RNGE 8-K
Range Impact, Inc. (RNGE)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
On March 31, 2025, Range Sky View Land LLC (“Range Sky”), a wholly-owned subsidiary of Range Impact, Inc. (the “Company”), entered into a Purchase and Sale Agreement (“Purchase Agreement”) with AppleAtcha Land, LLC (“AppleAtcha”) and WV Reclaim Co, LLC (“Reclaim,” and collectively with AppleAtcha, the “Sellers”) pursuant to which Range Sky agreed to purchase and assume, among other things: (i) approximately 120,000 acres of real property interests located in Clay and Nicholas Counties, West Virginia, associated with the Fola Mining Complex, one of the largest mining complexes in Appalachia (the “Fola Mine Complex”), including surface land and mineral interest owned by Sellers; (ii) certain real property agreements, including surface leases and solar leases, associated with the Fola Mine Complex; (iii) certain coal royalty and overriding royalty agreements associated with the Fola Mine Complex; (iv) certain equipment and other personal property located at the Fola Mine Complex; (v) related accounts receivable owing to Sellers; and (vi) to the extent transferrable and subject to all required governmental approvals, fifteen (15) permits associated with the Fola Mine Complex ((i) through (vi) collectively, the “Purchased Assets”) in exchange for $2,958,516 (“Purchase Consideration”) comprised of (a) certain assumed liabilities relating to the Purchased Assets and (b) a credit against the amounts owed by Sellers to Range and its subsidiaries for the provision of various reclamation, mining and security services provided at the Fola Mine Complex. The Purchase Agreement contains terms, conditions, covenants, indemnification provisions, and representations and warranties from each of the respective parties that are customary and typical for a transaction of this nature.
AppleAtcha is a wholly-owned subsidiary of Fola Landholding, LLC (“Fola Holding”). Fola Holding is 80%-owned by Tower IV, LLC, an investment entity 100%-owned by the immediate family of Joseph E. LoConti, the Company’s largest shareholder (“LoConti”). LoConti is a manager of Fola Holding and AppleAtcha. Devica Capital, LLC (“Devica”), owns the remaining 20% of Fola Holding. Michael Cavanaugh, the Company’s Chief Executive Officer and member of the Company’s board of directors and a manager of Fola Holding and AppleAtcha, owns 100% of Devica. LoConti also owns approximately 7% of the outstanding stock of Continental Heritage Holding Company (“CHHC”) which owns 80% of Continental Heritage Insurance Company, a specialty insurance company that issued the reclamation bonds being assumed by the Company in connection with the transactions reflected by the Purchase Agreement. Edward Feighan, the Company’s Chairman of the Board, is a member of the board of directors of CHHC and owns approximately 7% of the outstanding stock of CHHC.
The foregoing description of the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement and its exhibits and schedules attached hereto as Exhibit 10.1.
Item 2.01 Completion of Acquisition or Disposition of Assets.
The information set forth in Item 1.01 above is hereby incorporated by reference into this Item 2.01 in its entirety.
On March 31, 2025, pursuant to the Purchase Agreement, Range Sky, a wholly-owned subsidiary of the Company, acquired the Purchased Assets.
Item 8.01 Other Events.
Press Release
On April 2, 2025, the Company issued a press release related to the acquisition reflected by the Purchase Agreement.
A copy of the press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
The information in this Item 8.01 (including Exhibit 99.1) is furnished pursuant to Item 8.01 and shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities of that section. This Current Report will not be deemed an admission as to the materiality of any information in this Current Report that is required to be disclosed solely by Regulation FD.
Portions of this Current Report may constitute “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. Although the Company believes any such statements are based on reasonable assumptions, there is no assurance that the actual outcomes will not be materially different due to a number of factors. Any such statements are made in reliance on the “safe harbor” protections provided under the Private Securities Litigation Reform Act of 1995. Additional information about significant risks that may impact the Company is contained in the Company’s filings with the Securities and Exchange Commission and may be accessed at www.sec.gov. The Company is under no obligation, and expressly disclaims any obligation, to update or alter its forward-looking statements, whether as a result of new information, future events or otherwise.
Item 9.01 Financial Statements and Exhibits.
(b) Pro Forma Financial Statements.
The unaudited pro forma financial information required by this Item will be filed by amendment to this Current Report on Form 8-K not later than 71 days after the date on which this Current Report on Form 8-K is required to be filed.
The information set forth under this Item 9.01 is being furnished under Items 9.01 and 2.01 and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such filing.
(d) Exhibits. The following is a list of the Exhibits filed with this report:
| Exhibit No. | Description | |
| 10.1 | Purchase and Sale Agreement by and among AppleAtcha Land, LLC, WV Reclaim Co, LLC and Range Sky View Land, LLC, effective as of March 31, 2025 | |
| 99.1 | Press Release dated April 2, 2025 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| RANGE IMPACT, INC. | ||
| Dated: April 2, 2025 | By: | /s/ Michael Cavanaugh |
| Name: | Michael Cavanaugh | |
| Title: | Chief Executive Officer | |
EXHIBIT INDEX
| Exhibit No. | Description | |
| 10.1 | Purchase and Sale Agreement by and among AppleAtcha Land, LLC, WV Reclaim Co, LLC and Range Sky View Land, LLC, effective as of March 31, 2025 | |
| 99.1 | Press Release dated April 2, 2025 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
Exhibit 10.1
PURCHASE AND SALE AGREEMENT
by and among
APPLEATCHA LAND, LLC,
a Delaware limited liability company
and
WV RECLAIM CO, LLC,
a West Virginia limited liability company
collectively, as Seller,
and
RANGE SKY VIEW LAND LLC,
an Ohio limited liability company
as Buyer,
Effective as of March 31, 2025
PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT (this “Agreement”) is entered into as of March 31, 2025 (the “Effective Date”), by and among APPLEATCHA LAND, LLC, a Delaware limited liability company (“AppleAtcha”) and WV RECLAIM CO., LLC, a West Virginia limited liability company (“WV Reclaim” and together with AppleAtcha, collectively, “Seller”), and RANGE SKY VIEW LAND LLC, an Ohio limited liability company (“Buyer”). Buyer and Seller may be collectively referred to herein as the “Parties” or each individually as a “Party”.
RECITALS
WHEREAS, AppleAtcha owns real and personal property interests in Clay and Nicholas Counties, West Virginia commonly associated with the Fola mining operations (“Fola Mine”);
WHEREAS, WV Reclaim owns thirty-six (36) permits (“Fola Permits”) associated with the Fola Mine;
WHEREAS, Buyer is a newly-formed company focused on acquiring, reclaiming and repurposing the Fola Mine;
WHEREAS, Seller desires to sell and convey, and Buyer desires to acquire and assume, certain assets associated with the Fola Mine and certain related liabilities for the consideration and on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, mutual covenants and agreements set forth herein, the benefits to be derived by each Party and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1.Defined Terms. Capitalized terms used herein and not otherwise defined shall have the meanings set forth below.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity.
“Affiliates” means, with respect to any Person, a Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, “control” (including, with its correlative meaning, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and such “control” will be presumed if any Person owns fifty-one percent (51%) or more of the voting capital stock or other ownership interests, directly or indirectly, of any other Person.
“Agreement” has the meaning given in the Preamble.
“Allocation Schedule” has the meaning given in Section 3.8.
“AppleAtcha” has the meaning given in the Preamble.
“Applicable Law” means any applicable statute, law (including any obligation arising under the common law), rule, regulation, ordinance, order, code, ruling, writ, injunction, decree or other official act of or by any Governmental Body.
“Assumed Liabilities” has the meaning given in Section 2.3.
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“Business Day” means any day other than Saturday or Sunday or a day on which banking institutions in Cleveland, Ohio are authorized by Applicable Law to close.
“Buyer” has the meaning given in the Preamble.
“Buyer Fundamental Reps” has the meaning given in Section 6.1.
“Buyer Indemnification Cap” has the meaning given in Section 6.3.
“Buyer Indemnified Parties” has the meaning given in Section 6.2.
“Buyer Maximum Cap” has the meaning given in Section 6.3.
“Closing” has the meaning given in Section 3.1.
“Closing Date” has the meaning given in Section 3.1.
“Coal Royalty Agreements” has the meaning given in Section 2.1(c).
“Consideration” has the meaning given in Section 3.2.
“Contura” has the meaning given in Section 3.7.
“Deed” has the meaning given in Section 3.4(b).
“Direct Claim” has the meaning given in Section 6.5.
“Effective Date” has the meaning given in the Preamble.
“Encumbrances” means any lien, pledge, mortgage, deed of trust, security interest, attachment, judgment, easement, right of way, servitude, covenant, encroachment, exception, reservation, lease, restriction, permit, condition, claim, charge, defect, hypothecation or irregularity, encumbrance or any other adverse claim or similar encumbrance whatsoever.
“Environmental Laws” means any Applicable Law relating to (i) the protection, preservation or conservation of the environment or natural resources, (ii) the protection of human health and safety as it pertains to exposure to Hazardous Materials, or (iii) the handling, use, presence, transport, disposal, treatment, storage, release, discharge or threatened release or discharge of any Hazardous Materials.
“Excluded Assets” has the meaning given in Section 2.2.
“Excluded Coal Royalty Agreements” has the meaning given in Section 2.2(c).
“Excluded Land Agreements” has the meaning given in Section 2.2(b).
“Excluded Permits” has the meaning given in Section 2.2(d).
“Excluded Permits Contingent Liability” has the meaning given in Section 3.3.
“Excluded Personal Property” has the meaning given in Section 2.2(e).
“Excluded Real Property” has the meaning given in Section 2.2(a).
“Fola Mine” has the meaning given in the Recitals.
“Fola Permits” has the meaning given in the Recitals.
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“Governmental Body” means any (i) federal, state, local, municipal, or special purpose unit of government, (ii) governmental or quasi-governmental authority of any nature, including any governmental or regulatory agency, branch, department, public official, commission, board, court or other tribunal, or (iii) person or unit of government exercising, or entitled to exercise, any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature.
“Hazardous Materials” means any chemical, pollutant, contaminant, substance, material or waste, whether naturally occurring or manmade, that (i) is identified, defined, characterized, listed, or otherwise regulated as hazardous, acutely hazardous, toxic, infectious, explosive, radioactive, carcinogenic, ignitable, corrosive, or reactive, or (ii) is otherwise subject to regulation under Environmental Laws or as to which Liabilities may be imposed under Environmental Laws. Hazardous Materials includes but is not limited to petroleum by-product, natural gas liquids, natural gas, liquefied natural gas, chlorinated solvents, radioactive materials or wastes, asbestos in any form, lead or lead-containing materials, urea formaldehyde foam insulation and polychlorinated biphenyls.
“Indemnitee” has the meaning given in Section 6.4.
“Indemnitor” has the meaning given in Section 6.4.
“Land Agreements” has the meaning given in Section 2.1(b).
“Liabilities” means any liability or obligation of whatever kind or nature (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due, and regardless of when asserted).
“Losses” means any loss, Liability, demand, judgment, claim, Action, cause of action, cost, damage, deficiency, tax, penalty, fine or expense, whether or not arising out of third-party claims (including interest, penalties, reasonable legal, consulting and other professional fees and expenses, and all amounts paid in investigation, defense, settlement or enforcement of any of the foregoing).
“New Contura Agreement” has the meaning given in Section 3.7.
“Notice of Violation” means a written notice issued by any Governmental Body advising or alleging that Seller has violated any Applicable Law, including any Environmental Law.
“Owned Real Property” has the meaning given in Section 2.1(a).
“Party” or “Parties” has the meaning given in the Preamble.
“Permitted Encumbrances” means (i) Encumbrances for Taxes not yet due and payable, (ii) statutory landlord’s, mechanic’s, carrier’s workmen’s, repairmen’s liens or other similar Encumbrances arising or incurred in the ordinary course of business for amounts which are not yet due and payable, (iii) Encumbrances arising from zoning ordinances which are not violated by the current use or occupancy of the Owned Real Property, and easements, licenses, permits, covenants and other minor restrictions of record affecting title to the Owned Real Property which do not or would not materially impair the use or occupancy of such Owned Real Property in the operation of the business conducted thereon.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated association, corporation, limited liability company, entity or Governmental Body.
“Personal Property” has the meaning given in Section 2.1(e).
“Purchased Assets” has the meaning given in Section 2.1.
“Purchased Permits” has the meaning given in Section 2.1(d).
“Range Affiliates” has the meaning given in Section 3.2.
“Reclamation Liabilities” means all reclamation obligations and other related or similar obligations arising under any Governmental Body with respect to the Fola Permits.
“Retained Liabilities” has the meaning given in Section 2.4.
“Seller” has the meaning given in the Preamble.
“Seller Fundamental Reps” has the meaning given in Section 6.1.
“Seller Indemnification Cap” has the meaning given in Section 6.2.
“Seller Indemnified Parties” has the meaning given in Section 6.3.
“Seller Maximum Cap” has the meaning given in Section 6.2.
“Screaming Eagle” means Screaming Eagle Coal, LLC, a Kentucky limited liability company, which owns and operates a coal mining and processing operation at the Fola Mine.
“Taxes” means any foreign, federal, provincial, state, county, local or other income, sales, use, ad valorem, transfer, excise, franchise, real and personal property, unmined mineral, gross receipt, capital stock, production, business and occupation, registration, profits, license, lease, service, service use, disability, employment, unemployment, estimated, environmental, stamp, premium, real property gains, windfall profits, customs, payroll, severance or withholding tax or other tax, duty, fee, assessment or charge imposed by any Governmental Body, and any interest, additions or penalties related thereto.
“Vaughan Railroad” means the real property and personal property transferred by AppleAtcha to Screaming Eagle pursuant to a Special Warranty Deed and Bill of Sale, respectively, each dated November 30, 2024.
“WV Reclaim” has the meaning given in the Preamble.
1.2. References and Rules of Construction. All references in this Agreement to Exhibits, Schedules, Articles, and Sections refer to the corresponding Exhibits, Schedules, Articles, and Sections of or to this Agreement unless expressly provided otherwise. Titles appearing at the beginning of any Exhibits, Schedules, Articles or Sections are for convenience only, do not constitute any part of this Agreement, and shall be disregarded in construing the language hereof. The words “this Agreement”, “herein”, “hereby”, “hereunder” and “hereof”, and words of similar import, refer to this Agreement as a whole and not to any particular Article or Section unless expressly so limited. The word “including” means including without limitation. Any conflict in real and personal property interests erroneously listed in schedules associated with “Purchased Assets” and “Excluded Assets” shall be deemed to be Excluded Assets under this Agreement.
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ARTICLE II
ASSET ACQUISITION
2.1. Asset Acquisition. Upon the terms and conditions of this Agreement, Seller agrees to sell, assign, transfer, convey and deliver to Buyer, and Buyer agrees to purchase, free and clear of all Encumbrances (other than Permitted Encumbrances), all of Seller’s right, title and interest in, to and under all of the assets, properties and rights of every kind and nature, whether real, personal or mixed, tangible or intangible, located at the Fola Mine, other than the Excluded Assets (collectively, the “Purchased Assets”), including all of the following:
(a) All real property, including surface property, coal and any substances owned by Seller, together with all rights, easements and privileges appurtenant thereto or associated therewith, as identified on Schedule 2.1(a) (collectively, the “Owned Real Property”);
(b) All real property agreements, including surface leases and solar leases, including any amounts due and owing to Seller thereunder, as identified on Schedule 2.1(b) (collectively, the “Land Agreements”);
(c) All coal royalty and overriding royalty agreements, including any amounts due and owing to Seller thereunder, as identified on Schedule 2.1(c) (collectively, the “Coal Royalty Agreements”);
(d) Upon obtaining the requisite approvals of any applicable Governmental Body and to the extent transferrable, select Permits pertaining to the Fola Mine, as set forth on Schedule 2.1(d) (collectively, the “Purchased Permits”);
(e) All improvements, fixtures, furniture, tools, office equipment, supplies, computers, telephones, motors, pumps, machinery, pipes, metal, tanks, boilers, materials and other personal property located at the Fola Mine (collectively, “Personal Property”);
(f) All accounts receivable, whether current or non-current, owed to Seller, specifically including amounts due under the Land Agreements and Coal Royalty Agreements;
(g) Except for the Excluded Assets, any tangible assets or property owned by Seller as of the Closing Date, of a type not specified or scheduled herein which are located at the Fola Mine.
2.2. Excluded Assets. Notwithstanding anything herein to the contrary contained herein, the Purchased Assets shall not include the following items (the “Excluded Assets”):
(a) All real property, including surface property, coal and any substances owned by Seller, or sold by Seller or its Affiliates prior to the Closing Date, together with all rights, easements and privileges appurtenant thereto or associated therewith, as identified on Schedule 2.2(a) (collectively, the “Excluded Real Property”), and for clarification purposes, if there is a parcel of real property referenced on both the Owned Real Property on Schedule 2.1(a) and the Excluded Real Property on Schedule 2.2(a), then the real property subject to such duplication will be deemed Excluded Real Property for the purpose of this Agreement;
(b) Real property agreements including surface leases, as identified on Schedule 2.2(b) (collectively, the “Excluded Land Agreements”);
(c) Coal royalty agreements with third parties whereby coal is mined and sold by third parties, as identified on Schedule 2.2(c) (collectively, the “Excluded Coal Royalty Agreements”);
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(d) Select Permits pertaining to the Fola Mine, and all of Seller’s rights, as set forth on Schedule 2.2(d) (collectively, the “Excluded Permits”);
(e) All personal property, as set forth on Schedule 2.2(e) (collectively, “Excluded Personal Property”);
(f) All of Seller’s equity or economic interest in Screaming Eagle Coal, LLC, a Delaware limited liability company;
(g) All of Seller’s cash, cash equivalents, bank deposits, certificates of deposit and investment securities on hand or in Seller’s bank accounts;
(h) All of Seller’s stock record books and corporate and company record books containing minutes of meetings of directors and stockholders, and any other records that relate to Seller’s organization or stock capitalization;
(i) All of Seller’s tax returns and copies of records, including any and all rights of Seller to any recoveries or refunds in respect of Taxes of Seller;
(j) All of Seller’s right, title and interest in and to each reclamation bond, surety arrangement or letter of credit, as the case may be, posted by Seller in connection with the Fola Permits; and
(k) Any assets or property not specifically included as a Purchased Asset in Section 2.2 and any assets or property not owned by Seller as of the Closing Date.
2.3. Liabilities to be Assumed by Buyer. Subject to the terms and conditions set forth herein, at Closing, Buyer shall assume, become obligated for, and hereby agrees to timely fulfill, perform, pay and discharge (or cause to be timely fulfilled, performed, paid or discharged), the following liabilities, and only the liabilities, of Seller (collectively, the “Assumed Liabilities”):
(a) Other than the Liabilities expressly retained by Seller pursuant to Section 2.4, all Reclamation Liabilities of any kind or character resulting from relating to, arising out of, or incurred in connection with the Purchased Assets, including the Purchased Permits, whether accruing or arising prior to, on or after the Closing Date;
(b) The Excluded Permits Contingent Liability; and
(c) All Liabilities for Taxes imposed on the Owned Real Property, whether accruing or arising prior to, on or after the Closing Date.
For clarification purposes, Buyer shall not assume any Liabilities of Seller other than the Assumed Liabilities.
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2.4. Liabilities to be Retained by Seller. Seller shall assume, retain and over time discharge, as and when they become due and payable, all Liabilities other than the Assumed Liabilities (collectively, the “Retained Liabilities”), including, without limitation, the following:
(a) All trade accounts payable of Seller accruing or arising prior to, on or after the Closing Date;
(b) Other than contracts or agreements expressly assumed as Purchased Assets under Section 2.1, all Liabilities under contracts and agreements, of any kind or nature, whether current or non-current, contingent or actual, entered into by Seller prior to, on or after the Closing Date;
(c) All wages, taxes and other employee-related obligations of Seller accruing or arising prior to, on or after the Closing Date;
(d) All Liabilities associated with Notice of Violations written on the Purchased Permits issued before the Closing Date, and Notice of Violations written on the Excluded Permits issued prior to, on or after the Closing Date;
(e) All Taxes other than those specifically assumed in Section 2.3(c);
(f) All Liabilities, known or unknown, contingent or otherwise, of any kind or character, to the extent relating to, based upon, attributable to, or arising out of or in connection with the Excluded Assets, including Reclamation Obligations associated with the Excluded Permits, whether accruing or arising prior to, on or after the Closing Date; and
(g) All Liabilities, of any kind or nature, whether accruing or arising prior to, on or after the Closing Date, other than those expressly set forth as Assumed Liabilities in Section 2.3.
For clarification purposes, the Parties acknowledge that the inclusion of specific Liabilities in clauses (a) through (g) above is not intended in any way to limit the definition and description of Retained Liabilities in this Section 2.4.
ARTICLE III
CLOSING AND CONSIDERATION
3.1. Closing. The closing of the transactions contemplated by this Agreement (the “Closing”) shall take place concurrently with the execution of this Agreement. The Closing shall take place remotely pursuant to the electronic exchange of documents. The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”. For all purposes under this Agreement and all other documents to be delivered hereunder, all matters at Closing will be considered to take place simultaneously, no delivery of any document will be deemed complete until all transactions and deliveries of documents are completed, and the Closing will be deemed to have occurred as of 12:01AM Eastern Standard Time on the Closing Date, irrespective of the actual occurrence of the Closing at any particular time on the Closing Date.
3.2. Consideration. At the Closing, the consideration for the transfer of the Purchased Assets and the assumption of the Assumed Liabilities and the other transactions contemplated hereunder shall be an amount equal to “$2,958,516” (“Consideration”), which Buyer and Seller hereby agree shall not be paid in the form of cash, but instead as a credit against the full amount of payments Seller owes to Buyer’s affiliates, Range Environmental Resources, Inc., Range Natural Resources, Inc., and Range Security Resources, Inc. (collectively, the “Range Affiliates”) for the provision of various reclamation, mining, and security services, respectively at the Fola Mine. For clarification purposes, Buyer shall not be required to pay any cash as part of the Consideration, and at the Closing, Seller shall have no further payment obligation due to the Range Affiliates.
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3.3. Excluded Permits. At the Closing, Buyer further agrees, as part of the consideration for the transfer of the Purchased Assets and the assumption of the Assumed Liabilities and the other transactions to be contemplated hereunder, to be responsible for the oversight, management and release of the Excluded Permits (“Excluded Permits Contingent Liability”), which responsibilities shall include resolving Reclamation Liabilities for each individual permit set forth on Schedule 2.2(d). Buyer shall satisfy the Excluded Permits Contingent Liability, in whole or in part, in one or more transactions, for the permits set forth on Schedule 2.2(d), by: (i) obtaining full Phase 3 bond release for a permit set forth on Schedule 2.2(d) from the West Virginia Department of Environmental Protection, (ii) replacing the existing bond issued against a permit set forth on Schedule 2.2(d) with a new bond from a new bond insurer, or (iii) funding an account, for the benefit of the current bond insurer, in an amount of cash equal to the penal sum of the bond issued against a permit set forth on Schedule 2.2(d). Notwithstanding the foregoing and anything herein to the contrary, Buyer shall not be liable for any of Seller’s Liabilities based upon, attributable to, or arising out of the Excluded Permits prior to the Closing Date, and furthermore, Buyer shall not be liable for any of Seller’s Liabilities related to bond premiums and permit fines and fees, based upon, attributable to, or arising out of the Excluded Permits on or after the Closing Date.
3.4. Seller’s Closing Deliverables. At the Closing, Seller shall deliver or cause to be delivered to Buyer the following:
(a) Acknowledgment and agreement of the receipt of the final accounting statement from each of the Range Affiliates stating that the outstanding account balances due from Seller have been paid in full as of the Closing Date in accordance with Section 3.2 of this Agreement;
(b) Two originals of the Special Warranty Deed (the “Deed”) for the conveyance of all of the Owned Real Property;
(c) Assignment and Assumption Agreement for the Land Agreements;
(d) Assignment and Assumption Agreement for the Coal Royalty Agreements;
(e) Interim Permit Transfer Agreement for the Purchased Permits;
(f) Bill of Sale for the Personal Property;
(g) Certificate, dated as of the Closing Date, of Seller’s Manager and President, as the case may be, attesting to, and attaching thereto: (i) each of Seller’s Articles of Organization as in effect at the time of Closing, (ii) duly executed resolutions adopted by each of the Seller’s Manager and equity owner(s), as appropriate, authorizing the transactions contemplated herein, and stating that such resolutions have not been amended, modified, revoked or rescinded, and (iii) a good standing certificate with respect to the Seller issued by the Secretary of State of the State of West Virginia and the State of Delaware, as the case may be, no more than ten (10) business days prior to the Closing Date;
(h) Such other documents or instruments as are required to be delivered by Seller at the Closing pursuant to the terms hereof or that Buyer reasonably requests prior to the Closing Date to effect the transactions contemplated hereby.
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3.5. Buyer’s Closing Deliverables. At the Closing, Buyer shall deliver or cause to be delivered to Seller the following:
(a) Final accounting statement from each of the Range Affiliates stating that the outstanding account balances due from Seller have been paid in full as of the Closing Date in accordance with Section 3.2 of this Agreement;
(b) Two originals of the Deed for the conveyance of all of the Owned Real Property;
(c) Assignment and Assumption Agreement for the Land Agreements;
(d) Assignment and Assumption Agreement for the Coal Royalty Agreements;
(e) Interim Permit Transfer Agreement for the Purchased Permits;
(f) Bill of Sale for the Personal Property;
(g) Certificate, dated as of the Closing Date, of Buyer’s Chief Executive Officer attesting to, and attaching thereto: (i) Buyer’s Articles of Organization as in effect at the time of Closing, (ii) duly executed resolutions adopted by the board of the Buyer’s sole member authorizing the transactions contemplated herein, and stating that such resolutions have not been amended, modified, revoked or rescinded, and (iii) a good standing certificate with respect to the Buyer issued by the Secretary of State of the State of Ohio no more than ten (10) business days prior to the Closing Date;
(h) Such other documents or instruments as are required to be delivered by Buyer at the Closing pursuant to the terms hereof or that Seller reasonably requests prior to the Closing Date to effect the transactions contemplated hereby.
3.6. Deed. On or shortly after the Closing Date, Buyer shall cause the Deed for the Owned Real Property to be filed with the appropriate county recorder’s office in the State of West Virginia and pay any related recording fees, transfer taxes and documentary stamps.
3.7. Contura Agreement. Shortly after the Closing Date, AppleAtcha expects to enter into a Coal Mining Lease with Contura CAPP Land, LLC, a Delaware limited liability company (“Contura”), where AppleAtcha will be the lessor and Contura will be the lessee (the “New Contura Agreement”). Seller hereby covenants to transfer and assign its rights and obligations under the New Contura Agreement to Buyer as soon as possible after AppleAtcha enters into such agreement with Contura. In addition, to the extent that the consent of Contura is required to be obtained for the foregoing assignment to be effective, then Seller shall exercise commercially reasonable efforts to procure Contura’s consent.
3.8. Purchase Price Allocation. As soon as reasonably practicable after the Closing, Buyer shall prepare and deliver a schedule (the “Allocation Schedule”) to Seller showing the allocation of the aggregate value of the Consideration, the Assumed Liabilities and any other items properly treated as consideration or purchase price for federal income tax purposes on the Closing Date. Seller shall accept such schedule and the Parties shall file all tax returns and information reports regarding this transaction in a manner consistent with the Allocation Schedule.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF SELLER
Each Seller hereby, jointly and severally, represents and warrants to Buyer that:
4.1. Organization. Each Seller is a limited liability company duly organized and validly existing and in good standing under the laws of the respective Seller’s state of organization.
4.2. Authority. Each Seller has the full power and authority to execute, deliver, and carry out the terms and provisions of this Agreement and the other documents contemplated hereby to which Seller is a party and to perform its obligations hereunder and thereunder.
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4.3. Authorization. The execution, delivery and performance of this Agreement and all of the other agreements and instruments contemplated hereby to which Seller is a party have been duly authorized by Seller and no act or other proceeding on the party of Seller is necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby and consummation of the transactions contemplated hereby or thereby.
4.4. Execution. This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable in accordance with its terms, and each of the other agreements and instruments contemplated hereby to which Seller is a party, when executed and delivered by Seller, in accordance with the terms hereof and thereof, shall have been duly executed and delivered by Seller and shall each constitute a valid and binding obligation of Seller, enforceable in accordance with their respective terms and conditions.
4.5. No Conflicts. The execution, delivery and performance by Seller of this Agreement and the other agreements contemplated hereby do not and will not in any material respect violate, conflict with or result in a breach of any provision of the organizational documents, result in a violation or breach of any material contract of Seller, or violate or conflict with any Applicable Law.
4.6. Consents. Except as set forth in Schedule 4.6, there are no prohibitions on assignment or requirements to request or obtain consent from any third party that are required in connection with the consummation of the transactions contemplated by this Agreement by Seller. To the extent that there are any consents set forth in Schedule 4.6 that are not obtained prior to the Closing Date, then the Parties shall cooperate together in good faith to obtain such consents as promptly as practicable after the Closing.
4.7. No Actions. There are no Actions pending or, to the knowledge of Seller, threatened by or against Seller and affecting the Purchased Assets, at law or in equity. There are no Actions pending or, to the knowledge of Seller, threatened by or against Seller which challenge the validity or enforceability of this Agreement or seek to rescind the transactions contemplated hereby.
4.8. Brokers or Finders Fees. No broker, investment banker, financial advisory firm or other person, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement or the transactions contemplated hereby or thereby based upon arrangements made by or on behalf of Seller.
4.9. Real Property. Seller is selling its title to the Owned Real Property “as-is” without any special warranties, other than the Owned Real Property is free and clear of Encumbrances (other than Permitted Encumbrances), created by, through and under Seller. Seller has delivered or made available to Buyer true, complete and correct copies of the material deeds, leases and other agreements by which Seller acquired or disposed of rights related to the Owned Real Property. There is no pending or threatened condemnation or eminent domain proceedings against the Seller, the Owned Real Property, or any part thereof.
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4.10. Environmental Matters. Seller, to its knowledge, is in material compliance with all Environmental Laws, and has not caused a release or discharge of any Hazardous Materials on, under, in, from, or about the Owned Real Property that has resulted in material contamination in the soils, surface water, groundwater or sediments on, under or adjacent to the Owned Real Property.
4.11. Taxes. All Taxes due and owing by Seller have been, or will be, timely paid. No extensions or waivers of statutes of limitations have been given or requested with respect to any Taxes of Seller. All tax returns required to be filed by Seller for any tax periods prior to Closing have been, or will be, timely filed. Such tax returns are, or will be, true, complete, and correct in all respects. There are no Encumbrances for taxes upon any of the Purchased Assets nor is any taxing authority in the process of imposing any Encumbrances for Taxes on any of the Purchased Assets (other than for current taxes not yet due and payable).
4.12. Disclaimers. Except for the limited representations and warranties set forth in this Article IV, none of Seller or Seller Indemnified Parties makes any representations or warranties, express or implied, and Seller expressly disclaims all liability and responsibility for any representation, warranty, statement or information made or communicated to Buyer.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller that:
5.1. Organization. Buyer is a limited liability company duly organized and validly existing and in good standing under the laws of Buyer’s state of organization.
5.2. Authority. Buyer has the full power and authority to execute, deliver, and carry out the terms and provisions of this Agreement and the other documents contemplated hereby to which Buyer is a party and to perform its obligations hereunder and thereunder.
5.3. Authorization. The execution, delivery and performance of this Agreement and all of the other agreements and instruments contemplated hereby to which Buyer is a party have been duly authorized by Buyer and no act or other proceeding on the party of Buyer is necessary to authorize the execution, delivery or performance of this Agreement or the other agreements contemplated hereby and consummation of the transactions contemplated hereby or thereby.
5.4. Execution. This Agreement has been duly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms, and each of the other agreements and instruments contemplated hereby to which Buyer is a party, when executed and delivered by Buyer, in accordance with the terms hereof and thereof, shall have been duly executed and delivered by Buyer and shall each constitute a valid and binding obligation of Buyer, enforceable in accordance with their respective terms and conditions.
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5.5. No Conflicts. The execution, delivery and performance by Buyer of this Agreement and the other agreements contemplated hereby do not and will not in any material respect violate, conflict with or result in a breach of any provision of the organizational documents, result in a violation or breach of any material contract of Buyer, or violate or conflict with any Applicable Law.
5.6. Consents. Except as set forth in Schedule 5.6, there are no prohibitions on assignment or requirements to request or obtain consent from any third party that are required in connection with the consummation of the transactions contemplated by this Agreement by Buyer.
5.7. No Actions. There are no Actions pending or, to the knowledge of Buyer, threatened by or against Buyer and affecting the Purchased Assets, at law or in equity. There are no Actions pending or, to the knowledge of Buyer, threatened by or against Buyer which challenge the validity or enforceability of this Agreement or seek to rescind the transactions contemplated hereby.
5.8. Brokers or Finders Fees. No broker, investment banker, financial advisory firm or other person, is entitled to any broker’s, finder’s, financial advisor’s or other similar fee or commission in connection with this Agreement or the transactions contemplated hereby or thereby based upon arrangements made by or on behalf of Buyer.
5.9. Disclaimers. Except for the limited representations and warranties set forth in this Article V, none of Buyer or Buyer Indemnified Parties makes any representations or warranties, express or implied, and Buyer expressly disclaims all liability and responsibility for any representation, warranty, statement or information made or communicated to Seller.
ARTICLE VI
REMEDIES AND INDEMNIFICATION
6.1. Survival Periods. The representations and warranties in this Agreement and the Schedules and Exhibits attached hereto, and the associated rights of indemnification with respect to Seller or Buyer, as the case may be, shall survive the Closing and terminate on the date which is the twenty-four (24) month anniversary of the Closing Date. Notwithstanding the foregoing, fundamental representations made by Seller in Section 4.1 through Section 4.6, and Section 4.11 (“Seller Fundamental Reps”), and fundamental representations made by Buyer in Section 5.1 through Section 5.6 (“Buyer Fundamental Reps”), shall survive indefinitely.
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6.2. Indemnification by Seller. Subject to the limitations of this Article VI, from and after the Closing, Seller shall indemnify Buyer, its Affiliates and their respective stockholders, members, officers, managers, directors, employees, agents, partners, representatives, successors and assigns (collectively, the “Buyer Indemnified Parties”) and hold them harmless against the following:
(a) Any Losses arising out of any breach by Seller of any representation or warranty made by Seller in Article IV of this Agreement, or in any other related agreement entered into in connection with the transaction contemplated hereunder;
(b) Any losses arising out of any breach by Seller of any covenant or agreement made by Seller in this Agreement, or in any other related agreement entered into in connection with the transaction contemplated hereunder;
(c) Any Losses arising out of any assets that are Excluded Assets under this Agreement; or
(d) Any Losses arising out of any liabilities that are Retained Liabilities under this Agreement;
provided, however, that the aggregate liability of Seller under this Section 6.2 shall not exceed $1,000,000 (the “Seller Indemnification Cap”) for breaches under Article IV other than breaches of Seller Fundamental Reps, and $3,000,000 (the “Seller Maximum Cap”) for breaches of Seller Fundamental Reps.
6.3. Indemnification by Buyer. Subject to the limitations of this Article VI, from and after the Closing, Buyer shall indemnify Seller, its Affiliates and their respective stockholders, members, officers, managers, directors, employees, agents, partners, representatives, successors and assigns (collectively, the “Seller Indemnified Parties”) and hold them harmless against the following:
(a) Any Losses arising out of any breach by Buyer of any representation or warranty made by Buyer in Article V of this Agreement, or in any other related agreement entered into in connection with the transaction contemplated hereunder;
(b) Any losses arising out of any breach by Buyer of any covenant or agreement made by Buyer in this Agreement, or in any other related agreement entered into in connection with the transaction contemplated hereunder;
(c) Any Losses arising out of any assets that are Purchased Assets under this Agreement;
(d) Any Losses arising out of any liabilities that are Assumed Liabilities under this Agreement;
provided, however, that the aggregate liability of Buyer under this Section 6.3 shall not exceed $1,000,000 (the “Buyer Indemnification Cap”) for breaches under Article V other than breaches of Buyer Fundamental Reps, and $3,000,000 (the “Buyer Maximum Cap”) for breaches of Buyer Fundamental Reps.
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6.4. Defense of Third-Party Claims. In the event of a claim by a third party against any Buyer Indemnified Party or Seller Indemnified Party, such Buyer Indemnified Party or Seller Indemnified Party (an “Indemnitee”), to the extent that it is seeking or making a claim for indemnification under this Article VI, shall notify (i) Buyer, if indemnity is sought from it or any Buyer Indemnified Party, or (ii) Seller, if indemnity is sought from it or any Seller Indemnified Party (the Party against whom the indemnification claim is asserted, as the case may be, the “Indemnitor”), of the claim in writing within fifteen (15) days after receiving written notice of any action, lawsuit, proceeding, investigation or other claim against it, describing the claim, the amount thereof (if known and quantifiable) and the basis thereof; provided, that the failure to provide such notification hereunder shall not relieve the Indemnitor of its obligations hereunder. Any Indemnitor shall be entitled to participate in the defense of such action, lawsuit, proceeding, investigation or other claim giving rise to an Indemnitee’s claim for indemnification or reimbursement at its own expense, and at its option, shall be entitled to assume the defense thereof by appointing a recognized and reputable counsel reasonably acceptable to the Indemnitee to be the lead counsel in connection with such defense.
6.5. Direct Claims. Any claim by an Indemnitee on account of a Loss which does not result from a third-party claim described in Section 6.4 (a “Direct Claim”) shall be asserted by the Indemnitee giving the Indemnitor written notice (with reasonable detail included in such notice, from which Indemnitor may reasonably determine the veracity of the alleged Loss) within thirty (30) days of Indemnitee obtaining actual knowledge of such alleged Loss. The failure to so notify the Indemnitor shall not relieve the Indemnitor of its obligations hereunder except to the extent (and only to the extent that) such failure shall have caused the damages for which the Indemnitor is obligated to be greater than the amount such damages would have been had the Indemnitee given the Indemnitor prompt notice hereunder. Such notice by the Indemnitee shall describe the Direct Claim, the amount thereof (if known and quantifiable) and the basis thereof. The Indemnitor shall have fifteen (15) days after its receipt of such notice to respond in writing to such Direct Claim. If the Indemnitor does not so respond within such fifteen (15) day period, or objects to the Direct Claim or otherwise fails or refuses to indemnify the Indemnitee with respect to the Direct Claim, then the Indemnitor shall be deemed to have rejected such claim, in which case the Indemnitee shall be free to pursue such remedies as may be available to the Indemnitee on the terms and subject to the provisions of this Agreement.
6.6. Mitigation. In the event of any breach giving rise to an indemnification obligation under this Article VI, each Party agrees to use commercially reasonable efforts to mitigate any Loss, liability or damage which forms the basis of a claim hereunder or in connection with the transactions contemplated hereby, including responding to such claims or liabilities in the same manner as the applicable Party would respond to such claims or liabilities in the absence of the indemnification provisions of this Agreement.
6.7. Exclusive Remedy. The indemnification obligations set forth this Article VI shall be the sole and exclusive remedy for the recovery of Losses resulting from, relating to or arising out of this Agreement and the Schedules and Exhibits attached hereto.
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ARTICLE VII
MISCELLANEOUS
7.1. Amendment and Waiver. This Agreement may be amended, and any provision of this Agreement may be waived upon the written agreement of Seller and Buyer. No course of dealing between Seller and Buyer shall be deemed effective to modify, amend or discharge any part of this Agreement. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not similar, nor shall any waiver constitute a continuing waiver.
7.2. Notices. All notices, requests, demands and other communications permitted or required to be given under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (i) when personally delivered, (ii) when sent by electronic mail, (iii) one Business Day after being sent by reputable overnight express courier, or (iv) three Business Days following mailing by certified or registered mail, postage prepaid and return receipt requested. Unless another address is specified in writing, notices, requests, demands and communications to the Parties shall be sent to the addresses indicated below:
Notices to Seller:
AppleAtcha Land, LLC
200 Park Avenue, Suite 400
Orange Village, Ohio 44122
Attn: Joseph E. LoConti, Manager
WV Reclaim Co, LLC
23811 Chagrin Boulevard, Suite 228
Beachwood, Ohio 44122
Attn: Barry Doyle, President
Notices to Buyer:
Range Sky View Land, LLC
200 Park Avenue, Suite 400
Orange Village, Ohio 44122
Attn: Michael Cavanaugh, CEO
With a mandatory copy to (which shall not constitute notice):
UB Greensfelder LLP
1660 West 2nd Street, Suite 1100
Cleveland, Ohio 44113
Attn: Howard Groedel
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7.3. Successors and Assigns. The Agreement and all of the rights, interests or obligations hereunder, by or on behalf of any of the Parties, shall bind and inure to the benefit of the respective heirs, successors and assigns of the Parties whether so expressed or not. Seller may assign its rights and obligations hereunder, in whole or in part, without the consent of Buyer, to an Affiliate of Seller. Buyer may assign its rights and obligations, in whole or in part, without the consent of Seller, to an Affiliate of Buyer or to a purchaser of the Buyer’s common stock or all or substantially all of Buyer’s assets, provided such purchaser would assume all material rights and obligations under this Agreement.
7.4. Severability. Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement is held to be prohibited by or invalid under Applicable Law, then such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
7.5. No Third-Party Beneficiaries. Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person other than the Parties and their respective permitted successors and assigns, any rights or remedies under or by reason of this Agreement.
7.6. Complete Agreement. This Agreement and the agreements and documents referred to herein contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings, whether written or oral, relating to such subject matter in any way.
7.7. Governing Law. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be governed by the internal laws of the State of Ohio without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Ohio.
7.8. Jurisdiction. Any legal suit, action or proceeding arising out of, based upon or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio, in each case located in Cuyahoga County, Ohio, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document in accordance with Section 7.2 shall be effective service of process for any suit, action or proceeding brought in any such court. The Parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in sch courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
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7.9. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM, OR COUNTERCLAIM IN ANY COURT (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH (I) THIS AGREEEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR (II) THE ACTIONS OF THE PARTIES IN THE NEGOTIATION, AUTHORIZATION, EXECUTION, DELIVERY, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREUNDER.
7.10. Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by the Parties in accordance with their specific terms or were otherwise breached by a Party. Each Party expressly waives any requirement that the other Party obtain any bond or provide any indemnity in connection with any action seeking injunctive relief or specific enforcement of the provisions of this Agreement.
7.11. Further Assurances. The Parties hereby agree that, at any time after the Closing Date, each Party will execute and deliver, or cause to be executed and delivered, such further instruments, documents, and assurances, and take such further actions as may be reasonably requested by the other Party to carry out the purposes and intent of this Agreement and all related agreements, instruments and documents contemplated herein.
7.12. Counterparts and Electronic Delivery. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Any such counterpart, to the extend delivered in PDF format attached to electronic mail, shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person.
* * * * *
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement by their duly authorized representatives as of the Effective Date.
| SELLER: | ||
| APPLEATCHA LAND, LLC, | ||
| a Delaware limited liability company | ||
| By: | ||
| Name: | Joseph E. LoConti | |
| Its: | Manager | |
| WV RECLAIM CO, LLC, | ||
| a West Virginia limited liability company | ||
| By: | ||
| Name: | Barry T. Doyle | |
| Its: | President | |
| BUYER: | ||
| RANGE SKY VIEW LAND, LLC, | ||
| an Ohio limited liability company | ||
| By: | ||
| Name: | Michael R. Cavanaugh | |
| Its: | Chief Executive Officer | |
Schedule 2.1(a)
Owned Real Property
Owned Real Property shall include all of the real property acquired by Buyer pursuant to the following deeds, but expressly excluding any real property included in the following deeds but specifically set forth as Excluded Real Property on Schedule 2.2.(a):
Source Deeds
Special Warranty Deed, dated as of August 1, 2016, by and between Braxton-Clay Land & Mineral, Inc., a West Virginia corporation, and Nicholas-Clay Land & Mineral, Inc., a Virginia corporation, each having an address of 1000 CONSOL Energy Drive, Canonsburg, PA 15317 (collectively referred to therein as “Grantors”) and Southeastern Land, LLC, a Kentucky limited liability company, having an address of 81 Enterprise Drive, Debord, KY 41214 (referred to therein as “Grantee”) of record in Deed Book 216, Page 965 in the office of the Clerk of the County Commission of Clay County, West Virginia.
Special Warranty Deed, dated as of August 1, 2016, by and between Braxton-Clay Land & Mineral, Inc., a West Virginia corporation, and Nicholas-Clay Land & Mineral, Inc., a Virginia corporation, each having an address of 1000 CONSOL Energy Drive, Canonsburg, PA 15317 (collectively referred to therein as “Grantors”) and Southeastern Land, LLC, a Kentucky limited liability company, having an address of 81 Enterprise Drive, Debord, KY 41214 (referred to therein as “Grantee”) of record in Deed Book 500, Pages 653-695 in the office of the Clerk of the County Commission of Nicholas County, West Virginia.
Grantor’s Deeds
Deed of Foreclosure, dated as of October 20, 2020, by and between Maggie B. Burrus Substitute Trustee (referred to therein as “Trustee” and “Grantor”) and AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantee”) of record in Deed Book 228, Page 971 in the office of the Clerk of the County Commission of Clay County, West Virginia.
Deed of Foreclosure, dated as of October 20, 2020, by and between Maggie B. Burrus Substitute Trustee (referred to therein as “Trustee” and “Grantor”) and AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantee”) of record in Deed Book 535, Pages 150-153 in the office of the Clerk of the County Commission of Nicholas County, West Virginia.
Deed, dated as of January 25, 2024, by and between Civil-Military Innovation Institute, Inc., a West Virginia non-profit corporation (referred to therein as “Grantor”) and AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantee) of record in Deed Book 566, Page 569 in the office of the Clerk of the County Commission of Nicholas County, West Virginia.
[The Following Individual Parcels Incorporated as Part of this Schedule 2.1(a)]
Schedule 2.1(b)
Land Agreements
| 1. | Land Lease and Solar Easement, dated as of September 7, 2021, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Lessor”), and Foal Solar, LLC, a Delaware limited liability company (referenced therein as “Lessee”). On June 30, 2023, Fola Solar LLC, a Delaware limited liability company (referenced therein as “Assignor”) assigned all of its interest in the Land Lease and Solar Easement to Nicholas County Solar Project, LLC, a Delaware limited liability company (referenced therein as “Assignee”). On August 14, 2023, Nicholas County Solar Project, LLC, a Delaware limited liability company (referenced therein as “Assignor”) assigned all of its interest in the Land Lease and Solar Easement to Deep Lake Energy Center, LLC, a Delaware limited liability company (referenced therein as “Assignee”). AppleAtcha Land remained the Lessor under the Land Lease and Solar Easement through both assignments. |
Schedule 2.1(c)
Coal Royalty Agreements
| 1. | Contract Mining Agreement, dated as of July 24, 2024, by and among Coal-Mac, LLC, a Kentucky limited liability company (referred to therein as “Contractor”), WV Reclaim Co, LLC, an Ohio limited liability company (referred to therein as “Permittee”), and AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Owner”). | |
| 2. | Coal Mining Lease, originally dated November 13, 2023, and later amended on April 18, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Lessor”), and Contura CAPP Land, LLC, a Delware limited liability company (referred to therein as “Lessee”). |
Schedule 2.1(d)
Purchased Permits
Schedule 2.2(a)
Excluded Real Property
For clarification purposes, the real property interests referenced in the deeds set forth below were transferred by Seller or its Affiliates to Screaming Eagle Coal, LLC prior to the Closing Date and therefore are expressly excluded from the transaction between Seller and Buyer and shall be deemed hereunder as Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset. If there is any conflict between the real property interests referenced below on this Schedule 2.2(a) and Owned Real Property set forth on Schedule 2.1(a), then the conflicting real property interests shall be deemed Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset.
| 1. | Quitclaim Deed, dated as of June 30, 2021, between Alliance Prime Associates, Inc., an Ohio corporation (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 231, Page 28 in the office of the Clerk of the County Commission of Clay County, West Virginia. | |
| 2. | Quitclaim Deed, dated as of June 30, 2021, between Alliance Prime Associates, Inc., an Ohio corporation (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 542, Page 44 in the office of the Clerk of the County Commission of Nicholas County, West Virginia. | |
| 3. | Quitclaim Deed, dated as of June 30, 2021, between OK Eagle, LLC, an Ohio limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 231, Page 66 in the office of the Clerk of the County Commission of Clay County, West Virginia. | |
| 4. | Quitclaim Deed, dated as of June 30, 2021, between OK Eagle, LLC, an Ohio limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 542, Page 31 in the office of the Clerk of the County Commission of Nicholas County, West Virginia. | |
| 5. | Quitclaim Deed, dated as of June 9, 2022, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 232, Page 650 in the office of the Clerk of the County Commission of Clay County, West Virginia. |
Schedule 2.2(a)
Excluded Real Property
(Continued)
| 6. | Quitclaim Deed, dated as of June 9, 2022, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 232, Page 643 in the office of the Clerk of the County Commission of Clay County, West Virginia. | |
| 7. | Quitclaim Deed, dated as of June 9, 2022, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book 549, Page 593 in the office of the Clerk of the County Commission of Nicholas County, West Virginia. | |
| 8. | Special Warranty Deed, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book [-], Page [-] in the office of the Clerk of the County Commission of Nicholas County, West Virginia. | |
| 9. | Special Warranty Deed, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Grantor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referred to therein as “Grantee”) of record in Deed Book [-], Page [-] in the office of the Clerk of the County Commission of Fayette County, West Virginia. |
For clarification purposes, the real property interests set forth immediately below are owned by Seller as of the Closing Date but shall be deemed hereunder as Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset. If there is any conflict between the real property interests referenced below on this Schedule 2.2(a) and Owned Real Property set forth on Schedule 2.1(a), then the conflicting real property interests shall be deemed Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset.
| 10. | All fee, surface and mineral real property interests owned by AppleAtcha Land that are located within the boundaries of the following mining permits owned by WV Reclaim Co, LLC: (i) Ramp Run Surface Mine #1: S-6010-89, (ii) Ramp Run Surface Mine #2: S-3017-94, and (iii) Ramp Run Haulroad: O-3007-08. |
Schedule 2.2(a)
Excluded Real Property
(Continued)
For clarification purposes, the real property interests referenced in the agreements set forth below are owned by Seller as of the Closing Date, but subject to a lease from Seller to Screaming Eagle Coal, LLC, with a buyout right of the real property interests referenced therein, that was entered into before the Closing Date, and therefore are expressly excluded from the transaction between Seller and Buyer and shall be deemed hereunder as Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset. If there is any conflict between the real property interests referenced below on this Schedule 2.2(a) and Owned Real Property set forth on Schedule 2.1(a), then the conflicting real property interests shall be deemed Excluded Real Property and not transferred by Seller to Buyer as a Purchased Asset.
| 11. | Surface Lease Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Lessor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Lessee”). | |
| 12. | Coal Lease Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Lessor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Lessee”). | |
| 13. | Surface Rights Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Surface Estate Owner”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Mineral Rights Owner”). |
[Remainder of Schedule 2.2(a) Intentionally Left Blank]
Schedule 2.2(a)
Excluded Land Agreements
For clarification purposes, the land agreements referenced below were entered into by and between Seller and Screaming Eagle Coal, LLC prior to the Closing Date and therefore are expressly excluded from the transaction between Seller and Buyer and shall be deemed hereunder as Excluded Land Agreements and not transferred by Seller to Buyer as a Purchased Asset.
| 1. | Surface Lease Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Lessor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Lessee”). | |
| 2. | Coal Lease Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Lessor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Lessee”). | |
| 3. | Surface Rights Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Surface Estate Owner”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Mineral Rights Owner”). | |
| 4. | Assignment Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Assignor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Assignee”), related to contracts involving the Vaughan Railroad and CSX. | |
| 5. | Assignment Agreement, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Assignor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Assignee”), related to contracts involving the Vaughan Railroad and non-CSX parties. |
Schedule 2.2(c)
Excluded Coal Royalty Agreements
| 1. | Override Assignment, dated as of November 16, 2021, by and between Amvest LLC, a Virginia limited liability company (successor by merger to Peters Creek Mineral Services, Inc.), Amvest West Virginia Coal, LLC, a West Virginia limited liability company (successor by conversion to Braxton-Clay Land & Mineral, Inc.), Braxton-Clay Land & Mineral, LLC, a Virginia limited liability company (successor by conversion to Nicholas-Clay Land & Mineral, Inc.), and Terry Eagle Limited Partnership, a West Virginia limited partnership (all of the foregoing, therein referred to collectively as “Assignors”) and AppleAtcha Land, LLC, a Delaware limited liability company (referred to therein as “Assignee”). |
Schedule 2.2(d)
Excluded Permits
For clarification purposes, the permits associated with the Fola Mine referenced in the schedule below are expressly excluded from the transaction between Seller and Buyer shall be deemed hereunder as Excluded Permits to be retained by WV Reclaim on the Closing Date.
Schedule 2.2(e)
Excluded Personal Property
For clarification purposes, the personal property referenced in the Bills of Sale below were entered into by and between Seller and Screaming Eagle Coal, LLC prior to the Closing Date and therefore are expressly excluded from the transaction between Seller and Buyer and shall be deemed hereunder as Excluded Personal Property and not transferred by Seller to Buyer as a Purchased Asset.
| 1. | Bill of Sale, dated as of June 30, 2021, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Seller”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Buyer”). | |
| 2. | Bill of Sale, dated as of November 30, 2024, by and between AppleAtcha Land, LLC, a Delaware limited liability company (referenced therein as “Seller/Assignor”), and Screaming Eagle Coal, LLC, a Kentucky limited liability company (referenced therein as “Buyer/Assignee”). |
Schedule 4.6
Seller Consents
| 1. | Consent from the Manager of each Seller authorizing the transactions contemplated by the Purchase and Sale Agreement. |
Schedule 5.6
Buyer Consents
| 1. | Consent of the Board of Range Impact, Inc., the sole member of Range Land, LLC, which in turn is the sole member of Buyer, authorizing the transactions contemplated by the Purchase and Sale Agreement. |
Exhibit 99.1
Range Impact Announces Major Land Acquisition in West Virginia
CLEVELAND, OHIO – (April 2, 2025) – Range Impact, Inc. (OTCQB: RNGE) (“Range Impact” or the “Company”), a public company dedicated to acquiring, reclaiming and repurposing distressed coal mines throughout Appalachia, today announced the acquisition of the Fola Mine Complex located in central West Virginia, from AppleAtcha Land, LLC (“AppleAtcha”) and WV Reclaim Co, LLC.
The Fola Mine Complex was one of the largest mining complexes throughout all of Appalachia, with millions of tons of coal mined annually in the 1990s and 2000s, and at its peak, employed approximately 500 workers. However, in 2011, the Fola Mine Complex was shut down due to a consolidation of operations by its then-owner, resulting in an end to all mining operations and the loss of almost all of the jobs there. Over the following decade, the Fola Mine Complex remained inactive, with limited reclamation activities, and no new businesses developed or jobs created.
“Our acquisition of the Fola Mine Complex is by far the most significant acquisition in the history of the Company, and represents a critical transition point for the Fola Mine Complex and its nearby communities. As part of the transaction, we acquired almost 13,000 acres of surface land and 107,000 acres of mineral interest, for a total of approximately 120,000 acres of real property interests” stated Michael Cavanaugh, the Company’s Chief Executive Officer.
“We have also acquired 15 mining permits located at the Fola Mine Complex with an estimated reclamation obligation of $29.3 million, as well as an obligation to manage an additional 21 mining permits at the site to ensure the entire property is responsibly rehabilitated and well-positioned to support long-term next generation uses. Our deep experience in performing land reclamation and water restoration at challenging coal mine sites establishes the core foundation of our impact investing strategy and uniquely positions us to pursue such an ambitious and impactful value creation plan,” Mr. Cavanaugh noted.
As part of the acquisition, the Company acquired two coal royalty contracts with two well-capitalized and experienced mining companies that are currently mining at the Fola Mine Complex. Additionally, AppleAtcha assigned its rights as lessor to a 25-year solar lease (that contains three 5-year extensions) with a multi-national corporation for the development of a large-scale solar project located on more than 1,000 acres at the Fola Mine Complex. This solar project is estimated to create more than 200 MWh of solar energy capacity, representing one of the single largest solar projects constructed in Appalachia to date. This solar lease and the two coal royalty contracts, plus other opportunities in development, are anticipated to provide the Company with the necessary funding to reclaim the Fola Mine Complex, release the associated bonds and permits, and unlock its underlying land value.
Mr. Cavanaugh noted, “Over the past three years, Range Impact has focused primarily on generating revenue by providing reclamation, incidental mining and security services to mining companies, permit holders and private owners with abandoned mine land property. During this time, our team has built a wealth of experience in land reclamation and water restoration, and equally important, developed a deep understanding of the various governmental regulations and insurance obligations that impact the ability to successfully reclaim and repurpose mine sites. Based on these experiences, our leadership team believes that the optimal go-forward strategy is to transition from a service-based business model to a land ownership business model, whereby shareholder value is created by unlocking the underlying value of land we own through our reclamation activities, and concurrently, creating multiple streams of recurring revenue with a diverse group of third-party lessees focused on next-generation uses.”
With the acquisition announced today, the Company now has two significant land investments - the Fola Mine Complex and 2,000 acres of land at the Hobet Mine Complex – representing ownership in two of the largest former coal mine sites in Appalachia. Furthermore, the Company’s management team is actively identifying and evaluating additional mine site acquisitions to continue building its portfolio of large owned land assets in Appalachia.
Edward Feighan, the Company’s Chairman of the Board, stated, “Our acquisition of the Fola Mine Complex represents a significant milestone for our Company as we continue to execute on our impact investing strategy and deepen our commitment to the rehabilitation and revitalization of Appalachian coal mining sites and their surrounding communities.” Mr. Feighan added, “With a surface area the size of over 9,600 football fields, we believe that Fola offers us a ‘one-of-a-kind opportunity’ to make a long-lasting positive impact on the environment and establish a unique platform to grow innovative businesses and create attractive, good paying jobs in West Virginia.” Mr. Cavanaugh continued, “Our core mission at Range is to help people, improve our land, water and air, and financially reward our shareholders for their commitment and support of our vision, and the Fola acquisition provides our team with an unparalleled opportunity to do just that.”
About Range Impact, Inc.
Headquartered in Cleveland, Ohio, Range Impact is a public company (OTC: RNGE) dedicated to improving the health and wellness of people and the planet through a novel and innovative approach to impact investing. Range Impact owns and operates several complementary operating businesses focused on developing long-term solutions to environmental, social, and health challenges, with a particular focus on acquiring, reclaiming and repurposing mine sites and other undervalued land in economically disadvantaged communities throughout Appalachia. Range Impact takes an opportunistic approach to impact investing by leveraging its competitive advantages and looking at solving old problems in new ways. Range Impact seeks to thoughtfully allocate its capital into strategic opportunities that are expected to make a positive impact on the people-planet ecosystem and generate strong investment returns for its shareholders.
Notice Regarding Forward-Looking Statements
This press release contains “forward-looking statements” as that term is defined in Section 27(a) of the Securities Act of 1933, as amended and Section 21(e) of the Securities Exchange Act of 1934, as amended. Statements in this press release which are not purely historical are forward-looking statements and include any statements regarding beliefs, plans, expectations or intentions regarding the future. Although we believe that these statements are based on reasonable assumptions, they are subject to numerous factors that could cause actual outcomes and results to be materially different from those indicated in such statements. Such factors include, among others, the inherent uncertainties associated with new projects, changes in business strategy and new lines of business. These forward-looking statements are made as of the date of this press release, and we assume no obligation to update the forward-looking statements, or to update the reasons why actual results could differ from those projected in the forward-looking statements. Although we believe that any beliefs, plans, expectations and intentions contained in this press release are reasonable, there can be no assurance that any such beliefs, plans, expectations or intentions will prove to be accurate. Investors should consult all of the information set forth herein and should also refer to the risk factors disclosure outlined in our annual report on Form 10-K for the most recent fiscal year, our quarterly reports on Form 10-Q and other periodic reports filed from time-to-time with the Securities and Exchange Commission.
Range Impact, Inc.
Investor Relations
P: +1 (216) 304-6556
W: www.rangeimpact.com