Exhibit (10(i)81)
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
TERM COAL PURCHASE AGREEMENT
BETWEEN
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
AND
GLENCORE LTD.
CENTRAL XXXXXX CONTRACT #__________
TABLE OF CONTENTS
Article Page
I. TERM OF AGREEMENT 2
II. DELIVERIES 2
III. SPECIFICATIONS & QUALITY & WEIGHT 7
IV. PAYMENT 9
V. ADJUSTMENT IN PRICE FOR QUALITY 10
VI. SAMPLING AND ANALYSIS 12
VII. CHANGES IN LAW 14
VIII. OTHER GOVERNMENTAL LEGISLATION, REGULATIONS AND ORDERS 15
IX. FORCE MAJEURE 15
X. EMPLOYEE INTEREST 16
XI. WAIVER 17
XII. NOTICES 17
XIII. GOVERNING LAW 18
XIV. FINALITY 18
XV. TITLES 18
XVI. INTERPRETATION 19
XVII. AGREEMENT FOR BENEFIT OF PARTIES ONLY 19
XVIII. ASSIGNMENT - TERMINATION 19
XIX. COUNTERPARTS 20
XX. REPRESENTATIONS AND WARRANTIES OF BOTH PARTIES 20
ATTACHMENT I: ROSETON DOCK AND XXXXXX RIVER LIMITATIONS
This Agreement, made and entered into as of the 1ST day of November,
1998 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 Glencore Ltd.
(hereinafter referred to as "Seller"), with its principal office at Three
Stamford Plaza, 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000.
WITNESSETH
WHEREAS, Seller has mining facilities known as the Caesar Mine
("Operations"), the Operations are located on lands in Colombia, South America
and which Operations (except as hereinafter provided) are the source of coal to
be sold and purchased hereunder and Seller also has a port facility known as
Prodeco from which the herein referenced coal will be shipped; and,
WHEREAS, Buyer is a consumer of coal and 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:
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ARTICLE I
TERM OF AGREEMENT
The term of this Agreement shall be for a period commencing 1
January 1999 and continuing until midnight, 31 December 2001, unless sooner
terminated as provided for herein.
In recognition of the pending Auction of the Danskammer Generating
Station, and to provide the new owner with maximum flexibility, Seller agrees to
forgo deliveries under this Agreement in contract year 2001 upon six months
advance notice from the New Owners.
ARTICLE II
DELIVERIES
Section 1. Quantities/Delivery Schedule: Except as provided for
below, the annual quantity of coal sold and purchased hereunder shall be four
(4) Firm cargoes of 30,000 Metric Tons (+ or - 10%) each plus two (2) Option
cargoes of 30,000 Metric Tons (+ or - 10%) each. Delivery of all cargoes shall
be made by ocean-going vessel during ten (10) day lay day periods scheduled by
Buyer at least forty five (45) days prior to the start of the ten (10) day lay
day period. Delivery of the Option cargoes shall be subject to; (1) Buyer's need
for additional coal and (2) Seller's acceptance of revised pricing equal to the
lower of quoted spot coal for the delivery calendar quarter, other fuel that can
be used in the Danskammer coal-burning units or the equivalent cost of purchased
energy. Every third cargo (#3 & #6) shall be an Option cargo. Buyer shall
provide pricing for the Option cargoes when scheduling same and Seller shall
have ten (10) calendar days thereafter to indicate acceptance of the Option
cargo pricing. Option cargoes will be priced at the Base Price as specified
herein if Buyer fails to quote an Option Cargo price.
For water-borne deliveries, the Buyer will provide to Seller the ten (10)
day delivery window (Buyer's Dock) for the Vessel. Ten (10) days prior to the
scheduled arrival, the vessel's ETA will be reduced to a five (5) day window by
the Seller. Seller's maximum obligation under this
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Agreement is six (6) cargoes however Seller is not obligated to load more than
one (1) cargo in a calendar month. In addition, Seller may offer any passed
Option cargoes during the remainder of the Contract Term at a mutually agreeable
time and price.
Buyer will be scheduling and receiving other deliveries of coal and
oil during the Contract Term. The Roseton Dock which is used for both oil and
coal deliveries can handle only one vessel at a time. Therefore, if Seller's
vessel arrives outside of its five (5) day delivery window and within the time
frame of another scheduled fuel delivery, Seller will hold Buyer harmless as to
any and all demurrage charges associated with either delivery.
Section 2. Passage of Title: The coal sold and delivered solely by
water to Buyer hereunder is CIFFO Roseton Dock (Incoterms 1990) and, title to
and risk of loss of the coal supplied hereunder shall pass to Buyer as coal
passes from the vessel's conveyor into the receival xxxxxx at the Roseton Dock.
Section 3. Initial Quality Notification: The Parties recognize the
Buyer's need to know the quality of the coal prior to receipt of the shipment at
the Danskammer Plant. Two (2) days prior to loading, the Seller shall submit in
writing a loading plan which lists the source of the coal inventories at the
load facility, 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 be used to blend the coals into a homogenous mixture prior to
loading. The Buyer or Buyer's Agent shall have access to the Seller's facilities
to inspect the coal inventory and loading equipment and shall have the option of
collecting and analyzing samples of the individual piles prior to loading. The
coal blend shall be sampled in 5,000-ton sub-lots as it is loaded and analyzed
expeditiously by a mutually agreed upon independent coal testing laboratory. The
Seller shall notify the Buyer by telephone, telegram, or TWX of the average "as
received" analytical results of the shipment within 48 hours of the load date.
The additional results (AFT, HGI, Ultimate Analysis and Ash Analysis) of the
composite sample shall be reported within 72 hours.
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Section 4. Shipping Notice: For each shipment of coal hereunder,
Seller shall promptly mail or courier to Buyer's Danskammer Plant and to the
Roseton Administrative Offices, Central Xxxxxx Gas & Electric Corporation, 000
Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000, a shipping notice showing weight, type of
car and number of each railway car contained in the shipment, shipping date and
origin mine; or in the case of water-borne deliveries the B/L date,
total B/L weights, name of Vessel and ETA Roseton Dock.
Section 5. Delivery by Water Only: Coal delivered under this
Agreement by Seller is done so CIFFO the Roseton Dock. Prices quoted by Buyer
and accepted by Seller include all transportation components. Coal deliveries to
the Roseton Dock can only be made in Belt Self Unloading Vessels that meet the
Roseton Dock and Xxxxxx River limitations as described in Attachment I 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 I.
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 shore- side 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 6. Importer of Record: For imported coal, 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.
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
Section 7. 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.
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 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 short tons/hour and a
maximum rate not to exceed X,XXX short tons/hour. Buyer's belt scale results
will be used as documentation of the Vessel's unloading rate. In addition,
Seller will be responsible for demurrage charged by other vessels held out due
to Seller's Vessel's inability to offload at an average minimum rate of X,XXX
short tons per hour and/or by Seller's Vessel arrival outside of its five (5)
day delivery window.
Any delays experienced shore-side preventing the Vessel to achieve
its X,XXX short tons/hour average minimum rate will count as laytime. Allowed
laytime is defined as follows:
Cargo Size in Short Tons = allowed hours
________________________
X,XXX Short Tons/Hour
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 five (5)
day delivery window and the Roseton Dock is occupied. Subsequent shifting time
from anchorage to berth will not count as laytime.
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
Section 8. If Buyer's coal unloading system or equipment is damaged
or forced to shut down as the result of receiving foreign or oversized material
from the vessel, then the Seller shall be liable for any damage and/or delays
associated with the unauthorized delivery of this extraneous material.
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.
If after completion of discharge Seller has used more time to
offload the entire cargo than allowed, Seller will reimburse Buyer for excess
laytime used at the rate of USD $XX,XXX for each 24 hours, fractions pro rata.
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
ARTICLE III
SPECIFICATIONS & QUALITY & WEIGHT
Section 1. Origin: The coal shall be from the Caesar (mine, seam,
region) and shall meet the specifications herein. Coals from other sources shall
not be shipped without prior written approval of Buyer.
Section 2. As Received Quality Specifications: The quality of coal
sold and purchased hereunder shall meet the following specifications:
Expected Minimum Maximum ASTM Method
As Received:
Moisture % X -- XX D 3173
Volatiles % XX XX XX D 3175
Fixed Carbon % XX XX XX D 3172
Ash % X.X -- X.X D 3174
BTU/LB XX,XXX XX,XXX -- D 3286
Sulphur % X.XX X.XX X.XX D 3177/4239
SO2(LBS./MMBTU) X.X -- X.X Calculated
Grind (HGI) XX XX(1) XX D 409-85
Ash Fusion (Reducing)
(I.D., Deg. F) X,XXX X,XXX -- D 1587
Coal Fines:
(A) 1/4" Round Hole -- -- XX% D 4749
(B) 35 Mesh U.S. Standard -- -- XX% D4749
(1) Subject to approval by Buyer.
THIS COAL SHALL BE FREE OF EXTRANEOUS MATERIAL AND SHALL HAVE A MAXIMUM TOP SIZE
OF TWO INCHES.
(A) Coal defined as zero times one quarter inch round hole.
(B) Coal fines defined as zero by 0.5 mm (35 mesh U.S. Standard sieve or 32 mesh
Xxxxx xxxxx).
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Section 3a. 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 V herein, Buyer shall have the rights and remedies
described in this Section 3 upon Seller's failure to deliver coal in accordance
with the specifications set forth in Sections 2 and 3 of this Article III.
Section 3b. Buyer's Right to Reject Individual Shipments: Buyer's
ability to use the coal being dependent on the coal meeting the specifications
set forth above, it is agreed that Buyer shall have the right to reject any and
all shipments which fail to meet any of the individual shipment as received
rejection limits shown below:
INDIVIDUAL SHIPMENT REJECTION LIMITS
------------------------------------
Sulphur (By Weight) 0.7% Maximum
Volatiles 30% Minimum
Ash Fusion (I.D.) 2,400 F Minimum (1)
Grind (HGI) 43 Minimum
Gross Calorific Value (BTU/LB) 12,300 Minimum
SO2/Million BTU 1.1 LBS. Maximum
(1) Lower value subject to approval by Buyer.
Seller shall pay all freight, diversion, demurrage, testing and
other expenses in connection with any such rejected shipment, or shipments found
by Seller to be nonconforming, unless such shipment is accepted by Buyer.
Furthermore, Seller certifies that it will not make any shipment shown by
sampling and analyses (as provided in Article VI) to exceed the individual
shipment rejection limits.
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
Section 4. 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 above Section 2. Nothing in
this Article III shall be construed to relieve Seller of its obligation to
conduct its mining and operations in a competent manner, consistent with good
industry practices, so as to produce coal which will meet the specifications set
forth above.
ARTICLE IV
PAYMENT
Section 1. Price: The Base Price of the Firm cargoes of coal sold
hereunder in contract year 1999 is fixed at $XX.XX per short ton CIFFO Roseton
Dock. Option Cargoes will be priced in accordance with ARTICLE II, Section 1.
Section 2. On or before July 1st 1999 & 2000, Buyer and Seller will
enter into negotiations to fix the Base Price for coal delivered hereunder for
the ensuing year. Unless otherwise agreed, this Agreement will terminate on
December 31st of the then current contract year if negotiations for the
following year have not been completed by November 1st.
Section 3. Submission of Analysis and Weight: In addition to
Seller's notifications provided for in Article II, Section 3, Seller shall
submit to Buyer the analytical data on said shipments from the Operations as
obtained by the Independent Lab(s) for each shipment within five days after each
shipment.
For rail only deliveries, the Buyer shall submit to Seller the
certified weights within five (5) working days after the certified weights
become available.
For rail/water deliveries, the Seller shall submit to Buyer the
certified rail weights provided by the origin carrier within five (5) working
days after the certified weights become available.
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
For water only deliveries, the weight of coal sold hereunder shall
be determined by an Independent Marine Survey(s) of the Vessel at the Load Port
or by Independent Marine Survey (s) at Buyer's Discharge Port if Seller's Vessel
has multiple Discharge Ports. The Buyer, Seller or their Agents reserve the
right to witness any or all Marine Surveys.
Section 4. 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 2 will be submitted
by the Seller to the Buyer. The coal shipped will be invoiced at the Price as
defined in ARTICLE IV, Section 1.
Section 5. Taxes: All taxes due on Vessel or cargo in Colombia are for
Seller's account. All taxes due on cargo in U.S.A. upon transfer of title per
Incoterms (1990) are for Buyer's account.
Section 6. 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 7. Payment: Buyer shall make payment to Seller within fifteen (15)
calendar days from Xxxx of Lading Date. There shall be no discount for early
payment.
Payment shall be made by wire transfer as directed by Seller.
ARTICLE V
ADJUSTMENT IN PRICE FOR QUALITY
Section 1. BTU Value (Gross Calorific Value As Received Basis -
BTU/LB): The Price to be paid to Seller by Buyer is based upon coal with XX,XXX
BTU/LB heat content (BTU Value) for each net ton of coal in each shipment. The
BTU Value of the coal sold hereunder may
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CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS BEEN REDACTED
AND FILED SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
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 XX,XXX 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 100 BTU/LB,
fractions pro rata;
[b] For a coal shipment with a BTU Value less than XX,XXX BTU/LB but
greater than XX,XXX BTU/LB, a penalty shall be deducted from the Price at the
rate of $X.XX per 100 BTU/LB, fractions pro rata below XX,XXX BTU/LB.
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 XXXXX percent
(X%) 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 $.XXX per ton shall be paid to Seller
for each X.X% Ash Value variation below X.X%. If the Ash Value is greater than
X.X% but less than X% then a penalty of $.XXX per ton shall be deducted from the
Price for each X.X% Ash Value variation in excess of X.X%. If the Ash Value is
greater than X% but less than XX% then a penalty of $.XX per ton for each 0.1%
of ash greater than X.X%.
Section 4. Adjustment for Sulfur Value: If the Sulfur Value of the
coal shipment is less than or equal to X.XX% there will be no adjustment for
Sulfur Value variation. If the Sulfur Value is greater than X.XX% but less than
X.XX% then a penalty of $X.XX per ton shall be deducted from the Price for each
X.XX% Sulfur Value variation in excess of X.XX%.
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ARTICLE VI
SAMPLING AND ANALYSES
Two recognized Independent Laboratories experienced in the sampling
and analyzing of coal, shall be mutually agreed upon by Buyer and Seller as the
Labs of Record. One of these laboratories shall be engaged by each Party to
perform the sampling, sample preparation, and analysis of the coal shipped
hereunder. The other laboratory at the option of either the Buyer or the Seller
shall perform analyses of the prepared splits from the sublot and composite
samples. At least one of the Labs of Record shall utilize the High Temperature
Combustion Method with Infrared Absorption Detection Procedures (ASTM D4239
Method C) for determination of sulfur in samples of coal.
During the loading of the rail cars, barges, or ship, sample
increments shall be collected by the most reliable, practical and mutually
agreeable procedures in accordance with either ASTM D2234 (manual) or D4702
(mechanical). The frequency and mass of the increments shall be in accordance
with ASTM standards. For all water deliveries, 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) laboratory analyses, b) referee split and
c) Buyer's split. A 60 mesh split of the sublots shall be prepared for the
second laboratory as well as an 8 mesh split of the composite sample. The Buyer
or Buyer's Agent shall have access to witness all sampling, sample preparation,
screen testing and sealing of samples. The Independent Lab shall provide upon
request the splits of the sublot samples to the Buyer or Buyer's Agent and/or
Seller as soon as the sample is prepared. The Labs of Record 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 Buyer's
Agent will be permitted to place a suitable seal on Referee samples.
The sublot samples shall be analyzed by the first Lab of Record for
total moisture, ash, sulfur, volatile, and gross calorific value (BTU/LB). The
initial sublot(s) shall be tested
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immediately and the results reported to Seller and Buyer/Buyer's Agent upon
completion of testing. The second Lab of Record at the option of either the
Seller or Buyer shall analyze the 60 mesh splits of the sublot samples for Dry
Basis: ash, volatile, sulfur, and gross calorific value. The sulfur
determination shall be run in duplicate by both Labs of Record. The certified
analysis shall be the weighted mathematical average for all sublot values for
moisture, ash, volatile, sulfur, and calorific value. Should the weighted
average of the sulfur values differ by more than 0.04% then the highest reported
sulfur value shall be used to determine whether or not the shipment should be
rejected.
A physical composite sample of the sublot samples shall be prepared
and analyzed by the first laboratory for grindability index (HGI), ash fusion
temperature, mineral ash, and ultimate analyses. The cost of the laboratory
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 third 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 Referee 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.
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The following are the acceptable tolerance for other test
parameters: Ash +/- 0.3%; Sulphur +/- 0.03%; Volatile +/- 0.5%; Calorific Value
+/- 100 BTU/LB Dry Basis; 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, then
the
Referee analyses shall be the governing result.
Should the grindability (HGI) result be in dispute, the Referee Lab
will prepare the physical composite sample from the Referee sublot samples to
perform the HGI test. If the HGI test result of the Referee laboratory is within
tolerance (3), the original laboratory result will stand. If out of tolerance,
the Referee results will be the governing analysis.
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 VII
CHANGES IN LAW
Seller hereby certifies that it is in substantial compliance with
the rules, practices and standards issued by any governmental agencies having
jurisdiction with respect to applicable legislation, regulations, rules or
mandates which were in effect as of 24 June 1998.
Seller and Buyer recognize that this coal purchase is of limited
duration and therefore agree that there shall be no adjustment in price as a
result of enactment, modification, or revision of any federal, state or local
legislation or regulations, rules or mandates issues pursuant thereto after such
above date, which affects the bituminous coal industry with respect to the
reclamation, conservation, environmental protection, mine safety, mine working
conditions and
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practices, ventilation, health, employee retirement programs, occupational
hazards, research and reclamation and conservation of mine areas, which
increases or decreases Seller's cost of producing coal under this Agreement.
ARTICLE VIII
OTHER 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 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.
ARTICLE IX
FORCE MAJEURE
No Party shall be subject to liability to the other Party for
failure to perform in conformity with this Agreement 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
administrative rulings.
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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
extent thereof within ten (10) 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. During such periods
when force majeure conditions result in a reduction in deliveries, Seller shall
equitably prorate shipments among its customers. 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.
ARTICLE X
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.
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ARTICLE XI
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 XII
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) or by facsimile as
follows:
TO BUYER:
CENTRAL XXXXXX GAS & ELECTRIC CORPORATION
000 XXXXX XXXXXX
XXXXXXXXXXXX, XXX XXXX 00000-0000
ATTENTION: XX. XXXXXX X. DU BOIS, JR.
DIRECTOR OF FUELS
PHONE: (000) 000-0000
FAX: (000) 000-0000
TO SELLER:
GLENCORE LTD.
THREE STAMFORD PLAZA, 000 XXXXXXX XXXXXXXXX
XXXXXXXX, XX 00000
ATTENTION: XX. XXXXXXX X. XXXXXX
PHONE: (000) 000-0000
FAX: (000) 000-0000
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ARTICLE XIII
GOVERNING LAW
This Agreement shall be construed, enforced and performed in
accordance with the laws of the State of New York.
ARTICLE XIV
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 parol 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.
ARTICLE XV
TITLES
The titles of the articles and sections of this Agreement have been
inserted as a matter of convenience for reference only.
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ARTICLE XVI
INTERPRETATION
No understandings, agreements or trade customs not expressly stated
in or required to be applied in accordance with the terms of this Agreement
shall be binding on the Parties in the interpretation or performance hereof
unless such understandings, agreements or trade customs are reduced to writing
and signed by the respective Parties.
ARTICLE XVII
AGREEMENT FOR BENEFIT OF PARTIES ONLY
Buyer agrees to indemnify, including reasonable attorneys fees,
defend, and hold Producer/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. Producer/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
Producer/Seller has dealt, or is alleged to have dealt regarding this Agreement.
ARTICLE XVIII
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.
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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 XIX
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.
ARTICLE XX
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;
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(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.
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 /s/ Xxxxx X. Page
_______________________________________
ITS Executive Vice President - Energy Resources and Development
SELLER: GLENCORE LTD.
BY /s/ Xxxxxxx X. Xxxxxx
_______________________________________
ITS Trader
_______________________________________
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Attachment I
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)
Current List of Vessels which have Delivered Coal to Roseton:
- Ambassador
- Nelvana
- Xxxxxxxx Xxxxxxxxxx
- Ballangen
- Energy Enterprise
