SETTLEMENT AGREEMENT AND RELEASE
Exhibit 10.35
SETTLEMENT AGREEMENT AND RELEASE
This Settlement Agreement and Release (this “Settlement and Release”)
is made as of this 22 day of December, 2009 by and between Louisville Gas and
Electric Company (“LG&E”) and Kentucky Utilities Company (“KU”), whose common address is 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and Xxxxxxxxx Coal Company, Inc. (“Xxxxxxxxx”), whose
address is 000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
RECITALS
WHEREAS, LG&E and KU, each individually as “Buyer,” and Xxxxxxxxx, as “Seller,” entered into
that certain Coal Supply Agreement dated as of January 1, 2008 (Contract # J07032;
herein called the “Coal Supply Agreement”). The Coal Supply Agreement has been amended by that
certain Amendment No. 1 to Coal Supply Agreement dated effective as of July 1, 2008 (“Amendment No.
1”) and by that certain Amendment No. 2 to Coal Supply Agreement dated effective as of even date
herewith (“Amendment No. 2”; the Coal Supply Agreement, as amended by Amendment No. 1 and by
Amendment No. 2, is herein called the “Agreement”). Capitalized terms used but not defined in this
Settlement and Release shall have their same respective meanings as in the Agreement;
WHEREAS, pursuant to certain communications among the parties (including, without limitation,
pursuant to that certain letter dated September 9, 2009 to Xxxxx Xxxxxxxx from Xxxxxx X. Xxxxxx;
herein the “September 9 Letter”),
Xxxxxxxxx has asserted a claim under Section 10.2 of the Agreement. In connection with such
claim, Xxxxxxxxx set forth a proposed “corrective action” in the aforementioned September 9
Letter. Xxxxxxxxx also asserted in the September 9 Letter that the Agreement would terminate 60 days from the date of the letter if an
agreement was not reached among the parties with respect to a corrective action.
WHEREAS, LG&E and KU have questioned whether all or part of the requirements of Section 10.2
were met, including whether Xxxxxxxxx properly followed the procedures. Also, LG&E and KU have
asserted that the termination notice given by Xxxxxxxxx is invalid and that the scope of the
corrective action proposed in the September 9 Letter does not appear to be appropriate; and
WHEREAS, the parties desire to enter into this Settlement and Release in order to resolve this
dispute without the need for litigation.
NOW THEREFORE, in consideration of the benefits to each party to be derived herefrom, and
subject to the terms, conditions, covenants and promises set forth in this Settlement and Release,
the parties agree as follows:
SECTION I — SETTLEMENT TERMS
1.1 — Payment. In addition to the Base Price paid to Xxxxxxxxx under the Agreement,
each month during the Section 10.2 Settlement Payment Period (as hereinafter defined) only, LG&E
and KU shall pay to Xxxxxxxxx an amount equal to $3.29 per ton of coal delivered in that month
pursuant to the Agreement at the
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Barge Delivery Point or Rail Delivery Point, as applicable. LG&E and KU shall pay to
Xxxxxxxxx any retroactive amounts (i.e. amounts with respect to the period beginning on September
1, 2009 and ending on the date hereof) in a lump sum on the next scheduled payment date (as set
forth in the Agreement) following the execution of this Settlement and Release.
For purposes of this Settlement and Release, the following terms shall have the corresponding
meanings as set forth below:
“Section 10.2 Settlement Payment Period” shall mean the time period
beginning on September 1, 2009, continuing month to month thereafter, and ending on the Section
10.2 Settlement Payment Termination Date.
“Section 10.2 Settlement Payment Termination Date” shall mean the earlier of (i) the date the
Agreement terminates or expires, and (ii) the date which is three months following the Mine Permit
Date.
“Mine Permit Date” shall mean the last day of the month in which Xxxxxxxxx has obtained the
last of all of the following permits: the surface mining permit from the Kentucky Division of Mine
Permits, the Section 404 permit from the Army Corps. of Engineers, the Section 401 Water Quality
Certification from the Kentucky Division of Water, the air permit to operate from the Kentucky
Division for Air Quality and other like permits, if any, necessary to commence operations with
respect to all of the following: (a) the Equality Boot mine, (b) the preparation plant and refuse
disposal facility associated with the preparation plant
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located at Xxxxxxxxx Dock and (c) the barge loading/unloading system between Equality Boot
mine and Xxxxxxxxx Dock. In the event the requisite permits described above with respect to the
Equality Boot mine have not been obtained, but the requisite permits necessary to commence
operations with respect to one of the other sources listed in the Contract (other than Big Run,
Midway/East Fork and Parkway) have been obtained, then for purposes of this definition the term
“Mine Permit Date” shall mean the last day of the month in which Xxxxxxxxx has obtained the last
of all of the requisite permits for such other source. Notwithstanding the foregoing, if requirements for the occurrence of the Mine Permit Date
have been met (with respect to the Equality Boot mine or one of the other sources as provided
above), but one or more of the permits necessary to commence operations, on the date which is
three months following the date such requirements have been met, has been stayed, vacated, or
otherwise rendered ineffective, or is being appealed or challenged pursuant to a formal
proceeding, then the Mine Permit Date, for purposes of determining the Section 10.2 Settlement
Payment Termination Date, shall be deemed to have not yet occurred. In such a circumstance, the
Mine Permit Date shall be deemed to have occurred on the earlier of (i) the date that
any such impediments are resolved such that Xxxxxxxxx may commence operations with respect to such
source, and (ii) the date the requisite permits are obtained with respect to another source listed
in the Contract (other than Big Run, Midway/East Fork and Parkway) that is not subject to such
impediments.
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1.2 — Accord and Satisfaction and Release. Each of the parties hereto agree that this
Settlement and Release, including the payment to Xxxxxxxxx by LG&E and KU of the amount set forth
in Section 1.1 above, fully resolves, settles and is a complete accord and satisfaction of the
Xxxxxxxxx Section 10.2 Claim (as hereinafter defined).
Each of LG&E and KU for itself and its successors and assigns, and for all other persons or
entities claiming by, through or under each of them, hereby fully, irrevocably and forever
remises, releases, acquits, waives and discharges Xxxxxxxxx and its parents, subsidiaries and
affiliates, and the respective members, shareholders, directors, officers, employees, agents,
representatives, advisors, successors and assigns of each of them (collectively, the “Xxxxxxxxx
Released Parties”), of and from any and all Claims (as hereinafter defined) which LG&E or KU, as
the case may be, ever had, may now have or may hereafter have against any one or more of the
Xxxxxxxxx Released Parties, resulting from, arising out of or in any way connected with the
Xxxxxxxxx Section 10.2 Claim (as hereinafter defined).
Xxxxxxxxx for itself and its successors and assigns, and for all other persons or entities
claiming by, through or under Xxxxxxxxx, hereby fully, irrevocably and forever remises, releases,
acquits, waives and discharges each of LG&E and KU and their respective parents, subsidiaries and
affiliates, and the respective members, shareholders, directors, officers, employees, agents,
representatives, advisors, successors and assigns of each of them (collectively, the “LG&E/KU
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Released Parties”), of and from any and all Claims (as hereinafter
defined) which Xxxxxxxxx ever had, may now have or may hereafter have against any one or more of
the LG&E/KU Released Parties, resulting from, arising out of or in any way connected with the
Xxxxxxxxx Section 10.2 Claim (as hereinafter defined); provided, however, the release contained in
this Section 1.2 shall not relieve LG&E and KU of the obligation to make the payment in accordance
with Section 1.1 above, nor shall the releases contained in this Section 1.2 release, compromise
or waive any of the parties’ other obligations to each other under the Agreement except as
expressly set forth herein.
For purposes of this Settlement and Release, the following terms shall have the corresponding
meanings as set forth below:
“Xxxxxxxxx Section 10.2 Claim” shall mean any and all Claims and other rights and remedies
(including, without limitation, rights to corrective actions and to termination) that Xxxxxxxxx has
or asserted under Section 10.2 of the Agreement as of the date hereof and as set forth in the
September 9 Letter and subsequent correspondence related thereto, and any other Claims, rights and
remedies arising under Section 10.2 that Xxxxxxxxx knew or should have known it had or may have
asserted under Section 10.2 of the Agreement as of the date hereof, including, without limitation,
any and all Claims and other rights and remedies arising under Section 10.2 with respect to an
adoption or reinterpretation of environmental laws, regulations, policies, and/or
restrictions, or change in the
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The parties have executed the Settlement and Release as of the date or dates set forth
underneath their signature below, but is effective as of the date first set forth above.
| LOUISVILLE GAS AND ELECTRIC COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | VP Energy Marketing | |||
| Date: | December 18, 2009 | |||
| KENTUCKY UTILITIES COMPANY |
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| By: | /s/ Xxxxx X. Xxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxx | |||
| Title: | VP Energy Marketing | |||
| Date: | December 18, 2009 | |||
| XXXXXXXXX COAL COMPANY, INC. |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | President | |||
| Date: | December 22, 2009 | |||
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