EXHIBIT (10)(i) 107
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
AGREEMENT FOR THE SALE AND PURCHASE OF COAL
BETWEEN
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
AND
INTER-AMERICAN COAL N.V.
AND
INTER-AMERICAN COAL, INC.
Central Xxxxxx Contract #__________
TABLE OF CONTENTS
Article Page
I. DEFINITIONS 1
II. TERM OF AGREEMENT 3
III. DELIVERIES 3
IV. SPECIFICATIONS & QUALITY & WEIGHT 7
V. PAYMENT 9
VI. BASE PRICE 9
VII. ADJUSTMENT IN PRICE FOR QUALITY 10
VIII. SAMPLING AND ANALYSIS 10
IX. GOVERNMENTAL LEGISLATION, REGULATIONS AND ORDERS 12
X. FORCE MAJEURE 13
XI. RESERVES 15
XII. EMPLOYEE INTEREST 16
XIII. WAIVER 16
XIV. NOTICES 16
XV. GOVERNING LAW 17
XVI. AMENDMENTS 17
XVII. FINALITY 17
XVIII. TITLES 18
XIX. AGREEMENT FOR BENEFIT OF PARTIES ONLY 18
XX. ASSIGNMENT - TERMINATION 18
XXI. COUNTERPARTS 18
XXII. BUYER'S RIGHT TO ADEQUATE ASSURANCE -
TERMINATION 19
XXIII. FAILURE TO PERFORM 19
XXIV. REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES 20
INTER-AMERICAN CONTRACT
Attachment I - Coal Quality Specifications
Attachment II - Roseton Dock and Xxxxxx River
Limitations
AGREEMENT FOR THE SALE AND PURCHASE OF COAL
This Agreement, made and entered into as of the 1st day
of December 1996 by and between Central Xxxxxx Gas & Electric
Corporation (hereinafter referred to as "Buyer"), with its
principal office at 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxx
00000-0000, a New York corporation, and Inter-American Coal N.V.,
(hereinafter referred to as "Producer"), with an office at X.X.
Xxxxx Xxxxxxxxx Xx. 00, Xxxxxxxxxx, Xxxxx an Aruban corporation,
and Inter-American Coal, Inc. (hereinafter referred to as "Sales
Agent"), with its principal office at 0000 Xxxxxx Xxxx Xxxxx,
Xxxxx 000, Xxxxxxxx Xxxx, Xxxxxxxx 00000, a Maryland corporation.
Producer and Sales Agent are hereinafter collectively referred to
as "Seller".
WITNESSETH:
WHEREAS, Producer controls coal reserves and has
mining, preparation and loading facilities known as the Mina
Norte and Cachiri ("Operations"), located in Zulia State,
Venezuela & also in Colombia (Norte de Santander) and which
Operations (except as hereinafter provided) are the source of
coal to be sold and purchased hereunder; and,
WHEREAS, Sales Agent is the exclusive sales agent for
Producer and is duly authorized to contract to sell said coal and
otherwise represent Producer, all as hereinafter set forth; and,
WHEREAS, Buyer is a consumer of coal and, after
investigation and examination of the Operations and such coal
reserves, desires to purchase coal from Seller; and,
WHEREAS, the parties hereto wish to enter into a coal
supply agreement based on the terms and conditions hereof.
NOW THEREFORE, the parties hereto for good and valuable
mutual consideration, and intending to be legally bound, hereby
agree as follows:
ARTICLE I
DEFINITIONS
ASTM - The American Society for Testing Materials.
Belt Self-Unloading Vessel (BSUV) - Vessel capable of unloading
cargo via a belted boom to the designated receiving facility.
This will be the only type vessel to deliver coal to the Roseton
Dock. See Attachment II for Roseton Dock and vessel limitations.
XX - Xxxx of Lading.
Buyer's Agent - Party retained by Buyer to represent its
interests at Load Port and other facilities of Seller and Buyer.
1
Contract Year - Each January 1 through December 31 of the same
year during the Term of the Agreement.
Danskammer Plant - Danskammer Point Generating Station,
specifically Units #3 and #4, the coal burning units.
Demurrage - An agreed daily amount of money payable as a
penalty if vessel takes more than the allowed laytime for
discharging.
DES - Delivered ex-ship.
Discharge Port - Port where coal will be unloaded -- Roseton
Dock (approximately 65 miles north of New York City on the west
side of the Xxxxxx River).
Firm Tons - Must take/must supply annual tonnage under this
Agreement -- 240,000 metric tons (+ or - 10%) at the rate of
30,000 metric tons (+ or - 10%) per delivery.
Handysize Vessel - Vessel of about 35,000 DWT (typical size of
vessel).
Incoterms - International Chamber of Commerce.
Incremental Tons - Variable annual tonnage under this Agreement
-- 120,000 metric tons (+ or - 10%) at the rate of 30,000 metric
tons (+ or - 10%) per delivery. Cargoes 3, 6, 9 and 12 annually
will be provided under Incremental terms.
Independent Laboratory - Laboratory retained to sample and
determine the quality of coal as loaded at Load Port.
Laytime - The time available for discharging a vessel's cargo
without incurring demurrage.
Load Port - Port(s) at which BSUV will take on coal for
delivery to the Roseton Dock.
Marine Surveyor - Independent Party contracted to determine
cargo weights at load and/or Discharge Port.
Metric Ton/MT - 1.1023 Short Ton or = 2,204.6 pounds.
Notice Month - The Month preceding the start of each calendar
quarter.
Reserves - Commercially recoverable coal supply controlled by
Seller.
2
Roseton Dock - Dock at the Roseton Generating Station at which
coal deliveries for Danskammer will take place.
SHEX - Sundays and Holidays excluded.
SHINC - Sundays and Holidays included.
Short Ton/NT - 2,000 pounds (Avoirdupois).
Take-Away Rate (TAR) - Minimum rate at which coal will be
accepted by Buyer at the receiving xxxxxx at the Roseton Dock.
Vessel - Any watercraft.
WCCON - Whether cleared Customs or not.
WIBON - Whether in Berth or not.
WIFPON - Whether in free pratique or not.
ARTICLE II
TERM OF AGREEMENT
The term of this Agreement shall be for the period
commencing January 1, 1997 and continuing until midnight December
31, 1999, unless sooner terminated as provided for herein. This
Agreement shall terminate automatically, without further obliga-
tion or liability to either party, except for payments for coal
delivered, at the end of the Term.
ARTICLE III
DELIVERIES
Section 1. Quantities/Delivery Schedule: Except as
provided for below, the quantity of coal sold and purchased
hereunder shall be a Firm Tonnage of 240,000 Metric Tons (+ or -
10%) per year. In addition, there will be up to 120,000 Metric
Tons (+ or - 10%) per year called Incremental Tonnage which will
be sold and purchased hereunder provided that the delivered cost
per million Btu's of oil, natural gas or spot coal usable at
Buyer's Danskammer Plant or the equivalent price of replacement
electric energy exceeds the applicable delivered Base Price of
coal in delivered cost per million Btu's at appropriately-applied
heat rates.
The Sales Agent/Seller will assume that one Vessel per
month of a nominal 30,000 Metric Tons (+ or - 10%) will be
shipped under this Agreement. Every third Vessel will deliver
Incremental Tonnage provided Buyer and Seller have agreed on the
price for said tonnage as per the notification procedure
described herein.
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On or before the first day of the Notice Month, Buyer
will provide to Seller the fifteen (15) day delivery window for
each Vessel for the following quarter as well as a notice of the
Incremental Price for the third Vessel to be shipped during that
quarter. The Seller is obligated to deliver Incremental Tonnage
quoted at the Base Price. On the first working day of each month
of the quarter or 15 days prior to each Vessel's ETA, whichever
is sooner, the lay days will be reduced to a ten (10) day window
and 15 days prior to ETA the lay days will be reduced to a seven
(7) day window. Vessel's ETA will be narrowed by the Vessel
owner.
Seller will provide notice to the Buyer on or before
the fifteenth day of the Notice Month as to whether this
Incremental Tonnage will be shipped at the quoted price. If the
Seller accepts the quoted price, the coal will be shipped as
scheduled, with the Incremental Tonnage at the quoted price and
the Firm Tonnage at the Base Price. The Seller reserves the
right to re-offer any unshipped Incremental Tonnage to the Buyer
at another time in the ensuing 12 months (commencing with the
quarter during which the unshipped Incremental Tonnage would
otherwise have been shipped) at the Base Price. In each such
instance, Buyer will then have the option to accept that
Incremental Tonnage or permanently cancel that Incremental
Tonnage.
Section 2. Limitations on Quantities: Notwith-
standing any of the above, Buyer will not be obligated to
purchase Firm Tonnage coal from Seller under this Contract if
Buyer is unable to utilize such coal at its Danskammer Plant
because of Economic Reasons. For the purposes as used herein,
Economic Reasons is defined as times when electrical energy is
available to Buyer, either from the Danskammer Plant when burning
oil or natural gas or from any other source, at a lower cost than
equivalent electrical energy which would otherwise be produced by
Buyer's Danskammer Plant when burning coal supplied by Seller at
the Base Price. If, because of Economic Reasons, the Danskammer
Plant does not at any time require all of the coal contracted for
hereunder, Buyer shall so notify the Seller in writing allowing
for sufficient lead time for Seller to reconsign scheduled ocean
shipments. If Buyer so notifies Seller, Seller shall have the
right to reduce the Base Price so that the cost of electrical
energy produced by Buyer's Danskammer Plant when burning coal
supplied hereunder is equivalent in cost to other lower cost
electrical energy then available to the Buyer. If Seller so
elects to reduce the Base Price, the Buyer shall be obligated to
purchase the Firm Tonnage contracted for herein.
In the event, upon receipt of such notice, the Seller
does not elect to reduce the Base Price, the Buyer shall have the
right to reduce the Firm Tonnage to that required by Economic
Reasons for the Danskammer Plant. If Buyer so reduces the Firm
Tonnage for more than thirty (30) days for Economic Reasons
during the term of this Contract, the Seller shall have the right
to: 4
1. Upon sixty days' prior written notice terminate
this Agreement.
2. Extend the Term of this Agreement until such
deferred Firm Tonnage has been shipped in total
quantities provided for in this Agreement. The
prices for the tonnage then shipped will be the
prices in effect at the time of shipment.
Section 3. Delivery Schedule Limitations: All Firm
Tonnage necessary to meet the average 60,000 Metric Tons per
quarter schedule will be delivered before any Incremental Tonnage
is delivered. Both Firm Tonnage and Incremental Tonnage can be
delivered during the same quarter, but Seller will not be
obligated to deliver more than three (3) 30,000 Metric Ton
shipments of coal during any one quarter, unless otherwise
mutually agreed. There shall be a minimum of fifteen (15)
calendar days between shipment releases from the Load Port unless
otherwise mutually agreed.
Section 4. Passage of Title: The coal sold and
delivered to Buyer hereunder is DES Roseton Dock (Incoterms 1990)
and, risk of loss of the coal supplied hereunder shall pass to
Buyer upon discharge at the Roseton Dock.
Section 5. Initial Quality Notification: The
Parties recognize the need to know the quality of the coal as
loaded in the Vessel prior to receipt of the shipment at the
Danskammer Plant. Prior to loading the vessel, the Seller shall
submit in writing a loading plan which lists the source of the
coal inventories at the load terminal, the average (or projected)
quality of each pile, and the quantity of each pile to be loaded.
The loading plan should include a brief description of the method
to mix the coals from the piles into the barges and onto the
vessel. The Buyer or Buyer's agent shall have access to the
Seller's facilities to inspect the coal inventory and loading
equipment. The coal shall be sampled in 5,000 MT sublots as it
is loaded into the Vessel and analyzed by an independent coal
testing laboratory that will within two business days after the
coal is loaded notify Seller and Buyer by telephone, telegram, or
TWX of the average "as received" analytical results of each
shipment. The additional results (AFT, HGI, Ultimate Analysis
and Ash Analysis) of the composite sample shall be reported
within 72 hours.
Section 6. Shipping Notice: For each shipment of
coal hereunder, Seller shall promptly mail to Buyer's Danskammer
Plant and to Financial Records Section, Central Xxxxxx Gas &
Electric Corporation, 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, Xxx Xxxx
00000-0000, a shipping notice showing B/L date, total B/L
weights, name of Vessel and ETA Roseton Dock.
Section 7. Delivery: Coal delivered under this
Agreement by Seller is done so DES the Roseton Dock. Prices
quoted in Article VI and Incremental Prices quoted by Buyer and
5
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
accepted by Seller include the shipping component. Coal
deliveries to the Roseton Dock can only be made in BSUV that meet
the Roseton Dock and Xxxxxx River limitations as described in
Attachment II herein. However, Seller and its Agents are
responsible for the safe passage of Vessels under their control
in all waters and any limitations thereon, whether or not they
are included in Attachment II.
Buyer will provide a safe berth, free of wharfage or
dockage charges, to which Vessels may proceed and from which they
may depart, and where they may always lie safely afloat. With
assistance as necessary from Buyer's dockside personnel (Buyer
will provide shoreside labor for line handling during
docking/undocking procedures), it shall be the responsibility of
Seller to secure the Vessel to Buyer's berth prior to such
discharging of coal.
Section 8. Importer of Record: Seller will act as
importer of record on behalf of Buyer. Usual and customary costs
incurred in clearing cargo will be reimbursed by Buyer to Seller
as per a statement from the Customs broker.
Section 9. Vessels can be berthed/deberthed any
time during the day or night and docking/undocking will only be
constrained through directions given by the docking/undocking
pilot if such a pilot is required. Buyer will provide shoreside
labor for line handling during docking/undocking procedures.
If upon arrival of the Vessel the discharge berth at
Roseton Dock is open and ready to receive the Vessel for
immediate docking, Seller's vessel will tender its notice of
readiness to start discharging coal only after the vessel has
cleared Immigration, U.S. Customs, has been granted free pratique
and after the initial draft survey has been completed, provided
that the Vessel is in all respects ready to start discharging
coal from its conveyor boom into Buyer's dockside xxxxxx. Buyer
will receive the coal from the tip of the Vessel's conveyor at an
average minimum rate of X,XXX MT/hour and a maximum rate not to
exceed X,XXX MT/hour. Any delays in discharge time due to
Vessel's inability to discharge at the X,XXX MT/hour average
minimum rate will not count as laytime. In addition, Seller will
be responsible for demurrage charged by other vessels held out
due to Seller's Vessel inability to offload at an average minimum
rate of X,XXX MT per hour and/or by Seller's Vessel arrival
outside of its seven (7) day delivery window.
Any delays experienced shoreside preventing the Vessel
to achieve its X,XXX MT/hour average minimum rate will count as
laytime. Allowed laytime is defined as follows:
Cargo Size in MT = allowed hours
X,XXX MT/Hour
6
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
If upon arrival of the Vessel the discharge berth at
Roseton Dock is not available for immediate docking, Seller's
Vessel will tender its notice of readiness WIBON, WIFPON, WCCON
from the closest practical safe anchorage and laytime will start
counting provided the Vessel arrives within Seller's seven (7)
day delivery window and the Roseton Dock is occupied. Subsequent
shifting time from anchorage to berth will not count as laytime,
nor will time for clearing Immigration, U.S. Customs, granting of
free practique or for conducting the initial draft survey.
Demurrage at Discharge Berth
If after completion of discharge Buyer has used more
time to receive the entire cargo than allowed, Buyer will
reimburse Seller for excess laytime used at the rate of USD
$XX,XXX for each 24 hours, fractions pro rata.
ARTICLE IV
SPECIFICATIONS & QUALITY & WEIGHT
Section 1. Origin: The coal shipped shall be from
the Producer's operations described herein and meet the
specifications as per Attachment I.
Section 2(a). Buyer's Remedies Related to Quality
Specifications: In lieu of any other remedies related to
Seller's failure to meet the quality specifications provided for
herein, except for the price adjustments for quality provided for
in Article VII herein, Buyer shall have the rights and remedies
described in this Section 2 upon Seller's failure to deliver coal
in accordance with the specifications set forth in Sections 1 and
2 of this Article IV.
(b). Buyer's Right to Reject Shipments:
Buyer's ability to use the coal being dependent on the coal
meeting the specifications set forth in Attachment I, it is
agreed that Buyer shall have the unilateral right to reject any
and all shipments which fail to meet any of the individual, as
received shipment rejection limits shown below:
INDIVIDUAL SHIPMENT REJECTION LIMITS
Sulphur (By Weight) 0.7% Maximum
Volatiles 30% Minimum
Ash Fusion (I.D.) 2,300 F Minimum
Gross Calorific Value (BTU/LB) 12,500 Minimum
SO2/Million BTU 1.1 LBS. Maximum
The delivered coal must meet the following weighted
average specifications for consecutive shipments:
7
CONSECUTIVE SHIPMENTS LIMITS
Grind 48 Minimum
Ash 8% Maximum
Moisture 8% Maximum
If the weighted average grind, ash or moisture of coal
in consecutive shipments delivered hereunder, as determined by
sampling and analysis, does not meet the above Consecutive
Shipments Limits, Buyer shall have the unilateral right to reject
any of the immediately following shipments in the event that such
shipment does not meet said limitation. The basis of any such
rejection shall be the averaged results of two different
independent laboratories as provided for in Article VIII. In
each instance one of the independent laboratories will be the
original independent laboratory test result.
(c). Seller shall pay all freight, diversion,
demurrage, testing and other expenses in connection with any such
rejected shipment, or shipments found by Buyer to be nonconform-
ing, unless such shipment is accepted by Buyer. Furthermore,
Seller certifies that it will not make any shipment shown by
sampling and analysis (as provided for in Article VIII) to exceed
the individual shipment rejection limits.
Section 3. Seller's Duty of Care: Seller shall, at
all times exercise reasonable care and diligence in its efforts
to ship to Buyer coal which conforms to the specifications set
forth in Attachment I and above Section 2. Nothing in this
Article IV shall be construed to relieve Seller of its obligation
to conduct its mining and coal operations in a competent manner,
consistent with good industry practices, so as to produce coal
which will meet the specifications set forth above.
Section 4. Weight Measurement: The weight of coal
sold hereunder shall be determined by an Independent Marine
Survey(s) of the Vessel averaged between Load and Discharge Port
or only the Load Port weight if Discharge Port option is not
elected. Buyer's Discharge Port survey will govern if Seller
delivers part of the loaded cargo to Buyer and part to another
party(s).
(Buyer's Option): If Buyer elects to have a survey performed at
the Discharge Port the maximum allowable deviation between the
two surveys will be two percent (2%) from the survey reporting
the lower short tons. Load Port survey results will be used if
no Discharge Port survey is elected. Buyer, Seller or their
Agents can witness the survey at Load and Discharge Port.
8
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
ARTICLE V
PAYMENT
Section 1. Price: For coal delivered and accepted,
Buyer shall pay Seller the Price herein provided.
Section 2. Invoice: Thereafter, an invoice for any
adjustments for quality as hereinafter defined, and all coal
shipped from the Operations based on weights determined in
accordance with Article IV Section 4 will be submitted by the
Seller to the Buyer. The coal shipped will be invoiced at the
Price (hereinafter defined).
Section 3. Taxes: All taxes due on Vessel or cargo
in Venezuela are for Seller's account. All taxes due on cargo in
U.S.A. upon acceptance of title are for Buyer's account.
Section 4. Vessel Costs: All usual and customary
Vessel costs, including but not limited to docking, are for the
account of the Seller (i.e., pilots, tugs).
Section 5. Payment: Buyer shall make payment to
Seller within fifteen (15) calendar days from the Xxxx of Lading
date or completion of discharge date, whichever is later.
Payment to Seller's Agent shall be made by wire
transfer, as follows:
Citibank - New York, New York
ABA 000-000-000
For Credit to the Account of
Interbank Aruba N.V.
Oranjestad, Aruba
Account No. 00000000
For Further Credit to the Account of
Inter-American Coal N.V.
Account No. 191000019
The above address may be changed by Seller upon written notice to
Buyer.
ARTICLE VI
BASE PRICE
Section 1. The Base Price for coal shipped under
the terms of this Agreement will be $XX.XX DES per NT for the
Contract Year 1997.
Section 2. On or before July 1, 1997, Buyer and
Seller will enter into negotiations to fix the Base Price for
coal delivered hereunder for the ensuing year. This Agreement
will terminate on December 31, 1997 if negotiations for the
following year have not been completed by October 1.
9
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
ARTICLE VII
ADJUSTMENT IN PRICE FOR QUALITY
Section 1. BTU Value: The Price to be paid to
Seller by Buyer is based upon coal with 13,000 BTU/LB heat
content (BTU Value) for each net ton of coal in each shipment.
The BTU Value of the coal sold hereunder may vary, and the Price
for such coal shall be adjusted to compensate for variations in
BTU Value, as described below.
Section 2. Adjustment for BTU Value: If the BTU
Value of the coal shipment is between XX,XXX BTU/LB and XX,XXX
BTU/LB there will be no adjustment for BTU Value variation. If
the BTU Value is less than XX,XXX BTU/LB or greater than XX,XXX
BTU/LB, the Price for a shipment shall be adjusted, based upon
variations from the 13,000 BTU/LB BTU Value, as follows:
(a) For a coal shipment with a BTU Value greater than
XX,XXX BTU/LB, a premium shall be paid by Buyer to Seller at the
rate of $X.XX per XXX BTU/LB, fractions pro rata; or
(b) For a coal shipment with a BTU Value less than
XX,XXX BTU/LB, a penalty shall be deducted from the Price at the
rate of $X.XX per XXX BTU/LB, fractions pro rata.
Section 3. Adjustments for Ash Value: The Price to
be paid to Seller by Buyer is based upon coal with an ash content
(Ash Value) of seven percent (7%) by weight of the "as received"
analysis of the coal. If the Ash Value is between X.X% and X.X%
there will be no adjustment for Ash Value. If the Ash Value is
less than X.X% then a premium of $X.XXX per net ton shall be paid
to Seller for each .X% Ash Value variation below 7.0%. If the
Ash Value is greater than X.X% then a penalty of $X.XXX per net
ton shall be deducted from the Price for each .X% Ash Value
variation in excess of 7.0%.
ARTICLE VIII
SAMPLING AND ANALYSES
A recognized Independent Laboratory experienced in the
sampling and analyzing of coal, shall be mutually agreed upon by
Buyer and Seller, and shall be engaged by each party to perform
the sampling and analysis of coal shipped hereunder.
During the loading of the barges, sample increments
shall be collected by the most reliable, practical and mutually
agreeable procedures. The frequency and mass of the increments
shall be in accordance with ASTM standards. The cargo shall be
divided into 5,000 MT sublots. The preparation of each sublot
sample shall yield the following four mesh sample splits: a)
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laboratory analyses, b) referee split, c) Seller's split and d)
Buyer's split. The Independent Lab shall provide upon request
the splits of the sublot samples to the Buyer and/or Seller as
soon as the sample is prepared. The Independent Lab shall
properly identify, seal, and retain the referee splits of each
sublot sample for a period of 60 days so that the Buyer or Seller
may analyze such samples.
The sublot samples shall be analyzed for total
moisture, ash, sulfur, volatile, and gross calorific value
(BTU/LB). The initial sublot(s) shall be tested immediately and
the results reported to Seller and Buyer/Buyer's Agent upon
completion of testing. The Vessel certified analyses shall be
the weighted mathematical average of all sublot values for
moisture, ash, volatile, sulphur and calorific value.
A physical composite sample of the sublot samples shall
be prepared and analyzed for grindability index (HGI), ash fusion
temperature, mineral ash, and ultimate analyses. The cost of the
Independent Lab's services for such sampling and analyzing of the
coal in each shipment shall be paid for by the Buyer and Seller,
equally.
If the Buyer or Seller should question the correctness
of the analyses made by the Independent Lab, they may, within 30
days after the Vessel unloading, notify the other Party in
writing to request that the Referee splits be analyzed by a
second mutually agreeable Independent Laboratory. This
notification should specify which analytical parameter or
parameters are in dispute. The Independent Lab shall provide the
Referee Lab with the properly identified sealed sublot samples.
The integrity of the moisture in reserve samples is the
most difficult to preserve. Therefore, if the moisture value is
in dispute, the governing result will be the higher of the
averaged value reported by the Independent and Referee
Laboratory. Other analytical parameters shall be determined on a
'dry basis' and corrected to the 'as received' basis using the
governing moisture.
The following are the acceptable tolerance for other
test parameters: Ash +/- 0.3%; Sulphur +/- 0.03%; Volatile +/-
0.5%; Calorific Value +/- 100 BTU/LB; Ash Fusion Temperature I.D.
+/- 75 Degrees F. and HGI 3. Should the results fall within
these tolerances, the results of the Independent Lab will stand.
Should the results fall outside the tolerance, the average dry
basis analyses of the Independent Laboratory and Referee analyses
shall be the governing result.
Should the grindability (HGI) result be in dispute, the
Referee Lab will prepare a physical composite sample from the
Referee sublot samples, then distribute a split of the physical
composite sample to an additional laboratory. If the HGI test
result of the second laboratory is within tolerance, the original
laboratory result will stand. If out of tolerance, the average
of the two results will be the governing analysis.
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The cost of this Referee analysis will be paid by the
Party requesting the check analysis.
Neither party shall require the other party to use
equipment or procedures which exceed the requirements of ASTM.
ARTICLE IX
GOVERNMENTAL LEGISLATION, REGULATIONS AND ORDERS
Section 1. Compliance with Law: Each party shall
use its best efforts to comply with the provisions of all
applicable national, 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 2. Effect Upon Buyer's Obligations: The
parties hereto recognize the possibility that, during the
continuance of this Agreement, national, federal, state or local
legislative or regulatory bodies or the courts may impose or
enforce regulations, restrictions or standards, or revise
existing regulations, restrictions or standards which in Buyer's
sole discretion will make it impossible or impractical for Buyer
to utilize the coal hereafter to be delivered hereunder at the
Danskammer Plant. Such regulations or restrictions could pertain
to, but would not necessarily be limited to coal quality. If any
such regulations or restrictions are imposed and if as a result
thereof Buyer, in its sole discretion, decides that it will be
impossible or impractical for Buyer to utilize the coal, Buyer
shall so advise Seller and thereupon Buyer and Seller shall
promptly consider what corrective steps they can take in the
mining and preparation of the coal and in the handling and
combustion of the coal at the Danskammer Plant; and if in Buyer's
judgement such steps will not, without unreasonable expense to
Buyer, make it possible and practical for Buyer to utilize the
coal thereafter to be delivered hereunder without violating such
regulations or restrictions, Buyer shall have the unilateral
right, upon written notice to Seller, to terminate this Agreement
without further obligation to Seller hereunder.
Section 3. Effect Upon Seller's Obligations: In
the event of the enactment of any new national, federal, state or
other governmental law, or the promulgation of any regulation or
order thereunder which may prohibit (or restrict so as
effectively to prohibit) mining, transportation, loading,
processing or shipping, as may be applicable, of the coal
specified in this Agreement, Seller, in its sole discretion,
shall 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
12
the percentage of production of such mining, processed or shipped
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 4. Election to Reduce Tonnage or Terminate:
In the event any party elects to invoke Section 2 or 3, above,
the party so invoking shall notify the other parties in writing
and said notice shall state the notifying party's election to
terminate this Agreement or reduce the tonnage to be delivered
under this Agreement, effective on a specified date, which said
date shall not be earlier than the effective date of the
implementation (compliance date) of such law, regulation or order
giving rise to the termination; provided, however, that
notwithstanding anything to the contrary herein, said specified
date shall in no event be earlier than sixty (60) days after the
date of delivery of notice.
Section 5. Effect of Termination: If any party
elects to terminate this Agreement under the provisions of
Section 2, 3, and/or 4 of this Article IX, then no party shall
have, after the effective date of such termination, any further
obligation or liability under this Agreement, provided, however,
that such termination shall not affect any rights or obligations
of the parties existing under this Agreement for coal shipped or
required to be shipped prior to the effective date of said
termination.
ARTICLE X
FORCE MAJEURE
No party shall be subject to liability to the other
party for the failure to perform in conformity with this Agree-
ment where such failure results from an event or occurrence
beyond the control of the party affected thereby, whether
foreseen, foreseeable or unforeseeable, which wholly or partially
prevents the mining, preparation, loading or shipping of coal by
Seller or the receiving, unloading or utilization of coal by
Buyer. Such events shall include, by way of illustration but not
by way of limitation, acts of God, war, insurrection, riots,
nuclear disaster, strikes, labor disputes, labor and material
shortages, fires, explosions, floods, river freezeups, breakdowns
or damage to mines, plant equipment or facilities (including
emergency outages of equipment or facilities to make repairs to
avoid breakdowns thereof or damage thereto), interruptions to
transportation, railway car shortages, embargoes, orders or acts
of civil or military authority, laws, regulations or administra-
tive rulings. The provisions of the above sentence shall not
excuse a party from performing unless such party shall give
reasonable notice to the other party and furnish reasonable
information as to the cause of inability to perform and probable
13
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
extent thereof within thirty (30) calendar days after such cause
occurs. 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. 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.
If circumstances arise such that a vessel is prevented
from discharging or completing the discharge of its cargo at the
discharging port, by reason of breakdown or failure of the shore-
side equipment that is necessary to receive and take away the
cargo from the vessel, then in order to mitigate economic losses
the Buyer shall have the right, by notice in writing to the
Seller, to order the vessel to a safe and accessible berth or
anchorage (the substitute berth) where she can safely discharge
without risk, in which event upon the completion of the unloading
of the cargo at such substitute berth or anchorage, all
conditions of the applicable xxxx of lading shall apply.
If Buyer so declares a substitute berth, then time
shall stop counting 12 hours after declaration, or when the
vessel sails, whichever is sooner and shall recommence when
vessel tenders notice at the substitute berth or anchorage. Time
to count at the substitute berth as it would have at the original
berth, with exception of turn time. Total time used at the
discharging berths to be the sum of time at the original berth
(Roseton Dock) and time used at the substitute berth.
In the event that Buyer declares a substitute berth or
anchorage for the vessel to discharge or complete discharge,
Buyer to compensate Seller as follows:
* All reasonably incurred Vessel diversion costs
including out-of-pocket costs such as pilot dues, tug
assistance, port harbor dues, etc., plus the actual
cost of vessel used in such diversion at a rate not to
exceed USD XX,XXX/day calculated on a pro rata basis.
The total of the Vessel diversion costs as identified
above plus the actual cost of the Vessel used in such
diversion shall not exceed USD XX,XXX per occurrence.
* All loss of value of coal carried aboard the vessel
(calculated using Buyer's DES coal price as the basis).
If circumstances arise such that Seller's vessel is
prevented from discharging or completing the discharge of its
cargo at the discharging port, by reason of breakdown or failure
of the vessel, then in order to mitigate economic losses, Seller
to compensate Buyer for coal not received as follows:
* All freight, diversion, demurrage, testing and other
expenses.
14
* The differential between the value of coal carried
aboard the vessel (calculated using Buyer's DES coal
price as the basis) and the cost of replacement coal or
replacement energy as delivered to the Danskammer
Plant.
During such periods when force majeure conditions
result in a reduction in deliveries, Seller shall equitably
prorate shipments among its customers. Buyer shall equitably
prorate acceptance of deliveries of coal it purchases for the
Danskammer Plant. 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. Deficiencies in shipments so
caused shall not be made up except by mutual consent.
Deficiencies in shipments caused by an event or occurrence within
the control of either party shall, at the option of the other
party, extend the term of this Agreement to the extent necessary
to make up such deficiency except as otherwise herein provided.
Seller shall furnish Buyer a monthly statement by the
fifteenth (15th) day of the calendar month setting forth the
amount of tonnage not shipped because of force majeure causes
asserted during the preceding calendar month.
ARTICLE XI
RESERVES
The coal reserves owned by or otherwise available to
Seller are located in Zulia, Venezuela and Norte De Santander,
Colombia and are accessible for truck transportation to the
loading terminal and are part of the mining properties consti-
tuting the Producer's mines. The total quantity of suitable and
economically recoverable coal of the quality required to meet
Seller's maximum obligation to Buyer under this Agreement is 1.2
million Metric Tons. Seller shall not enter into other agree-
ments for the production and sale of coal from the above reserves
which production and sale would reduce or impair the amount of
reserves required to meet its obligations during the term of this
Agreement.
Buyer shall have the right from time to time, whenever
deemed desirable by Buyer, to audit at Buyer's expense (1) said
reserves owned by or otherwise available to Seller and (2)
Seller's commitments for the purpose of determining if Seller has
sufficient reserves which are not otherwise committed to comply
with the reserve requirements of this Agreement. Buyer may at
its discretion have any such audit conducted by an independent
firm or firms acceptable to Seller.
15
ARTICLE XII
EMPLOYEE INTEREST
Seller represents to Buyer that Seller has not given
and will not give, directly or indirectly, anything of value to
any employee or other representative of Central Xxxxxx Gas &
Electric Corporation with the view of securing this Agreement or
obtaining favorable treatment with respect to the performance of
this Agreement. If such representation is untrue, or becomes
untrue, Buyer shall have the right to declare this Agreement null
and void or to terminate it, to xxx for damages and to take such
other action as may be provided by law. If Seller obtains
knowledge at any time that any such employee has a direct or
indirect interest in Seller or its affiliates, (excluding routine
purchases in the open market by such employee of securities
issued by Seller or its parent corporations) it will immediately
inform Buyer of such fact.
ARTICLE XIII
WAIVER
The failure of any party to insist in any one or more
instances upon strict performance of any of the provisions of
this Agreement or to take advantage of any of its rights
hereunder shall not be construed as a future waiver of any such
provisions or the relinquishment of any such rights, but the same
shall continue and remain in full force and effect for the term
of this Agreement.
ARTICLE XIV
NOTICES
Notices and other communications provided for or
required herein shall be given (effective, if written, when
presented for delivery by postal authorities when sent by postage
prepaid, certified mail) by facsimile as follows:
TO BUYER:
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
000 XXXXX XXXXXX
XXXXXXXXXXXX, XXX XXXX 00000-0000
ATTENTION: MANAGER OF FUELS RESOURCES
FAX: (000) 000-0000
PHONE: (000) 000-0000
PHONE: (000) 000-0000
16
DANSKAMMER GENERATING STATION
FAX: (000) 000-0000
FINANCIAL RECORDS
FAX: (000) 000-0000
TO SALES AGENT:
INTER-AMERICAN COAL, INC.
0000 XXXXXX XXXX XXXXX, XXXXX 000
XXXXXXXX XXXX, XXXXXXXX 00000
ATTENTION: MARCEL VAN DEN XXXX, PRESIDENT
FAX: (000) 000-0000
PHONE: (000) 000-0000
TO PRODUCER:
X/X XXXXX-XXXXXXXX XXXX X.X.
X.X. XXXXX XXXXXXXXX XX. 00
ORANJESTAD, ARUBA
ARTICLE XV
GOVERNING LAW
This Agreement shall be construed, enforced and
performed in accordance with the laws of the State of New York.
ARTICLE XVI
AMENDMENTS
This Agreement may be modified or amended at any time
by mutual agreement of the parties, provided that such
modification or amendment shall be in writing and executed by the
duly authorized representatives of the parties.
ARTICLE XVII
FINALITY
This Agreement is intended as the final, complete and
exclusive statement of the terms of the Agreement among the
parties. The parties agree that parole or extrinsic evidence may
not be used to vary or contradict the express terms of this
Agreement. No waiver of any provision hereof shall be effective,
unless set forth in a written instrument authorized and executed
with the same formality as this Agreement.
17
ARTICLE XVIII
TITLES
The titles of the articles and sections of this
Agreement have been inserted as a matter of convenience for
reference only.
ARTICLE XIX
AGREEMENT FOR BENEFIT OF PARTIES ONLY
Buyer agrees to indemnify, including reasonable
attorneys fees, defend, and hold Seller harmless from any and all
claims of any broker, consultant, finder or like agent with whom
Buyer has dealt, or is alleged to have dealt, regarding this
Agreement. Seller agrees to indemnify, including reasonable
attorneys' fees, defend, and hold Buyer harmless against any and
all claims of any broker, consultant, finder or like agent with
whom Seller has dealt, or is alleged to have dealt regarding this
Agreement.
ARTICLE XX
ASSIGNMENT - TERMINATION
All of the rights and obligations of this Agreement
shall inure to and be binding upon the legal representatives,
successors and permitted assigns of the parties hereto. No
assignment shall impose upon the non-assigning party any
obligation or burden in excess of those obligations or burdens as
exist between the original parties to this Agreement. This
Agreement or any interest herein shall not be assigned without
the prior written consent of the other parties, which consent
shall not be unreasonably withheld.
Subject to the provisions of the Federal Bankruptcy
Code, this Contract shall not be deemed an asset of either Seller
or Buyer and, upon five (5) days prior written notice, either
such Party may terminate this Agreement without penalty at any
time in the event the other such Party enters into any voluntary
or involuntary receivership, bankruptcy, or insolvency
proceedings in any applicable national jurisdiction.
ARTICLE XXI
COUNTERPARTS
This Agreement is being executed in several
counterparts, each of which is an original and all of which
together constitute but one and the same agreement.
18
ARTICLE XXII
BUYER'S RIGHT TO ADEQUATE ASSURANCE - TERMINATION
If, during the Term of this Agreement, the Seller's
ability to meet its obligations under this Agreement become
impaired to the point that Buyer has reasonable grounds for
believing that Seller may not be able to meet such obligations,
then Buyer, by a written notice to Seller, may require that
Seller provide adequate assurance that Seller is able to continue
to meet its obligations under this Agreement. If such adequate
assurance is not received by Buyer within fifteen (15) days from
Seller's receipt of Buyer's request thereof, Buyer shall have the
right to immediately reduce, by the amount in question, Buyer's
obligation to purchase coal pursuant to this Agreement. Buyer
may obtain the amount of said reduction through purchases from
third parties; such reduction to be reflected in a notice from
Buyer to Seller, which thereupon shall become an amendment to
this Agreement. In the event that Seller cannot offer such
adequate assurance to Buyer upon Buyer's request or in the event
Seller has made a material misrepresentation with respect to its
Warranties and Representations in Article XXIV herein, Buyer
shall also have the right at its option to immediately terminate
this Agreement by written notice to Seller.
ARTICLE XXIII
FAILURE TO PERFORM
In the event of failure to perform by either Seller or
Buyer, the nondefaulting party shall have available, except as
herein otherwise provided, all remedies provided at law or in
equity. These remedies shall include, without limitation, the
right of Buyer to obtain specific performance and/or injunctive
relief where default by Seller would deprive Buyer of a necessary
supply of coal and, because of market conditions or otherwise,
the collection of damages does not afford Buyer an adequate
remedy. In that regard it is expressly recognized and understood
between the parties that prompt and full deliveries by the Seller
in accordance with this Agreement are essential to Buyer. These
remedies also shall include, without limitation, except as herein
otherwise provided, the right of Seller to obtain specific
performance and/or injunctive relief where default by Buyer would
deprive Seller of a necessary market for its coal and, because of
market conditions or otherwise, the collection of damages does
not afford Seller an adequate remedy. In that regard it is
expressly recognized and understood between the parties that
prompt and full acceptance of deliveries and scheduling of
transportation therefore in accordance with this Agreement are
essential to Seller. Notwithstanding any other provision of this
Agreement, neither party shall be entitled to recover incidental
or consequential damages as a result of the other's failure to
perform.
19
ARTICLE XXIV
REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES
Each party warrants and represents to the other that:
(i) it has all requisite power, authority, licenses,
permits, permissions, approvals and franchises, corporate or
otherwise, to execute and deliver this Agreement and perform its
obligations hereunder;
(ii) its execution, delivery, and performance of this
Agreement has been duly authorized by, or is in accordance with,
its organic instruments, this Agreement has been duly executed
and delivered for it by the signatories so authorized, and this
Agreement constitutes its legal, valid and binding obligation
enforceable in accordance with its terms except as such
enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights in general and by general
principles of equity;
(iii) its execution, delivery, and performance of this
Agreement will not result in a breach or violation of, or
constitute a default under, any agreement, lease or instrument to
which it is a party or by which it or its properties may be bound
or affected; and
(iv) it has not received any notice, nor to the best
of its knowledge is there pending or threatened any notice, of
any violation of any applicable laws, ordinances, regulations,
rules, decrees, awards, permits or orders which would materially
adversely affect its ability to perform hereunder.
20
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.
BUYER: CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
BY
XXXX X. XXXXX
ITS President and Chief Operating Officer
PRODUCER: INTER-AMERICAN COAL N.V.
BY
XXXXXX X.X. VAN DEN XXXX
ITS President and Chief Executive Officer
SALES AGENT: INTER-AMERICAN COAL, INC.
BY
XXXXXX X.X. VAN DEN XXXX
ITS President
21
Attachment I
Quality Specifications: The quality of coal sold and purchased
hereunder shall meet the following specifications:
Expected Minimum Maximum ASTM Method
As Received:
Moisture % 6 4 8 D 3173
Volatiles % 35 30 38 D 3175
Fixed Carbon % 51 47 60 D 3172
Ash % 7.0 -- 10 D 3174
Gross Calorific
Value (BTU/LB.) 13,000 12,500 -- D 3286
Sulphur % 0.66 0.47 0.70 D 3177/4239
SO2 (LBS./MMBTU) 1.0 -- 1.1 Calculated
Grind (HGI) 52 48 60 D 409-85
Ash Fusion (Reducing)
(I.D., Deg. F) 2,700 2,300 D 1587
Coal Fines (A) -- -- 45% D 4749
THIS COAL SHALL BE FREE OF EXTRANEOUS MATERIAL AND
SHALL HAVE A MAXIMUM TOP SIZE OF THREE INCHES.
(A) Coal Fines are defined as zero times one quarter inch.
Attachment II
Roseton Dock and Vessel Limitations:
- LOA - 890 Feet Maximum
- Beam - No Restriction
- Water Depth in Berth - 36+ Feet MLW
(Operational Draft 31 Feet MLW Channel at Haverstraw is
Limiting)
Attachment III
Bunker Fuel Price Adjustment
Fuel to escalate as follows (1998 only):
Freight rates are predicated on a delivered fuel price of USD
100.00 per metric ton for IFO 180 CST. If the price of fuel for
each voyage as determined by the Xxxxx'x Oilgram for the port of
New York issued most recently preceding the xxxx of lading date
is greater or less than USD 100.00 pmt, then the freight rate to
be increased or decreased by USD 0.01 pmt for each dollar that
the fuel price so varies, up to a maximum of USD 0.50 pmt from
the base USD 100.00 per metric ton rate. Owners to supply
Xxxxx'x Oilgram for the relevant date as backup on invoicing.
Example: Xxxx of Lading Date: January 15th
Xxxxx'x Oilgram (issued each Thursday) for Jan. 8th
Port of New York: IFO 180 CST - USD 80.00 pmt
Fuel Adjustment: USD 100.00 - USD 80.00 = USD
20.00
USD 20.00 x 0.01 - USD 0.20
Therefore, freight rate decreases by USD 0.20 pmt for this
voyage.
November 25, 1996
Mr. Marcel Van den Xxxx
President
Inter-American Coal, Inc.
0000 Xxxxxx Xxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
In furtherance of the Agreement for the Sale and
Purchase of Coal between Central Xxxxxx Gas & Electric
Corporation (Buyer) and Inter-American Coal N.V. and Inter-
American Coal, Inc. (collectively referred to as Seller), entered
into as of the 29 day of November 1996, Seller recognizes that
Buyer will be scheduling and receiving rail deliveries of coal
during the Contract Term and that the coal unloading system can
not handle both vessel and train unloadings at maximum unloading
rates. Therefore, if Seller's vessel arrives outside of its
seven (7) day delivery window and within the time frame of a
scheduled rail delivery of coal, Buyer will have the option to
delay the commencement of discharge up to twelve hours after the
Notice of Readiness is tendered.
BUYER: CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
BY
XXXX X. XXXXX
ITS President and Chief Operating Officer
PRODUCER: INTER-AMERICAN COAL N.V.
BY
XXXXXX X.X. VAN DEN XXXX
ITS President and Chief Executive Officer
SALES AGENT: INTER-AMERICAN COAL, INC.
BY
XXXXXX X.X. VAN DEN XXXX
ITS President
