Exhibit 10.39
AMENDMENT TO
RESTATED AND AMENDED COAL SUPPLY AGREEMENT
AND SPOT COAL SUPPLY CONTRACT
THIS AMENDMENT ("Amendment") is entered into effective as of January 1,
2003, by and between Seminole Electric Cooperative, Inc. (hereinafter referred
to as "Buyer"), a Florida corporation, and Webster County Coal, LLC, a Delaware
limited liability company (successor-in-interest to Webster County Coal
Corporation, a Kentucky corporation), White County Coal, LLC, a Delaware limited
liability company (successor-in-interest to White County Coal Corporation, a
Delaware corporation), and Alliance Coal, LLC ("Alliance"), as
successor-in-interest to Mapco Coal, Inc., and agent for Webster County Coal,
LLC and White County Coal, LLC and certain affiliates identified on Schedule I
hereto ("Affiliates"), all having an address of 1717 South Boulder Avenue,
Tulsa, Oklahoma 74119-4886, (the foregoing companies hereinafter referred to as
"Seller").
RECITALS:
WHEREAS, Buyer and Seller entered into that certain Restated and
Amended Coal Supply Agreement, effective February 1, 1986, as amended by
Amendment No. 1 dated May 10, 1996, as amended by that certain Interim Coal
Supply Agreement, dated May 1, 2000, and as amended by Amendment No. 2, dated
February 28, 2002 (hereinafter collectively referred to as the "Coal Supply
Agreement"); and
WHEREAS, Buyer and Webster County Coal, LLC, through its agent
Alliance, entered into that certain Spot Coal Supply Contract, effective
September 12, 2002, ("Spot Contract"); and
WHEREAS, from time-to-time Buyer may enter into one or more coal
synfuel supply agreements with third parties for the purchase of coal synfuel,
which is processed from coal produced or supplied to such third parties by
Alliance or any of its Affiliates or by any other intermediary designated by
Alliance; and
WHEREAS, it is the intent of Buyer and Seller that for each ton of coal
synfuel Buyer purchases from such third parties, and such third party delivers
to Buyer, Buyer and Seller hereby agree to reduce by like amount the quantity of
coal to be purchased under the Coal Supply Agreement or the Spot Contract (or
any other coal supply agreements as the parties may mutually agree) as is more
particularly set forth herein below; and
WHEREAS, this Amendment is intended to amend the Coal Supply Agreement
and the Spot Contract.
NOW, THEREFORE, in consideration of the recitals and agreements herein
contained, the parties hereto agree as follows:
1. Amendment No. 2 to the Coal Supply Agreement, dated February
28, 2002, is hereby terminated and replaced in its entirety by
this Amendment.
2. This Amendment shall be Amendment No. 3 to the Coal Supply
Agreement.
3. This Amendment shall be Amendment No. 1 to the Spot Contract.
4. This Amendment shall be incorporated by reference in any other
coal supply agreement as the parties may mutually agree.
5. Hereinafter, the Coal Supply Agreement, the Spot Contract and
any other coal supply agreement as the parties may mutually
agree, shall collectively be referred to as the "Coal
Contracts".
6. During the respective terms of the Coal Contracts any quantity
of coal synfuel purchased by Buyer from third parties, which
is processed from coal produced or supplied to such third
parties by Alliance, or any of its Affiliates or by any other
intermediary designated by Alliance, and delivered by such
third party to Buyer, shall reduce the quantity of coal, on a
ton-for-ton equivalent basis, required to be purchased by
Buyer, and required to be sold by Seller, pursuant to the
terms and conditions of each of the respective Coal Contracts.
At such time as Buyer and a third party agree to purchase and
sell a quantity of coal synfuel, then Buyer and Seller shall
agree in writing as to the specific coal under which of the
respective Coal Contracts shall be replaced with the coal
synfuel.
7. Except for the equivalent tonnage reduction provision set
forth herein, all terms and conditions and obligations between
Buyer and Seller set forth in the respective Coal Contracts
shall continue in full force and effect. If Buyer reduces,
suspends, or terminates its purchases of coal synfuel under
any third party coal synfuel supply agreement, and/or either
Buyer or such third party terminates the coal synfuel supply
agreement for any reason, there shall be no adverse affect on
the respective Coal Contracts and Buyer and Seller shall
continue to be obligated to fully perform pursuant to the
terms and conditions of the respective Coal Contracts. In no
event shall any breach, default or non-performance of any
agreement between Buyer and a third party under any provision
of any coal synfuel supply agreement be the basis for Buyer or
Seller, respectively, to claim breach, default or
non-performance, or to claim a right of offset, counterclaim
or cancellation of any of the Coal Contracts and each of the
Coal Contracts shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on
the day and year below written, but effective as of the day and year first set
forth above.
WEBSTER COUNTY COAL, LLC SEMINOLE ELECTRIC COOPERATIVE, INC.
By: /s/ Gary Rathburn By: /s/ Richard Midulla
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Title: Sr. Vice President-Marketing Title: Executive V.P. & General Manager
Date: 1/13/03 Date: 1/14/03
ALLIANCE COAL, LLC, for itself and
WHITE COUNTY COAL, LLC as Agent for WEBSTER COUNTY COAL, LLC,
and WHITE COUNTY COAL, LLC and certain
Affiliates identified on Schedule I
hereto (subject to the proviso therein)
By: /s/ Gary Rathburn By: /s/ Gary Rathburn
------------------------------ -----------------------------------
Title: Sr. Vice President-Marketing Title: Sr. Vice President-Marketing
Date: 1/13/03 Date: 1/13/03
AMENDMENT
SCHEDULE I
Alliance Coal, LLC's Affiliates currently owned and/or controlled as of the date
hereof:
Webster County Coal, LLC;
White County Coal, LLC;
Hopkins County Coal, LLC;
Warrior Coal, LLC;
Gibson County Coal, LLC;
Pontiki Coal, LLC;
Excel Mining, LLC;
Mc Mining, LLC;
Mettiki Coal, LLC;
provided, however, that in the event that Alliance Coal, LLC no longer owns
and/or controls any (or all) of the Affiliates identified above, the parties
hereto agree that this Amendment shall be terminated and be of no further force
or effect in regard to such Affiliate(s).