FIRST AMENDMENT TO AGREEMENT NO. 2 FOR PURCHASE AND SALE OF COAL
Exhibit 10.8a
Confidential
Treatment Requested
Confidential
provisions of this document have been redacted and been filed separately with
the Commission
FIRST AMENDMENT TO AGREEMENT
NO. 2 FOR PURCHASE AND SALE OF COAL
This
FIRST AMENDMENT TO AGREEMENT NO. 2 FOR PURCHASE AND SALE OF COAL (this
"Amendment") is entered into effective as of July 21, 2008, among Georgia Power Company, a
Georgia corporation ("Purchaser"), Xxxxx River Coal Company, a
Virginia corporation ("Seller"), and Xxxxx River Coal Sales, Inc.,
a Delaware corporation ("Sales Agent"). (Purchaser, Seller, and Sales
Agent are sometimes hereinafter referred to collectively as the "Parties" or
separately as a "Party.")
RECITALS:
WHEREAS,
the Parties previously entered into that certain Agreement No. 2 for Purchase
and Sale of Coal dated May 15, 2008 (the "Agreement") and now wish to amend the
Agreement by modifying certain provisions of the Agreement;
NOW,
THEREFORE, in consideration of the foregoing recitals and the promises contained
in this Amendment, the Parties hereby agree as follows:
Section
1.
Section 1
of the Agreement is amended by striking the definition set forth in Section 1.1
and inserting in lieu thereof the following new definition in Section
1.1:
1.1 The
term "Base Price" means the Base Price for Original Tonnage or the Base Price
for Additional Tonnage, as the context may require; and the term "Base Prices"
means both the Base Price for Original Tonnage and the Base Price for Additional
Tonnage.
Section 1
of the Agreement is further amended by adding the following new definitions as
Sections 1.14, 1.15, 1.16, and 1.17 after Section 1.13:
1.14 The
term "Original Tonnage" means the quantities of coal that are set forth in
Section 5.1(a).
1.15 The
term "Additional Tonnage" means the quantities of coal that are set forth in
Section 5.1(b).
1.16 The
term "Base Price for Original Tonnage" means the price for the Original Tonnage
that is set forth in Section 4.1(a).
1.17 The
term "Base Price for Additional Tonnage" means the price for the Additional
Tonnage that is set forth in Section 4.1(b).
Section
2.
Section 3
of the Agreement is amended by striking Section 3 in its entirety and inserting
in lieu thereof the following new Section 3:
Section 3: Term
of Agreement
The term
of this Agreement shall commence on the Effective Date and shall continue in
full force and effect through December 31, 2011, unless earlier terminated as
provided in this Agreement. Shipments under this Agreement shall
begin on or about July 3, 2008.
Section
3.
Section
4.1 of the Agreement is amended by striking Section 4.1 in its entirety and
inserting in lieu thereof the following new Section 4.1:
4.1 Base
Prices.
(a) The
Base Price for Original Tonnage as of the Effective Date is $* * * per ton f.o.b.
railcar at Seller's Loading Facility (whether located at Hignite, Clover,
Buckeye, Xxxxxxxxxxx, or Xxxxxx Branch, Kentucky). The Base Price for
Original Tonnage set forth in this Section 4.1(a) (the "OT Base Price") shall
remain firm through December 31, 2010, unless adjusted after the Effective Date
pursuant to Section 4.3, and shall apply to all quantities of the Original
Tonnage that are supplied under this Agreement during the first, second, and
third Contract Years (2008, 2009, and 2010).
(b) The
Base Price for Additional Tonnage as of July 3, 2008, is $* * * per ton f.o.b.
railcar at Seller's Loading Facility (whether located at Hignite, Clover,
Buckeye, Xxxxxxxxxxx, or Xxxxxx Branch, Kentucky). The Base Price for
Additional Tonnage set forth in this Section 4.1(b) (the "AT Base Price") shall
remain firm through December 31, 2008, unless adjusted after July 3, 2008,
pursuant to Section 4.3, and shall apply to all quantities of the Additional
Tonnage that are supplied under this Agreement during the first Contract Year
(2008).
(c) The
OT Base Price includes, without limitation, all costs for mining, processing,
marketing, or quality control work necessary to satisfy the requirements of this
Agreement as of the Effective Date for supply of the Original
Tonnage. The AT Base Price includes, without limitation, all costs
for mining, processing, marketing, or quality control work necessary to satisfy
the requirements of this Agreement as of July 3, 2008, for supply of the
Additional Tonnage.
(d) For
each of Seller's Loading Facilities, Purchaser shall promptly issue to Seller a
purchase order reflecting the Base Prices for Shipments from such loading
facility; and from time to time thereafter, Purchaser shall issue change orders
to such purchase order(s) to reflect adjustments, where appropriate, to the Base
Prices. Such purchase order(s) and change orders are for
administrative and accounting purposes only and shall not constitute, nor be
deemed to result in, any amendment, change, or modification of the terms and
conditions of this Agreement.
Section
4.
Section
4.2 of the Agreement is amended by striking Section 4.2 in its entirety and
inserting in lieu thereof the following new Section 4.2:
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commission.
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4.2 Price
Adjustments.
(a) The
Base Prices shall be adjusted, when appropriate as provided in this Section 4.2
and Section 4.3. Each Base Price, with any adjustments pursuant to
this Section 4.2 or Section 4.3, shall be referred to as an "Adjusted Base
Price."
(b) Effective
as of January 1, 2009, the Base Price for Additional Tonnage shall be adjusted
to $* * * per
ton f.o.b. railcar at Seller's Loading Facility (whether located at Hignite,
Clover, Buckeye, Xxxxxxxxxxx, or Xxxxxx Branch, Kentucky). The
Adjusted Base Price for Additional Tonnage set forth in this Section 4.2(b) (the
"Adjusted AT Price") shall remain firm through December 31, 2011, unless
adjusted after January 1, 2009, pursuant to Section 4.3 and shall apply to all
quantities of the Additional Tonnage that are supplied under this Agreement
during the second, third, and fourth Contract Years (2009, 2010, and 2011);
provided, however, that
as of January 1, 2009, the Adjusted AT Price shall be increased or decreased, as
the case may be, by the amount of any prior adjustment of the AT Base Price
pursuant to Section 4.3.
(c) Notwithstanding
the foregoing provisions of Section 4.1 and this Section 4.2, the Parties
acknowledge and agree that for purposes of administering the pricing provisions
of this Agreement, a weighted average price ("Weighted Average Price") shall
apply to all quantities of the Original Tonnage and all quantities of the
Additional Tonnage that are supplied under this Agreement during the second and
third Contract Years (2009 and 2010). The Weighted Average Price
shall be determined according to the following: (i) * * * tons of the
Original Tonnage at the OT Base Price (as increased or decreased, as the case
may be, by the amount of any adjustment of the OT Base Price pursuant to Section
4.3); and (ii) * * * tons of the
Additional Tonnage at the Adjusted AT Price (as increased or decreased, as the
case may be, by the amount of any adjustment of the AT Base Price or the
Adjusted AT Price pursuant to Section 4.3). The Parties further
acknowledge and agree that in the event of no adjustment of the OT Base Price,
the AT Base Price, or the Adjusted AT Price pursuant to Section 4.3, then the
Weighted Average Price is $* * * per ton f.o.b.
railcar at Seller's Loading Facility (whether located at Hignite, Clover,
Buckeye, Xxxxxxxxxxx, or Xxxxxx Branch, Kentucky) for all quantities of coal
supplied under this Agreement during the second and third Contract Years (2009
and 2010).
(c) The
Base Price, the Adjusted Base Price, or the Weighted Average Price, as the case
may be, that applies to each Shipment shall be referred to as the "Billing
Price" for such Shipment. The Billing Price for each Shipment shall
be subject to the provisions of Sections 4.4 (calorific value adjustments), 4.5
(excess ash adjustments), 4.6 (grindability adjustments), and 4.7 (sulfur
adjustments).
(d) All
calculations of adjustments to the Base Price, the Adjusted Base Price, the
Weighted Average Price, or the Billing Price shall be carried to six decimal
places and then rounded to four decimal places. No dispute concerning
such adjustments shall in any way relieve any Party of its respective
obligations of performance under this Agreement until such dispute is
resolved.
Section
5.
Section
5.1 of the Agreement is amended by striking Section 5.1 in its entirety and
inserting in lieu thereof the following new Section 5.1:
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commission.
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5.1 Annual
Quantities. Except as otherwise provided in this Agreement,
Seller shall supply to Purchaser, and Purchaser shall purchase from Seller, the
following quantities of coal during each Contract Year, which shall be supplied
in approximately equal monthly Shipments:
(a) The
annual quantities of the Original Tonnage are as follows:
First
Contract Year (July through December, 2008) * * *
tons
Second
Contract Year (January through December, 2009) * * *
tons
Third
Contract Year (January through December, 2010) * * *
tons
(b) The
annual quantities of the Additional Tonnage are as follows:
First
Contract Year (August through December, 2008) * * *
tons
Second
Contract Year (January through December, 2009)* * *
tons
Third
Contract Year (January through December, 2010) * * *
tons
Fourth
Contract Year (January through December, 2011)* * *
tons
(c) Notwithstanding
the foregoing provisions of this Section 5.1, the Parties acknowledge and agree
that the total quantity of coal to be supplied under this Agreement during the
first Contract Year (2008) is * * *
tons. The Parties further acknowledge and agree that in the case of
the first Contract Year, the annual quantity of the Additional Tonnage shall be
supplied before the remaining portion of the annual quantity of the Original
Tonnage is supplied and that with respect to Shipments loaded during the period
from August 1 through December 31, 2008, the first * * * tons of coal
supplied under this Agreement during such period shall be deemed to consist of
the Additional Tonnage; provided, however, that the
supply of * * *
tons of Additional Tonnage during such period shall not relieve Seller of its
obligation to supply * * * tons of Original
Tonnage during the first Contract Year.
Section
6.
Section
5.2 of the Agreement is amended by striking Section 5.2 in its entirety and
inserting in lieu thereof the following new Section 5.2:
5.2 Quarterly
Amounts. The Quarterly Amounts for each Quarter of each
Contract Year are as follows: (i) * * * tons for the
third Quarter and the fourth Quarter of the first Contract Year (2008); (ii)
* * * tons for
each Quarter of the second Contract Year (2009); (iii) * * * tons for each
Quarter of the third Contract Year (2010); and (iv) * * * tons for each
Quarter of the fourth Contract Year (2011).
Section
7.
All
provisions of the Agreement, as modified in this Amendment, are hereby ratified
and affirmed and shall remain in full force and effect. This
Amendment may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall constitute one and the same
instrument.
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confidential material redacted and filed separately with the
commission.
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IN
WITNESS WHEREOF, the Parties, intending to be bound hereby, have caused this
Amendment to be executed by their respective authorized officers as of the date
first above written.
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Witness:
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GEORGIA
POWER COMPANY
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/s/
Xxxx X.
Xxxxx
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By:
/s/ Xxxxxxx
X
Xxxxx
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Its:
Senior V.P.
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Witness:
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XXXXX
RIVER COAL COMPANY
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/s/
Xxxxxxxx
Xxxxxx
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By:
/s/ Xxxxxx X. Xxxxxxx
XX
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Its:
Vice President
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Witness:
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XXXXX
RIVER COAL SALES, INC.
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/s/
Xxxxxxx
Xxxxxxxxx
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By:
/s/ Xxxx
Xxxxxx
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Its:
Exec. V.P. Sales
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