MUTUAL RELEASE
EXECUTED BY PITTSTON (ON BEHALF OF ITSELF AND ITS AFFILIATES) IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO SELLER WHICH SHALL INCLUDE, WITHOUT
LIMITATION, A DISMISSAL BY PITTSTON AND ITS AFFILIATES OF ALL CLAIMS RELATING TO
PITTSTON COAL COMPANY V. EQUITABLE PRODUCTION COMPANY, HENRICO COUNTY CIRCUIT
COURT, VA, CA NO. CL06-1454 REMOVED TO U.S. DISTRICT COURT, E.D. VIRGINIA, CA
NO. 3:06CV494 (THE "PITTSTON LITIGATION"); AND
(F)
ASSERTED TITLE DEFECTS/CASUALTIES.
THE SUM OF ALL ASSERTED TITLE DEFECT
AMOUNTS FOR ASSERTED TITLE DEFECTS PROPERLY REPORTED UNDER SECTION 3.4(A), PLUS
THE DAMAGES RESULTING FROM ANY CASUALTY LOSS OCCURRING ON OR AFTER THE EFFECTIVE
TIME TO ALL OR ANY PORTION OF THE ASSETS, SHALL BE LESS THAN TEN PERCENT (10%)
OF THE UNADJUSTED PURCHASE PRICE.
Section 7.2
Conditions of Purchaser to Closing.
The obligations of
Purchaser to consummate the transactions contemplated by this Agreement are
subject, at the option of Purchaser, to the satisfaction on or prior to Closing
of each of the following conditions:
(A)
REPRESENTATIONS.
THE REPRESENTATIONS AND WARRANTIES OF SELLER SET FORTH
IN ARTICLE 4 SHALL BE TRUE AND CORRECT (DISREGARDING ANY MATERIALITY QUALIFIERS,
INCLUDING MATERIAL ADVERSE EFFECT) AS OF THE DATE OF THIS AGREEMENT AND AS OF
THE CLOSING DATE AS THOUGH MADE ON AND AS OF THE CLOSING DATE (OTHER THAN
REPRESENTATIONS AND WARRANTIES THAT REFER TO A SPECIFIED DATE, WHICH NEED ONLY
BE TRUE AND CORRECT, DISREGARDING ANY MATERIALITY QUALIFIERS, INCLUDING MATERIAL
ADVERSE EFFECT, ON AND AS OF SUCH SPECIFIED DATE), EXCEPT FOR SUCH BREACHES, IF
ANY, THAT IN THE AGGREGATE WOULD NOT HAVE A MATERIAL ADVERSE EFFECT;
(B)
PERFORMANCE.
SELLER SHALL HAVE PERFORMED AND OBSERVED, IN ALL MATERIAL
RESPECTS, ALL COVENANTS AND AGREEMENTS TO BE PERFORMED OR OBSERVED BY IT UNDER
THIS AGREEMENT PRIOR TO OR ON THE CLOSING DATE AND ALL DELIVERIES CONTEMPLATED
BY SECTION 8.2 SHALL HAVE BEEN MADE (OR SELLER SHALL BE READY, WILLING AND ABLE
TO IMMEDIATELY MAKE SUCH DELIVERIES);
(C)
GATHERING SYSTEM TRANSACTION. THE TRANSACTIONS CONTEMPLATED BY THE
CONTRIBUTION AGREEMENT SHALL HAVE CLOSED (OR SELLER AND ITS AFFILIATES SHALL BE
READY, WILLING AND ABLE TO SIMULTANEOUSLY CLOSE SUCH TRANSACTIONS WITH THE
TRANSACTIONS CONTEMPLATED HEREBY);
(D)
NO ACTION.
ON THE CLOSING DATE, NO SUIT, ACTION, OR OTHER PROCEEDING
(EXCLUDING ANY SUCH MATTER INITIATED BY PURCHASER OR ANY OF ITS
AFFILIATES) SHALL BE PENDING OR THREATENED BEFORE ANY GOVERNMENTAL AUTHORITY OR
BODY OF COMPETENT
36
JURISDICTION SEEKING TO ENJOIN OR RESTRAIN THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT OR RECOVER SUBSTANTIAL DAMAGES FROM PURCHASER OR
ANY AFFILIATE OF PURCHASER RESULTING THEREFROM;
(E)
LITIGATION.
(I)
SELLER AND PURCHASER SHALL HAVE COME TO A MUTUALLY AGREEABLE
SETTLEMENT OF ALL ONGOING LITIGATION AND CLAIMS BETWEEN SELLER AND PURCHASER, OR
THEIR RESPECTIVE AFFILIATES IN THE ACTION STYLED AS PINE MOUNTAIN OIL &
GAS, INC. V. EQUITABLE PRODUCTION COMPANY, USDC WD VA, ABINGDON DIVISION, CA
NO. 1:05CV095 (INCLUDING THE RELATED SEPTEMBER 22, 2005 ARBITRATION PROCEEDING),
AND PURCHASER SHALL HAVE RECEIVED A SETTLEMENT AGREEMENT EXECUTED BY SELLER (ON
BEHALF OF ITSELF AND ITS AFFILIATES) IN SUBSTANTIALLY