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Confidential Treatment
EXHIBIT 10.8(a)
FIRST AMENDMENT TO
COAL TRANSPORTATION AGREEMENT
BIRCHWOOD COGENERATION PROJECT
THIS FIRST AMENDMENT ("Amendment"), dated as of the 28th of April,
1994, to the Coal Transportation Agreement dated as of the 22nd day of July,
1993 (the "Agreement"), between BIRCHWOOD POWER PARTNERS, L.P., a Delaware
limited partnership ("BPP") and ER&L-BIRCHWOOD, INC., a Delaware corporation
("ERLB").
WHEREAS, BPP and ERLB have entered into the Agreement which provides,
among other things, that the rail carrier serving BPP shall provide locomotives
and BPP shall man the locomotives while Unit Trains are unloaded by BPP at the
Facility;
WHEREAS, BPP now desires to provide locomotives while unloading Unit
Trains;
WHEREAS, BPP desires to make certain changes to the confidentiality
provisions of the Agreement and ERLB is willing to do so;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Definitions. Definitions provided in the Agreement shall have
the same meaning when used in this Amendment.
2. Deletion of Definition. Section 1 is amended by deleting
therefrom the definition of "Locomotive Lease Agreement."
3. Filing with the ICC. Section 2.6 is deleted and the following
substituted therefor:
Promptly upon execution of the Amendment hereto dated
April 28, 1994 (the "Amendment"), and in no event later than
sixty (60) days after execution, ERLB shall enter into a
railroad transportation contract with CSXT and any other
necessary or desirable Underlying Carriers to transport Coal
under the Agreement and the Amendment, shall arrange with CSXT
to file an appropriate contract summary thereof with the ICC
and shall take all necessary steps to cause the contract
between ERLB and CSXT to be approved promptly by the ICC
including, but not limited to, filing any supplemental
information requested by the ICC and diligently contesting any
challenge to ICC approval. ERLB shall give to BPP a true copy
of the contract summary after it has been filed with the ICC.
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4. Rates. The last sentence of Section 3.1. is deleted and the
following substituted therefor:
This rate includes providing Railcars for transporting
Coal.
5. Railcars and Locomotives. The last sentence of Section 6.2 is
deleted.
6. Placement at the Facility. Section 6.7 is deleted and the
following substituted therefore;
Subject to the execution of a Sidetrack Agreement
between BPP and CSXT, ERLB shall arrange with the Underlying
Carrier to transport trainload shipments of Coal onto and over
the tracks at the Facility designated by BPP. Thereafter the
locomotives of the Underlying Carrier shall disconnect from the
Unit Train and BPP shall be responsible to switch and arrange
the Railcars of the Unit Train by BPP's own locomotive while
BPP unloads the Railcars at the Facility. After the Railcars
are unloaded, BPP shall reassemble the empty cars of the Unit
Train, place all Railcars in the same direction as when tendered
under load, hook up all air hoses and take all reasonable
safety and operating steps to allow the Underlying Carrier to
pull the Unit Train from the Facility. BPP warrants that its
crews will be fully and adequately trained and thoroughly
familiar with BPP's locomotive and the Railcars and will fully
indemnify the Underlying Carrier and ERLB for any damage
arising from train operations while a train is in BPP's control
or possession.
7. Demurrage. Sub-section 6.8.1 of Section 6.8 is deleted and the
following substituted therefor:
6.8.1. Unit Train Shipments. Subject to the exceptions
hereafter provided, twenty-four (24) hours' free time will be
allowed for unloading all Railcars in Unit Train shipments,
except as to Straggler Cars. Free time will begin at the time
of actual or constructive placement of the train onto BPP's
private industrial tracks on the Facility premises. Actual
placement is made when Railcars are placed at the private
industrial
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track at the Facility's premises designated by BPP as the delivery
tracks. If such actual placement is prevented due to any cause
attributable to BPP, the Railcars shall be considered
constructively placed. When the Railcars are held short of the
Facility, notice shall be sent or given BPP in writing, by
telephone, by telecopy, or in a manner otherwise agreed to, that
shipments are held under constructive placement. After expiration
of the free time, BPP shall be assessed and pay detention charges
of [xxx] dollars ($[xxx]) per car per day (twenty-four (24)
hours), or fraction thereof, including Saturdays, Sundays and
holidays for each Railcar until the last Railcar is unloaded and
released to the Destination Carrier, provided that when at the
time of actual or constructive placement lading is frozen so as to
require heating, thawing or loosening to unload, the twenty-four
(24) hours free time for unloading will be extended an additional
twenty-four (24) hours, and provided further charges shall not
accrue for time when BPP is prevented from unloading due to CSXT's
act or omission. BPP shall, prior to the expiration of five (5)
days after the date on which car or cars were released, send or
give the Destination Carrier's agent a written statement stating
by Railcar initial and number, the day or days during which any
time was expanded in heating, thawing or loosening the lading to
unload the Railcar or Railcars, or in which BPP was unable to
unload due to CSXT's act or omission. It is understood that for
operating and cost reasons all Railcars of the unit train must be
transported at one time, and, therefore, demurrage charges shall
be assessed as to all Railcars in a shipment until the last
Railcar is unloaded and released, except in the case of "bad
order" Railcars, which will not be required to be unloaded and
released in order to avoid or end demurrage charges. Unloading
and release requires notice by BPP given to authorized personnel
of the Destination Carrier in writing, by telephone, telecopy or
in a manner otherwise agreed to in writing, that cars are unloaded
and available to the Destination Carrier. Railcars will be
considered released on the date and time the notice is received by
the Destination Carrier. Such notice must
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[xxx] These portions of this exhibit have been omitted and filed separately
with the Commission pursuant to a request for confidential treatment.
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include the identity of BPP, the person furnishing data and the
train symbol. The charges provided herein shall escalate at the same
time and by the same method as detention and/or demurrage charges of
the Underlying Carrier are escalated. It is understood that said
charges currently are published in freight tariff ICC CSXT 8200.
8. Confidentiality. Section 9.5 is deleted and the following substituted
therefor:
9.5 Confidentiality. Each Party shall retain all information
obtained hereunder in strict confidence and shall not use or disclose
it to any person or entity not a party hereto, except (a) for any
information which (i) is at the time of such disclosure known to the
public or thereafter becomes so known, through no violation by such
Party of this Agreement; (ii) such Party can demonstrate that such
information was in its possession prior to disclosure hereunder, or
under any prior agreements or negotiations between the Parties hereto;
or (iii) is required by law to be so disclosed; and (b) BPP may provide
a copy of this Agreement to the purchasers of electricity and steam to
be generated by the Facility, under a written confidentiality agreement
as long as all pricing information is deleted from the Agreement so
provided; and (c) ERLB may provide such information to CSXT so long as
CSXT maintains the confidentiality of such information; and (d) BPP
shall have the right to disclose such information (i) to any parties
providing (or contemplating providing) financing or refinancing for its
purchase, construction, operation, ownership or modification of the
Facility or otherwise loaning funds to or investing in BPP or BPP's
securities; and (ii) to any permitted assign of BPP described in
Section 9.6 of the Agreement; and provided, further, that the Parties
shall have the right to disclose such information when requested or
required by a court or government agency or by subpoena issued in a
judicial or administrative proceeding or by arbitration proceedings
under this Agreement. The Parties hereby acknowledge that certain cost
and physical property information related to fuel purchases
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and transportation are or may be routinely reported to state regulatory
agencies, the Federal Energy Regulatory Commission and the Environmental
Protection Agency and are or may be used by Buyer's consultants to make
economic forecasts. Notwithstanding the foregoing, if any Party
communicates information to a third party, including but not limited to
affiliates, lenders, lessors, attorneys, consultants and other
representatives the disclosing Party shall be responsible for such third
party's disclosures. The provisions of this Section 9.5 shall survive
termination of this Agreement for a period of three (3) years.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed
by their duly authorized representatives as of the day and year first written
above.
ER&L-BIRCHWOOD, INC. BIRCHWOOD POWER PARTNERS, L.P.
by SEI BIRCHWOOD, INC.
a General Partner
By: /s/ Derrick W. Smith By: /s/ R.S. Shepard
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Derrick W. Smith R.S. Shepard
General Manager Vice President
BIRCHFIRST
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