Exhibit 10 (i) 90
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN REDACTED AND FILED
SEPARATELY WITH THE U.S. SECURITIES AND EXCHANGE COMMISSION.
AMENDMENT I TO THE AGREEMENT
FOR THE SALE AND PURCHASE OF COAL
This Amendment ("Amendment"), dated as of November 1, 1999 to that
Agreement ("Agreement") for the sale and purchase of coal made and entered into
as of the 1st day of April 1999 between Central Xxxxxx Gas & Electric
Corporation, (hereinafter referred to as "Buyer") and Arch Coal Sales Company,
Inc., Agent for the Independent Operating Subsidiaries of Arch Coal, Inc.,
(hereinafter referred to as "Seller").
WITNESSETH:
WHEREAS, Article IV of the Agreement provides that beginning July 1,
1999, Buyer and Seller shall commence good faith negotiations with respect to
the price of coal for the next Contract Year; and
WHEREAS, notice was duly given and Buyer and Seller entered into good
faith negotiations; and
WHEREAS, after completion of good faith negotiations, Buyer and
Seller desire to amend the Agreement to provide for the pricing of coal and
certain other Agreement provisions;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants set forth herein, the parties hereto agree as follows:
ARTICLE III, (SPECIFICATIONS & QUALITY & WEIGHTS), ARTICLE IV (PRICE
& PAYMENT) AND ARTICLE V (ADJUSTMENT IN PRICE FOR QUALITY) of the Agreement
shall be respectively amended in their entirety for contract year 2000. The
remaining ARTICLES of the Agreement shall remain in full force and affect. The
amended ARTICLES shall read as follows:
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 & WEIGHTS
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Section 1. Origin: The Primary Source of coal for deliveries hereunder
shall be from the Xxxxx Xxxxx Operations and such coal shall meet the
specifications herein. Coals from other sources shall not be shipped without the
prior written approval of Buyer.
Section 2. As Received Quality Specifications: The coal delivered
hereunder shall conform to the following Typical Specifications on an "as
received" basis determined on a per Vessel basis. The quality of the coal
delivered by Seller shall be determined in accordance with Article VI.
Typical 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.XX -- X.X Calculated
Grind (HGI) XX XX (1) XX D 409-85
Ash Fusion (Reducing)
(I.D., Deg. F) X,XXX X,XXX -- D1587
Coal Fines:
(A) 1/4" Round Hole -- -- XX% D4749
(B) 35 Mesh U.S. Standard -- -- XX% D4749
(1) Subject to approval by Buyer.
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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.
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).
Section 3. 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 in Section 2 above, 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 Section 2 of this Article III.
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 (As Received)
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Sulphur (By Weight) X.X% Maximum
Volatiles XX% Minimum
Ash % X% Maximum
Ash Fusion (I.D. - Degrees F) X,XXX Minimum(1)
Grind (HGI) XX Minimum
Gross Calorific Value (BTU/LB) XX,XXX Minimum
SO2/Million BTU X.X LBS. Maximum
(1) Lower value subject to approval by Buyer.
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Seller shall pay all freight, diversion, demurrage, testing and other
expenses in connection with any such rejected shipment, or shipments found 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.
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 as set forth above in 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 as set forth
in Section 2 above.
Section 5. Weights: 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.
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.
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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 IV
PRICE AND PAYMENT
Section 1. Price: The Base Price of the Firm cargoes of coal sold
hereunder is fixed at $ XX.XX per short ton DES Roseton Dock. Option Cargoes
will be priced in accordance with ARTICLE II, Section 1.
Section 2. Price Reopener: On or before July 1st 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 31, 2000 if negotiations for the following year have not been completed
by October 31st.
Submission of Analysis: 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 Laboratory for
each shipment within five days after each shipment.
Section 3. Invoice: 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 III Section 5 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.
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Section 4. Taxes: All taxes due on cargo in U.S.A. upon transfer of title per
Incoterms (1990) are for Buyer's account.
Section 5. 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 6. Payment: Buyer shall make payment to Seller within thirty (30)
calendar days from vessel Xxxx of Lading Date. There shall be no discount for
early payment. Payments due on a Saturday shall be made on the prior Friday and
those due on a Sunday shall be made on the following Monday. Payments due on a
Holiday shall be made on the following week day.
Payment shall be made by wire transfer as directed by Seller upon written
notice to Buyer.
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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 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 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 (inclusive), 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 above XX,XXX BTU/LB;
[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;
[c] 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.XX% and X.XX% there will be no adjustment for Ash Value. If the Ash Value is
less than X.XX% then a premium of $.XX per ton shall be paid to Seller for each
0.X% Ash Value variation below X.X%. If the Ash Value is greater than X.XX% but
equal to or less than X% then a penalty of $.XX per ton shall be deducted from
the Price for each X.X% Ash Value variation in excess of X.X%. The maximum
premium/penalty shall be $ X.XX per ton.
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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/ Xxxxxx X. Upright
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Xxxxxx X. Upright
ITS Senior Vice President-Regulatory Affairs, Financial Planning And Accounting
SELLER: ARCH COAL SALES COMPANY, INC.
BY /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
ITS President of Arch Coal Sales Company, Inc.
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