Exhibit 10.15
COAL PURCHASE AND SALE AGREEMENT NO. 03-30-04-900
THIS COAL PURCHASE AND SALE AGREEMENT No. 03-30-04-900 ("Agreement") is
entered into as of September 25th, 2004 (the "Effective Date"), by and between
Kentucky Power Company ("Buyer"), and Eastern Consolidated Energy, Inc.
("Seller"). Buyer and Seller are also referred to herein individually as a
"Party" and collectively as the "Parties."
The Parties hereby agree as follows:
Definitions
"Affiliates" means with respect to any entity, any other entity that directly
or indirectly, through one or more intermediaries, controls or is controlled
by, or is under common control with, such entity. For this purpose, "control"
means the direct or indirect ownership of 50% or more of the outstanding
capital stock or other equity interests having ordinary voting power.
"Agent[s]" shall have the meaning set forth in Article III, Section 3.2.
"Agreement" shall have the meaning set forth in the preamble.
"Approved Production Source(s)" shall have the meaning set forth in Schedule
3.1-B.
"Bankruptcy Proceeding" means with respect to a Party or entity, such Party or
entity (a) makes an assignment or any general arrangement for the benefit of
creditors, (b) files a petition, has a petition filed against it or its
assets, or otherwise commences, authorizes or acquiesces in the commencement
of a proceeding or cause of action under any bankruptcy or similar law for the
protection of creditors, (c) otherwise becomes bankrupt or insolvent (however
evidenced), or (d) is unable to pay its debts as they fall due.
"BTU" means the amount of energy required to raise the temperature of one (1)
pound of pure water one (1) degree Fahrenheit from 59.5 Fahrenheit to 60.5
Fahrenheit at a constant pressure of 14.73 pounds per square inch absolute.
"Business Day" means a day on which Federal Reserve member banks in New York
City, New York are open for business; and a Business Day shall open at 8:00
a.m. and close at 5:00 p.m. Eastern Prevailing Time.
"Buyer" shall have the meaning set forth in the preamble.
"Claiming Party" shall have the meaning set forth in the definition of Force
Majeure.
"Coal" means crushed, bituminous coal to be sold by Seller and purchased by
Buyer, the quality of which shall conform to the Quality Specifications set
forth in Article III, and which does not trigger Buyer's rejection rights
under Article II, or is otherwise acceptable by Buyer under this Agreement.
Such Coal shall (i) be substantially free from any extraneous materials
(including, but not limited to mining debris, Synfuel, bone, slate, iron,
steel, petroleum coke, earth, rock, pyrite, wood or blasting wire), (ii) be
substantially consistent in quality throughout a Shipment, (iii) meet the size
required, and (iv) have no intermediate sizes (including fines) added or
removed.
"Commercially Reasonable Efforts" means the taking by a Party of such action
as would be in accordance with reasonable commercial practices as applied to
the particular matter in question to achieve the result as expeditiously as
practicable; provided, however, that such action shall not require that such
Party incur unreasonable expense.
"Contract Price" means the price in United States dollars per Ton to be paid
by Buyer to Seller for the purchase of Coal and any other proper charges
pursuant to this Agreement and shall have the meaning set forth in Article V.
"Contract Quantity" shall have the meaning set forth in Article II.
"Contract Year" shall mean the period commencing March 1, 2005 and ending
February 28, 2006 and each period thereafter commencing March 1 and ending the
immediately succeeding February 28 (for 2008, the end date shall be February
29) during the Delivery Period.
"Costs" means any brokerage fees, commissions and other transactional costs
and expenses reasonably incurred either by the Non-Defaulting Party as a
result of terminating any hedges or other risk management contracts and/or
entering into new arrangements in order to replace the Contract Quantity not
delivered by Seller or not accepted by Buyer, as the case may be, and legal
costs incurred by the Non-Defaulting Party.
"Credit Support Provider" means the entity, if any, that supports the
obligations of Seller through a guaranty in a format acceptable to the Buyer
(hereafter "Credit Support").
"Defaulting Party" shall have the meaning set forth in Article XVIII.
"Delivery Period" shall have the meaning set forth in Article II.
"Designated Delivery Point" means FOB the Big Sandy Power Plant.
"Early Termination Date" shall have the meaning set forth in Article XX.
"Eastern Prevailing Time" means Eastern Standard Time or Eastern Daylight
Savings Time in effect in New York, New York, as the case may be on the
relevant date.
"Effective Date" shall have the meaning set forth in the preamble.
"Event of Default" shall have the meaning set forth in Article XVIII hereof.
"FOB" shall have the meaning given to such term as provided in the Uniform
Commercial Code of the State of New York.
"Force Majeure" means an event or circumstance which prevents one Party (the
"Claiming Party") from performing its obligations under this Agreement, which
is not within the reasonable control of, or the result of the negligence of,
the Claiming Party, and which by the exercise of due diligence, the Claiming
Party is unable to overcome or avoid or cause to be avoided or is unable in
good faith to obtain a substitute acceptable to Buyer therefor. Force Majeure
includes, but is not limited to, an event or occurrence beyond the control of
Buyer, such as without limitation, acts of God, war, insurrection, riots,
nuclear disaster, strikes, labor disputes, threats of violence, labor and
material shortages, fires, explosions, floods, river freeze-ups, breakdowns or
damage to mines, plants, equipment, or facilities (including a forced outage
or an extension of a scheduled outage of equipment or facilities to make
repairs to avoid breakdowns thereof or damage thereto), interruptions to or
slowdowns in transportation, railcar shortages, barge shortages, embargoes,
orders, or acts of civil or military authority, laws, regulations, or
administrative rulings, or total or partial interruptions of Buyer's
operations which are due to any enforcement action or other administrative or
judicial action arising from an environmental law or regulation. Force
Majeure shall not be based on: (1) Buyer's inability economically to use or
resell the Coal purchased hereunder; (2) adverse geological or mining
conditions; (3) the Seller's ability to sell the Coal at a price greater than
the Contract Price; or (4) Seller's inability to economically produce or
obtain the Coal.
"Gains" means, with respect to a Party, an amount equal to the present value
of the economic benefit, if any, (exclusive of Costs) to it resulting from the
termination of its obligations with respect to this Agreement, determined in a
commercially reasonable manner.
"Half-Month" means, with respect to any calendar month, either (a) the period
from and including the first day of such month through and including the
fifteenth day of such month or (b) the period from and including the sixteenth
day of such month through and including the last day of such month.
"Imaged Agreement" shall have the meaning set forth in Article XXXII
"Interest Rate" shall have the meaning set forth in Article IV.
"Letter of Credit" means an irrevocable, transferable, standby letter of
credit, issued by a major U.S. commercial bank or the U.S. branch office of a
foreign bank, reasonably acceptable to the beneficiary with, in either case, a
senior unsecured credit rating of at least (a) "A-" by S&P and "A3" by
Moody's, if such entity is rated by both S&P and Moody's or (b) "A-" by S&P or
"A3" by Moody's, if such entity is rated by either S&P or Moody's but not
both.
"Liabilities" shall have the meaning set forth in Article XV.
"Losses" means, with respect to a Party, an amount equal to the present value
of the economic loss, if any, (exclusive of Costs) to it resulting from the
termination of its obligations with respect to this Agreement, determined in a
commercially reasonable manner.
"Material Adverse Change" means a material change in the condition (financial
or otherwise), net worth, properties or operations or in economic conditions,
which, when taken as a whole can reasonably be anticipated to impair the
ability of such Party, or such Party's Credit Support Provider, as applicable,
to fulfill its obligations under this Agreement or Credit Support,
respectively, or there is reasonable grounds to believe that the
creditworthiness of such Party or such Party's Credit Support Provider, as
applicable, has become unsatisfactory or its ability to perform under this
Agreement, or Credit Support, respectively, has been materially impaired.
"Moody's" means Moody's Investors Service, Inc. or its successor.
"New Taxes" means any Taxes, fees, or assessments enacted and effective after
the Effective Date of this Agreement, including, without limitation, that
portion of any Taxes or New Taxes that constitutes an increase.
"Non-Defaulting Party" shall have the meaning set forth in Article XVIII.
"Quality Specifications" means the quality characteristics on an "As-Received"
basis, using ASTM standards, specified on Schedule 3.1 hereto.
"Performance Assurance" means collateral in the form of either cash or Letters
of Credit or such other security of the type and amount requested by the Party
demanding Performance Assurance.
"Plant" means the Big Sandy Power Plant owned by Buyer and located near
Louisa, Ky.
"Pledgor" shall have the meaning set forth in Article XIX.
"Replacement Price" shall have the meaning set forth in Article XVII.
"S&P" means the Standard & Poor's Ratings Services, a division of The McGraw-
Hill Companies, Inc. or its successor.
"Sales Price" shall have the meaning set forth in Article XVII.
"Secured Party" shall have the meaning set forth in Article XIX.
"Seller" shall have the meaning set forth in the preamble.
"Selling Price" shall have the meaning set forth in Article VII.
"Settlement Amount" shall have the meaning set forth in Article XX.
"Shipment" means the aggregate of the truckloads that are unloaded at the
Designated Delivery Point on any one day in accordance with the applicable
Transportation Specifications.
"SO2" means sulfur dioxide and "SO2 per mmBtu" means sulfur dioxide per
million Btu.
"Suspension" shall have the meaning set forth in Article II, Section 2.5.
"Synfuel" means synthetic fuel qualified for tax credits under Section 29 of
the Internal Revenue Code of 1986, as amended.
"Taxes" means any or all ad valorem, property, business and occupation,
occupation, severance, generation, first use, conservation, Btu or energy,
utility, gross receipts, privilege, sales, use, consumption, excise, lease,
transaction, and other taxes, governmental charges, licenses, fees, permits
and assessments, or increases therein, other than taxes based on net income or
net worth.
"Term" shall have the meaning set forth in Article I.
"Third Party Impositions" shall have the meaning set forth in Article VI,
Section 6.1.
"Ton" means 2,000 pounds avoirdupois weight.
"Transportation Specifications" means the timing and tonnage requirements for
Shipment(s) set forth in Article II.
"Transporter" means the entity or entities transporting Coal on behalf of
Seller to and at the Designated Delivery Point or on behalf of Buyer or
Buyer's designee from the Designated Delivery Point.
"Uniform Commercial Code" or "UCC" shall have the meaning set forth in Article
XXIX.
ARTICLE I
Term and Delivery Period
The term of this Agreement (the "Term") shall commence on the Effective Date,
and shall remain in effect until February 29, 2008, except as provided
elsewhere in this Agreement.
The delivery period of this Agreement (the "Delivery Period") shall be from
October 1, 2004, through February 29, 2008.
ARTICLE II
Obligations and Deliveries
Section 2.1 Contract Quantity. During the Delivery Period, Seller agrees to
sell and deliver to the Buyer and Buyer agrees to purchase and accept from
Seller, FOB Big Sandy Plant at the Designated Delivery Point, the quantity of
Coal set forth herein.
For the period commencing October 1, 2004 and ending February 28, 2005, Seller
shall have the right to ship up to 20,000 tons per month at $51.00 per ton
delivered to the Big Sandy Plant. Any tonnage available above the 20,000, in
any given month, shall be offered to Buyer upon the terms set forth in this
Agreement before being offered to any third party. Seller shall advise Buyer
by the 15th day of the previous month of the estimated tonnage for the ensuing
month. Thereafter, shipments shall be at the rate of 40,000 tons per month.
Such tonnage shall be delivered ratably during each month of each Contract
Year.
Section 2.2 Reconsignment and/or Resale Rights. From time to time, and at any
time, Buyer shall have the right, but not the obligation, to have all or any
part of the Coal hereunder reconsigned for delivery to any destination, and/or
to make all or any part of the Coal hereunder available for purchase by any
person(s), whether or not affiliated with Buyer, through Buyer's assignment of
this Agreement or Buyer's purchase and subsequent resale to others of such
Coal.
Should Buyer exercise its right to reconsign or resell Coal, Seller shall
arrange for transport to the destination designated by Buyer, in accordance
with the Transportation Specifications attached hereto as Schedule 2.4, or as
otherwise provided by Buyer at the time of exercising its rights under this
Section 2.2. Any adjustments to transportation costs shall be Buyer's
responsibility.
Section 2.3 Scheduling. Buyer will advise Seller of its desired delivery
schedule. The Parties will work together in good faith to agree on a
reasonable and mutually acceptable delivery schedule within the Term and
within each month during the Term.
Section 2.4 Delivery. The Coal shall be delivered to Buyer FOB Big Sandy
Plant at the Designated Delivery Point in accordance with the Transportation
Specifications detailed in Schedule 2.4 (attached hereto and hereby made a
part of this Agreement).
Seller shall be responsible for any costs or charges imposed on or associated
with the delivery of the Contract Quantity up to the Designated Delivery
Point. Buyer shall be responsible for any costs or charges imposed on or
associated with the Contract Quantity upon taking title to the Coal at the
Designated Delivery Point in accordance with Article XV.
If a Party is charged for any increased transportation charges, penalties, or
other costs, including demurrage, attributable to the other Party's failure to
timely load or unload the Coal in accordance with the terms of this Agreement,
including the timing and tonnage requirements of the Transportation
Specifications, and if such failure is not due to Force Majeure, such failing
Party shall reimburse the other for such charges.
Each Party shall immediately contact the other Party in the event of a
curtailment or interruption in the delivery or receipt of Coal hereunder.
Each Party shall contact the other Party with as much advance notice as
reasonably possible regarding any such impending curtailment or interruption.
The Parties agree that Seller will not be liable under this Agreement to Buyer
due to any act, omission or delay by Buyer's Transporter, provided that Seller
has not caused such act, omission, or delay. The Parties agree that Buyer
will not be liable under this Agreement to Seller due to any act, omission, or
delay by Buyer's Transporter provided that Buyer has not otherwise caused such
act, omission, or delay.
Section 2.5 Rejection and Suspension.
In addition to all other remedies at law or in equity, and in addition to the
price adjustments provided for in Article VII, Buyer shall have the following
rights and remedies upon Seller's failure to conform with the requirements as
set forth in Article III.
(a) Buyer shall have the right to reject any Shipment hereunder if the Coal
therein fails to conform to any requirement set forth in Article III. Should
Buyer exercise such right of rejection, it shall notify Seller by telephone
upon discovery of the nonconformance, such notification to be promptly
confirmed in writing.
(b) Buyer shall have the right to suspend all further shipments of Coal
hereunder if: (i) there are three (3) non-conforming Shipments, whether
rejected or not, in any three (3) month period; (ii) two (2) out of four (4)
consecutive Shipments are non-conforming Shipments; or (iii) the Coal quality
fails to meet the defined minimum or exceeds the defined maximum Contracted
Half-Month "Suspension" specifications applicable under Article III. Should
Buyer exercise such right to suspend further Shipments, Buyer shall notify
Seller of its exercise of right of suspension within 15 calendar days after
the day or Half-Month period in which such failure occurs.
(c) Upon receipt of Buyer's notice of suspension, Seller shall immediately
suspend further Shipments and make every reasonable effort to correct the
conditions giving rise to the Shipment(s) of Coal failing to conform to such
specifications or requirements. Seller shall inform Buyer in writing on a
weekly basis of such corrective actions taken by Seller.
During such suspension, Seller shall permit Buyer's full access to the
production sources and related facilities hereunder and to all engineering
data related thereto. Buyer shall have the right, but not the duty, to
participate in any and all discussions relating to the matter and to recommend
procedures to correct said matter.
Such suspension shall continue until Seller provides Buyer with assurances in
writing that are satisfactory to Buyer that the conditions causing Shipment of
Coal not in accordance with this Agreement have been corrected and that Seller
can and shall deliver Coal meeting Article III requirements and meeting the
"Contracted Half-Month" specifications of Schedule 3.1-A (attached hereto and
hereby made a part of this Agreement).
Upon receipt by Buyer of Seller's satisfactory written assurances, as
determined by Buyer in its sole discretion, shipments shall be resumed at the
rate specified in Article II.
(d) In the event that: (i) Seller fails to provide Buyer with such assurances
within 10 days after the date of Buyer's notice of suspension as described in
this Section 2.5; or (ii) having provided such assurances, Seller fails to
correct such conditions and resume shipments in the ensuing 30 days
thereafter; or (iii) after such resumption of shipments, Seller's subsequent
deliveries at any time during the ensuing 90 days fall below the minimum or
exceed the maximum "Suspension" or Rejection specifications applicable under
Article III; then such event shall constitute an Event of Default under
Article XVIII hereof.
(e) Whether shipments suspended pursuant to this Article II hereof shall be
made up, as well as the scheduling of such make up, shall be at Buyer's sole
discretion. In the event Buyer exercises its right to require such make up,
delivery of make up tonnage shall be scheduled so that such deliveries shall
be shipped no later than 365 calendar days following resumption of shipments.
ARTICLE III
Quality Specifications
Section 3.1 Quality Specifications. Seller shall cause all Coal delivered to
Buyer, pursuant to this Agreement, to comply with Quality Specifications set
forth on Schedule 3.1-A.
Buyer may terminate this Agreement or terminate deliveries from an Approved
Production Source (where more than one [1] Approved Production Source is
listed in Schedule 3.1-B [attached hereto and hereby made a part of this
Agreement]) if Buyer in its reasonable judgment determines through operating
experience that the Coal therefrom, even if the Coal meets the requirements
and specifications of Schedule 3.1-A, (i) causes unsatisfactory performance at
the consigned destination, or (ii) requires Buyer to modify equipment,
facilities, practices, or processes. In such event, Buyer shall provide
Seller with written notice thereof, specifying the basis of such
unsatisfactory performance or modification.
ARTICLE IV
Billing and Payment; Financial Reports
Buyer shall pay Seller by electronic transfer (recipient's account per
Seller's advice) in United States funds for all Coal received, unloaded, taken
into account, and accepted hereunder.
Buyer shall submit to Seller the weight, analytical, and cost data on such
Coal taken into account during each Half-Month at each respective consigned
destination within five (5) Business Days after each such Half-Month period.
Thereafter, Seller shall submit to Buyer, within two (2) Business Days of
receipt of such information, an invoice covering such Half-Month deliveries at
each respective consigned destination, which invoice shall include a reference
to this Agreement's contract number 03-30-04-900.
Buyer shall make payment by electronic transfer to Seller within 10 calendar
days after receipt of Seller's invoice, provided Seller's invoice is submitted
in accordance with the preceding paragraph. Seller shall provide Buyer all
pertinent wire transfer instructions on each invoice.
If Buyer in good faith reasonably disputes an invoice, it shall provide a
written explanation specifying in detail the basis for the dispute and pay any
undisputed portion no later than the due date. Upon resolution of any dispute
involving an invoice, any additional amount owing shall be paid with interest
(the prime rate of interest for United States dollars as published from time
to time under the section titled, "Money Rates" by The Wall Street Journal,
plus two percent [2%], but not to exceed the maximum applicable lawful
interest rate [hereinafter "Interest Rate"]). If any Party fails to pay
amounts under this Agreement when due, unless such amount is the subject of a
dispute as provided above, or is excused by Force Majeure, in addition to the
rights and remedies provided in this Agreement, the aggrieved Party shall have
the right to suspend performance under this Agreement until such amounts plus
interest have been paid, and/or exercise any remedy available at law or in
equity to enforce payment of such amount plus interest at the Interest Rate
defined herein.
If requested by either Party, the other Party (or its Guarantor) shall deliver
to the other Party (i) within 120 days following the end of each fiscal year,
a copy of the Party's portion of the annual report containing audited
consolidated financial statements for such fiscal year for such Party and (ii)
within 60 days after the end of each of its first three (3) quarters of each
fiscal year, a copy of the quarterly report containing unaudited consolidated
financial statements for such fiscal quarter for the Party. In all cases, the
statements shall be for the most recent accounting period and shall be
prepared in accordance with generally accepted accounting principals, provided
however, that should any such statements not be available on a timely basis
due to a delay in preparation or certification, such delay shall not be an
Event of Default so long as the relevant entity diligently pursues the
preparation, certification, and delivery of the statements.
In the event a Party's financial statements are filed with the Securities and
Exchange Commission and are available at www.sec.gov, then such Party has
fulfilled its obligations hereunder.
ARTICLE V
Contract Price
The Contract Price shall be as follows:
Period Contract Price
October 1, 2004 through February 28, 2007 $51.00 per ton delivered to the
Big Sandy Plant
March 1, 2007 through February 29, 2008 [to be determined as follows]
On or before November 30, 2006, the parties shall negotiate, in good faith, to
reach agreement on the price of Coal for the final 12 (twelve) month period
(March 1, 2007 thru February 29, 2008). The agreed upon Contract Price shall
reflect the one year market price of Coal, of the quality and quantity herein,
delivered to the Big Sandy Plant. Such market price shall be no less than
$6.00 below, nor be more than $6.00 above the Contract Price as of October 31,
2006. Such agreed upon price shall become the new Contract Price.
Should the Parties be unable to agree upon a new Contract Price by November
30, 2006, then the final Contract Year's Contract Price shall be equal to the
NYMEX-Spec OTC forward price quoted for the up-coming calendar year (2007), as
published by Argus Coal Daily, or its successor publication, on the last
published date of such publication prior to November 30, 2006. However, in no
case shall the Contract Price be reduced by more than $6.00 per ton nor
increased by more than $6.00 per ton from the then current Contract Price.
For the first 24 (twenty-four) months of the Agreement, except as provided
herein under Changes in Law and Article VII, the Contract Price shall be firm
and not subject to any adjustment.
Changes in Law. Seller hereby certifies that it is or will be in compliance
with the rules, practices, and standards issued by any governmental agency
with respect to legislation, regulations, rules or mandates which were in
effect either by interim or final rules as of the Effective Date of this
Agreement.
In the event of the enactment, modification, or revision of any Federal, State
or local legislation, regulations, rules or mandates issued pursuant thereto,
including but not limited to the Federal Mine Safety & Health Act of 1977 and
the Surface Mining Control and Reclamation Act of 1977, after the Effective
Date of this Agreement, which affect the bituminous coal industry with respect
to the coal reclamation, conservation, environmental protection, mine safety,
mine working conditions and practices, ventilation, health, employee
retirement programs, occupational hazards, research and reclamation and
conservation of mined areas, and which increases or decreases Seller's cost of
producing Coal under this Agreement, an appropriate adjustment will be made to
the current Base Price to recognize such changed cost; provided, however,
there shall be no changes made in the Base Price for changed costs associated
with labor related benefits or taxes, real or personal property taxes,
corporate net income or franchise taxes; and further provided that Buyer shall
have the right to terminate this Agreement should any such adjustments cause
the Base Price to be increased by more than ten percent (10%) of its then
current amount or should the total of all such adjustments under this
subsection (c) cause the Base Price to be increased by more than five dollars
and ten cents ($5.10).
Seller shall notify Buyer in the event of such governmental action and shall
submit detailed documentation to allow determination of any such adjustment.
If Seller and Buyer are unable to agree within ninety (90) days of receipt by
Buyer of Seller's documentation as to the amount the price per ton should be
adjusted or as to whether the event is applicable, then the matter shall be
submitted to a firm of mining engineers and/or independent certified public
accountants mutually agreeable to the Parties for final determination, which
shall be binding upon the Parties.
If upon agreement or final determination, an adjustment in the cost per ton is
found to be appropriate, appropriate credit for such amount on all tons
delivered on and after the effective date of any such change resulting in such
price adjustment, plus interest computed on the basis of the prime rate in
effect at Citibank, N.A., commencing sixty (60) days after the effective date
of such change, shall be made to the party to whom the benefit of such credit
is due; provided, however, that Seller shall not be entitled to any such
credit for such tonnage delivered prior to the date upon which Seller's
written request for such adjustment is received by Buyer, nor for interest for
a period of sixty (60) days subsequent to such date of Buyer's receipt.
ARTICLE VI
Taxes and Other Liabilities
Section 6.1. Each Party shall use Commercially Reasonable Efforts to
administer this Agreement and implement the provisions in accordance with the
intent to minimize Taxes, but neither Party shall be obligated to incur
additional expenses in doing so. Seller shall be solely responsible as for
all assessments, fees, costs, expenses, and taxes (including without
limitation, New Taxes, but not income taxes) imposed by governmental
authorities or other third parties ("Third Party Impositions") relating to the
mining, beneficiation, production, sale, use, loading and delivery of Coal to
Buyer or in any way accrued or levied at or prior to the transfer of title to
the Coal to Buyer, and including, without limitation, all severance taxes,
royalties, black lung fees, reclamation fees and other costs, charges, and
liabilities. Buyer shall be solely responsible for Third Party Impositions
relating to the Coal accrued or levied after the transfer of title to the Coal
to Buyer.
If either Party is exempt from taxes, it shall provide a certificate of
exemption or direct pay permit, or other reasonable satisfactory evidence of
such exemption.
Section 6.2. Each Party shall indemnify, release, defend, and hold harmless
the other Party, its officers, directors, affiliates, agents, and employees,
from and against any and all Third Party Impositions with respect to the Coal
that are the responsibility of such Party.
ARTICLE VII
Adjustments to the Contract Price
Adjustments to the Contract Price for variances in quality shall be made in
accordance with the provisions of Schedule 7.2 (attached hereto and hereby
made a part of this Agreement). The Contract Price as adjusted by such
provisions is referred to as the "Selling Price."
ARTICLE VIII
Weighing, Sampling, and Analyses
Weighing, sampling, and analyses shall be performed by Buyer in accordance
with the provisions of Schedule 8.1 (attached hereto and hereby made a part of
this Agreement).
ARTICLE IX
Other Governmental Legislation, Regulations, and Orders
Section 9.1. Seller and Buyer shall make good faith efforts to comply with
the provisions of all federal, state, and other governmental laws and any
applicable orders and/or regulations, or any amendments or supplements
thereto, which have been, or may at any time be, issued by a governmental
agency.
Section 9.2. (a) If any federal, state, or other governmental law, regulation,
or order (including but not limited to the Clean Air Act Amendments of 1990)
is enforced or imposed upon Buyer regarding the purchasing, burning,
transporting, or the use of, the Coal specified in this Agreement (including
but not limited to any such law, regulation, or order that would increase
Buyer's cost of burning or using such Coal on a dollar per ton basis
equivalent to more than two and one-half percent [2.5%] of the then current
Contract Price), or the reduction of the emission limitations below the
current standard, or the sulfur or other chemical content of the Coal to be
burned at the Plant; or if, as a result of any federal, state, or other
governmental law, regulation, or order (including but not limited to the Clean
Air Act Amendments of 1990) relating to the sulfur or other chemical content
of the Coal and/or the stack emission limitations at a group of plants
comprised of the Plant and any other generating plant(s) operated by the
American Electric Power Company, Inc., or any of its Affiliates, Buyer
voluntarily or involuntarily revises the specifications of the Coal to be
burned at the Plant and/or voluntarily or involuntarily reduces the stack
emission limitations at the Plant, in order that the Plant or such group of
plants may be in compliance with said federal, state, or other governmental
law, regulation, or order; or if as a result of any of the foregoing, Buyer in
its sole reasonable judgment decides to discontinue the use of Coal at the
Plant, then Buyer may terminate this Agreement by written notice to Seller as
of the date determined pursuant to Section 9.4. If Buyer so requests, Seller
shall have the right, but not the obligation, to so agree to deliver Coal
having such different specifications and/or quantity requirements in
accordance with the remainder of the terms and conditions of this Agreement
(specifically at the price provisions set forth in Article V); provided,
however, that those provisions dealing with quantity and/or quality will be
changed appropriately to accommodate such different specifications and/or
quantities. If, within 30 days of Seller's receipt of Buyer's notice to
Seller pursuant to this paragraph, Seller has not exercised its right to
continue deliveries as provided above, Buyer may terminate this Agreement by
written notice to Seller. Should Buyer make such termination election, this
Agreement shall terminate as of the date determined pursuant to Section 9.4.
(b) If any federal, state, or other governmental law, regulation, or order is
enacted, promulgated, or issued that alters, directly or indirectly, the
rights of any electric utility, exempt wholesale generator, independent power
producer, or similar entity(ies) to sell electric power to a location or
locations served by the Plant or by any other plant(s) owned by Buyer and/or
any of its Affiliates, then Buyer may terminate this Agreement at any time
thereafter by written notice to Seller setting forth the date upon which
Buyer's election shall become effective; provided, however, that said
effective date shall in no event be earlier than 60 days after the date of
delivery of such notice.
Section 9.3. In the event of the enactment of any new federal, state, or
other governmental law, or the promulgation of any regulation or order
thereunder which prohibits (or restricts so as effectively to prohibit) mining
or processing, or shipping, as may be applicable, of the Coal specified in
this Agreement, Seller may elect to be relieved of its obligation upon the
effective date of implementation (compliance date) of such law, regulation, or
order to deliver the total quantity of Coal to be delivered under this
Agreement to the extent of the amount of tonnage represented by the percentage
of production by Seller of such mining or processing, or shipping, as may be
applicable, of Coal so affected by such law, regulation, or order to the total
amount of Coal produced and processed to meet the quantity requirements of
this Agreement.
Section 9.4. (a) In the event Buyer elects to invoke Section 9.2 relative to
the Clean Air Act Amendments of 1990, Buyer shall notify Seller in writing
setting forth the date upon which Buyer's election shall become effective;
provided, however, that said effective date shall in no event be earlier than
60 days after the date of delivery of such notice.
(b) Except as provided for in Section 9.4(a), should either Buyer or Seller
elect to invoke Section 9.2 or 9.3, respectively, the Party so invoking shall
notify the other Party in writing, stating the grounds upon which such
invocation is based. Said notice shall also state the date upon which the
notifying Party's election shall become effective, which said date shall not
be earlier than 120 days prior to the effective date of the implementation
(compliance date) of such law, regulation, or order giving rise to the
election; provided, however, that notwithstanding anything to the contrary
herein, said effective date shall in no event be earlier than 60 days after
the date of delivery of notice.
Section 9.5. If Buyer elects to terminate this Agreement under the provisions
of this Article, then neither Party shall have, after the effective date of
such termination, any further obligation under this Agreement; provided,
however, that such termination shall not affect any rights or obligations of
Buyer or Seller existing under this Agreement for Coal shipped or required to
be shipped prior to the effective date of said termination.
ARTICLE X
Representations
On the Effective Date, each Party represents and warrants to the other Party
that:
it is duly organized, validly existing and in good standing under the laws of
jurisdiction of its formation;
it has all regulatory authorizations necessary for it to legally perform its
obligations under this Agreement;
the execution, delivery and performance of this Agreement are within its
powers, have been duly authorized by all necessary action and do not violate
any of the terms and conditions in its governing documents, any contracts to
which it is a party or any law, rule, regulation, order or the like applicable
to it;
this Agreement and each other document executed and delivered in accordance
with this Agreement constitutes its legally valid and binding obligation
enforceable against it in accordance with its terms, subject to any equitable
defenses;
Buyer and Seller are each acting for their own account; each Party has made
its own independent decision to enter into this Agreement and as to whether
this Agreement is appropriate or proper for it based upon its own judgment, is
not relying upon the advice or recommendations of the other Party in so doing,
and is capable of assessing the merits of and understanding, and understands
and accepts, the terms, conditions and risks of this Agreement;
it is not bankrupt and there are no Bankruptcy Proceedings pending or being
contemplated by it or, to its knowledge, threatened against it which would
result in it being or becoming bankrupt;
there is not pending or, to its knowledge, threatened against it or any of its
Affiliates any legal proceedings that could materially adversely affect its
ability to perform its obligations under this Agreement;
no Event of Default with respect to it has occurred and is continuing and no
such event or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement;
it is a "forward contract merchant" and this Agreement is a "forward contract"
within the meaning of the United States Bankruptcy Code;
it has entered into this Agreement in connection with the conduct of its
business and it has the capacity or ability to make or take delivery of all
Coal referred to in this Agreement;
with respect to this Agreement, it is an "eligible contract participant" as
defined in Section 1a(12) of the Commodity Exchange Act, as amended [7USC
Section 1a(12)];
all applicable information that is furnished in writing by it or on behalf of
it to the other Party pursuant to this Agreement is as of the date provided
true, accurate and complete in every material respect. For purposes of this
representation, financial information provided via posting on the Internet
shall be deemed to be written information provided to the other Party;
no event or circumstance exists at any Approved Production Source (as provided
under Schedule 3.1-B), that would constitute an event of Force Majeure under
this Agreement.
Each Party represents that the individuals signing this Agreement on behalf of
each of them has been duly authorized to do so. This Agreement will become a
valid and binding contract only upon its execution by such persons authorized
to bind both Parties.
ARTICLE XI
Audit
Each Party (and its representatives) has the right, at its sole expense during
normal working hours and upon reasonable advance notice, to examine the
records of the other Party, but only to the extent reasonably necessary to
verify the accuracy of any statement, charge or computation made pursuant to
this Agreement. If requested, a Party shall provide to the requesting Party
statements evidencing the quantities and qualities of Coal delivered or
received at the Delivery Point. If any such examination reveals any
inaccuracy in any statement, the necessary adjustments in such statements and
the payments thereof will be promptly made and shall bear interest calculated
at the Interest Rate from the date the overpayment or underpayment was made
until paid; provided, however, that no adjustment for any statement or payment
will be made unless objection to the accuracy thereof was made in writing, in
reference hereto, prior to the lapse of two (2) years from the rendition
thereof; and provided further, that for the purpose of such statement and
payment objections, this Article XI will survive any termination of this
Agreement.
ARTICLE XII
Force Majeure
To the extent either Party is prevented by Force Majeure from carrying out, in
whole or part, its obligations under this Agreement and such Party (the
"Claiming Party") gives notice and details, orally and confirmed promptly in
writing, of the Force Majeure to the other Party as soon as practicable (but
in no event later than 30 days after the occurrence thereof), then the
Claiming Party shall be excused from the performance of its obligations. The
Claiming Party shall remedy the Force Majeure with all reasonable dispatch.
The non-Claiming Party shall not be required to perform or resume performance
of its obligations to the Claiming Party corresponding to the obligations of
the Claiming Party excused by Force Majeure. Failure to give such notice and
furnish such information within the time specified shall be deemed a waiver of
all rights under this Article for such period of time during which notice was
not given. Buyer and Seller shall exercise reasonable efforts to mitigate or
eliminate the conditions which have caused the Force Majeure condition,
provided, however, nothing herein contained shall be construed as requiring
Seller or Buyer to accede to any demands of labor, or labor unions, or
suppliers, or other parties which Seller or Buyer considers unacceptable. No
suspension or reduction by reasons of Force Majeure shall invalidate the
remainder of this Agreement but, on the removal of the cause, shipments shall
resume at the specified rate. The Claiming Party claiming Force Majeure shall
furnish the non-Claiming Party a monthly statement by the fifteenth (15th) day
of the calendar month setting forth the amount of tonnage not shipped or to be
reduced because of Force Majeure causes asserted during the second preceding
calendar month.
If an event of Force Majeure persists for (i) a continuous period of 45 days
or (ii) an aggregate of 75 days in any twelve-month rolling period, then, at
any time thereafter during the Force Majeure period, the Party not claiming
Force Majeure shall have the option, upon three (3) days' prior written
notice, to terminate this Agreement and the obligations of the Parties
thereunder.
In the event of a Force Majeure, delivery of the affected quantity of Coal
shall not be made up except at Buyer's sole discretion.
If Seller claims Force Majeure under this Agreement and has obligations to
provide Coal of a similar type and quality as the Coal under other coal sales
agreements, or if Buyer claims Force Majeure and has obligations to purchase
coal of a similar type and quality as the Coal under other coal sales
agreements, then any reductions in Seller's deliveries or Buyer's purchases
(as applicable) shall be allocated by the Party claiming Force Majeure on a
pro rata basis among this Agreement and such other coal purchase or sales
agreements involving coal of a similar type and quality as the Coal, to the
extent contractually permitted by such agreements. Without limiting the
generality of this Article, in the event of a Force Majeure event which causes
a partial or total curtailment of electrical generation from or electrical
generating capacity at the consigned destination or partial or total
curtailment of transmission or distribution of electricity therefrom, Buyer
shall at its option, be relieved under this Article from its obligation to
accept up to the pro rata (based on such partial curtailment) quantity or
entire (based on such total curtailment) quantity of Seller's coal scheduled
for delivery for the period during which such event or occurrence exists or
existed.
ARTICLE XIII
Warranties
In addition to all other warranties and representations made by Seller in this
Agreement, Seller represents and warrants that (i) Seller, its affiliates or
subsidiaries, shall by the Effective Date of this Agreement, own or control
sufficient reserves of Coal as defined in Schedule 3.1-B to satisfy the
quantity and quality provisions for this Agreement; (ii) Seller hereby
certifies that it is in good faith compliance with the rules, practices, and
standards issued by any and all governmental agency(ies) with respect to
legislation, regulations, rules, or mandates which were in effect either by
interim or final rules, or passed, adopted, or promulgated but to go into
later effect, as of the time specified for the first delivery of Coal
hereunder, including all laws and regulations regarding the mining and sale of
Coal (notices and orders issued under the Federal Coal Mine Health and Safety
Act and State and Federal Reclamation Acts excepted); and (iii) Seller has
filed or will have filed in a timely manner to have obtained by said time all
licenses, permits, certificates and other documents necessary for it to
fulfill its obligations hereunder. Seller shall furnish annually to Buyer a
statement indicating the amount of reserves that remain to fulfill the
quantity and quality requirements of this Agreement.
To the extent that it has the authorization to do so, Seller covenants that it
will, and does hereby, dedicate to this Agreement such quantity of said Coal
reserves as is required for the full performance of Seller's obligations
hereunder and that Seller will not sell nor contract to sell to others Coal
from said reserves in such quantity and quality as to jeopardize its ability
to deliver the total quantity and quality of Coal called for by this
Agreement. Nothing in this Article XIII shall be construed as preventing
Seller from mining and selling Coal from said reserves to others provided the
foregoing provisions with respect to said reserves are complied with.
ARTICLE XIV
Performance Guaranty
Commencing March 1, 2005, Buyer shall escrow an amount equal to $2.00 per ton
of the Contract Price for all tons delivered during the next two (2) Contract
Years of this Agreement. During the third Contract Year:
Should the Contract Price exceed $45.00 per ton, but be less than $57.00 per
ton, then Buyer shall release an amount equal to $1.00 per ton for each ton
delivered during the third Contract Year, with the balance of the account plus
interest to be released to Seller upon the completion of this Agreement,
including but not limited to completion of Seller's delivery of coal pursuant
to Section 2.1 of this Agreement.
Should the limitations on increasing the Contract Price, as set forth in
Article V, result in the March 1, 2007 Contract Price being increased by $6.00
per ton , then Seller shall continue to contribute an amount equal to $1.00
per ton for all tons delivered. The total account plus interest shall be
released to Seller upon the completion of this Agreement, including but not
limited to completion of Seller's delivery of coal pursuant to Section 2.1 of
this Agreement.
Should limitations on decreasing the Contract Price, as set forth in Article
V, result in the March 1, 2007 Contract Price being decreased by $6.00 per
ton, then Buyer shall release an amount equal to $2.00 per ton for each ton
delivered in the third year, with the balance of the account plus interest
being released to Seller upon the full completion of this Agreement, including
but not limited to completion of Seller's delivery of coal pursuant to Section
2.1 of this Agreement.
All monies held by Buyer shall accrue interest and shall be paid to Seller
upon distribution as described above. If Seller defaults under this
Agreement, Buyer may withdraw and setoff monies in the account up to the
damages amount as reasonably demonstrated by Buyer.
ARTICLE XV
Title, Risk of Loss, and Indemnity
Title for Coal conforming to this Agreement shall pass to Buyer as follows:
a)Title to and risk of loss (except as provided in Schedule 2.4) of the Coal
will pass to Buyer upon delivery.
Title shall revert back to Seller immediately upon any rejection or
nonacceptance by Buyer as provided elsewhere in this Agreement.
Seller warrants that it has title to the Coal and will deliver the Coal to
Buyer free and clear of all liens, claims, and encumbrances arising prior to
the transfer of title to Buyer. Seller and Buyer shall each indemnify,
defend, and save harmless the other Party, its officers, directors,
affiliates, agents, and employees from and against any liabilities, expenses,
losses, claim, damages, penalties, causes of action, or suits arising out of
or in connection with its failure to comply with its obligations under this
Agreement.
Seller shall indemnify, save harmless, and defend Buyer and its affiliates,
its officers, directors, agents, and employees (all referred to in this
sentence as "Buyer") from and against any liabilities, expenses, losses,
claims, damages, penalties, causes of action, or suits, and all other
obligations whatsoever, including without limitation, all judgments rendered
against and all fines and penalties imposed upon Buyer (whether severally, or
in combination with others) and any reasonable attorneys' fees and any other
costs of litigation (all of which are hereinafter referred to as
"Liabilities") arising out of injuries or death to any person(s), or damage to
any property, caused by or related to, in whole or in part the railcars (or
barges, if applicable) furnished hereunder (as applicable), between the time
that such railcars (or barges, if applicable) are delivered to Seller or
Seller's agent and the time that custody thereof is properly returned to Buyer
(or to Buyer's agent carrier, if applicable), or if deliveries are by truck,
arising out of injuries or death to any person(s), or damage to any property,
caused by or related to, in whole or in part, to trucking of Coal, whether
such Coal is trucked by Seller or Seller's trucking contractor(s). Any injury
or death to person(s) or damage to property as hereinbefore described shall be
reported to Buyer by Seller immediately upon the occurrence thereof, and
confirmed in writing as soon as possible.
ARTICLE XVI
Netting and Set Off
If the Parties are required to pay any amount under this Agreement on the same
day, then such amounts with respect to each Party may be aggregated and the
Parties may discharge their obligations to pay through netting, in which case
the Party, if any, owing the greater aggregate amount shall pay to the Party
owed the difference between the amounts owed. Each Party reserves to itself
all rights, setoffs, counterclaims, combination of accounts, liens and other
remedies and defenses which such Party has or may be entitled to (whether by
operation of law or otherwise). The obligations to make payments under this
Agreement or any other agreement between the Parties may be offset against
each other, set off or recouped therefrom.
ARTICLE XVII
Calculation of Damages
Section 17.1 In addition to all other remedies available at law or, in
equity, or under this Agreement, unless excused by Force Majeure, by written
agreement of Buyer and Seller, or Buyer's failure to perform, if Seller fails
to deliver all or part of the Contract Quantity pursuant to this Agreement
(including any failure due to rejection or suspension of delivery
obligations), Seller shall pay Buyer, on the date payment would otherwise be
due to Seller, an amount for each ton of such deficiency equal to the positive
difference, if any, obtained by subtracting the Contract Price from the
Replacement Price. "Replacement Price" means the market price for such
quantity at such Designated Delivery Point as determined by Buyer in a
commercially reasonable manner.
Unless excused by Force Majeure, by written agreement of Buyer and Seller, or
Seller's failure to perform, if Buyer fails to accept all or part of the
Contract Quantity pursuant to this Agreement, Buyer shall pay Seller, on the
date payment would otherwise be due, an amount for each ton of such deficiency
equal to the positive difference, if any, obtained by subtracting the Sales
Price from the Contract Price. "Sales Price" means the market price for such
quantity at such Designated Delivery Point as determined by Seller in a
commercially reasonable manner.
Section 17.2 Payment of amounts, if any, determined under this Article shall
be made in accordance with Article IV; provided, that payment of any such
amounts shall be made on the 15th day of the month following such failure to
deliver or accept Coal, as applicable. All such determinations shall be made
in a commercially reasonable manner. The Non-Defaulting Party shall not be
required to enter into any actual replacement transaction in order to
determine the Replacement Price or Sales Price, as appropriate, provided,
however, that the Non-Defaulting Party shall take all reasonable steps to
mitigate its damages.
ARTICLE XVIII
Events of Default, Remedies and Limitation of Liabilities
Section 18.1 An event of default ("Event of Default") with respect to a Party
(the "Defaulting Party") shall mean any of the following:
the failure of the Defaulting Party to pay when due any required payment and
such failure is not remedied within three Business Days, after receipt of
written notice thereof, provided the payment is not subject to a good faith
dispute as described in Article IV;
2)an event described under paragraph (d) of Article II, Section 2.6, Rejection
and Suspension, has occurred;
3)any representation or warranty made by a Party herein shall prove to be
untrue in any material respect when made;
the failure of the Defaulting Party to comply with its other respective
covenants or obligations under this Agreement and such failure continues
uncured for five (5) Business Days after receipt of written notice thereof;
5)the Defaulting Party shall be subject to a Bankruptcy Proceeding;
6)the Defaulting Party fails to establish, maintain, extend, or increase
Performance Assurance when required pursuant to this Agreement;
7)the occurrence of a Material Adverse Change with respect to the Defaulting
Party; provided, such Material Adverse Change shall not be considered an Event
of Default if the Defaulting Party, within forty-eight hours but at least one
(1) Business Day after the date of notice, provides to the Non-Defaulting
Party for so long as the Material Adverse Change is continuing, Performance
Assurance with the Non-Defaulting Party in an amount equal to the sum of (in
each case rounding upwards for any fractional amount to the next $250,000):
a)the Settlement Amount that would be owed to the Non-Defaulting Party; plus
b)if the Non-Defaulting Party is Seller, the amount equal to aggregate of the
amounts Seller is entitled to receive under this Agreement for Coal scheduled
during the 60 day period preceding the Material Adverse Change (the amount of
said Performance Assurance to be adjusted quarterly to reflect amounts owing
at that point in time).
Section 18.2 Upon the occurrence and during the continuance of an Event of
Default, the other Party (the "Non-Defaulting Party") may, in its sole
discretion:
1)terminate, accelerate, and liquidate the Parties' respective obligations
under this Agreement by establishing, and notifying the Defaulting Party of,
an early termination date (which shall be no earlier than the date of such
notice nor later than 20 days after the date of such notice) on which this
Agreement shall terminate ("Early Termination Date"); and/or
2)withhold any payments due to the Defaulting Party until such Event of
Default is cured; or
3)suspend performance of its obligations under this Agreement until such Event
of Default is cured.
If notice of an Early Termination Date is given under this Article, the Early
Termination Date will occur on the designated date, whether or not the
relevant Event(s) of Default is then continuing.
Section 18.3 Notwithstanding any provision to the contrary contained in this
Agreement, the Non-Defaulting Party shall not be required to pay the
Defaulting Party any amount under this Article XVIII, until the Non-Defaulting
Party receives confirmation satisfactory to it, in its reasonable discretion
(which may include an opinion of its counsel), that all other obligations of
any kind whatsoever of the Defaulting Party to make any payments to the Non-
Defaulting Party under this Agreement (or otherwise) have been fully and
finally performed.
ARTICLE XIX
Grant of Security Interest
To secure its obligations under this Agreement and to the extent either or
both Parties deliver Performance Assurance hereunder, each Party (a "Pledgor")
herby grants to the other Party (the "Secured Party") a present and continuing
first priority secured interest in, and lien on (and right of recoupment and
setoff against), and assignment of, all cash collateral and cash equivalent
collateral and any and all proceeds resulting therefrom or the liquidation
thereof, whether now or hereafter held by, on behalf of, or for the benefit
of, such Secured Party, and each Party agrees to take such action as the other
Party reasonably requires in order to perfect the Secured Party's first-
priority security interest in, and lien on (and right of recoupment and/or
setoff against), such collateral and any and all proceeds resulting therefrom
or from the liquidation thereof.
ARTICLE XX
Holding and Using of Performance Assurance
Each Party will be entitled to call for and hold Performance Assurance so long
as the credit rating of the senior unsecured debt obligation of the entity or
its guarantor is rated at least BBB- by S&P's and Baa3 by Moody's and further
provided that an Event of Default has not occurred and is continuing with
respect to the Party. If a Party's Event of Default has occurred and is
continuing, then the Defaulting Party, if it holds Performance Assurance,
shall be required to immediately return all Performance Assurance to the Non-
Defaulting Party.
ARTICLE XXI
Early Termination Payment and Remedies
If this Agreement terminates on an Early Termination Date, the Non-Defaulting
Party shall calculate, in a good faith commercially reasonable manner, the
Settlement Amount as of the Early Termination Date as soon as is reasonably
practicable and shall promptly notify the Defaulting Party of the amount
thereof.
"Settlement Amount" shall mean the present value of the single net aggregate
amount for the remaining term of the Agreement, of any Losses Costs and Gains,
expressed in U.S. Dollars, which the Non-Defaulting Party incurs as a result
of the early termination of this Agreement in accordance with Article XVIII,
including, but not limited to, Losses or Gains based upon the then current
replacement value of this Agreement, the amounts of any unpaid invoices, and
the amount for Coal delivered but not yet billed. In calculating the
Settlement Amount, the Non-Defaulting Party shall set off all amounts that are
due to the Defaulting Party against such Settlement Amount so that the
Settlement Amount shall be netted to a single liquidated amount. Any
collateral being held by the Non-Defaulting Party shall be setoff against the
amount owed to the Non-Defaulting Party. If the Defaulting Party is holding
collateral posted by the Non-Defaulting Party, then the Non-Defaulting Party
will have the right to set off that amount against any payment to be made to
the Defaulting Party.
The Non-Defaulting Party shall provide the Defaulting Party with an
explanation of how it calculated the Settlement Amount, as well as supporting
calculations and documentation reasonably requested by the Defaulting Party.
The Non-Defaulting Party shall use good faith commercially reasonable efforts
to mitigate any Costs or Losses it is entitled to hereunder. The Defaulting
Party shall have the right to audit (through a third party independent auditor
mutually agreed to by the Parties) the calculation of all of the Non-
Defaulting Party's Gains, Losses and Costs.
If the present value of the Non-Defaulting Party's aggregate Losses and Costs
(net of any amounts due to the Defaulting Party) exceed the present value of
its aggregate Gains, all as finally determined in accordance with the
preceding provisions of this Article XXI, the Defaulting Party shall, within
five (5) Business Days of such final determination, pay the Settlement Amount
to the Non-Defaulting Party, including interest thereon at the Interest Rate
from the Early Termination Date until paid in full. If the Defaulting Party
disputes the Non-Defaulting Party's calculation of the Settlement Amount, the
Defaulting Party will provide its calculations to the Non-Defaulting Party
within two (2) business Days of receipt of calculation from the Non-Defaulting
Party. The Defaulting Party shall nevertheless pay to the Non-Defaulting
Party the undisputed portion of the Settlement Amount and provide Performance
Assurance for the remaining amount.
ARTICLE XXII
SUCCESSORS, ASSIGNS, AND ASSIGNMENT
This Agreement shall inure to the benefit of and be binding upon the Parties
hereto and their respective successors and assigns; but, except for assignment
to an Affiliate, this Agreement may not be assigned by either Party without
the prior written consent of the other, except that either Party may without
the written consent of the other assign to any financing institution or
institutions this Agreement or any monies due or to become due hereunder. No
assignment under this Article XXII shall in any way relieve the assignor from
liability for full performance under this Agreement. Any such assignee shall
assume and agree to be bound by the terms and conditions of this Agreement.
Notwithstanding the provisions of the preceding paragraph to the contrary,
Buyer shall have the right to assign, in whole or in part, its rights and
interests and delegate its obligations under this Agreement to a producer of
Synfuel provided that, the proposed assignee agrees in writing to be bound by
and to assume the terms and conditions of this Agreement and any and all
obligations of Buyer to Seller arising or accruing hereunder during the term
of such assignment. If the interest of Buyer in this Agreement shall be
assumed, sold or transferred as hereinbefore provided, Buyer shall be released
and discharged from only those obligations to Seller arising or accruing
hereunder during the term of the assignment, and Buyer shall not be released
and discharged from and shall remain liable for any and all obligations to
Seller arising or accruing hereunder prior to or after the period of such
assumption, unless such obligations are expressly assumed in writing by the
assignee. During the assigned term, Seller shall perform this Agreement with
the assuming party as if such person had been named as Buyer under this
Agreement during the assigned term, but any act, omission or breach of the
assignee during the assigned term will not affect the rights or obligations of
the parties during the unassigned term. Should such assignment occur, Seller
also agrees upon the request of Buyer to enter into a new agreement with such
Synfuel producer on substantially the same terms and conditions as provided in
this Contract with respect to all or part of the Coal to be purchased
hereunder.
Written consent to one or more assignments shall not be construed as waiving
the necessity of obtaining written consent to other and/or additional
assignments.
ARTICLE XXII
Government Contractor Compliance Certificate
Unless exempted, Contractor shall comply with the equal employment opportunity
clause in Section 202 of Executive Order 11246 and all applicable rules,
regulations, and relevant orders pertaining to Executive Order 11246, Section
503 of the Rehabilitation Act of 1973, and Section 4212 of the Vietnam Era
Readjustment Assistance Act of 1974, as amended. Contractor represents that
it does not, and shall not for the term of the Contract, provide or maintain
for its employees facilities that are segregated on the basis of race, color,
religion, sex or national origin. Contractor represents that it will not
assign its employees to perform any work related to the Contract at a location
where facilities are segregated on the basis of race, color, religion, sex or
national origin. Contractor agrees that it will not enter into any agreement
to obtain goods or services relating to the Contract with any entity that
provides, maintains or assigns its employees to work at locations where
facilities are segregated on the basis of race, color, religion, sex or
national origin. As used herein, "facility" means waiting rooms; work areas;
restaurants and other eating areas; time clocks; locker rooms and other
storage or sleeping areas, except as necessary to assure privacy between male
and female employees; parking lots, drinking fountains; recreation or
entertainment areas; and transportation. If not otherwise exempted by Title
48 and to the extent applicable, Contractor will comply with 48 CFR Section
52.219-8, Utilization of Small, Small Disadvantaged, and Women-Owned Small
Business Concerns, and 48 CFR Section 52.219-9, Small, Small Disadvantaged,
and Women-Owned Small Business Subcontracting Plan. If not otherwise exempted
by 41 CFR Section 60-1.5, Contractor represents that it will file all reports
or other required information specified in 41 CFR Section 60-1.7.
ARTICLE XXIII
Counterparts, Survival and Severability
This Agreement may be executed in several counterparts, each of which is an
original and all of which constitute one and the same instrument. All audit
rights shall survive the termination of this Agreement in full for a period of
two (2) years (except with respect to audit rights as to third party
impositions which shall survive for the applicable statute of limitations,
including any extensions thereof).
Should any provision of this Agreement for any reason be declared invalid or
unenforceable by final and applicable order of any court or regulatory body
having jurisdiction, such decision shall not affect the validity of the
remaining portions, and the remaining portions shall remain in effect as if
this Agreement had been executed without the invalid portion. In the event
any provision of this Agreement is declared invalid, the Parties shall
promptly renegotiate to restore this Agreement as near as possible to its
original intent and effect.
ARTICLE XXIV
Expenses
In addition to the other indemnification rights set forth in this Agreement,
the Defaulting Party will, on demand, defend, indemnify and hold harmless the
Non-Defaulting Party for and against all reasonable out-of-pocket expenses,
including legal costs, incurred by the Non-Defaulting Party by reason of the
enforcement and protection of its rights under this Agreement by reason of an
early termination of this Agreement, including, but not limited to, costs of
collection.
ARTICLE XXV
Non-Waiver and Duty to Mitigate
No waiver by any Party of any of its rights with respect to any other Party or
with respect to any matter or default arising in connection with this
Agreement shall be construed as a waiver of any subsequent right, matter or
default whether of a like, kind, or different nature. Any waiver shall be in
writing signed by the waiving Party.
Each Party agrees that it has a duty to mitigate damages.
Except as otherwise set forth in this Agreement, nothing contained in this
Agreement shall be construed or constitute any Party as the employee, agent,
partner, joint venturer or contractor of any other Party.
This Agreement is made and entered into for the sole protection and legal
benefit of the Parties, and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have any
direct or indirect cause of action or claim in connection with, this
Agreement.
ARTICLE XXVI
Addresses for Notices, Invoices and Wire Transfers
Notices required under this Agreement may be exercised verbally, but shall be
provided to the other Party in writing as soon as practicable to the addresses
shown herein. The Parties shall be legally bound from the date the
notification is exercised.
Unless expressly provided otherwise, notices shall be in writing and delivered
by hand or electronic means or transmitted by facsimile or sent by postage
prepaid, certified mail, return receipt requested, or by overnight mail or
courier. Notices hand delivered or delivered by electronic means shall be
deemed delivered by the close of the Business Day on which it was hand
delivered or delivered by electronic means (unless hand delivered after close
of the Business Day in which case it shall be deemed received by the close of
the next Business Day). Notices provided by facsimile shall be deemed to have
been received upon the sending Party's receipt of its facsimile machine's
confirmation of a successful transmission. If the day on which such facsimile
is received is not a Business Day or is after five p.m. Eastern Prevailing
Time on a Business Day, then such facsimile shall be deemed to have been
received on the following Business Day. Notices provided by postage prepaid,
certified mail, return receipt requested, or by overnight mail or courier,
shall be deemed delivered upon mailing. A Party may change its address by
providing notice thereof in accordance with this Article XXVI.
For Notices:
If to Seller:
ATTN:
EASTERN CONSOLIDATED ENERGY, INC.
9900 W. SAMPLE ROAD
SUITE 300
CORAL SPRINGS, FL. 33065
If to Buyer:
ATTN CONTRACT ADMINISTRATION
AMERICAN ELECTRIC POWER SERVICE CORPORATION
155 WEST NATIONWIDE BOULEVARD, COLUMBUS OH 43215
PHONE: 614-583-6114 FAX: 614-583-1606
ARTICLE XXVII
Confidentiality
Neither Party shall disclose, either directly or indirectly, the terms of this
Agreement to a third party without the written consent of the other Party
(other than a Party's and its Affiliates' employees, lenders, counsel,
accountants or prospective permitted purchasers), except in order to comply
with any applicable law, order, regulation or exchange rule; provided, each
Party shall notify the other Party of any proceeding of which it is aware
which may result in disclosure and use reasonable efforts to prevent or limit
the disclosure.
However, each Party, its employees, representatives, or agents, may disclose
to any and all persons, without any limitation, the tax treatment and tax
structure of the instant transaction and all materials of any kind (including
opinions or other tax analyses) that have been or will be provided to such
Party relating to such tax treatment or tax structure.
ARTICLE XXVIII
Entire Agreement, Amendments, and Interpretation
This Agreement and the Schedules attached hereto and made a part hereof
constitute the entire agreement between the Parties relating to the subject
matter contemplated by this Agreement and supersedes any prior or
contemporaneous agreements or representations affecting the same subject
matter. The Parties agree that parol or extrinsic evidence may not be used to
vary or contradict the express terms of this Agreement.
No amendment modification or change to this Agreement be enforceable unless
reduced to a writing executed by the Party against whom such amendment,
modification or change is sought to be enforced and shall reference this
Agreement.
The Parties acknowledge that each Party and its counsel have reviewed and
revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting Party shall not
be used in interpretation of this Agreement.
All headings for Articles and Sections herein are for convenience and
reference purposes only. Any capitalized terms used herein and not defined in
the article or section in which it appears shall have the meaning set forth
herein under Definitions.
ARTICLE XXIX
Governing Law; Waiver of Jury Trial
This Agreement shall be governed by and construed in accordance with the laws
of the State of Ohio. Each Party waives its respective right to any jury
trial with respect to any litigation arising under or in connection with this
Agreement. Except as otherwise provided for herein, the provisions of the
Uniform Commercial Code ("UCC") of the state the law of which shall govern
this Agreement shall be deemed to apply to this Agreement and any Coal
supplied hereunder shall be deemed to be "goods" for purposes of the UCC.
ARTICLE XXX
Venue
Each Party hereby submits to the exclusive jurisdiction of state or federal
courts located in Franklin County, Ohio and all appellate courts therefrom and
waives any objection which it may have at any time to the laying of venue of
any proceedings brought in such court, waives any claim that such proceedings
have been brought in an inconvenient forum, and further waives the right to
object, with respect to such proceedings, that such court does not have
jurisdiction over such Party.
ARTICLE XXXI
Imaged Agreement
Any original executed Agreement or other related document may be photocopied
and stored on computer tapes and disks ("Imaged Agreement"). If an Imaged
Agreement is introduced as evidence in any judicial, arbitration, mediation or
administrative proceedings, it shall be considered as admissible evidence.
Neither Party shall object to the admissibility of the Imaged Document on the
basis that such were not originated or maintained in documentary form under
either the hearsay rule, the best evidence rule, or other rule of evidence.
ARTICLE XXXII
Major Technological Improvements
The Parties hereto recognize that major technological improvements in mining,
hauling, handling, or processing, may provide the future opportunity for
reduced costs in supplying Coal hereunder. Seller agrees that the application
of latest technology in equipment and methods used in the mining, hauling,
handling, and processing of Coal to be supplied under this Agreement shall be
considered and adopted if feasible. Such adopted use of new technology shall
be by mutual agreement of the Parties. The Selling Price for all Coal
delivered from any source(s) where any such new technology is introduced shall
be reduced by fifty percent (50%) of the difference between Seller's normal
production and processing costs per ton without such new technology and such
production and processing costs per ton subsequent to the implementation of
such new technology, after adjustment for depreciation of any related capital
expenditure(s), amortization of any costs relating to installation of such new
technology, and a rate of return on such expenditures and such costs at the
then existing prime rate of Citibank, N.A., prorated over the normal useful
life of any such capital expenditure(s). The Selling Price hereunder shall
not be reduced pursuant to this Article XXXII, based on Seller's use at such
source(s) of any technology, if such technology was generally available for
commercial use in the mining industry as of September 15, 2004.
IN WITNESS WHEREOF, each Party hereto has caused this Agreement to be executed
in its behalf by its proper officer thereunder duly authorized, all as of the
day and year first above written.
Seller: EASTERN CONSOLIDATED ENERGY, INC.
By:/s/David Guthrie
David Guthrie
Its: President
Buyer: KENTUCKY POWER COMPANY
By:/s/Charles E. Zebula
Charles E. Zebula
Its: Vice President
SCHEDULE 2.4
TRANSPORTATION SPECIFICATIONS
TRUCK
The Coal to be delivered hereunder (unless and until otherwise directed by
Buyer as hereinafter provided) shall be properly consigned by Seller to the
Big Sandy Plant (also referred to in this Agreement as "Plant"). Except as
otherwise provided by this Agreement, all Coal shall be delivered hereunder
FOB Plant in trucks provided by, or on behalf of, Seller. Seller shall
accordingly deliver and dump such Coal at the Plant at such time of day and at
such plant location as Buyer may direct, at which time title and risk of loss
to Coal so delivered shall pass to Buyer (all references to "Seller" in these
Transportation Specifications, shall apply additionally to Seller's trucking
contractor[s], if any, that deliver Coal on Seller's behalf under this
Agreement).
Seller, at its expense, shall have coverage of the insurance specified below,
which shall be placed with insurance carrier(s) acceptable to Buyer, and shall
maintain this insurance at all times during performance of this Agreement:
(i) Coverage for the legal liability of Seller under the workers' compensation
and occupational disease law of the state(s) in which the work is (are)
performed. Seller shall be contributor to the state workers' compensation
fund(s) and shall furnish a certificate to that effect. If Seller is a
legally permitted and qualified self-insurer in the state of Kentucky, it may
furnish proof that it is such a self-insurer in lieu of submitting proof of
insurance;
(ii) Employer's liability insurance in an amount not less than $1,000,000.00
for each accident;
(iii) Commercial general liability insurance with limits of not less than
$1,000,000.00 for each occurrence and aggregate;
(iv) Commercial automobile liability insurance with a limit for bodily injury
and property damage of not less than $1,000,000.00 each accident;
(v) Seller shall obtain waivers of subrogation on all their insurance,
whether required by this Agreement or in excess of the Agreement requirements.
Such waivers shall be for the benefit of Buyer.
Buyer may prohibit Seller's trucks from entering the premises of the consigned
destination hereunder until Buyer receives from Seller, from time to time upon
reasonable demand by Buyer, two copies each of acceptable certificates of the
insurance coverages stated above. Buyer's failure to demand copies of such
certificates shall not relieve Seller of the obligation to continually have in
force the insurance coverage stated above. Such certificates, which shall
specifically reference the contract number 03-30-04-900, shall state that the
insurance carrier has issued the policies providing for the insurance
specified herein, that such policies are in force, and that the insurance
carrier will give Buyer thirty days prior written notice of any material
change in, or cancellation of, such policies. If such insurance policies are
subject to any exceptions to the terms specified herein, such exception shall
be explained in full in such certificates. Buyer may, at its discretion,
require Seller to obtain insurance policies that are not subject to any
exceptions.
Buyer may also prohibit any truck from entering the premises of the consigned
destination unless the driver of such truck receives and agrees to abide by
Buyer's written instructions (or has evidence of such receipt and agreement
obtained within the prior twelve-month period) as to Buyer's safety and other
requirements for the operation of such trucks on such premises.
SCHEDULE 3.1-A
QUALITY SPECIFICATIONS
The Coal required and delivered hereunder, upon unloading and receipt at the
Plant (and at each other respective consigned destination,) shall meet the
following "Contracted Half-Month" specifications. Further, for the purposes
of this Article, the following "Suspension" specifications shall be applicable
to such Coal.
SPECIFICATIONS:
Weighted Average "As-Received" Basis
Contracted Half-Month (A)* Applicable Lot (B)*
Half-Month Suspension Limit Suspension Limit (D)*
Minimum Maximum Minimum Maximum
Calorific Value
(Btu/lb.) 12000 11800 N/A 11700 N/A
Moisture (%) 8.0 N/A 9.0 N/A 10.0
Ash (%) 13.0 N/A 14.0 N/A 14.0
Volatile Matter (%) 35.0 N/A N/A 32.0 N/A
Hardgrove Grindability 45.0 N/A N/A 40.0 N/A
Sulfur Dioxide
(lbs. SO2/MMBtu)(C)* <1.67 N/A 1.67 N/A 1.80
Ash Fusion Temp.
(H=1/2w) oF Red. Atm 2700 N/A N/A 2700 N/A
Definitions:
N/A: Not Applicable
(A) =the Half-Month weighted average analysis result (as determined under
Article VIII of this Agreement).
(B) =the analysis result of the sample (or composite of samples, if more than
one) representing each days shipment of Coal, or, at Buyer's election, a
composite of two or more such days.
(C) = For the purpose of determining the pounds of sulfur dioxide per million
Btu and pounds Ash per million Btu, the figures shall be rounded to the
nearest one hundredth. For example, 1.804 pounds SO2 per million Btu shall
mean 1.80 pounds SO2 per million Btu, while 1.805 pounds SO2 per million Btu
shall mean 1.81 pounds SO2 per million Btu and shall be deemed, for example,
not to have met a 1.80 pounds SO2 per million Btu specification.
(D) = Buyer shall also have the right to reject any Coal that does not have a
maximum topsize of 2 inches, that does not exceed a maximum of 45% capable of
passing a one quarter inch (1/4") square wire cloth sieve, is not free flowing
and free of extraneous material upon unloading, and has intermediate sizes
(including fines) added or removed.
SCHEDULE 3.1-B
APPROVED PRODUCTION SOURCE(S), APPROVED RESERVE(S) OF COAL,
AND DESIGNATED DELIVERY POINT(S)
The Approved Production Source(s) to which reference is made to in Article lll
of this Agreement consist of the following:
1)Warfield Mine (as depicted on the map attached hereto and hereby made a part
hereof) consisting surface and/or deep mines, extracting the reserves
consisting primarily of the Pondcreek, and Coalburg seams of coal in Martin
County, Kentucky.
2)Moon Mine and Terryville Mine (as depicted on the map attached hereto and
hereby made a part hereof) consisting of various mines, extracting the
reserves consisting primarily of the Van Lear, Mudseam, Hazard, and Broas
seams of coal in Lawrence and Morgan Counties, Kentucky.
Seller may ship from other origins provided the coal specifications are of
like quality. Buyer may reject any origins, if in Buyers sole opinion; the
coal will not burn satisfactorily at its Plant.
SCHEDULE 7.2
QUALITY ADJUSTMENTS
In order for the Selling Price to accommodate variations in calorific value,
sulfur dioxide value, and ash value of the Coal delivered hereunder, there
shall be an amount(s) added to or subtracted from the Contract Prices as
provided for in this Article. These price adjustments shall be in addition to
any rights which Buyer may have as provided or referenced under Article II of
this Agreement.
(a) If the weighted average calorific value of the Coal unloaded and taken
into account hereunder in a Shipment is not equal to the Contract Half-Month
Weighted Average Btu Specification, then there shall be an amount added to the
Contract Price (if the calculated number is positive) or subtracted from the
Contract Price (if such number is negative), as determined by the following
formula, to arrive at the adjusted price for such Coal:
Amount Per Ton of Increase or = (Actual Btu Contracted Btu)x Contract Price
Decrease for Calorific Value -------------------------
Contracted Btu
provided, however, no premium will be paid for Calorific Value which exceeds
the Contracted Half-Month Weighted Average Btu/lb. by 500 Btus.
(b) For each Shipment of Coal tested to have an SO2 content greater than the
SO2 Contracted Half-Month Weighted Average Specification, the Contract Price
for Coal will be reduced by an amount determined in accordance with the
following formula
((Actual lbs. SO2/mmbtu - SO2 Contracted SO2/mmbtu) * Actual Btu/lb. * E)
- -------------------------------------------------------------------------
1,000,000
E = the SO2 Monthly Price (or if not published, the average of the SO2 Daily
Prices for the applicable calendar month of delivery) of allowances expressed
in dollars per ton of SO2 in the table entitled "AIR Daily Emission Allowance
Indices" published in AIR Daily, or its successor publication, for such
calendar month of delivery as published on the first Monday following such
month.
Additionally, an amount of three dollars ($3.000) per ton shall be deducted
from the Contract Price for each Applicable Lot of Coal having an SO2 value
greater than the Applicable Lot Suspension Limit.
(c) For each Applicable Lot of Coal tested to have an ash content greater than
13.50%, the Contract Price for Coal in such Applicable Lot will be decreased
by $0.15 for each 0.5% ash increment, or portion thereof, by which the
Applicable Lot's ash content is tested to be above 13.50%. (For example, if
the Applicable Lot has a percent ash value of 13.70, then the Contract Price
decrease shall be $0.15 per ton.)
SCHEDULE 8.1
WEIGHING, SAMPLING AND ANALYSIS
WEIGHING
Weights taken in accordance with this Schedule 8.1 shall be deemed accepted as
correct (absent manifest error) and shall govern all invoicing and payments
hereunder.
(a) Except as provided in (e) below, the weight of the Coal delivered by truck
hereunder shall be determined by Buyer at its expense on Buyer's truck scales
at Buyer's unloading facility(ies). Such scales shall be calibrated once each
month to maintain them to within plus or minus one-half of one percent (0.5%)
accuracy. At Seller's request, which Seller may make from time to time, Buyer
shall inform Seller of the results of such testing and calibration. The
testing and calibration of such scales shall be accomplished in accordance
with the guidelines outlined in the National Institute of Standards and
Technology Handbook #44, or other procedures which shall be mutually
acceptable to Seller and Buyer.
(b) Buyer shall give prompt notice by telephone or facsimile and confirm such
notice in writing to Seller if and when any scales are discovered to be in
error beyond the limits established above. If at any time the scales are
determined to be in error beyond the limits established in (a) supra, an
adjustment of the payment to Seller shall be made based on the assumption that
the condition causing the scales to be in error beyond such limits shall have
existed with respect to all Coal unloaded on and after 30 calendar days prior
to such discovery, or the date of the previous scale calibration, whichever is
later. Such adjustment shall be in an amount equal to the difference in the
weights as specified in the applicable invoices and the weights that would
have been obtained had the scales been accurate (without applying a +0.5%
tolerance), multiplied by the price per ton as stated in said invoices.
(c) Seller shall have the right, but not the duty, to have a representative
present at any and all times to observe the determination of weights; however,
Buyer shall not be obligated to notify Seller to be present. If Seller should
at any time question the accuracy of the weights thus determined, Seller shall
so advise Buyer and confirm the same in writing, and Buyer shall arrange to
test the scales. If such test shows the scales to be in error, they shall be
adjusted to the required accuracy established above. If such test requested
by Seller shows the scales to be within the applicable limits established
above for the respective scale, then Seller shall pay all costs of such test,
otherwise Buyer shall pay all such cost.
(d) Any payments due by either Party to the other, as a result of adjustment
and/or payment of costs made pursuant to this Schedule 8.1, shall be paid in
accordance with Article IV, Billing and Payment.
(e) During any period when Buyer's scales are inoperable, determination of the
quantities of Coal delivered shall be made by a procedure to be established at
such time by agreement of Buyer and Seller.
SAMPLING AND ANALYSIS
(a) Seller shall auger sample the Coal or shall provide for the Coal to be
sampled before unloading, analyze the sample(s) so obtained, and notify Buyer
and the consigned destination of the short proximate (calorific value per
pound, percent moisture, percent ash, and percent sulfur) average analytical
results of each days shipments. Seller's notification shall include the
identifying number of each truck shipped, and shall be provided within 24
hours after the Coal is unloaded.
(b) All Coal delivered hereunder shall be sampled by Buyer using a mechanical
sampling system before it is commingled with other coal and approximately at
the time it is weighed by Buyer on Buyer's scales. Buyer shall determine, by
proper analyses made in its laboratory and at its expense, the "As-Received"
quality and characteristics of the Coal. All sampling and analyses hereunder
shall be performed in accordance with methods approved by the American Society
for Testing and Materials (ASTM), or such other method as may be mutually
acceptable. For purposes of determining moisture hereunder, the two-stage
procedures as defined in ASTM 3302 shall be used. Except as otherwise
provided in this Schedule, the results of the sampling and analyses by Buyer
shall be accepted as the quality and characteristics of the Coal unloaded
hereunder at each respective consigned destination.
(c) If Seller should from time to time question the correctness of either
sampling or the analyses made by Buyer, Seller may request that up to six
consecutively unloaded trucks of Coal hereunder be individually sampled by
Buyer for analysis by a commercial testing laboratory, mutually chosen, and
using mutually acceptable procedures. The results of such commercial testing
laboratory's analyses shall be accepted as the quality and characteristics of
such Coal. If the average of one or more of the Coal quality parameter values
of the samples separately collected by Buyer and analyzed by the commercial
testing laboratory differ by more than the ASTM (or other mutually agreeable
methodology) reproducibility tolerance ranges for such respective Coal quality
parameter, when compared to the average values of splits of the same samples
separately analyzed by Buyer when both sets of sample splits have been taken
from the same delivery of Coal, Buyer shall pay such charges of such
commercial testing laboratory, otherwise Seller shall pay such charges.
Unless Seller challenges, pursuant to Part (c) above, the accuracy of either
the sampling or analyses made by Buyer by written notice to Buyer by the 15th
day of the Half-Month following the Half-Month in which the Applicable Lot(s)
of Coal represented by such sample(s) and/or analysis (analyses) was (were)
taken into account by Buyer, Seller shall be deemed to have waived all claims
with respect to such sampling and analyses.
(e) Coal received, unloaded, and taken into account that is not sampled or is
sampled but not analyzed shall be taken into account as follows: If during
any "half-month" at least fifty (50) percent (by weight) of Coal delivered at
a respective consigned destination during such period has been sampled and
analyzed, then the weighted average analytical results of such samples shall
be applicable to all Coal delivered to such consigned destination during such
half-month period. If more than fifty (50) percent (by weight) of Coal
delivered at a consigned destination during any such half-month period has not
been sampled and analyzed, then the weighted average analytical results of the
portion of sampled and analyzed Coal shall apply to such portion, and the
weighted average analytical result of the last preceding half-month in which
at least fifty (50) percent (by weight) of the Coal delivered to such
consigned destination was sampled and analyzed shall be applicable to such
portion of the Coal delivered which was not sampled and/or was not analyzed
for such half-month period.