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EXHIBIT 6.0
BUTTE COAL, INC. AND WORLD LINK CAPITAL, LLC ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "AGREEMENT") dated September 9,
1999 is entered into by and among Butte Coal, Inc., a Utah corporation
("SELLER"), World-Link Capital LLC a Nevada Limited Liability Company
("PURCHASER").
WHEREAS, Seller is a publicly held corporation disposing of the Assets,
as herein defined; and
WHEREAS, Purchaser wishes to purchase from Seller and Seller wishes to
sell, transfer, assign and deliver to Purchaser all of the State of Utah, Trust
Lands Administration Coal Leases owned by Seller as follows: ML43951, ML43959
(the "ACQUISITION ASSETS"); Acquisition Assets on the terms and subject to the
conditions set forth herein; and
WHEREAS, Seller desires to sell, transfer, assign and deliver to
Purchaser the Acquisition Assets on the terms and subject to the conditions set
forth herein and Loan Agreement the obligations of the Purchaser hereunder;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements stated herein, the parties
hereto covenant and agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.1 ACCOUNTING TERMS.
All accounting terms not specifically defined herein shall be construed
in accordance with generally accepted accounting principles and on a basis not
inconsistent with those applied in the preparation of the financial statements
referred to in Sections 5.6 and 5.7 hereof.
SECTION 1.2 DEFINED TERMS.
As used in this Agreement, the following terms have the meanings
specified in this Section 1.2. Other capitalized terms have the meanings
assigned to them elsewhere in this Agreement.
ESCROW AGENT: means Wells Fargo Bank
GOVERNMENTAL AUTHORITY: means any nation or government, any state or
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions have, or pertaining to,
government.
LIEN: means any mortgage, pledge, hypothecation, security interest,
encumbrance, right of first refusal, option, lien, charge, condition,
restriction or burden of any kind (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease in
the nature thereof, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code of any jurisdiction).
MATERIAL ADVERSE EFFECT: means any material adverse effect on the
assets, or on the business, financial condition, properties, prospects, net
worth or results of operations of the Person with respect to which such term is
used.
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PERSON: means any individual, partnership, joint venture, corporation,
limited liability company, association, trust, unincorporated organization,
government or agency or subdivision thereof or any other entity.
LOAN: Loan means the Seller shall provide the Purchaser an additional
Loan of seventy one million five hundred thousand after Pacific International
Capital Corporation funds provides an initial Loan to purchaser of five hundred
eight million seven hundred ninety eight thousand five hundred dollars and
Purchaser has closed the purchase escrow. Terms and conditions of the Loan as
per Loan Agreement.
ARTICLE II CLOSING
SECTION 2.1 CLOSING
The closing of the purchase and sale provided for herein (the
"CLOSING") shall take place at the offices of Seller at 3168 Bel Air Dr., Las
Vegas, Nevada 89109, on September 30, 1999, or at such other place, time or date
as may be agreed upon in writing by the parties hereto (the "CLOSING DATE").
ARTICLE III PURCHASE, SALE AND DELIVERY
SECTION 3.1 ACQUISITION ASSETS.
Subject to the terms and conditions of this Agreement, and on the basis
of the representations and warranties hereinafter set forth, at the Closing
Seller shall sell, transfer, convey, assign and deliver to Purchaser, and
Purchaser shall acquire from Seller, all of the State of Utah, Trust Lands
Administration Coal Leases owned by Seller as follows: ML43951, ML43959 (the
"ACQUISITION ASSETS");
SECTION 3.2 PURCHASE PRICE
The consideration for the purchase of the Acquisition Assets is
$200,000,000 (the "PURCHASE PRICE"). Purchaser shall pay the Seller initial
payment of one hundred million dollars ($100,000,000.00) on/or before, as
defined herein; to Seller at Closing by wire transfer to an account designated
in writing by Seller or by a bank cashier's check made payable to Seller
consistent with the terms of the Loan (the "LOAN AGREEMENT") between Butte Coal,
Inc. and World-Link Capital, LLC.
SECTION 3.3 LOAN AGREEMENT
The terms of the Loan Agreement between Seller and Purchaser, the
initial proceeds from the Purchaser contemplated hereunder shall first be
applied to the purchase of Acquisition Assets, any unpaid balance, and any other
amounts owed Seller by Purchaser under the purchase agreement for the
Acquisition Assets. Term of and amount of such payments shall be as follows: 1st
payment seventy five million dollars ($75,000,000) on year from date of close of
purchase escrow. 2nd payment twenty five million dollars ($25,000,000) two (2)
years from date of close of purchase escrow by a bank cashier's check made
payable to Seller consistent with the terms of the Loan (the "LOAN AGREEMENT")
between Butte Coal, Inc. and World-Link Capital, LLC. Funds shall be wire
transferred as per instruction given in writing by Seller.
SECTION 3.4 SECURITY DEPOSIT
Security Deposit means the deposit in the amount of twenty five million
($25,000,000) provided by Seller as required by Pacific International Capital
Corporation. Further the deposit will remain in the Sellers
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or Collateral Provider's bank under their name, exclusively, with joint
signature of the Lender for the entire term of the loan unless replaced.
ARTICLE IV LIABILITIES AND OBLIGATIONS
SECTION 4.1 LIABILITIES NOT ASSUMED BY PURCHASER
Purchaser does not assume or agree to pay, perform or discharge, and
shall not be responsible for, any liabilities or obligations of Seller, whether
accrued, absolute, contingent or otherwise (collectively, the "EXCLUDED
LIABILITIES"), including, without limitation, liabilities or obligations based
on, arising out of or in connection with the following:
(a) any indebtedness (whether short-term or long-term) for
borrowed money of Seller, and any liability or obligation of Seller
under any contracts;
(b) any taxes for which Seller is liable, including, without
limitation, any taxes owned or payable on or as a result of the
original purchase of the Acquisition Assets by Seller, and any taxes
incurred with respect to the Acquisition Assets since their acquisition
by Seller;
(c) any liability or obligation (contingent or otherwise) of
Seller arising out of any claim, litigation or proceeding threatened or
pending on or before the Closing Date or any claim, litigation or
proceeding threatened or initiated after the Closing Date, to the
extent based on an act or omission of Seller occurring before the
Closing Date.
ARTICLE V REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents, warrants and agrees to and with Purchaser
as follows, which representations and warranties shall be true also
as of the Closing Date and deemed made as of such date as a result
of consummation of the Closing;
SECTION 5.1 ORGANIZATIONS; QUALIFICATION.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oklahoma. Seller has heretofore
delivered to Purchaser true, correct and complete copies of the Coal
Leases of Seller.
SECTION 5.2 AUTHORITY; ENFORCEABILITY.
Seller has all requisite corporate power and authority to own and
sell its asset/coal leases, to enter into this Agreement and to
perform under this Agreement. The execution, delivery and
performance of this Agreement and the transactions contemplated
hereby have been duly and validly authorized by all requisite
corporate action on the part of Seller (including approval by Seller
as such shareholder thereof). This Agreement has been duly and
validly executed and delivered by Seller. There is no action, claim,
suit, arbitration, investigation or proceeding pending or threatened
against Seller which purports to affect the validity or
enforceability of this Agreement or that seeks to prohibit, restrict
or delay the consummation of the transaction contemplated hereby.
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SECTION 5.3 BINDING AGREEMENT.
This Agreement constitutes, as of the date hereof, and this Agreement
and all documents and instruments required hereunder to be executed
and delivered by Seller at Closing will constitute, on the Closing
Date, legal, valid and binding obligations of Seller enforceable
against Seller in accordance with their respective terms. This
Agreement also constitutes, as of the date hereof, and this
Agreement and all documents and instruments required hereunder to be
executed and delivered by Seller at Closing will constitute, on the
Closing Date, legal, valid and binding obligations of Seller
enforceable against Seller in accordance with their respective terms.
SECTION 5.4 SINGLE-PURPOSE ENTITY.
Seller is a publicly traded entity that was purchased solely for the
purpose of acquiring the Acquisition and then selling Assets and of
further acquiring, holding and disposing of other Assets, and
accordingly, it has no other material assets besides the Acquisition
Assets, and no material liabilities. It is not a party to any other
material contract.
SECTION 5.5 NO DEFAULT; COMPLIANCE WITH LAWS AND REGULATIONS.
(a) Seller is not in default under, and no condition exists
that with notice or lapse of time or both would constitute a
default under, (i) any loan credit agreement, indenture,
evidence or indebtedness or other instrument evidencing
borrowed money to which Seller is a party or by which Seller
or any of their respective properties is bound, (ii) any
judgement, order or injunction of any court or Governmental
Authority or (iii) any other material agreement, contract,
lease or license.
(b) Seller is not in violation of any law, regulation, order,
judgement or decree of any federal or state court or Governmental
Authority applicable to its assets, properties, business or
operation.
(c) Seller does not hold licenses, certificates, permits,
franchises, consents, waivers, authorizations, approvals and
orders of Governmental Authorities as are necessary to carry on
any mining activities on the Acquisition Assets Property. Seller
is not in violation of any such license, certificate, permit,
franchise, consent, waiver, authorizations, approval or order.
All such licenses, certificates, permits, franchises, consents,
waivers, authorizations, approvals have not been issued and are
not in full force and effect, and no suspension, revocation or
cancellation thereof has been threatened.
(d) No taxes or assessments are or, based on events or
occurrences through the Closing, will be, payable in connection
with or related to the Acquisition Assets (other than sales
taxes, if any, payable in connection with the sale and purchase
contemplated herein, which sales taxes Seller agrees to pay)
that could in any way become a liability of Purchaser or create
a Lien against the Acquisition Assets.
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SECTION 5.6 ABSENCE OF CERTAIN CHANGES.
Since August 31, 1999 there has not been:
(a) any material damage, destruction or loss to any of the
Acquisition Assets, whether covered by insurance or not;
(b) any write-up or write-down of the value of any of Seller's
assets, except for write-ups or write-downs in accordance with
generally accepted accounting principles and in the ordinary
course of business and consistent with past practice;
SECTION 5.7 ACTIONS PENDING.
There is no action, claim, suit, investigation or proceeding pending or
threatened against Seller or involving any properties or rights of
Seller by or before any court, arbitrator or Governmental Authority.
SECTION 5.8 ENVIRONMENTAL.
Seller has not conducted any business therefor is in compliance with
all Environmental Laws. None of the operations of Seller or the
Acquisition Assets are the subject of federal, state or local
investigation evaluating whether any remedial action is needed to
respond to a release of any Hazardous Substance or toxic waste or
constituent into the environment. Seller has not (and no other Person
has) filed any notice under any federal, state or local law indicating
that Seller is responsible for the release into the environment or the
improper storage of any amount of any Hazardous Substance or toxic
waste or constituent, or that any such substance, waste or constituent
has been released from or is improperly stored upon the Acquisition
Assets or land on which they are situated. To Seller's knowledge,
Seller does not otherwise have any liability or contingent liability in
connection with any violation of Environmental Laws or in connection
with the release or threatened release into the environment or the
improper storage of any Hazardous Substance or toxic waste or
constituent related to the Acquisition Assets. All notices, permits,
licenses or similar authorizations, if any, required to be obtained or
filed in connection with the operations of Seller related to the
Acquisition Assets, including, without limitation, present or past
treatment, storage, disposal or release of a Hazardous Substance or
toxic waste into the environment, have been duly obtained or filed, and
Seller is in compliance with the terms and conditions of all such
notices, permits, licenses and similar authorizations. To Seller's
knowledge, there has been no release or threatened release of any
Hazardous Substances or toxic waste on or from the Acquisition Assets
or the land on which they are situated that either (a) is not in
compliance with Environmental Laws or (b) could create an obligation or
liability of Seller under Environmental laws, and there are no storage
tanks or other containers on or under any from the Acquisition assets
or the land on which they are situated from which Hazardous Substances
or other contaminants may be released into the surrounding environment.
No claims are pending or threatened by third parties against Seller or
Seller alleging liability for exposure to Hazardous Substances in
connection with the Acquisition Assets. There have been no
environmental investigations, studies, audits, reviews or other
analyses conducted by
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or which are in the possession of Seller regarding from the
Acquisition Assets which have not been delivered to Purchaser.
SECTION 5.9 TITLE TO PROPERTIES.
Seller has good and marketable title to the Acquisition Assets and the
Acquisition Assets are not subject to any Lien.
SECTION 5.10 SOLVENCY.
Seller is not insolvent and neither will be rendered insolvent by the
occurrence of the transactions contemplated by this Agreement. In
addition, immediately after giving effect to the consummation of the
transactions contemplated by this Agreement, (a) As used in this
Section, (x) "insolvent" means, for any Person, that such Person is
unable to pay its obligations as they become due in the usual course of
its affairs, and that the sum of the present fair saleable value of its
assets does not and/or will not exceed its debts and other probably
liabilities, and (y) the term "debts" includes any legal liability,
whether matured or unmatured, liquidated or unliquidated, absolute,
fixed or contingent, disputed or undisputed or secured or unsecured.
SECTION 5.11 CONDITIONS OF ACQUISITION ASSETS.
Seller has no knowledge of any problems with the Acquisition Assets.
SECTION 5.12 COPIES OF DOCUMENTS.
Seller has provided Purchaser with true, complete and correct copies of
as attached hereto are true, complete and correct copies of such
documents; and all documents furnished by Seller in connection with
Purchaser's due diligence activities related to the purchase and sale
contemplated herein, including all documents listed in SCHEDULE 5.15
are true, correct and complete. Documents.
SECTION 5.13 DISCLOSURE.
There is no fact known to Seller that has specific application to
Seller, or the Acquisition Assets (other than general economic or
industry conditions) that would have a Material Adverse Effect with
respect to any of the foregoing that has not been set forth in this
Agreement or in the schedules attached hereto. Seller is not aware of
any document or information other than as disclosed in SCHEDULE 5.15
that contains information relevant to the condition of or title to the
Acquisition Assets or any of the transactions or activities related
thereto described in the document referred to in Section 5.15.
ARTICLE VI REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser hereby represents, warrants and agrees to and with Seller as
follows:
SECTION 6.1 CORPORATE EXISTENCE.
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Purchaser is a Limited Liability Company duly organized, validly
existing and in good standing under the laws of the State of Nevada.
Purchaser is duly licensed or qualified as a foreign entity to do
business, and is in good standing, in Nevada.
SECTION 6.2 AUTHORITY; ABSENCE OF CONFLICTS; ENFORCEABILITY
Purchaser has all requisite corporate power and authority to carry on
its business as presently conducted, to enter into this Agreement and
to perform its obligations under this Agreement. The execution,
delivery and performance of this Agreement and the transactions
contemplated hereby have been duly and validly authorized by all
requisite corporate action on the part of Purchaser. This Agreement has
been duly and validly executed and delivered by Purchaser. The
consummation of the transactions contemplated by this Agreement will
not violate, or be in conflict with, any provision of Purchaser's
charter, bylaws, any agreement or instrument to which Purchaser is a
party or by which Purchaser is bound or any law applicable to
Purchaser. There is no action, claim, suit, arbitration, investigation
or proceeding pending or threatened against Purchaser which purports to
affect the validity or enforceability of this Agreement or that seeks
to prohibit, restrict or delay the consummation of the transactions
contemplated hereby.
SECTION 6.3 BINDING AGREEMENT.
This Agreement constitutes, as of the date hereof, and this Agreement
and all documents and instruments required hereunder to be executed and
delivered by Purchaser at Closing will constitute, on the Closing Date,
legal, valid and binding obligations of Purchaser enforceable against
Purchaser, as the case may be, in accordance with their respective
terms.
SECTION 6.4 REGULATORY APPROVALS.
No filings or other regulatory approvals are required to be filed or
obtained by Purchaser in connection with the execution, delivery and
performance by Purchaser of this Agreement prior to the consummation of
the transactions contemplated herein.
SECTION 6.5 ACKNOWLEDGEMENT.
Purchaser acknowledges that Seller has no right to purchase the site on
which the Acquisition Assets are situated and that the Acquisition
Assets consist solely all of the State of Utah, Trust Lands
Administration Coal Leases owned by Seller as follows: ML43951, ML43959
(the "ACQUISITION ASSETS").
ARTICLE VII COVENANTS
SECTION 7.1 SELLER'S COVENANTS.
Seller jointly and severally covenant and agree with Purchaser as
follows:
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(a) Access. Except, as permitted hereunder or contemplated
hereby or as consented to in writing by Purchaser, through the
Closing Date Seller will permit Purchaser to have full access
to the Acquisition Assets.
(b) Public Announcements and Disclosure of Company Information.
Subject to applicable law, at all times until the Closing. Seller
will promptly advise of Purchaser before issuing, or permitting
any of Seller's directors, officers, representatives or agents
to issue any press release with respect to this Agreement or the
transactions contemplated hereby.
(c) Other Officers. Except in connection with the transactions
contemplated by this Agreement, from and after the date hereof,
Seller shall not, knowingly permit any of its officers,
directors, representatives or agents to, directly or indirectly,
solicit, initiate or knowingly encourage any offer or proposal
for, or any indication of interest in, a merger or business
combination involving Seller or the acquisition of an equity
interest in Seller, or all or any a substantial portion of the
Acquisition Assets.
(d) Representations and Warranties. Seller will cause the
representations and warranties contained in Article V hereof to
be true and correct through the Closing Date and shall ensure
the satisfaction of the conditions to Closing set forth in
Section 8.1 hereof (other than Section 8.1(g)).
(e) Further Assistance. Seller shall execute and deliver to
Purchaser, at the Closing or promptly thereafter, any other
instrument which may be requested by Purchaser and which is
reasonably appropriate to perfect or evidence the sales,
assignments, transfers or conveyances contemplated by this
Agreement.
(f) Actions Related to Acquisition Assets. Seller shall not
disturb the soil on the site on which the Acquisition Assets
are situated.
SECTION 7.2 PURCHASER'S COVENANTS.
Purchaser covenants and agrees with Seller as follows:
(a) Public Announcements and Disclosure of Company Information.
Subject to applicable law, at all times until the Closing
Purchaser will promptly advise, and obtain the approval of,
Seller before issuing, or permitting any of Purchaser's
directors, officers, employees, representatives, agents or
subsidiaries to issue, any press release with respect to this
Agreement or the transactions contemplated hereby.
(b) Representations and Warranties. Purchaser will cause the
representations and warranties contained in Article VI hereof
to continue to be true and correct through the Closing Date
and ensure the satisfaction of the conditions to Closing set
forth in Section 8.2 hereof (other than Section 8.2(d)).
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ARTICLE VIII CONDITIONS TO CLOSING
SECTION 8.1 CONDITIONS TO OBLIGATIONS OF PURCHASER.
The obligations of Purchaser to consummate the transactions
contemplated herein are subject, at the option of Purchaser, to
satisfaction of the following conditions:
(a) Compliance. Seller shall have complied with their covenants
and agreements contained herein, and the representations and
warranties contained in Article V hereof shall be true and
correct on the date hereof and as of the Closing Date as if made
on such date.
(b) Seller's Affidavits. Purchaser shall have received a sworn
affidavit, dated the Closing Date, of Seller and of an executive
officer of Seller certifying as to the matters specified in
Section 8.1(a) hereof.
(c) Seller's Resolutions. Seller shall deliver to Purchaser
certified copies of resolutions duly adopted by the board of
directors of Seller authorizing and approving the execution and
delivery of the Agreement, including the exhibits and schedules
hereto, and the consummation of the transactions contemplated
herein.
(d) Transfer Documents. Seller shall execute and deliver to
Purchaser such bills of sale and other instruments of sale,
transfer, conveyance, assignment and delivery covering the
Acquisition Assets or any part thereof, executed by Seller or
other appropriate parties, as Purchaser may reasonably require
to secure the full and effective sale, transfer, conveyance,
assignment and delivery to Purchaser of the Acquisition Assets,
including, but not limited to, the following:
(i) a general conveyance (the "BILL OF SALE AND
ASSIGNMENT") transferring to Purchaser good and marketable
title to all of the Acquisition Assets, substantially in
the form of Exhibit A hereto;
(ii) such other instruments of transfer and assignment in
respect of the Acquisition Assets and Purchaser shall
reasonably require and as shall be consistent with the
terms and provisions of this Agreement and The Loan
Agreement. Prior to the Closing Date, Seller will take
such reasonable steps as may be requisite or appropriate
so that no later than the close of business on the Closing
Date, Purchaser will be in actual ownership and control of
all of the Acquisition Assets only subject to The Loan
Agreement.
(g) Orders, Etc. No action, suit or proceeding shall have
been commenced or shall be pending or threatened, and no statue,
rule, regulation or order shall have been enacted, promulgated,
issued or deemed applicable to the transactions contemplated by
this Agreement, by any Governmental Authority or court that
reasonably may be expected to (i) prohibit Purchaser's ownership
or operation of all or a material portion of the Acquisition
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Assets as a result of the transactions contemplated by this
Agreement or (ii) prohibit consummation of the transaction
contemplated by this Agreement.
(h) Consents. All consents and approvals required in
connection with the execution, delivery and performance by
Seller of this Agreement shall have been obtained.
(i) Other Documents. Seller shall deliver to Purchaser
such other documents instruments and certificates as may be
reasonably requested by Purchaser.
(j) Condemnation; Condition. No condemnation proceedings
shall have been initiated or threatened with respect to any of
the Acquisition Assets.
SECTION 8.2 CONDITIONS TO OBLIGATIONS OF SELLER.
The obligations of Seller to consummate the transactions contemplated
herein are subject, at the option of Seller, to satisfaction of the
following conditions:
(a) Compliance. Purchaser shall have complied with its
covenants and agreements contained herein, and the
representations and warranties contained in Article VI hereof
shall be true and correct on the date hereof and as of the
Closing Date.
(b) Purchaser's Certificate. Seller shall have received a
certificate, dated the Closing Date, of an executive officer
of Purchaser certifying as to the matters specified in Section
8.2(a) hereof.
(c) Purchaser's Resolutions. Purchaser shall deliver to Seller
certified copies of resolutions duly adopted by the board of
directors of Purchaser authorizing and approving the execution
and delivery of this Agreement and the consummation of the
transactions contemplated herein.
(d) Orders, Etc. No action, suit or proceeding shall have been
commenced or shall be pending or threatened, and no statute,
rule, regulation or order shall have been enacted, promulgated,
issued or deemed applicable to the transactions contemplated by
this Agreement, by any Governmental Authority or court that
reasonably may be expected to prohibit consummation of the
transactions contemplated by this Agreement.
(e) Consents. All consents and approvals required in connection
with the execution, delivery and performance by Purchaser of
this Agreement shall have been obtained.
(f) Other Documents. Purchaser shall deliver to Seller such
other documents, instruments and certificates as may be
reasonably required by Seller.
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ARTICLE IX TERMINATION
SECTION 9.1 GROUNDS FOR TERMINATION.
This Agreement may be terminated at any time prior to the Closing Date:
(a) By the mutual written agreement of Seller and Purchaser;
(b) By Purchaser if any of the conditions set forth in
Section 8.1 hereof shall have become incapable of fulfillment
and shall not have been waived by Purchaser;
(c) By Seller if any of the conditions set forth in
Section 8.2 hereof shall have been incapable of fulfillment and
shall not have been waived by Seller;
(d) By Seller or Purchaser by written notice thereof to
the other if the transactions contemplated hereby shall not have
been consummated on or before September 27, 1999, or such other
date, if any, as Seller and Purchaser shall agree upon in
writing; or
(e) By Seller or Purchaser if the consummation of the
transactions contemplated hereby would violate any
nonappealable final order, decree or judgment of any court or
Government Authority having competent jurisdiction enjoining,
restraining, or otherwise preventing, or awarding substantial
damages in connection with, or imposing a material adverse
condition upon, the consummation of this Agreement or the
transactions contemplated hereby;
PROVIDED, HOWEVER, that a party shall not be allowed to exercise any right of
termination pursuant to this Section 9.1 if the event giving rise to
such termination right shall be due to the failure of the party
seeking to terminate this Agreement to perform or observe in any
material respect any of the covenants or agreements set forth herein
to be performed or observed by such party or the breach of warranty of
such party.
SECTION 9.2 EFFECTS OF TERMINATION.
The following provisions shall apply in the event of a termination of
this Agreement:
(a) Subject to subsections (b) and (c) of this section 9.2, if
this Agreement is terminated by Seller or by Purchaser as
permitted under Section 9.1 hereof, such termination shall be
without liability to any party to this Agreement or any
stockholder, director, officer, employee, agent or
representative of such party.
(b) If this Agreement is terminated as a result of breach of
warranty of Purchaser, or failure of Purchaser, to perform
their respective obligations hereunder, Seller shall have all
available rights and remedies at law and in equity, including
the right to enforce specific performance.
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(d) The parties hereto hereby agree that the provisions of
Section 9.2, 11.1 and 11.5 and 11.7 hereof and Article X
hereof shall survive any termination of this Agreement.
ARTICLE X INDEMNIFICATION
SECTION 10.1 SELLER'S INDEMNITY OBLIGATIONS.
Seller, shall indemnify and hold Purchaser (including its affiliates
and their respective officers, directors, employees and agents)
harmless from and against any and all claims, actions, causes of
action, arbitration's, proceedings, losses, damages, liabilities,
judgements and expenses (including, without limitation, reasonable
attorneys' fees) ("INDEMNIFIED AMOUNTS") incurred by Seller as a
result of (a) any breach or misrepresentation in any of the
representations and warranties made by or on behalf of Seller in this
Agreement, (b) any violation or breach by Seller of or default by
Seller under the terms of this Agreement, (c) any act or omission by
Seller, (d) any action, claim, suit, arbitration, investigation or
proceeding initiated by Seller which purports to affect the validity
or enforceability of this Agreement or that seeks to prohibit,
restrict or delay the consummation of the transactions contemplated
hereby, or (e) any liabilities or obligations of Seller retained by
Seller pursuant to this Agreement.
SECTION 10.2 PURCHASER'S INDEMNITY OBLIGATIONS.
Purchaser shall indemnify and hold Seller (including its officers,
directors and agents) harmless from and against any and all
Indemnified Amounts incurred by Seller, as the case may be, as a
result of (a) any breach or misrepresentation in any of the
representations and warranties made by or on behalf of Purchaser in
this Agreement, (b) any violation or breach by Purchaser of or default
by Purchaser under the terms of this Agreement, (c) except for
liabilities and obligations retained by Seller pursuant to this
Agreement, any act or omission occurring after the Closing Date by
Purchaser with respect to the Acquisition Assets.
SECTION 10.3 INDEMNIFICATION PROCEDURES.
All claims for indemnification under this Agreement shall be asserted
and resolved as follows:
(a) A party claiming indemnification under this Agreement (an
"INDEMNIFIED PARTY") shall with reasonable promptness (i) notify the
party from whom indemnification is sought (the "INDEMNIFYING PARTY")
of any third-party claim or claims asserted against the Indemnified
Party ("THIRD PARTY CLAIM") for which indemnification is sought and
(ii) transmit to the Indemnifying Party a copy of all papers served
with respect to such claim (if any) and a written notice ("CLAIM
NOTICE") containing a description in reasonable detail of the nature
of the Third Party Claim, an estimate of the amount of damages
attributable to the Third Party Claim to the extent feasible (which
estimate shall not be conclusive of the final amount of such claim)
and the basis of the Indemnified Party's request for indemnification
under this Agreement.
Within 30 days after receipt of any Claim Notice (the "ELECTION
PERIOD"), the Indemnifying party shall notify the Indemnified Party
(i) whether the Indemnifying Party disputes its potential liability
<PAGE>
to the Indemnified party with respect to such Third Party Claim and
(ii) whether the Indemnifying Party desires, at the sole cost and
expense of Indemnifying Party, to defend the Indemnified Party against
such Third Party Claim.
If the Indemnifying Party notifies the Indemnified Party within the
Election Period that the Indemnifying Party elects to assume the
defense of the Third Party Claim, than the Indemnifying Party shall
have the right to defend, at its sole cost and expense (if the
Indemnified Party is entitled to indemnification hereunder), such
Third Party Claim by all appropriate proceedings, which proceedings
shall be prosecuted diligently by the Indemnifying Party to a final
conclusion or settled at the discretion of the Indemnifying Party in
accordance with this Section 10.3(a). The Indemnifying Party shall
have full control of such defense and proceedings. The Indemnified
Party is hereby authorized, at the sole cost and expense of the
Indemnifying party (but only if the Indemnified Party is entitled to
indemnification hereunder), to file, during the Election Period, any
motion, answer or other pleadings that the Indemnified Party shall
reasonably deem necessary or appropriate to protect its interests or
those of the Indemnifying Party and not prejudicial to the
Indemnifying Party (it being understood and agreed that if an
Indemnified party takes any such action that is materially prejudicial
and causes a final adjudication that is adverse to the Indemnifying
Party, the Indemnifying Party shall be relieved of its obligations
hereunder with respect to such Third Party Claim). If requested by the
Indemnifying Party, the Indemnified party agrees to cooperate with the
Indemnifying party and its counsel in contesting any Third Party Claim
that the Indemnifying Party elects to contest, including, without
limitation, the making of any related counterclaim against the person
asserting the Third Party Claim or any cross-complaint against any
person. Except as otherwise provided herein, the Indemnified Party may
participate in, but not control, any defense or settlement of any
Third Party Claim controlled by the Indemnifying Party pursuant to
this Section 10.3 and shall bear its own costs and expenses with
respect to such participation.
If the Indemnifying Party fails to notify the Indemnified Party within the
Election Period that the Indemnifying Party elects to defend the
Indemnified Party pursuant to the preceding paragraph, or if the
Indemnifying Party elects to defend the Indemnified Party but fails to
prosecute or settle the Third Party Claim as herein provided, then the
Indemnified Party shall have the right to defend, at the sole cost and
expense of the Indemnifying Party (if the Indemnified Party is
entitled to indemnification hereunder). The Third Party Claim by all
appropriate proceedings, which proceedings shall be promptly and
vigorously prosecuted by the Indemnified party to a final conclusion
or settled. The Indemnified Party shall have full control of such
defense and proceedings. Notwithstanding the foregoing, if the
Indemnifying party has delivered a written notice to the Indemnified
party to the effect that the Indemnifying Party disputes its potential
liability to the Indemnified Party under this Article X and if such
dispute is resolved in favor of the Indemnifying party, the
Indemnifying party shall not be required to bear the costs and
expenses of the Indemnified Party's defense pursuant to this Section
10.3 or of the Indemnifying Party's participation therein at the
indemnified Party's request, and the Indemnified Party shall reimburse
the Indemnifying Party in full for all costs and expenses of such
litigation. The Indemnifying Party may participate in, but not
control, any defense or settlement controlled by the indemnified party
pursuant to this Section 10.3, and the Indemnifying Party shall bear
its own costs and expenses with respect to such participation.
<PAGE>
The Indemnifying Party shall not settle or compromise any Third Party
Claim unless (i) the terms of such compromise or settlement require no
more than the payment of money (i.e., such compromise or settlement
does not require the Indemnified Party to admit any wrongdoing or take
or refrain from taking any action), (ii) the full amount of such
monetary compromise or settlement will be paid by the Indemnifying
Party, and (iii) the Indemnified Party receives as part of such
settlement a legal, binding and enforceable unconditional satisfaction
and/or release, in form and substance reasonably satisfactory to it,
providing that such Third Party Claim and any claimed liability of the
Indemnified party with respect thereto is being fully satisfied by
reason of such compromise or settlement and that the Indemnified Party
is being release from any and all obligations or liabilities it may
have with respect thereto. The Indemnified Party shall not settle or
admit liability to any Third Party Claim without the prior written
consent of the Indemnifying Party.
(b) In the event any Indemnified Party should have a claim
against any Indemnifying Party hereunder that does not involve a Third
Party Claim, the Indemnified Party shall transmit to the Indemnifying
Party a written notice (the "INDEMNITY NOTICE") describing in
reasonable detail the nature of the claim, an estimate of the amount
of damages attributable to such claim to the extent feasible (which
estimate shall not be conclusive if the final amount of such claim)
and the basis of the Indemnified Party's request for indemnification
under this Agreement.
SECTION 10.4 DETERMINATION OF INDEMNIFIED AMOUNTS.
The Indemnified Amounts payable by an Indemnifying Party hereunder
shall be determined (i) by the written agreement of the parties, (ii)
by a final judgment or decree of any court of competent jurisdiction,
or (iii) by any other means agreed to in writing by the parties. A
judgement of decree of a court shall be deemed final when the time for
appeal, if any, shall have expired and no appeal shall have been taken
or when all appeals taken have been fully determined. The Indemnified
Party shall have the burden of proving the Indemnification Amounts
suffered by the Indemnified Party.
ARTICLE XI MISCELLANEOUS
SECTION 11.1 COMMISSIONS.
Seller and Purchaser each represent and warrant that it has done
nothing to create any liability for the payment of any commission or
compensation in the nature of a finder's fee or similar fee to any
broker or any other Person in connection with this Agreement and the
transactions contemplated hereby. Seller, shall indemnify and hold
Purchaser harmless from and against any and all claims for finders'
fees, brokers' commissions or similar fees made by any party as a
result of this Agreement and the transactions contemplated hereunder
to the extent that any such commission or fee was incurred, or alleged
to have been incurred, by, through or under Seller. Purchaser shall
indemnify and hold Seller harmless from and against any and all claims
for finders' fees, brokers' commissions or similar fees made by any
party as a result of this Agreement and transactions contemplated
hereunder to the extent that any such commission was incurred, or
alleged to have been incurred, by, through or under Purchaser.
SECTION 11.2 SURVIVAL.
<PAGE>
Except as otherwise provided herein, the representations and warranties
set forth in this Agreement and in any certificate or instrument
delivered in connection herewith shall be continuing and shall survive
the Closing for a period of four (4) years, notwithstanding any
investigation at any time made by or on behalf of Purchaser, but shall
thereafter terminate and be of no further force or effect; PROVIDED,
HOWEVER, that in the case of all representations and warranties, there
shall be no such termination with respect to any such representation
or warranty as to which a bona fide claim has been asserted by written
notice of such claim delivered to the party or parties making such
representation or warranty prior to the expiration of the survival
period.
SECTION 11.3 EXPENSES.
Except as other expressly provided herein, each party shall bear its
own expenses incurred in connection with the negotiation, preparation
and execution of this Agreement and the transactions contemplated
hereby, including its own consultant's fees, attorney's fees,
accountant's fees, loan fees and other similar costs and expenses.
SECTION 11.4 NOTICE.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been received only if and when (i) personally
delivered or (ii) on receipt after mailing, by United States mail,
first class, postage prepaid, by certified mail return receipt
requested, or by facsimile transmission to the respective parties,
addressed in each case as follows (or to such other address as may be
specified by like notice):
(1) If to Seller, to:
Butte Coal, Inc.
3168 Bel Air Drive
Las Vegas Country Club
Las Vegas, Nevada 89109
Fax No.: 702-360-4566
With a copy to:
F. W. Young
P.O. Box 29225
Las Vegas, Nevada 89126
Fax No.: 702-360-4566
(2) If to Purchaser, to:
World-Link Capital, LLC
3240 Camern St., Ste. A
Las Vegas, Nevada 89102
<PAGE>
SECTION 11.5 ENTIRE AGREEMENT.
This Agreement, including all schedules and exhibits hereto, which
schedules or exhibits are incorporated herein by reference and deemed
to be a part of this Agreement, constitutes the entire agreement of
the parties with respect to the subject matter hereof, and may not be
modified, amended or terminated except by a written instrument
specifically referring to this Agreement signed by all the parties
hereto.
SECTION 11.6 GOVERNING LAW; VENUE.
This Agreement shall be governed, construed and enforced in accordance
with the laws of the State of Nevada without giving effect to the
principle of conflicts of laws thereof. Any legal action or proceeding
with respect to this Agreement shall be brought in the federal
district courts located in Las Vegas, Nevada. The parties waive any
objection to jurisdiction or venue in such jurisdiction.
SECTION 11.7 ASSIGNMENTS AND THIRD PARTIES.
Except as otherwise provided herein, this Agreement shall be binding
upon and inure to the benefit of the party's hereto and their
respective successors and assigns. No party hereto shall assign this
Agreement or any part hereof without the prior written consent of the
other party. No assignment shall release a party of any of its
obligations under this Agreement.
SECTION 11.8 SEVERABILITY.
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of law or public policy, all
other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any of the parties hereto. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner
to the end that the transactions contemplated hereby are fulfilled to
the extent possible.
SECTION 11.9 AMENDMENTS; NO WAIVER.
Any provision of this Agreement may be amended or waived prior to the Closing
Date if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by all parties hereto, or in the
case of a waiver, by the party against whom the waiver is to be
effective. No failure or delay by any party to exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
SECTION 11.10 NO THIRD PARTY BENEFICIARIES.
<PAGE>
Nothing in this Agreement shall entitle any Person other than the
parties hereto or their respective successors and assigns permitted
hereby to any claim, cause of action, remedy or right of any kind.
SECTION 11.11 HEADINGS; USE OF CERTAIN TERMS.
The headings and table of contents herein are for convenience only and
shall have no significance in the interpretation hereof. Unless the
context shall otherwise require, the singular shall include the plural
and vice versa and each pronoun in any gender shall include all other
genders.
SECTION 11.12 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of
which shall be deemed for all purposes to be as original, but all of
which together shall constitute on and the same agreement.
SECTION 11.13 ARMS-LENGTH TRANSACTION.
Seller acknowledges that this Agreement and the transactions
contemplated hereby constitute arms-length transactions and that Seller
is receiving reasonably equivalent value in exchange for the transfers
contemplated by this Agreement.
SECTION 11.14 ANCILLARY DOCUMENTS SIMULTANEOUSLY EXECUTED.
Simultaneously with the execution and deliver of this Agreement, the
parties and Escrow Agent are executing and delivering to one another
an Escrow Agreement providing for the handling of the escrow agent of
the deposit. In addition, Seller is delivering a Guaranty Agreement
guaranteeing the performance of the obligations of Seller under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
first above written.
PURCHASER:
WORLD-LINK CAPITAL, LLC
By: S/O/F
-------------------------------
Name: Harold Van Hoose
Title: Manager-Director
SELLER:
BUTTE COAL, INC.
By: S/O/F
-------------------------------
Name: Winfield Moon, Sr.
Title: President
