EXHIBIT 10.28
CONFIDENTIAL TREATMENT REQUESTED
FIRST AMENDMENT TO COAL FEEDSTOCK SUPPLY AGREEMENT
This First Amendment to Coal Feedstock Supply Agreement (this
"Amendment") is made and entered into this 28th day of February, 2002, but
effective as of October 26, 2001 (the "Effective Date") by SynFuel Solutions
Operating LLC, a Delaware limited liability company ("Purchaser"), and Xxxxxxx
County Coal, LLC, a Delaware limited liability company ("Seller"). Purchaser and
Seller may be referred to herein individually as a "Party," and collectively as
the "Parties."
RECITALS
A. The Parties entered into that certain Coal Feedstock Supply
Agreement dated October 26, 2001 (the "Supply Agreement").
B. Capitalized terms herein shall have the same meaning ascribed to
such terms in the Supply Agreement, unless otherwise defined herein.
C. The Parties now desire to amend the Supply Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby amend the
Supply Agreement effective as of the Effective Date as follows:
1 Section 2.4(b)
Section 2.4(b) of the Supply Agreement is deleted in its entirety and
the following is substituted in lieu thereof:
(b) All Coal supplied by Seller to Purchaser shall be sold to
Purchaser at the applicable Purchase Price (being the Purchase Price
under the Coal Purchase Order relating to the Synfuel Purchase
Agreement under which the Coal Synfuel produced from such Coal was sold
in effect for the applicable quality of Coal for the Month in which
such Coal Synfuel is delivered) as adjusted (i.e. increased or
decreased, as applicable) for applicable Quality Price Adjustments
(applied as provided in Section 2.4(d) below) and the Btu Content
Adjustments. In the event any Coal supplied by Seller to Purchaser is
not used to produce Coal Synfuel within ***** Days following delivery
to Purchaser of such Coal, or if the Coal Synfuel produced therefrom is
not sold within ***** Days following the delivery to Purchaser of such
Coal, then unless otherwise mutually agreed in writing, the Purchase
Price for such Coal shall be equal to the weighted average Purchase
Price of a quantity of Coal used to produce the most recent equivalent
amount of Coal Synfuel sold (e.g. the Purchase Price for ***** tons of
such Coal shall be equal to the average Purchase Price of Coal used to
produce the most recent ***** tons of Coal Synfuel sold .
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***** denotes confidential information with respect to which a separate
confidential treatment request has been filed with the Securities and Exchange
Commission.
2. Sections 2.4(d) and (e)
Section 2.4 of the Supply Agreement is amended by adding new Sections
2.4(d) and (e), as follows:
(d) Based on the results of the Daily sampling and analysis
performed pursuant to Section 2.9, each Month there shall be calculated
the average Btu content, sulfur content, moisture content, and ash
content for all Coal delivered under all Coal Purchase Orders during
such Month (such average Btu, sulfur, moisture, and ash content being
the "Average Specifications" for such Month). For purposes of applying
the Quality Price Adjustments in determining the applicable Purchase
Price pursuant to Section 2.4(b), all Coal delivered under any Coal
Purchase Order during any Month shall be deemed to have the Average
Specifications for such Month, but prior to the first Day of the first
Month that commences after the Scales are installed and are operable
(the "Transition Date") only the Average Specification for Btu content
will be used to determine Quality Price Adjustments and there shall be
no Quality Price Adjustments based on the other Average Specifications
prior to the Transition Date.
(e) Notwithstanding the provisions of Section 2.8, until the
Transition Date, the weight of the Coal delivered hereunder shall be
the weight of the Coal Synfuel produced from such Coal as measured by
the binding weights reported by the Coal Synfuel purchasers less the
weight of the chemical reagent (in diluted form) applied plus moisture
added (assumed to be 50% of diluted chemical reagent applied).
3. Miscellaneous
(a) The Supply Agreement, as hereby amended, contains the entire
agreement of the Parties with respect to the subject matter thereof and
supersedes all prior agreements and undertakings between the Parties relating to
the subject matter thereof. This Amendment may be modified, amended or waived
only by a separate writing agreed to by the Parties expressly modifying,
amending or waiving this Amendment.
(b) The construction and enforcement of this Amendment shall be
exclusively governed by the laws of the State of Delaware, without giving effect
to the conflict or choice of law principles thereof.
(c) This Amendment may be executed in counterparts, each of which shall
be deemed to be an original but all of which together will be considered one and
the same agreement, and will become effective when one or more such counterparts
have been signed by all signatories hereto and delivered to each signatory
hereto.
(d) As amended hereby, the Supply Agreement shall remain in full force
and effect.
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IN WITNESS WHEREOF, the Parties have entered into this Amendment as of
the Effective Date.
SYNFUEL SOLUTIONS OPERATING LLC
By: SynFuel Solutions LLC,
its Managing Member
By: SynFuel Solutions Holdings LLC,
its Managing Member
By: /s/ Xxxxxx X. Slamm, III
---------------------------------
Name: Xxxxxx X. Slamm, III
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Title: Vice President
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XXXXXXX COUNTY COAL, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President - Marketing
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