EXHIBIT 10.40
"Pages where confidential treatment has been requested are marked `Confidential
Treatment Requested.' The redacted material has been separately filed with the
Commission, and the appropriate section has been marked at the appropriate place
with [REDACTED] and in the margin with a star (*)."
SECOND AMENDMENT TO
COAL FEEDSTOCK SUPPLY AGREEMENT
This SECOND AMENDMENT (this "Amendment"), dated as of April 1, 2003, by
and between SynFuel Solutions Operating LLC, a Delaware limited liability
company ("Purchaser") and Warrior Coal, LLC, a Delaware limited liability
company ("Seller"), amends that certain COAL FEEDSTOCK SUPPLY AGREEMENT by and
between Purchaser and Hopkins County Coal, LLC, a Delaware limited liability
company ("HCC"), dated as of October 26, 2001, as previously amended by the
First Amendment to Coal Feedstock Supply Agreement entered into on February 28,
2002, but effective as of October 26, 2001 (the "Agreement"). Seller and
Purchaser are sometimes referred to herein individually as a "Party" or
collectively as the "Parties."
Recitals:
A. Reference is made to that certain Assignment and Assumption
Agreement of even date herewith by and among HCC, Seller and Purchaser
("Assignment Agreement"). Pursuant to the Assignment Agreement, HCC assigned to
Seller, and Seller accepted and assumed, all rights, interests, and obligations
of HCC under the Agreement and all Coal Purchase Orders entered into pursuant to
the Agreement (collectively, the "Purchase Orders"), relating to the period from
and after the Effective Date.
B. Purchaser intends to relocate the Coal Synfuel Plant from the
Hopkins County mine of HCC to the Warrior Coal, LLC coal processing plant in
Hopkins County, Kentucky (the "Relocation").
C. Seller and Purchaser desire to amend the Agreement to reflect
the Relocation.
D. Capitalized terms not otherwise defined in this Amendment are
used herein as such terms are defined in the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
the Parties hereby amend the Agreement as follows:
1. Section 1.2. Section 1.2 of the Agreement is hereby amended by
deleting the last sentence thereof.
Confidential Treatment Requested
2. Section 2.12. The wire transfer address of Seller specified in
Section 2.12 of the Agreement is hereby restated in its entirety as follows:
* Warrior Coal, LLC
c/o Bank One, NA, Chicago, Il
ABA No. [REDACTED]
Account No. [REDACTED]
3. Section 3.5. Section 3.5(e) of the Agreement is hereby amended
by adding the term "Prior Easement" after the term "Material Handling Agreement"
in the first sentence, by deleting the term "Real Property Easement Agreement"
in phrase (III) of the last sentence and replacing it with the term "Prior
Easement," and by adding the language "and Section 1 of the Letter Agreement" to
the end of phrase (III) of the last sentence.
4. Section 3.7. The notice addresses of Seller and Purchaser
specified in Section 3.7 of the Agreement are hereby restated in their entirety
as follows:
To Purchaser:
* SynFuel Solutions Operating LLC
[REDACTED]
[REDACTED]
[REDACTED]
Attention: [REDACTED]
[REDACTED]
Facsimile: [REDACTED]
With copies to:
* ECO Coal Pelletization No. 12, LLC
[REDACTED]
[REDACTED]
[REDACTED]
Attention: [REDACTED]
[REDACTED]
Facsimile: [REDACTED]
* [REDACTED]
[REDACTED]
[REDACTED]
Attention: [REDACTED]
Facsimile: [REDACTED]
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[REDACTED] denotes confidential information with respect to which a separate
confidential treatment request has been filed with the Securities and Exchange
Commission.
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Confidential Treatment Requested
* [REDACTED]
[REDACTED]
[REDACTED]
[REDACTED]
Facsimile: [REDACTED]
To Seller:
Warrior Coal, LLC
57 J. E. Ellis Road
Madisonville, Kentucky 42431
Attention: Mr. Jeffrey J. Hayden, General Manager
Telephone (270) 824-8504
Facsimile: (270) 824-8516
With copies to:
Warrior Coal, LLC
771 Corporate Drive, Suite 1000
Lexington, Kentucky 40503
Attention: Kendall S. Barret, Esq.
Vice President - Land Management
Telephone: (859) 224-7230
Facsimile: (859) 224-7211
Warrior Coal, LLC
1717 S. Boulder, P.O. Box 22027
Tulsa, Oklahoma 74121-2027
Attention: Brad Shellenberger
General Manager, Contract Administration
Telephone: (918) 295-7617
Facsimile: (918) 295-7360
5. Section 3.8. Section 3.8(a) of the Agreement is hereby amended
by deleting the term "Hopkins County mine site" and replacing it with the term
"Site" and Section 3.8(b) is hereby amended by deleting the term "Hopkins County
Mine" and replacing it with the term "Site."
6. Section 3.9. Section 3.9(m) of the Agreement is hereby amended
by deleting the term "Real Property Easement Agreement" and replacing it with
the term "Prior Easement."
7. Consent to Relocation. Seller hereby consents to the
Relocation for all purposes of the Agreement and the Purchase Orders including,
without limitation, the definition of the Coal Delivery Point in Section 2.5(a)
of the Agreement.
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[REDACTED] denotes confidential information with respect to which a separate
confidential treatment request has been filed with the Securities and Exchange
Commission.
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Confidential Treatment Requested
8. Definitions. The definitions of Letter Agreement, Prior
Easement, Relocation and Reassembly Agreement and Site are hereby added to Annex
I of the Agreement as follows and the other definitions set forth below are
hereby restated in Annex I of the Agreement as follows:
* "Alliance Parties" means Seller, HCC, Alliance Service,
[REDACTED] and any Affiliate of any of the foregoing that is a
Party.
"Letter Agreement" means that certain letter agreement
regarding the relocation of the Coal Synfuel Plant to the Site
dated February 1, 2003, between HCC, Seller and Purchaser, as
modified or amended from time to time.
* "Operative Documents" means this Agreement, Operating and
Maintenance Agreement, the Real Property Easement Agreement,
the Letter Agreement, the Relocation and Reassembly Agreement,
the Coal Synfuel Agency Agreement, the Material Handling
Agreement, [REDACTED], the Purchaser Guaranties and each other
agreement, document, certificate or other instrument executed
as specifically provided for herein or therein.
"Prior Easement" means the Real Property Easement Agreement,
dated October 26, 2001, between Hopkins County Coal, LLC and
Purchaser.
"Real Property Easement Agreement" means the Real Property
Easement Agreement, dated February 1, 2003, between Warrior
Coal, LLC and Purchaser, as modified or amended from time to
time.
"Relocation and Reassembly Agreement" means the Relocation and
Reassembly Service Agreement, dated February 1, 2003, between
Purchaser and Alliance Service, Inc., as modified or amended
from time to time.
"Site" has the meaning given in the Real Property Easement
Agreement.
9. Purchase Orders. The Parties agree that references to the Coal
Feedstock Supply Agreement made in the Purchase Orders shall be deemed to refer
to the Coal Feedstock Supply Agreement as amended from time to time.
10. General.
(a) As amended hereby, the Agreement is ratified and
confirmed in all respects. Each reference in the Agreement to "this
Agreement," "hereof," "herein," "hereto" or words of similar import,
shall, unless the context otherwise requires, be deemed to refer to the
Agreement as previously amended and as further amended by this
Amendment.
(b) The construction and enforcement of this Amendment
shall be exclusively governed by the laws of the State of Delaware,
without giving effect to the conflict or choice of law principles
thereof.
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[REDACTED] denotes confidential information with respect to which a separate
confidential treatment request has been filed with the Securities and Exchange
Commission.
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(c) As amended hereby, the Agreement will remain in full
force and effect.
11. Effectiveness. This Amendment will have effect from and after,
and not before, the date on which Purchaser notifies Seller in writing that the
conditions precedent to the commencement of Relocation that are set forth in
Section 3 of the Letter Agreement have been satisfied or waived by Purchaser
(the "Effective Date").
12. Counterparts. This Amendment may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of the executed signature pages
by facsimile transmission shall constitute effective and binding execution and
delivery of this Amendment.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURE PAGE
FOLLOWS.]
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IN WITNESS WHEREOF, the Parties have duly executed this Amendment as of
the date first set forth above.
SYNFUEL SOLUTIONS OPERATING LLC
By: SynFuel Solutions LLC,
its Managing Member
By: SynFuel Solutions Holdings LLC,
its Managing Member
By: /s/ Joseph E. Slamm
---------------------------
Name: Joseph E. Slamm
Title: Vice President
WARRIOR COAL, LLC
By: /s/ Gary J. Rathburn
------------------------------------
Name: Gary J. Rathburn
Title: Senior Vice President - Marketing
Signature Page to Second Amendment to Coal Feedstock Supply Agreement