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EXHIBIT 10.7(a)
FIRST AMENDMENT TO COAL SUPPLY AGREEMENT
FOR SEI BIRCHWOOD POWER FACILITY
THIS FIRST AMENDMENT TO COAL SUPPLY AGREEMENT (the "Amendment") is made
and entered into as of the 18th day of May, 1994, by and among BIRCHWOOD POWER
PARTNERS, L.P., a Delaware limited partnership, whose principal office is
located at 900 Ashwood Parkway, Suite 500, Atlanta, Georgia 30338 (hereinafter
referred to as "Buyer"), on the one hand; and LAUREL CREEK CO., INC.
("Laurel"), a Delaware corporation, whose principal office is located at Right
Fork of Camp Creek, East Lynn, West Virginia 25512; ROCKSPRING DEVELOPMENT,
INC. ("Rockspring"), a Delaware corporation, whose principal office is located
at Right Fork of Camp Creek, East Lynn, West Virginia 25512; NEWEAGLE COAL
SALES CORP. ("NCSC"), a Virginia corporation, whose principal office is located
at 237 Main Street, P. O. Drawer 1560, Grundy, Virginia 24614; and NEWEAGLE
INDUSTRIES, INC. ("NII"), a Virginia corporation, whose principal office is
located at 237 Main Street, P. O. Drawer 1560, Grundy, Virginia 24614, on the
other (Laurel, Rockspring, NCSC and NII being collectively and jointly and
severally hereinafter referred to as "Seller").
W I T N E S S E T H:
WHEREAS, Buyer, on the one hand, and Laurel, Rockspring, AgipCoal
Holding USA, Inc. ("Holding") and AgipCoal Sales USA, Inc. ("Sales"), on the
other, entered into that certain Coal Supply Agreement dated as of July 22,
1993 (the "Coal Supply Agreement"); and
WHEREAS, pursuant to that certain Assignment and Assumption Agreement
(Birchwood) dated as of the 31st day of January 1994, by and among Holding,
Sales, NCSC
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and NII, Holding and Sales assigned and conveyed to NCSC and NII the Coal
Supply Agreement and all of Holding's and Sales' rights, benefits, entitlements
and obligations thereunder; and NCSC and NII accepted such assignment and
assumed and agreed to perform all obligations and discharge all duties of
Holding and Sales under the Coal Supply Agreement; and
WHEREAS, pursuant to the aforesaid Assignment and Assumption Agreement
and in reliance on that certain Letter Agreement dated March 29, 1994 by and
among Arch Mineral Corporation, Buyer and ER&L Birchwood, Inc. (the "Letter
Agreement"), Buyer consented to such assignment and, except as otherwise
provided in the Letter Agreement, to the release of Holding and Sales of the
obligations under the Coal Supply Agreement; and
WHEREAS, Laurel, Rockspring, NCSC, NII and Buyer now desire to amend
the Coal Supply Agreement in certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
of which is hereby acknowledged, Laurel, Rockspring, NCSC, NII and Buyer amend
the Coal Supply Agreement as follows:
1. The definition of "Mine" set forth in Section 1.1 of
the Coal Supply Agreement is hereby amended by deleting same in its entirety and
inserting in lieu thereof the following:
"Mine" - Seller's respective mining complex at Camp
Creek, Dingess, and Ten Mile, West Virginia, together with coal
loading facilities at Dingess, Laurel Creek, and Ten Mile, West
Virginia, including structures, equipment, excavations,
roadways, waste disposal sites, and transportation, loading,
connecting and related facilities which may be required by
Seller's
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performance of this Agreement. For purposes of Section 3.1 of
this Agreement, Mine shall mean the place where railroad cars
are loaded and tendered to the Transportation Company."
By virtue of the amendment to the definition of "Mine" as aforesaid,
Buyer and Seller acknowledge and agree that the definition of "Mine Reserves"
is amended to add to the "Mine Reserves" under the Coal Supply Agreement the
recoverable Coal reserves or deposits located at the Dingess Mine.
2. The definitions of "Party" and "Parties" set forth in Section
1.1 are amended to mean, with respect to Seller, Laurel, Rockspring, NII and
NCSC, as the case may be.
3. The Coal Supply Agreement is further amended to change the word
"Coal" to "coal" in the definition of "Delivered Cost" in Section 1.1, in the
first sentence of Section 3.3.2, in clause (i) of Section 4.1, in the last
sentence of Section 8.1 and on the tenth and fifteenth lines of Section 9.7 of
the Coal Supply Agreement.
4. The Coal Supply Agreement is further amended to change the
words "replacement Coal" to "replacement coal" wherever such words appear in
Section 7.6(d) and Section 14.2(b) of the Coal Supply Agreement.
5. Section 7.6(d) of the Coal Supply Agreement is amended by
changing the first sentence thereof to read as follows:
"Buyer shall have the right to purchase for use at the Facility
coal from alternative sources to replace (i) shipments of Coal that were
rejected by Buyer but not cured within seven (7) days of such rejection
by Seller pursuant to Section 7.6(a) of this Agreement, or (ii)
deliveries of Coal that would have been made during any period in which
such deliveries are suspended pursuant to Section 7.6(b) or 7.6(c) of
this Agreement, or (iii) deliveries of Coal
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required to have been made by Seller pursuant to this Agreement but
which Seller failed to deliver in default of its obligations under
this Agreement."
6. Section 8.2 of the Coal Supply Agreement is amended to read in
entirety as follows:
"Section 8.2. Restrictions on Transfer of Mine Reserves.
During the term of this Agreement, Seller shall not sell, lease,
encumber or otherwise transfer any of its ownership or leasehold
interests in, or any of its rights to mine and/or sell, the Mine
Reserves which are necessary pursuant to prudent mining engineering
practice to protect the requirements of this Agreement to any other
party (including any parent, subsidiary or affiliate of Seller)
unless such sale, lease, encumbrance or transfer occurs in connection
with an assignment of this Agreement by Seller in accordance with the
provisions of Article 18 of this Agreement."
7. Section 20.1 of the Coal Supply Agreement is hereby amended to
change the specified addresses of the Parties for notices to the following:
If to Buyer, addressed to
Birchwood Power Partners, L.P.
c/o SEI Birchwood, Inc.
900 Ashwood Parkway, Suite 500
Atlanta, GA 30338
Attn: President
If to Seller, addressed to
Laurel Creek Co., Inc.
Right Fork of Camp Creek
East Lynn, West Virginia 25512
Attn: President
Rockspring Development, Inc.
Right Fork of Camp Creek
East Lynn, West Virginia 25512
Attn: President
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Neweagle Industries, Inc.
237 Main Street
P. O. Drawer 1560
Grundy, Virginia 24614
Attn: President
Neweagle Coal Sales Corp.
237 Main Street
P. O. Drawer 1560
Grundy, Virginia 24614
Attn: President
8. The Coal Supply Agreement, as amended by this Amendment, is hereby
ratified and confirmed and shall remain in full force and effect.
9. This Amendment may be executed in any number of counterparts, and
each counterpart shall have the same force and effect as the original
instrument. Execution of this Amendment by any party may also be accomplished
by facsimile transmission of executed counterpart signature pages of this
Amendment, and such facsimile signatures may be appended or attached to any
counterpart of this Amendment.
IN WITNESS WHEREOF, Buyer, Laurel, Rockspring, NII, and NCSC have duly
executed this Amendment as of the day and year first above written.
BIRCHWOOD POWER PARTNERS, L.P.
BY: SEI BIRCHWOOD, INC.,
General Partner
By: /s/ Mark S. Lynch
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Title: Vice President
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[Signatures Continued on Next Page]
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LAUREL CREEK CO., INC.
By: /s/ F. D. Robertson
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Title: President
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ROCKSPRING DEVELOPMENT, INC.
By: /s/ F. D. Robertson
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Title: President
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NEWEAGLE COAL SALES CORP.
By: /s/ F. D. Robertson
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Title: President
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NEWEAGLE INDUSTRIES, INC.
By: /s/ F. D. Robertson
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Title: President
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Consented and Agreed to By:
ARCH MINERAL CORPORATION
By:
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Title:
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