of the date of payment of any obligation
existing under any Security Interest or document which is
binding upon it or on any of its assets,
and will not require the Seller's Guarantor to obtain any consent
or approval of, or give any notice to or make any registration
with, any Government Agency which will not be obtained by
Completion; and
(g) litigation and disputes: there is no litigation, claim, dispute
or administrative or other proceeding current or, to its
knowledge, threatened, that is reasonably likely to have a
material adverse effect on its ability to perform its obligations
under this agreement.
8.10 Scope of Warranties
(a) The only Warranties given by the Seller in respect of
environmental and planning matters are those contained in
paragraphs 6, 15, 19.2 and 25 of schedule 4 and the Seller will
not be liable to the Buyer in respect of or in connection with
environmental or planning matters under any other Warranty.
(b) The only Warranties given by the Seller in respect of Tax and
Duties are those contained in paragraphs 6, 23 and 25 of schedule
4 and the Seller will not be liable to the Buyer in respect of or
in connection with matters relating to Tax or Duties under any
other Warranty.
8.11 Materiality
In this agreement, unless the contrary intention appears, a matter
will be regarded as "material" (whether in the context of the Business
taken as a whole or otherwise) if, alone or together with a series of
similar or related matters, it will, or would be likely to, in any 12
month period:
(a) involve a claim by or against a member of the Company Group or an
Associated Company exceeding $2 million;
(b) have a financial impact on revenues or expenses of a member of
the Company Group or an Associated Company exceeding $2 million;
(c) have a financial impact on the value of the assets or liabilities
of a member of the Company Group or an Associated Company
exceeding $2 million; or
(d) impose an obligation or confer a benefit on a member of the
Company Group or an Associated Company of an amount exceeding $2
million.
8.12 Benefit of Warranties and indemnities
The parties acknowledge that the Buyer's Group may wish to sell
members or assets of the Company Group (including shares in Associated
Companies) following Completion. Notwithstanding anything to the
contrary in this agreement:
(a) the Seller acknowledges that the Warranties, and the other
warranties in clause 8.9 and indemnities provided under this
agreement, will not lapse by reason of any such sale; but
(b) for the avoidance of doubt, the Buyer acknowledges that:
(1) the Buyer is not entitled to assign or otherwise transfer,
directly or indirectly, the benefit of the Warranties, or
those warranties or indemnities, in connection with any such
sale;
(2) any such sale shall not increase or otherwise affect to the
disadvantage of the Seller any liability, actual or
contingent, of the Seller in connection with this agreement
including under the Warranties or those warranties or
indemnities; and
(3) item 3 of schedule 5 will apply to the Buyer's Group in
relation to any claim against a member of the Buyer's Group
in connection with any such sale which may give rise to a
Claim against the Buyer under the Warranties or those
warranties or indemnities.
8.13 Reviews
(a) The parties agree that schedule 6 and schedule 7 shall be
reviewed and, if necessary, rectified by not later than 15
January 2001 so as to disclose correct details of Properties and
Mining Authorities and Applications held by the Company Group and
the Associated Companies.
(b) The parties agree that the Data Room Index shall be reviewed and,
if necessary, rectified by not later than 15 January 2001 so that
it does not include any documents or information which have not
been provided to the Buyer as at the date of this agreement.
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9 Buyer's warranties and related acknowledgments and agreements
9.1 Warranties
The Buyer unconditionally represents and warrants that, as at the date
of this agreement and at Completion:
(a) status: it is a corporation duly incorporated in the Australian
Capital Territory, Australia under the Corporations Law and is
validly existing under the Corporations Law;
(b) corporate power: it has the corporate power to own its assets and
to carry on its business as it is now being conducted;
(c) authority: it has full power and authority to enter into and
perform its obligations under this agreement;
(d) authorisations: it has taken all necessary action to authorise
the execution, delivery and performance of this agreement;
(e) binding obligations: this agreement constitutes its legal, valid
and binding obligations and, subject to any necessary stamping
and registration, is enforceable in accordance with its terms
subject to laws generally affecting creditors' rights and to
principles of equity;
(f) transaction permitted: the execution, delivery and performance by
it of this agreement does not and will not violate, breach, or
result in a contravention of:
(1) any law, regulation or authorisation;
(2) its constitution or other constituent documents;
(3) any Security Interest or document which is binding upon it
or on any of its assets; or
(4) any order, judgment or decree of any court or government
agency to which the Buyer is a party or by which the Buyer
is bound and which is material in the context of the
transactions contemplated by their agreement,
and do not and will not result in:
(5) the creation or imposition of any Security Interest or
restriction of any nature on any of its assets; or
(6) the acceleration of the date of payment of any obligation
existing under any Security Interest or document which is
binding upon it or on any of its assets,
and will not require the Buyer to obtain any consent or approval
of, or give any notice to or make any registration with, any
Government Agency which will not be obtained by Completion;
(g) litigation and disputes: there is no litigation, claim, dispute
or administrative or other proceeding current or, to its
knowledge, threatened, that is reasonably likely to have a
material adverse effect on its ability to perform its obligations
under this agreement;
(h) financial accommodation: the Buyer has available (and at
Completion will have immediately available) on an unconditional
basis (subject only to Completion) the necessary cash resources
to meet its obligations under this agreement; and
(i) finder's fee, etc.: no agent, broker, investment banker or other
person or entity acting on behalf of the Buyer or its Related
Corporations or under the authority of any one or more of them is
or will be entitled to any broker's fee or finder's fee or any
other commission or similar fee directly or indirectly from the
Seller or any member of the Company Group in connection with any
of the transactions contemplated by this agreement.
9.2 Implied warranties
The Buyer acknowledges that it has had the opportunity to make and has
made such enquiries and investigations in relation to the Company
Group, the Associated Companies and their assets, liabilities (actual
and contingent), operations, business, affairs and prospects as the
Buyer deems appropriate and that it is not entitled to any warranties
which may arise by implication or force of law other than the
Warranties and the warranties set out in clause 8.9.
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10 Seller's undertakings
10.1 Insurance
(a) The Seller must ensure that all premiums falling due for payment
prior to Completion in respect of the Insurance Policies are paid
when due and must use its reasonable endeavours to ensure that
none of the Insurance Policies is cancelled or allowed to lapse
by any member of the Company Group prior to Completion.
(b) If a member of the Buyer's Group is entitled to:
(1) make a claim under any of the Insurance Policies after
Completion in relation to a matter occurring prior to
Completion; or
(2) the benefit of a claim after Completion under any of the
Insurance Policies in relation to a matter occurring prior
to Completion where the Insurance Policy continues to be
held by the Seller's Group or where the assistance of the
Seller's Group is otherwise required in initiating or
pursuing the claim,
then the Seller, at the request and cost of the Buyer, must give
and procure that any member of the Seller's Group gives all such
assistance (including not waiving any of its rights under the
Insurance Policies in relation to matters occurring prior to
Completion, entering into written correspondence with the
relevant insurer or its solicitors and certifying documents
provided to the Seller by the Buyer) and access to all necessary
information and personnel as the Buyer may reasonably require in
making or seeking the benefit of such a claim, provided that the
Seller will not do anything without the prior direction or
consent of the Buyer.
10.2 Company indebtedness
(a) The Seller must use its reasonable endeavours to ensure that, on
or before Completion, all indebtedness due from any member of the
Company Group to the Seller's Group and all indebtedness due from
the Seller's Group to any member of the Company Group is
satisfied in full.
(b) The Seller and the Buyer will use their reasonable endeavours to
ensure that any indebtedness due from any member of the Company
Group to the Seller's Group or due from any member of the
Seller's Group to any member of the Company Group after
Completion is satisfied in full as soon as is reasonably
practicable after Completion.
10.3 Payments under Specified Contracts
(a) If at any time after Completion any member of the Buyer's Group
makes a Specified Payment, the Seller must, within 5 Business
Days of written demand from the Buyer, pay to the Buyer X% of the
Specified Payment, where "X" is 100 minus the corporate income
Tax rate applicable in Australia at the time the payment is made.
(b) Each amount paid under clause 10.3(a) shall be treated as a
reduction in the Final Purchase Price.
(c) For the purposes of clause 10.3(a), a "Specified Payment" is an
amount due and payable under a Specified Contract:
(1) without giving effect to any amendment of a Specified
Contract after the date of this agreement made without the
prior written consent of the Seller;
(2) other than a payment made in connection with termination of
the employment of an employee where, at the time of
termination, both the employee and one or more members of
the Buyer's Group intend that the employee will become
re-employed by a member of the Buyer's Group shortly after
the employee's termination;
(3) other than payments in respect of long service leave, annual
leave, sick leave, superannuation, outplacement counselling
or the use of motor vehicles;
(4) other than a retention payment to an employee if, at the
time of payment, one or more members of the Buyer's Group
intend that the employee will cease to be employed shortly
after the time of payment; and
(5) less, in the case of any payment made in connection with
termination of the employment of an employee, the amount to
which the employee would otherwise have been entitled under
his or her employment contract or at law had the Specified
Contract not been entered into, as reasonably determined by
the Seller, but without counting payments in respect of the
matters referred to in clause 10.3(c)(3) above.
10.4 Indemnities
The Seller indemnifies, and will keep indemnified, the Buyer and each
member of the Buyer's Group in respect of all damages, costs,
expenses, losses, claims and other liability arising as a result of
any business conducted prior to Completion by, and the assets and
liabilities as at Completion of, Peabody Turkish Investments Limited,
Nuclear Waste Management Pty Ltd ACN 008 081 141 or Rylandes Insurance
Co. Pte Ltd (Rylandes), in the case of Rylandes to the extent the net
assets of Rylandes as at Completion are insufficient to cover any such
damage, cost, expense, loss, claim or other liability.
--------------------------------------------------------------------------------
11 Buyer's undertakings
11.1 Branding
(a) Subject to clause 11.1(b), the Buyer must not, and must ensure
that each member of the Buyer's Group does not:
(1) after the date which is 3 months following Completion, use
any Peabody logo or any logo or mark which is confusingly
similar; or
(2) after Completion, use any trademark, trade name, business or
corporate name containing the word "Peabody" or words,
expressions or letters which are confusingly similar.
(b) Nothing in clause 11.1(a) restricts or in any way prevents the
Buyer's Group from, after Completion, using or continuing to use
the Existing Logo.
11.2 Insurance
(a) The Buyer must ensure that, as at Completion, insurance has been
obtained with respect to the Joint Ventures for the same or
similar amounts and against the same or similar risks which were
effected by any member of the Company Group immediately before
Completion and which are fully described in documents
COR1.09.00002 to 00009, COR1.09.00013, COR1.09.00018,
COR1.09.00020 to 00028, COR1.09.00030, COR1.09.00032 and
COR1.09.00039 in the Data Room Index.
(b) If:
(1) a member of the Buyer's Group is entitled to make a claim
under any of the Insurance Policies after Completion in
relation to a matter occurring prior to Completion; or
(2) a claim has been made by the Seller or any member of the
Company Group under any of the Insurance Policies prior to
Completion which is not accepted by the relevant insurer as
at the Completion Date,
then, subject to the Seller's compliance with clause 10.1(b), the
Buyer must, and must procure that each member of the Company
Group, duly makes and diligently pursues the claim under the
Insurance Policies (in the case of clause 11.2(b)(2), where the
Buyer or the members of the Company Group are entitled to do so)
in accordance with the terms of such Insurance Policies.
(c) Subject to clause 11.2(d), if the Buyer or any member of the
Buyer's Group receives any payment under an Insurance Policy
(Insurance Payment):
(1) in connection with any event or occurrence prior to or on
the Effective Date; and
(2) the effect of which event or occurrence is taken into
account in the preparation of the Completion Accounts and,
by way of provision or reservation or write down in the
value of assets, in the calculation of the Final Purchase
Price,
then the Buyer must pay to the Seller an amount equal to the
lesser of:
(3) the relevant provision or reservation or write down in the
Completion Accounts; and
(4) the full amount of the Insurance Payment (net of any costs,
charges or expenses reasonably incurred by the Buyer's Group
in pursuing the Insurance Payment), within 10 Business Days
of receipt of the Insurance Payment from the relevant
insurer.
(d) If the Buyer or any member of the Buyer's Group receives any
Insurance Payment in respect of business interruption, loss of
profits or any similar matter relating to any period ending prior
to or on the Effective Date, then the Buyer must pay to the
Seller an amount equal to the full amount of the Insurance
Payment (net of any costs, charges or expenses reasonably
incurred by the Buyer's Group in pursuing the Insurance Payment)
within 10 Business Days of receipt of the Insurance Payment from
the relevant insurer.
11.3 Agency arrangements
The Buyer must not:
(a) terminate or amend the Agency Agreement dated 31 March 1999
between Warkworth Coal Sales Limited and Peabody COALTRADE Inc.
(Agency Agreement); or
(b) take any action in respect of or in connection with the Agency
Agreement, the effect of which termination, amendment or action
may prejudice the right of Peabody COALTRADE Inc. to receive
commissions under the Agency Agreement in respect of the sale of
coal to the National Coal Supply Corporation Limited (Customer)
under the Agreement for the Sale and Purchase of Coal dated 22
March 1999 between Warkworth Coal Sales Limited and the Customer
(Israel Contract) until after all the contracted supply of coal
under the Israel Contract has been supplied to the Customer and
all commissions in respect of the Israel Contract to which
Peabody COALTRADE Inc. is entitled under the Agency Agreement has
been paid to it.
11.4 Action in relation to Tax matters
(a) Subject to this clause 11.4, on and from the Completion Date the
Buyer acknowledges to the Seller that each member of the Company
Group, at its own expense must:
(1) prepare its Tax returns and deal with all correspondence and
documentation concerning Tax or Duties to which it may be
subject (Tax Documents); and
(2) deal with all discussions or meetings with a Government
Agency concerning Tax or Duties to which it may be subject
(Tax Discussions).
(b) In respect of any Tax Documents or Tax Discussions which either:
(1) relate to whole or partial Tax periods current at, or ended
prior to, the Completion Date; or
(2) relate to a matter which could give rise to a liability of
the Seller under the Warranties,
the Buyer must, and must procure that each member of the Buyer's
Group:
(3) in respect of any such Tax Documents:
(A) prepares any such Tax Documents in draft and submits
them to the Seller for comments before they are
finalised (no less than 10 Business Days before the
date on which any such Tax Document is required to be
submitted to any relevant authority or third party);
(B) incorporates such reasonable amendments to the Tax
Documents as the Seller may request before submitting
them to any relevant authority or third party (provided
such amendments are requested no less than 5 Business
Days before the date such documents are required to be
submitted); and
(C) provides to the Seller a copy of each Tax Document as
filed or submitted to any relevant authority or third
party as soon as practicable after such filing or
submission; and
(4) in respect of any such Tax Discussions, ensures that the
Seller or its nominated representatives are given, to the
extent that it is reasonable and practicable:
(A) advance notice of the subject matter of such Tax
Discussions and any correspondence relating thereto;
and
(B) a reasonable opportunity to provide information to the
Buyer in relation to the subject matter of such Tax
Discussions and to participate in the discussions or
meetings in question.
(c) The Buyer must not, and must procure that each member of the
Buyer's Group does not, without the approval of the Seller (which
approval must not be unreasonably withheld or delayed):
(1) amend, or permit the amendment by any member of the Buyer's
Group of, any Tax return lodged by a member of the Company
Group prior to the Completion Date (other than to correct a
computation error); or
(2) apply for any binding or non-binding opinion, determination
or ruling in respect of any event or transaction which
occurred prior to the Completion Date in relation to a
member of the Company Group.
(d) The Seller must provide such information as the Buyer or any
member of the Buyer's Group may reasonably request as may be
required to enable any member of the Buyer's Group to prepare any
Tax returns in respect of the period prior to Completion.
(e) Nothing in this clause 11.4 limits the provisions of schedule 5.
11.5 Archveyor
The Buyer must ensure that no member of the Buyer's Group does
anything after Completion to prevent Peabody Archveyor LLC (a wholly
owned subsidiary of the Seller) from using or exploiting the
Technology, the Improvements or Trade Mark assigned to Peabody
Archveyor LLC by Archveyor Pty Limited under the Archveyor Technology
Agreement and without limiting the generality of the preceding, it
agrees that no member of the Buyer's Group or any of its Related
Corporations or other associated parties will enter into a licence or
other arrangement with Consol Inc or any other party who owns or is
entitled to license the Consol Technology, the effect of which would
be to preclude Peabody Archveyor LLC from obtaining a licence to use
the Consol Technology on reasonable terms and conditions.
--------------------------------------------------------------------------------
12 Announcements
12.1 Agreed announcement
Immediately after this agreement has been signed, the parties must
make an announcement to the media in a form agreed between the
parties.
12.2 Legal requirements
A party may disclose anything in respect of this agreement or the
terms of the sale of the Shares as required:
(a) by applicable law or regulation;
(b) by any recognised stock exchange on which its shares or the
shares of any Related Corporation are listed; or
(c) in connection with an initial public offering of shares or other
securities of the Seller or any Related Corporation of the Seller
to the extent required by law,
but to the extent possible, it must consult with the other parties
before making the disclosure and use reasonable endeavours to agree on
the form and content of the disclosure.
12.3 Disclosure to officers and professional advisors
A party may disclose anything in respect of this agreement or the
terms of the sale of the Shares to the officers, employees,
consultants, advisors and financiers of that party and its Related
Corporations but it must use its best endeavours to ensure all matters
disclosed are kept confidential.
12.4 Further publicity
Subject to clauses 12.1, 12.2 and 12.3 no party may disclose anything
in respect of this agreement or the terms on which the Shares are sold
unless the other parties have first consented in writing, which
consent must not be unreasonably withheld or delayed.
--------------------------------------------------------------------------------
13 Duties, costs and expenses
13.1 Duties
(a) The Buyer must pay any Duty in respect of the execution, delivery
and performance of:
(1) this agreement; and
(2) any agreement or document entered into or signed under this
agreement.
(b) The Buyer must pay any fine, penalty or other cost in respect of
a failure to pay any Duty except to the extent that the fine,
penalty or other cost is caused by an act or default on the part
of the Seller.
(c) The Buyer indemnifies the Seller against any amount payable under
clause 13.1(a) or clause 13.1(b) or both.
13.2 Costs and expenses
Subject to clause 13.1, each party must pay its own costs and expenses
in respect of the negotiation, preparation, execution and
implementation of this agreement or other agreement or document
described in clause 13.1(a).
13.3 Costs of performance
Any action to be taken by the Buyer or the Seller in performing its
obligations under this agreement must be taken at its own cost and
expense unless otherwise provided in this agreement.
--------------------------------------------------------------------------------
14 Intentionally omitted
--------------------------------------------------------------------------------
15 Seller's guarantee and indemnity
15.1 Guarantee
The Seller's Guarantor unconditionally and irrevocably guarantees to
the Buyer the performance of the Seller's obligations under this
agreement.
15.2 Performance
If the Seller fails to perform its obligations under this agreement
when they are due, the Seller's Guarantor must immediately on demand
from the Buyer cause the Seller to perform its obligations under this
agreement or perform those obligations itself.
15.3 Indemnity
The Seller's Guarantor indemnifies the Buyer against any Loss
suffered, paid or incurred by the Buyer in relation to:
(a) the failure of the Seller to perform its obligations under this
agreement; or
(b) the failure of the Seller's Guarantor to cause the Seller to
perform its obligations under this agreement.
15.4 Extent of guarantee and indemnity
(a) This clause 15 applies:
(1) to the present and future obligations of the Seller under
this agreement; and
(2) to this agreement, as amended, supplemented, renewed or
replaced.
(b) The obligations of the Seller's Guarantor under this clause 15
extend to any change in the obligations of the Seller as a result
of:
(1) any amendment, supplement, renewal or replacement of this
agreement; or
(2) the occurrence of any other thing.
(c) This clause 15 is not affected nor are the obligations of the
Seller's Guarantor under this agreement released or discharged or
otherwise affected by anything which but for this provision might
have that effect.
(d) This clause 15.4 applies:
(1) regardless of whether the Seller's Guarantor is aware of or
has consented to or is given notice of any amendment,
supplement, renewal or replacement of any agreement to which
the Seller and the Buyer are a party or the occurrence of
any other thing; and
(2) irrespective of any rule of law or equity to the contrary.
15.5 Avoidance of payments
(a) If any payment, conveyance, transfer or other transaction
relating to or affecting any obligation of the Seller under this
agreement is:
(1) void, voidable or unenforceable in whole or in part; or
(2) claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of the Seller's Guarantor under this clause 15 and
any Power is the same as if:
(3) that payment, transaction, conveyance or transfer (or the
void, voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 15.5(a)(3),
had not been made and the Seller's Guarantor must immediately
take all action and sign all documents necessary or required by
the Buyer to restore to the Buyer this clause 15 and any Security
Interest held by the Buyer immediately before the payment,
conveyance, transfer or transaction.
(b) Clause 15.5(a) applies whether or not the Buyer knew, or ought to
have known of, anything referred to in that clause.
15.6 Principal and independent obligation
(a) This clause 15 is a principal obligation and is not to be treated
as ancillary or collateral to any other right or obligation.
(b) This clause 15 is enforceable against the Seller's Guarantor
whether or not the Buyer has:
(1) made demand upon the Seller; or
(2) given notice to the Seller or any other person in respect of
any thing; or
(3) taken any other steps against the Seller or any other
person.
15.7 No competition
(a) Subject to clause 15.7(b), until the obligations of the Seller
under this agreement have been fully performed and until this
clause 15 has been finally discharged, the Seller's Guarantor
must not, either directly or indirectly prove in, claim or
receive the benefit of any distribution, dividend or payment
arising out of or relating to the liquidation of the Seller.
(b) If required by the Buyer, the Seller's Guarantor must prove in
any liquidation of the Seller for all amounts owed to the
Seller's Guarantor.
(c) All amounts recovered by the Seller's Guarantor from any
liquidation or under any Security Interest from the Seller must
be received and held in trust by the Seller's Guarantor for the
Buyer to the extent of the unsatisfied liability of the Seller's
Guarantor under this clause 15.
15.8 Continuing guarantee and indemnity
This clause 15 is a continuing obligation of the Seller's Guarantor,
despite:
(a) any settlement of account; or
(b) the occurrence of any other thing,
and remains in full force and effect until:
(c) the obligations of the Seller under this agreement have been
performed; and
(d) this clause 15 has been finally discharged by the Buyer.
--------------------------------------------------------------------------------
16 General
16.1 Notices
(a) Any notice, demand, consent or other communication under this
agreement
(1) must be in legible writing and in English addressed as shown
below:
(A) if to the Seller:
Address: 14062 Denver West, Parkway
Suite 110
Golden, Colorado, 80401
United States of America
Attention: Executive Vice President
Facsimile: +1 314 342 7797;
(B) if to the Seller's Guarantor:
Address: 701 Market Street, Suite 760
St Louis, Missouri, 63101
United States of America
Attention: Vice President - Legal Services
Facsimile: +1 314 342 3419; and
(C) if to the Buyer:
Address: Lemington Road, Ravensworth via
Singleton, New South Wales, 2330,
Australia
Attention: Company Secretary
Facsimile: +612 6570 0398,
or as otherwise specified by a party by notice;
(2) where the sender is a company, must be signed by a director
or secretary or under the common seal of the sender;
(3) is regarded as given and received:
(A) if delivered by hand, when delivered to the addressee;
(B) if sent by post, 5 Business Days from and including the
date of postage; or
(C) if sent by legible facsimile transmission (or a
transmission regarded as legible), upon production by
the machine sending the facsimile of the report which
indicates that the complete facsimile was sent to and
received by the addressee,
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following Business
Day; and
(4) can be relied upon by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender during the next Business Day
after the transmission is received or regarded as received under
clause 16.1(a)(3) and informs the sender that it is not legible.
(c) In this clause 16.1, reference to an addressee includes a
reference to an addressee's directors, secretary, agents or
employees and any person reasonably believed by the sender to be
a director, secretary, agent or employee of the addressee.
16.2 Governing law and jurisdiction
(a) This agreement is governed by the laws of New South Wales and
each party irrevocably submits to the non-exclusive jurisdiction
of the courts of New South Wales.
(b) The Seller and the Seller's Guarantor each appoints Ernst and
Young, 321 Kent Street, Sydney NSW 2000, Attention: Ian Baggie in
relation to proceedings in New South Wales as its agent to
receive service of any legal process on its behalf without
excluding any other means of service permitted by the law of the
relevant jurisdiction.
(c) Each party:
(1) irrevocably waives any objection to the venue of any legal
process on the basis that the process has been brought in an
inconvenient forum; and
(2) agrees that a judgment in any proceeding brought in any
court referred to in clause 16.2(a) shall (provided that
there is no appeal pending or open) be conclusive and
binding upon such party and may be enforced in the courts of
any other jurisdiction.
(d) Each party irrevocably waives any immunity in respect of its
obligations under this agreement that it may acquire from the
jurisdiction of any court or any legal process for any reason
including the service of notice, attachment prior to judgment,
attachment in aid of execution or execution.
16.3 Prohibition or enforceability
(a) Any provision of, or the application of any provision of, this
agreement or any Power which is prohibited in any jurisdiction
is, in that jurisdiction, ineffective only to the extent of that
prohibition.
(b) If any provision of, or the application of any provision of, this
agreement is void, illegal or unenforceable in any jurisdiction,
it does not affect the validity, legality or enforceability of
that provision in any other jurisdiction or of the remaining
provisions of this agreement in that or any other jurisdiction.
(c) The application of this clause 16.3 is not limited by any other
provision of this agreement in relation to severability,
prohibition or enforceability.
16.4 Variation
A variation of any term of this agreement must be in writing and
signed by the parties.
16.5 Non-merger and survival of Warranties
(a) The rights and obligations of the parties (including the rights
and obligations in respect of the Warranties) will not merge on
Completion or on the completion of any transaction contemplated
by this agreement. They will survive the execution and delivery
of any assignment or other document entered into for the purpose
of implementing any such action.
(b) Without limitation to clause 1.1 of schedule 5, the Warranties
survive Completion of this agreement.
16.6 Default interest
(a) If a party fails to pay any amount payable under this agreement
on the due date for payment, that party must pay interest on the
amount unpaid at the higher of the aggregate of the Agreed Rate
and 2% per annum or the rate (if any) fixed or payable under a
judgment or other thing referred to in clause 16.6(b)(1).
(b) The interest payable under clause 16.6(a):
(1) accrues from day to day from and including the due date for
payment up to but excluding the actual date of payment,
before and, as an additional and independent obligation,
after any judgment or other thing into which the liability
to pay the amount becomes merged;
(2) is calculated on the basis of a 360 day year; and
(3) may be capitalised by the person to whom it is payable at
monthly intervals.
16.7 Further assurances
Each party must do all things necessary to give full effect to this
agreement and the transactions contemplated by this agreement.
16.8 Specific performance
Each of the parties acknowledges that monetary damages alone would not
be adequate compensation for breach of its obligations under this
agreement and that accordingly specific performance of those
obligations is an appropriate remedy.
16.9 Entire agreement
(a) This agreement supersedes all previous agreements in respect of
its subject matter other than the Confidentiality Agreement
(Confidentiality Agreement) between the Seller's Guarantor,
Peabody Resources Limited ACN 004 447 938 and Coal & Allied
Operations Pty Ltd (ACN 000 023 656) dated 27 October 2000 and,
with the Confidentiality Agreement, embodies the entire agreement
between the parties. The parties will ensure that the
Confidentiality Agreement is terminated with effect from
Completion, without prejudice to any accrued rights in respect of
any breach prior to the time of termination.
(b) Any statement, representation, term, warranty, condition,
promise, forecast, undertaking or assurance of any kind made,
given or agreed to in any prior negotiation, arrangement,
understanding or agreement, has no effect except to the extent
expressly set out in this agreement.
(c) Except in relation to claims for deceit or fraud, the Buyer
releases each member of the Seller's Group and the Company Group
and each director, employee, consultant or adviser of or to any
member of the Seller's Group or the Company Group at any time
prior to Completion (each a Beneficiary) from, and agrees not to
make any claims against any Beneficiary, however arising
(including claims for negligence), in respect of or arising from
any statement, representation, term, warranty, condition,
promise, forecast, undertaking or assurance of any kind made,
given or agreed to, or any other conduct of any kind, prior to
the date of this agreement.
(d) In entering into this agreement the Buyer acknowledges that it is
not entitled to and has not relied on anything referred to in
clause 16.9(b) or (c) other than the Warranties and the matters
set out in the Disclosure Letter.
(e) For the avoidance of doubt, nothing in this clause 16.9 will
prejudice or be applied or interpreted to prejudice the liability
of the Seller or the Seller's Guarantor under, or the Buyer's
rights in respect of, the Warranties or the warranties set out in
clause 8.9.
16.10 Third party rights
No person (including an Employee) other than the Buyer, the Seller,
the Seller's Guarantor and the Beneficiaries has or is intended to
have any right, power or remedy or derives or is intended to derive
any benefit under this agreement.
16.11 Enforcement by Seller
The Buyer agrees that the Seller holds the benefit of, and is entitled
to enforce the terms of, clause 16.9(c) for and on behalf of the other
Beneficiaries.
16.12 Assignment
The rights and obligations of each party under this agreement are
personal. They cannot be assigned, encumbered or otherwise dealt with
and no party may attempt, or purport, to do so without the prior
written consent of all parties.
16.13 Waiver
Except as expressly set out in this agreement, no failure to exercise
nor any delay in exercising any right, power or remedy by a party
operates as waiver. A single or partial exercise of any right, power
or remedy does not preclude any other or further exercise of that or
any other right, power or remedy. A waiver is not valid or binding on
the party granting that waiver when made in writing.
16.14 Counterparts
This agreement may be executed in any number of counterparts. All
counterparts will be taken to constitute one instrument.
<PAGE>
--------------------------------------------------------------------------------
Schedule 1 - Companies
--------------------------------------------------------------------------------
Peabody Australia Limited
1. Company number 785896
2. Date of incorporation 24 December 1963
3. Place of incorporation England and Wales
4. Address of registered office 14 Dominion Street
London EC2M 2RJ
England
5. Authorised share capital $10,000 comprising 1,000,000 ordinary shares
of $0.01 each
6. Issued share capital $10,000 comprising 1,000,000 ordinary shares
of $0.01 each
7. Directors Joseph Charles Cohen
Anthony Richard Charles Durrant
Alan Washkowitz
8. Secretary Joseph Charles Cohen
9. Accounting reference date 31 March
--------------------------------------------------------------------------------
Darex Capital, Inc
1. Company number FC 20240
2. Branch number BR003877
3. Date of incorporation 25 January 1994
4. Place of incorporation Panama
5. Address of registered office PLAZA Bancomer Building
in Panama 50th Street
Apartedo 6307
Panama 5
Republic of Panama
6. Address of registered 14 Dominion Street
branch office in the UK London EC2M 2RJ
England
7. Authorised share capital $10,000 divided into 1,000,000 common shares
of $0.01 each
8. Issued share capital 1000 shares of $0.01 each, fully paid and in
registered form
9. Directors Anthony Richard Charles Durrant
Alan Washkowitz
Joseph Charles Cohen
10. Secretary Joseph Charles Cohen
11. Accounting reference date 31 March
<PAGE>
--------------------------------------------------------------------------------
Schedule 2 - Company Group and Associated Companies
--------------------------------------------------------------------------------
Part 1 - Company Group
Shares held by
member of the Company/Company Group
Company and ACN Company Group Shareholder
------------------------------------ ------------------- ---------------------
Peabody Australia Ltd (UK) 1,000,000 ordinary Seller
shares
--------------------------------------------------------------------------------
Darex Capital, Inc (Panama) 1,000 ordinary Seller
shares
--------------------------------------------------------------------------------
Peabody Investments (Australia) Pty 202,000 ordinary Peabody Australia Ltd
Ltd shares
ACN 004 837 370
--------------------------------------------------------------------------------
Peabody Resources Holdings 406 class B Peabody Investments
Pty Ltd ordinary shares (Australia) Pty Ltd
ACN 072 075 202
202 class A Darex Capital, Inc
ordinary shares
--------------------------------------------------------------------------------
Peabody Sub Holdings Pty Ltd 12 ordinary shares Peabody Resources
ACN 070 810 954 Holdings Pty Ltd
--------------------------------------------------------------------------------
Dolphin Properties Pty Limited 100,000 ordinary Peabody Investments
ACN 005 374 505 shares (Australia) Pty Ltd
(Beneficial title
held by Peabody Sub
Holdings Pty Ltd)
--------------------------------------------------------------------------------
The Energy Group Australia Pty Ltd 12 ordinary shares Peabody Sub Holdings
ACN 067 061 849 Pty Ltd
--------------------------------------------------------------------------------
Peabody Finance Ltd 5 ordinary shares Peabody Sub Holdings
ACN 061 084 428 Pty Ltd
--------------------------------------------------------------------------------
Peabody Resources Limited 38,031,520 class B Peabody Investments
ACN 004 447 938 ordinary shares (Australia) Pty Ltd
9,501,627 class A Dolphin Properties
ordinary shares Pty Ltd
(beneficial title
held by Peabody Sub
Holdings Pty
Ltd/Dolphin
Properties Pty Ltd)
--------------------------------------------------------------------------------
Peabody Resources Staff Retirement 2 ordinary shares Peabody Resources
Fund Pty Ltd Limited
ACN 065 435 672
--------------------------------------------------------------------------------
Peabody Bengalla Investments Pty Ltd 12 ordinary shares Peabody Resources
ACN 056 937 172 Limited
--------------------------------------------------------------------------------
Peabody Bengalla Pty Ltd 2 ordinary shares Peabody Resources
ACN 003 713 399 Limited
--------------------------------------------------------------------------------
Peabody Moura Investments Pty Ltd 12 ordinary shares Peabody Resources
ACN 078 906 411 Limited
--------------------------------------------------------------------------------
Peabody Moura Mining Pty Ltd 5 ordinary shares Peabody Resources
ACN 006 746 701 Limited
--------------------------------------------------------------------------------
Moura Sales Pty Limited 550 ordinary shares Peabody Moura
ACN 087 886 913 Investments Pty Ltd
--------------------------------------------------------------------------------
Peabody Moura Service Co. Pty Ltd 12 ordinary shares Peabody Resources
ACN 087 886 593 Limited
--------------------------------------------------------------------------------
Peabody Mining Investments Pty Ltd 55 class A ordinary Peabody Resources
ACN 004 896 842 shares Limited
45 class B ordinary
shares
--------------------------------------------------------------------------------
Peabody Australasia Pty Limited 2 ordinary shares Peabody Resources
ACN 001 825 256 Limited
--------------------------------------------------------------------------------
Peabody Coal Limited 10 ordinary shares Peabody Resources
ACN 008 596 549 Limited
--------------------------------------------------------------------------------
Peabody Opencut Mining Pty Limited 12 ordinary shares Peabody Resources
ACN 089 634 588 Limited
--------------------------------------------------------------------------------
Ravensworth Pastoral Company Pty 486,900 ordinary Peabody Resources
Limited shares Limited
ACN 062 997 979
--------------------------------------------------------------------------------
Peabody Mining Services Pty Ltd 12 ordinary shares Peabody Resources
ACN 067 084 708 Limited
--------------------------------------------------------------------------------
Archveyor Pty Ltd 12 ordinary shares Peabody Resources
ACN 087 886 735 Limited
--------------------------------------------------------------------------------
Moura Highwall Mining Pty Limited 1,000 ordinary Archveyor Pty Limited
ACN 088 995 886 shares
--------------------------------------------------------------------------------
Peabody Resources Corporation 2 ordinary shares Peabody Resources
(Malaysia) Sdn Bdn Limited
--------------------------------------------------------------------------------
Rylandes Insurance Co. Pte Ltd 2,000,000 ordinary Peabody Resources
shares Limited
--------------------------------------------------------------------------------
Part 2 - Associated Companies
Shares held by
member of the Company/Company Group
Company and ACN Company Group Shareholder
------------------------------------ ------------------- ---------------------
Bengalla Mining Co. Pty Limited 4,000 ordinary Peabody Bengalla
ACN 053 909 470 shares Investments Pty Ltd
--------------------------------------------------------------------------------
Bengalla Coal Sales Company Pty 4,000 ordinary Peabody Bengalla
Limited shares Investments Pty Ltd
ACN 058 360 982
--------------------------------------------------------------------------------
Bengalla Agricultural Co. Pty 4,000 ordinary Peabody Bengalla
Limited shares Investments Pty Ltd
ACN 058 360 991
--------------------------------------------------------------------------------
Warkworth Mining Limited 115 ordinary shares Peabody Resources
ACN 001 385 842 Limited
60 ordinary shares Peabody Australasia
Pty Ltd
--------------------------------------------------------------------------------
Warkworth Tailings Treatment Pty 115 ordinary shares Peabody Mining
Limited Investments Pty Ltd
ACN 081 752 061
60 ordinary shares Peabody Australasia
Pty Ltd
--------------------------------------------------------------------------------
Warkworth Coal Sales Ltd 115 ordinary shares Peabody Mining
ACN 001 614 393 Investments Pty Ltd
60 ordinary shares Peabody Australasia
Pty Ltd
--------------------------------------------------------------------------------
Warkworth Pastoral Co. Pty Limited 115 ordinary shares Peabody Resources
ACN 001 738 021 Limited
60 ordinary shares Peabody Australasia
Pty Ltd
--------------------------------------------------------------------------------
<PAGE>
Executed as an agreement
Signed for
P&L Coal Holdings Corporation
by its authorised signatory
in the presence of:
/s/ Alistair Donald /s/ Roger B. Walcott
-------------------------------- --------------------------------------
Witness Representative
Alistair Donald Roger B. Walcott
-------------------------------- --------------------------------------
Name (please print) Name (please print)
Signed for
Gold Fields Mining Corporation
by its authorised signatory
in the presence of:
/s/ Alistair Donald /s/ Roger B. Walcott
-------------------------------- --------------------------------------
Witness Representative
Alistair Donald Roger B. Walcott
-------------------------------- --------------------------------------
Name (please print) Name (please print)
Signed for
Coal & Allied Industries Limited
by its authorised signatory
in the presence of:
/s/ C. R. Malcolmson /s/ J. P. Berson
-------------------------------- --------------------------------------
Witness Representative
C. R. Malcolmson J. P. Berson
-------------------------------- --------------------------------------
Name (please print) Name (please print)
