AUCTION DETAILS
OFFICIAL NOTICE OF SALE
On August 19, 2024, the Kingston Coal Company ("Kingston Coal") and the Dana A. Yealy Irrevocable Grantor Trust ("Yealy Trust"), through their law firm Bernstein-Burkley, will hold a public auction of the business personal property of Unity Mines LLC, including the mine equipment and mine infrastructure associated with the Kingston West Mine located at the interesection of Lee Valley Road and Route 981 in Derry Township, Westmoreland County, Pennsylvania.
PLEASE TAKE NOTICE THAT Kingston Coal and the Yealy Trust have a security interest in all of the assets of Unity Mines LLC and will expose to public sale the following property pursuant to Section 9-610 of Article 9 of the Pennsylvania Uniform Commercial Code: all assets, inventory, chattel paper, accounts and instruments, equipment, general intangibles, vehicles, and fixtures owned by Unity Mines LLC, including but not limited to, the mine equipment, mine infrastructure, vehicles, fixtures and other business personal property and equipment at the Kingston West Mine located at the interesection of Lee Valley Road and Route 981 in Derry Township, Westmoreland County, Pennsylvania ("MINE EQUIPMENT").
NOTICE IS GIVEN THAT that the sale will be conducted as a combination of a BULK SALE and by exposing to sale individual lots of assets separately. If a valid offer to purchase ALL OF THE ASSETS exceeds the combined total of the offers to purchase individual lots of assets then the high BULK OFFER shall be declared the winning offer. By contrast, if the combined total of all offers for individual lots of assets exceeds the highest BULK OFFER then each of the highest offer on each individual lot of assets shall be deemed a winning offer.
The sale will be conducted on August 19, 2024, beginning at 10:00 a.m., at the Kingston West MIne located at the interesection of Lee Valley Road and Route 981 in Derry Township, Westmoreland County, Pennsylvania ("Auction).
Additional information is available by contacting the Attorney for Kingston Coal and Yealy Trust - - Bernstein Burkley, P.C. Attn: Kirk Burkley, Esq. 601 Grant Street. 9th floor, Pittsburgh, PA 15219, kburkley@bernsteinlaw.com ("the Bernstein Law Firm").
Prospective bidders may contact Gary Deemer at (724) 830-0112 or garydeemer53@yahoo.com to make arrangements to visit the Kingston West Mine and inspect the MINE EQUIPMENT prior to the auction date. A standard release form will be required to be signed by each individual visiting the mine. Prospective bidders or their agents are not permitted to enter the mine site without notifying Mr. Deemer and executiing a proper release form. The form can be found at
https://bit.ly/ReleaseandIndemnificationAgreementKingstonWest.
BIDDING PROCEDURES
AUCTION QUALIFICATION PROCESS
Prospective bidders will need to be qualified before making an offer at the Auction. To be eligible to participate in the Auction, each offer ("Bid") and each party submmitting such a Bid (each a "Bidder") must satisfy each of the following conditions through submission of a Qualified Bidder Declaration (the declaration form can be found at https://bit.ly/QualifiedBidderDeclaration):
(a). Proof of Financial Ability to Perform: The Bid must include written evidence that demonstrates in the view of the Bernstein Law Firm that the Bidder has the necessary financial ability to close the transaction. Such information must include, among other things, the following: (1) contact names and numbers for verification of non-contingent financing sources; (2) evidence of the Bidder's internal resources and proof of unconditional debt funding commitments from a recognized banking institution and, if applicable, the posting of an irrevocable letter of credit from a recognized banking institution in favor of Kinston Coal and Yealy Trust in the amount of the cash portion of such Bid, in each case, as are needed to close such transaction; and (3) any such other form of financial disclosure or credit-quality support information or enhancement reasonably accetable to the Bernstein Law Firm demonstrating that such Bidder has the ability to close the transaction.
(b) Contact Information: The Bid must provide the identity and contact information for the Bidder.
(c). Contingencies: The Bid may not be conditioned on obtaining financing, any internal approvals or credit committee approvals, or on the outcome or review of due diligence.
(d). Termination Fees: The Bid must not entitle the Bidder to any breakup fee, termination fee, expense reimbursement, or similar type of paymeny or reimbursement.
(e) Bids Held In Reserve: The Bid must include an acknowledgement and commitment that if the Bid is the next highest Bid at the auction it will still be considereed the winning Bid and be obligated to close on the transaction if the original winning Bid at the auction does not meet its obligation to close the transaction and pay for the MINE EQUIPMENT. All Bids remain open and irrevocable until closing of the transaction with the winning Bidder.
(f). Closing Date, Possession and DEP/MSHA: The Bid must include a commitment to close the transaction in accordance with the sale procedures. The Bid must also include a commitment to take possession and remove the property from the mine site by any stated deadline and, if required by the DEP and/or MSHA, a commitment to coordinate with the DEP and/or MSHA before the removal of certain peices of the MINE EQUIPMENT.
The Bernstein Law Firm will accept the required Qualified Bidder Declaration and any other information from prospective bidders until August 15, 2024 at 5:00 p.m. EST ("Bid Qualification Deadline"). Each prospective bidder shall comply with all reasonable requests for additional information made by the Bernstein Law Firm regarding such prospective bidder and its ability to close on the purchase, remove the MINE EQUIPMENT from the site by the required deadline, and otherwise comply with the terms and requirements of the bidding process. Failure by a prospective bidder to comply with requests for additional information may be a basis to determine that such prospective bidder is not a Qualified Bidder.
A Bid received from a Bidder before the Bid Deadline that meets all of the above requirements shall constitute a "Qualified Bid," and such Bidder shall constitute a "Qualified Bidder." The Bernstein Law Firm shall inform any Qualified Bidder whether the Bernstein Law Firm considers them to be a Qualified Bidder as soon as practicable but in no event later that one (1) business day before the Auction. Any amendments, supplements or other modifications to any Bids prior to the Bid Deadline shall be delivered to the Bernstein Law Firm and may not be submitted after the Bid Deadline. All Qualified Bids will be considered, but the Bernstein Law Firm reserves the right to reject any or all bids.
Each Qualified Bidder, by submitting a Bid, shall be deemed to acknowledge and agree that it is not relying upon any written or oral statements, representations, promises, warranties, or guarantees of any kind whether expressed or implied, by operation of law or otherwise, made by any person or party, including Kingston Coal and/or Yealy Trust and their representatives regarding the MINE EQUIPMENT, the Auction, these Bidding Procedures or any information provided in connection therewith.
AUCTION PROCESS
The Bernstein Law Firm will conduct the Auction in a manner to determine the highest or otherwise best Qualified Bid with respect to the MINE EQUIPMENT. This determination will take into account any factors the Bernstein Law Firm reasonable deems relevant to the value of the Qualified Bid to Kingston Coal and Yealy Trust and may include, but are not limited to, the following: (i) the amount and nature of the consideration, (ii) the likelihood of the Bidder's ability to close a transaction and the timing thereof, (iii) the net benefit to Kingston Coal and Yealy Trust, and (iv) any other material considerations of Kingston Coal and Yealy Trust.
The Auction will be held at the site of the Kingston West Mine located at the interection of Lee Valley Road and Route 981 in Derry Township, Westmoreland County, Pennsylvania. Bidders may also participate virtually at instructions provided by Kingston Coal and Yealy Trust.
Only Qualified Bidders, along with their representatives and counsel, may attend the Auction and only the Qualified Bidders will be entitled to make any Bids at the Auction.
At the start of the Auction, each Qualified BIdder participating in the Auction must confirm that it: (a) has not engaged in any collusion with respect to the bidding or sale of any of the assets described herein, (b) has reviewed, understands, and accepts the Bidding Procedures, and (c) must fully disclose any connections or agreements with any other known, potential, prospective Bidder or Qualified Bidder.
The Bernstein Law Firm will direct and preside over the Auction and the Auction will be transacribed. The Berstein Law Firm may conduct the Auction in any manner it reasonably determines will result in the highest or otherwise best purchase price for the MINE EQUIPMENT, which may be sold in totality or in lots determined by Kingston Coal and Yealy Trust in their business judgment. The Bernstein Law Firm may announce minimum overbid increments that may differ between different lots of MINE EQUIPMENT. The Bernstein Law Firm may also announce at the Auction additional procedural rules that are reasonable under the circumstances for conducting an Auction.
SALE TERMS
The applicable MINE EQUIPMENT sold pursuant to the Bidder Procedures shall be conveyed at the closing of the purchase and sale in their then present condition, "AS IS, WITH ALL FAULTS, AND WITHOUT WARRANTY WHATSOEVER, EXPRESS OR IMPLIED."
The Auction will continue in additional rounds of bidding until the Bernstein Law Firm selects the Bid that is the highest or otherwise best offer for the MINE EQUIPMENT from among the Qualified Bidders who participate at the Auction (each a "Successful Bid" and the Bidder submitting such Sucessful Bid, a "Successful Bidder"). The Auction will close when the Successful Bidder submits fully executed sale and transaction documents memoralizing the terms of its Successful Bid.
The Bernstein Law Firm will generate invoices for all Successful Bids within five (5) business days of conclusion of the Auction. All Successful Bidders will be required to remit payment on "Cash in Advance" terms within two (2) business days of receipt of the invoice.
Each Successful Bidder will be responsible, at its own cost and expense, to arrange for the breakdown and removal of the MINE EQUIPMENT that it purchased within two weeks of the close of the Auction with the exception of few peices of the MINE EQUIPMENT that the DEP and MSHA may specifically request to remain and be used in the process of sealing the mine. The Successful Bidder will negotiate such removal terms directly with the DEP and MSHA.
RESERVATIONS OF RIGHTS
The Bernstein Law Firm, Kingston Coal and Yealy Trust reserve the right as they may reasonably determine to be in their best interests to: (a) determine which Bidder(s) is a Qualified Bidder(s); (b) determine which Bid(s) is a Qualified Bid(s); (c) determine which Qualified Bidder is the hghest or otherwise best proposal for the MINE EQUIPMENT; (d) reject any Bid that is (i) inadequate or insufficient, (ii) not in conformity with the requirements of the Bidding Procedures or the UCC, or (iii) contrary to the best interests of Kingston Coal and/or Yealy Trust.