FOURTH AMENDMENT TO
AMENDED AND RESTATED ACQUISITION AGREEMENT AMONG SGI INTERNATIONAL, BLUEGRASS
COAL DEVELOPMENT COMPANY AND AMERICOAL DEVELOPMENT COMPANY
This Fourth Amendment to the Amended and Restated Acquisition Agreement
Among SGI International, Bluegrass Coal Development Company And Americoal
Development Company (the "Fourth Amendment"), is entered into by and between SGI
International ("SGI"), Bluegrass Coal Development Company ("Bluegrass") and
Americoal Development Company ("Americoal") effective as of September 30, 2000
(the "Effective Date"). The Fourth Amendment amends in certain particulars the
Amended and Restated Acquisition Agreement Among SGI International, Bluegrass
Coal Development Company And Americoal Development Company (the "Acquisition
Agreement") that was entered into effective December 9, 1999. Bluegrass and
Americoal are hereafter referred to collectively as "Sellers".
RECITALS
A. The Acquisition Agreement originally provided Sellers with certain rights
and privileges in the event that certain conditions had not been satisfied by
March 31, 2000; and,
B. SGI has not satisfied all of the conditions that were required to be
fulfilled by March 31, 2000, but has made significant progress toward their
being satisfied and the First Amendment extended that March 31 date to June 30,
2000 and the Second Amendment extended the date to September 30, 2000.
C. A Third Amendment provided that Brown, Todd & Heyburn PLLC would act as
Escrow Agent in place of the prior escrow agent.
D. Based on progress since June 30, it is the expectation of SGI and Sellers
that those conditions can be satisfied if an additional extension is granted SGI
from September 30, 2000 to October 31, 2000 in order to allow certain parties
interested in purchasing the ENCOAL plant from SGI and making modifications
thereto to complete due diligence and negotiations, which are close to
completion;
E. It is therefore the intent of the parties hereto to amend the March 31, 2000
date, as extended to June 30 by the First Amendment and to September 30 by the
Second Amendment, contained in the Acquisition Agreement, and Exhibits thereto,
such that the "March 31, 2000" date shall be restated to be "October 31, 2000"
with all other terms and conditions of the Acquisition Agreement to remain in
full force and effect, subject to the performance by SGI and Sellers of the
terms and conditions of this Fourth Amendment.
AGREEMENT
NOW THEREFORE, in consideration of the covenants and conditions of this
Fourth Amendment the parties do hereby agree as follows:
1. Extension. SGI and Sellers hereby agree that in consideration of the premises
contained herein and for other good and valuable consideration and in order to
provide SGI with an extension of time to satisfy certain terms and conditions of
the Acquisition Agreement as amended by the First Amendment, Second Amendment
and Third Amendment, it shall be amended as follows:
The date "March 31, 2000", referred to in the Acquisition Agreement in Sections
3.1.1(c), 3.1.1(d), 3.1.2, 7.3, and 11.3(b) is hereby amended and replaced with
the date "October 31, 2000."
2. Note Amendment . The date "March 31, 2000" appears in the Secured
Non-Recourse Promissory Note dated December 9, 1999 referenced in a draft
depicted as Exhibit 3.1D to the Acquisition Agreement. The parties hereby agree
that the original Promissory Note (the "Note") of December 9, 1999 for the
Principal Sum of $193,078 is hereby amended as follows: The date "March 31,
2000" as it appears in the Note is hereby amended and restated to be October 31,
2000, and any and all amounts due and payable under the Note are now due and
payable on October 31, 2000. To the extent that the date "March 31, 2000" as
previously amended by the Second Amendment to September 30, 2000, appears
elsewhere in the Acquisition Agreement or in instruments that were originally
referenced as exhibits to the Acquisition Agreement then that date shall also be
amended and restated to be "October 31, 2000" in the executed original
instruments.
3. Bond Costs. This extension of time provided herein is granted on the further
condition that SGI pay the cost for coverage through October 31, 2000 of the
bond obtained by Sellers pursuant to the Indemnity Agreement. The costs for the
bond for $10,000,000 are approximately $4,167 for the period October 1, 2000
through October 31, 2000. Therefore, SGI shall reimburse Bluegrass for the
premium for such bond by paying it the sum of $4,167 shall be paid to Bluegrass
on October 1, 2000.
4. Release. SGI and Bluegrass ("the Parties") represent that the Parties
negotiated and executed the Acquisition Agreement Among SGI International,
Bluegrass Coal Development Company, And Wyoming Coal Technology, Inc., dated
April 22, 1999, the Acquisition Agreement and each amendment thereto
(collectively the "Agreements") in good faith. SGI and Bluegrass release one
another from any and all claims, including but not limited to claims for
bargaining in bad faith, which arose out of the Agreements and any actions taken
thereunder prior to the date of this Fourth Amendment. Notwithstanding the
above, nothing herein shall in any way excuse or release either party from
performing all of its obligations under and pursuant to all of the terms and
conditions of the Agreements, which remain in full force and effect.
5. No Other Amendments. Except as stated herein, no other term or condition of
the Acquisition Agreement or Exhibits thereto shall be amended and all other
terms and conditions contained in the Acquisition Agreement shall continue in
full force and effect.
IN WITNESS WHEREOF the parties have executed this Fourth Amendment by
their duly authorized signatories as of the day and year first written above.
SGI INTERNATIONAL, INC. BLUEGRASS COAL DEVELOPMENT CO.
/s/ JOHN R. TAYLOR /s/ ART THOMAS
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By: John R. Taylor By: Art Thomas
Title: Senior Vice President Title: Attorney in Fact
AMERICOAL DEVELOPMENT CO.
/s/ ART THOMAS
-------------------------------
By: Art Thomas
Title: Attorney in Fact
To the extent the rights of Wyoming Coal Technology ("WCT") and AEI
Resources ("AEI") are affected by this Fourth Amendment, WCT and AEI represent
that they have each reviewed this Fourth Amendment and consent to the terms and
conditions set forth herein.
WYOMING COAL TECHNOLOGY, INC. AEI RESOURCES, INC.
/s/ ART THOMAS /s/ ART THOMAS
-------------------------------- ---------------------------
By: Art Thomas By: Art Thomas
Title: Attorney in Fact Title: Attorney in Fact
