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Document Preview Master Agreement |
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Title: |
Master Agreement |
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Entities: |
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Date: |
2006 |
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Size: |
65KB total |
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Price: |
$43 |
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ID: |
#1201221 |
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Start of Preview |
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Between |
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KFx Plant II, LLC |
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a Delaware limited liability company |
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and |
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ARCH COAL, INC. |
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a Delaware corporation |
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October 5, 2005 |
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TABLE OF CONTENTS |
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ARTICLE I DEFINITIONS AND INTERPRETATION |
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1.1 |
Definitions |
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1.2 |
References to Singular/Plural |
5 | ||
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1.3 |
References to Exhibits |
5 | ||
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1.4 |
Numbers and Headings |
5 | ||
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1.5 |
Gender References |
5 | ||
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1.6 |
Including |
5 | ||
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1.7 |
References to Agreement |
5 | ||
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1.8 |
References to Statutes |
5 | ||
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ARTICLE II ARCH COALS OPTION TO ENTER INTO OPERATIVE AGREEMENTS |
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2.1 |
Arch Coals Option to Enter into Operative Agreements |
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2.2 |
Operative Agreements |
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2.3 |
Delivery Requirements |
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ARTICLE III SITE OPERATIONS |
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3.1 |
Operator Activities |
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3.2 |
Third Party Grants |
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3.3 |
Data |
7 | ||
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3.4 |
Reclamation Obligation for Operator Activities |
7 | ||
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3.5 |
Initial Operator Performance Bond |
7 | ||
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ARTICLE IV REPRESENTATIONS AND WARRANTIES OF ARCH COAL |
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4.1 |
Corporate Status and Authority of Arch Coal and its Affiliates |
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4.2 |
No Conflicts |
8 | ||
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4.3 |
Consents |
8 | ||
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4.4 |
Litigation |
8 | ||
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4.5 |
Brokers |
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ARTICLE V REPRESENTATIONS AND WARRANTIES OF OPERATOR |
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5.1 |
Corporate Status and Authority |
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5.2 |
No Conflicts |
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5.3 |
Governmental Consents |
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5.4 |
Independent Evaluation |
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5.5 |
Brokers |
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ARTICLE VI COVENANTS |
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6.1 |
Additional Covenants of Arch Coal |
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6.2 |
Additional Covenant of Operator |
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ARTICLE VII CONFIDENTIALITY |
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7.1 |
Confidentiality |
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ARTICLE VIII CONSENTS AND APPROVALS |
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8.1 |
Consents and Authorizations |
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ARTICLE IX ASSIGNMENT |
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9.1 |
Binding |
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9.2 |
Permitted Assignments |
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ARTICLE X TERMINATION AND DEFAULT |
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10.1 |
Termination |
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10.2 |
Default |
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10.3 |
Return of Data |
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10.4 |
Surrender of Possession and Removal of Equipment |
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ARTICLE XI INDEMNIFICATION |
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11.1 |
Survival and Independence of Indemnification Obligations |
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11.2 |
Indemnification of Operator |
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11.3 |
Indemnification of Arch Coal |
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11.4 |
Claims |
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11.5 |
Limitations |
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ARTICLE XII MISCELLANEOUS PROVISIONS |
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12.1 |
Exclusivity of Representations and Warranties; Relationship Between the Parties |
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12.2 |
Use of Names |
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12.3 |
No Other Representations Nor Grant of Reliance |
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12.4 |
Amendment |
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12.5 |
Notices |
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12.6 |
Entire Agreement |
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12.7 |
Severability |
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12.8 |
No Waiver |
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12.9 |
Counterparts |
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12.10 |
Survival |
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12.11 |
No Implied Covenants |
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12.12 |
Force Majeure |
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12.13 |
Other Business Opportunities/No Partnership |
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12.14 |
Further Assurance |
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12.15 |
Governing Law; Jurisdiction, Venue; Waiver of Jury Trial, Injunction |
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Exhibit A Agreement for Purchase and Sale of Coal |
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Exhibit B Master Guaranty Agreement |
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Exhibit C Operating Agreement |
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Exhibit D Site Lease Agreement |
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MASTER AGREEMENT |
This Master agreement is dated and effective as of October 5, 2005 (the Effective Date), by and between KFx Plant II, LLC, a Delaware limited liability company (Operator), and Arch Coal, Inc., a Delaware corporation (Arch Coal).
Recitals
WHEREAS, Thunder Basin Coal Company, LLC, a Delaware limited liability company and a subsidiary of Arch Coal (TBCC), owns and operates the Coal Creek Mine in Campbell County, Wyoming (the Mine);
WHEREAS, Operator has licensed a proprietary process to upgrade high-moisture content fuels or other carbonaceous materials to solid fuel (including the patents, licenses, trademarks, know-how, trade secrets and other items derivative or subsumed therein, K-Fuel Process) owned by KFx Inc., a Delaware corporation (KFx); and
WHEREAS, the Parties desire to establish the terms and conditions upon which (i) Operator will construct and operate a plant at the Mine (the Plant) which will apply the K-Fuel Process to coal mined by TBCC at the Mine, (ii) Arch Coal Sales Company, Inc., a Delaware corporation and a wholly-owned subsidiary of Arch Coal (ACS), will, as agent of TBCC, sell coal produced by TBCC at the Mine to Operator for use in the Plant, (iii) Ark Land Company, a Delaware corporation and a wholly-owned subsidiary of Arch Coal (Ark Land), may, at Operators election, sell certain real property located in Campbell County, Wyoming to Operator to be used for disposal of waste produced by the Plant, and (iv) Arch Coal will have a warrant to make investments in KFxs common stock.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
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ARTICLE I |
1.1 Definitions.
ACS is defined in the Recitals.
Affiliate of a specified party shall mean any Person or entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such party. For the purposes of this definition, control(including, with correlative meaning, the terms controlling,controlled byand under common control with) means the possession, directly or indirectly, of the power to direct or cause direction of the management and policies of a Person or entity, whether through the ownership of voting securities, by contract or otherwise.
Agreement means this Master Agreement, the Recitals and all Exhibits and Schedules.
Arch Coal is defined in the Preamble.
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Arch Coal Option is defined in Section 2.1.
Arch Coal Option Notice is defined in Section 2.1.
Ark Land is defined in the Recitals.
Business Days means all days other than any Saturday, Sunday or federal holiday.
Coal Supply Agreement means the Agreement for Purchase and Sale of Coal by and between Operator and ACS attached hereto as Exhibit A.
Claim Notice is defined in Section 11.4.
Claims is defined in Section 11.4.
Data means, with respect to the Site, all (1) abstracts of title and other title information, (2) environmental reports, (3) all maps, assays, surveys, technical reports, samples and engineering data, and (4) any other data relating to the Site.
Defaulting Party is defined in Section 10.2.
Effective Date is defined in the Preamble.
Execution Date is defined in Section 2.2.
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