<PAGE>
June 6, 1997
OFICS Filer Support
SEC Operations Center
6432 General Green Way
Alexandria, VA 22312-2413
Ladies and Gentlemen:
Pursuant to communication with Sean J. Klein, Esq., we
hereby deliver Amendment No. 1 on Form 10-K/A to this
Corporation's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, to refile two material contracts of the
Corporation which contain the material for which this
Corporation's confidentiality request has been withdrawn.
Very truly yours,
CENTRAL HUDSON GAS &
ELECTRIC CORPORATION
BY_________________________
ELLEN AHEARN
SECRETARY
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<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM 10-K/A - AMENDMENT NO. 1
TO ANNUAL REPORT ON FROM 10-K
REFILING TWO MATERIAL CONTRACTS
---------------
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED]
For the fiscal year ended......................December 31, 1996
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED]
For the transition period from...............to..................
Commission file number.....................................1-3268
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
(Exact name of registrant as specified in its charter)
New York 14-0555980
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
284 South Avenue, Poughkeepsie, New York 12601-4879
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (914) 452-2000
Securities registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which registered
Common Stock, $5.00 par value New York Stock Exchange
Securities registered pursuant to Section 12(g) of the Act:
Title of each class
Cumulative Preferred Stock:
4 1/2% Series
4.75% Series
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<PAGE>
<PAGE>
AMENDMENT NO. 1
The undersigned Registrant hereby amends and, as
amended, restates the following items of its Annual Report on
Form 10-K for the fiscal year ended December 31, 1996, as set
forth in the pages attached hereto:
ITEMS: EXHIBIT INDEX
EXHIBITS
</PAGE>
<PAGE>
EXHIBIT 99
EXHIBIT INDEX
Following is the list of Exhibits, as required by Item
601 of Regulation S-K, filed as a part of this Annual Report on
Form 10-K, including Exhibits incorporated herein by reference
(1):
Exhibit No.
(Regulation S-K
Item 601
Designation) Exhibits
________________ ________
(3) Articles of Incorporation and Bylaws:
(i) 1-- Restated Certificate of Incorporation of
the Registrant under Section 807 of the
Business Corporation Law, filed August
14, 1989. ((1); Exhibit (3)1)
(i) 2-- Certificate of Amendment to the
Certificate of Incorporation of the
Registrant under Section 805 of the
Business Corporation Law, filed April 5,
1990. ((1); Exhibit (3)2)
(i) 3-- Certificate of Amendment to the
Certificate of Incorporation of the
Registrant under Section 805 of the
Business Corporation Law, filed October
19, 1993 ((1); Exhibit (3)3)
(ii) 1-- Bylaws in effect on the date of this
Report.
(4) Instruments defining the rights of security holders,
including indentures (see also Exhibit (3) above):
____________________
(1) Exhibits which are incorporated by reference to
other filings are followed by information contained in
parentheses, as follows: The first reference in the parenthesis
is a numeral, corresponding to a numeral set forth in the Notes
which follow this Exhibit list, which identifies the prior filing
in which the Exhibit was physically filed; and the second
reference in the parenthesis is to the specific document in that
prior filing in which the Exhibit appears.
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*(ii) 1-- Indenture dated January 1, 1927 between
the Registrant and American Exchange
Irving Trust Company, as Trustee. ((2);
Exhibit (4)(ii)1)
*(ii) 2-- Supplemental Indenture dated March 1,
1935 between the Registrant and Irving
Trust Company, as Trustee. ((2);
Exhibit (4)(ii)2)
*(ii) 3-- Second Supplemental Indenture dated June
1, 1937 between the Registrant and
Irving Trust Company, as Trustee. ((2);
Exhibit (4)(ii)3)
*(ii) 4-- Third Supplemental Indenture dated April
1, 1940 between the Registrant and
Irving Trust Company, as Trustee. ((2);
Exhibit (4)(ii)4)
*(ii) 5-- Fourth Supplemental Indenture dated
March 1, 1941 between the Registrant and
Irving Trust Company, as Trustee. ((2);
Exhibit (4)(ii)5)
*(ii) 6-- Fifth Supplemental Indenture dated
December 1, 1950 between the Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)6)
*(ii) 7-- Sixth Supplemental Indenture dated
December 1, 1952 between the Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)7)
*(ii) 8-- Seventh Supplemental Indenture dated
October 1, 1954 between the Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)8)
*(ii) 9-- Eighth Supplemental Indenture dated May
15, 1958 between the Registrant and
Irving Trust Company, as Trustee. ((2);
Exhibit (4)(ii)9)
(ii) 10-- Ninth Supplemental Indenture dated
December 1, 1967 between the Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)10)
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(ii) 11-- Tenth Supplemental Indenture dated as of
January 15, 1969 between the Registrant
and Irving Trust Company, as Trustee.
((3); Exhibit 2.12)
(ii) 12-- Eleventh Supplemental Indenture dated as
of June 1, 1970 between the Registrant
and Irving Trust Company, as Trustee.
((4); Exhibit 1.13)
(ii) 13-- Twelfth Supplemental Indenture dated as
of February 1, 1972 between the
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)13)
(ii) 14-- Thirteenth Supplemental Indenture dated
as of April 15, 1974 between the
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)14)
(ii) 15-- Fourteenth Supplemental Indenture dated
as of November 1, 1975 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)15)
(ii) 16-- Fifteenth Supplemental Indenture dated
as of June 1, 1977 between Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)16)
(ii) 17-- Sixteenth Supplemental Indenture dated
as of September 15, 1979 between
Registrant and Irving Trust Company, as
Trustee. ((4); Exhibit 1.18)
(ii) 18-- Seventeenth Supplemental Indenture dated
as of May 15, 1980 between Registrant
and Irving Trust Company, as Trustee.
((5); Exhibit (4)(a)18)
(ii) 19-- Eighteenth Supplemental Indenture dated
as of November 15, 1980 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)19)
(ii) 20-- Nineteenth Supplemental Indenture dated
as of August 15, 1981 between Registrant
and Irving Trust Company, as Trustee.
((2); Exhibit (4)(ii)20)
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(ii) 21-- Twentieth Supplemental Indenture dated
as of September 1, 1982 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)21)
(ii) 22-- Twenty-First Supplemental Indenture
dated as of November 22, 1982 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)22)
(ii) 23-- Twenty-Second Supplemental Indenture
dated as of May 24, 1984 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)23)
(ii) 24-- Twenty-Third Supplemental Indenture
dated as of June 15, 1985 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)24)
(ii) 25-- Twenty-Fourth Supplemental Indenture
dated as of September 1, 1986 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)25)
(ii) 26-- Twenty-Fifth Supplemental Indenture
dated as of December 1, 1988 between
Registrant and Irving Trust Company, as
Trustee. ((2); Exhibit (4)(ii)26)
(ii) 27-- Twenty-Sixth Supplemental Indenture
dated as of May 1, 1991 between
Registrant and The Bank of New York, as
Trustee. ((2); Exhibit (4)(ii)27)
(ii) 28-- Twenty-Seventh Supplemental Indenture
dated as of May 15, 1992 between
Registrant and The Bank of New York, as
Trustee. ((2); Exhibit (4)(ii)28); and
Prospectus Supplement Dated May 28, 1992
(To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal
amount of First Mortgage Bonds,
designated Secured Medium-Term Notes,
Series A, and the Prospectus Dated April
13, 1992, relating to $125,000,000
principal amount of Registrant's debt
securities attached thereto, as filed
pursuant to Rule 424(b) in connection
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<PAGE>
with Registration Statement No. 33-
46624. ((6)(a)), and, as applicable to
a tranche of such Secured Medium-Term
Notes, one of the following:
(a) Pricing Supplement No. 1, Dated
June 4, 1992 (To Prospectus Dated
April 13, 1992, as supplemented
by a Prospectus Supplement Dated
May 28, 1992) filed pursuant to
Rule 424(b) in connection with
Registration Statement No. 33-
46624. ((6)(b))
(b) Pricing Supplement No. 2, Dated
June 4, 1992 (To Prospectus Dated
April 13, 1992, as supplemented
by a Prospectus Supplement Dated
May 28, 1992) filed pursuant to
Rule 424(b) in connection with
Registration Statement No. 33-
46624. ((6)(c))
(c) Pricing Supplement No. 3, Dated
June 4, 1992 (To Prospectus Dated
April 13, 1992, as supplemented
by a Prospectus Supplement Dated
May 28, 1992) filed pursuant to
Rule 424(b) in connection with
Registration Statement No. 33-
46624. ((6)(d))
(d) Pricing Supplement No. 4, Dated
August 20, 1992 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((6)(e))
(e) Pricing Supplement No. 5, Dated
August 20, 1992 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((6)(f))
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<PAGE>
(f) Pricing Supplement No. 6, Dated
July 26, 1993 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((6)(g))
(g) Pricing Supplement No. 7, Dated
July 26, 1993 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((6)(h))
(ii) 29-- Twenty-Eighth Supplemental Indenture
dated as of May 1, 1995 between
Registrant and The Bank of New York, as
Trustee. ((35); Exhibit (4)(ii)33)
Prospectus Supplement Dated May 15, 1995
(To Prospectus Dated April 4, 1995)
relating to $80,000,000 principal amount
of First Mortgage Bonds, designated
Secured Medium-Term Notes, Series B, and
the Prospectus Dated April 4, 1995,
relating to (i) $80,000,000 of
Registrant's Debt Securities and Common
Stock, $5.00 par value, but not in
excess of $40 million aggregate initial
offering price of such Common Stock and
(ii) 250,000 shares of Registrant's
Cumulative Preferred Stock, par value
$100 per share, which may be issued as
1,000,000 shares of Depositary Preferred
Shares each representing 1/4 of a share
of such Cumulative Preferred Stock
attached thereto, as filed pursuant to
Rule 424(b) in connection with
Registration Statement No. 33-56349).
(9)
(ii) 30-- Indenture, dated as of April 1, 1992,
between Registrant and Morgan Guaranty
Trust Company of New York, as Trustee.
((7); Exhibit (4)(ii)29); and
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<PAGE>
Prospectus Supplement Dated May 28, 1992
(To Prospectus Dated April 13, 1992)
relating to $125,000,000 principal
amount of Medium-Term Notes, Series A,
and the Prospectus Dated April 13, 1992,
relating to $125,000,000 principal
amount of Registrant's debt securities
attached thereto, as filed pursuant to
Rule 424(b) in connection with
Registration Statement No. 33-46624.
((8)(a)), and, as applicable to a
tranche of such Medium-Term Notes, one
of the following:
(a) Pricing Supplement No. 1, Dated
June 26, 1992 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((8)(b))
(b) Pricing Supplement No. 2, Dated
October 6, 1993 (To Prospectus
Dated April 13, 1992, as
supplemented by a Prospectus
Supplement Dated May 28, 1992)
filed pursuant to Rule 424(b) in
connection with Registration
Statement No. 33-46624. ((8)(c))
Prospectus Supplement Dated May 15, 1995
(To Prospectus Dated April 4, 1995)
related to $80,000,000 principal amount
of Medium-Term Notes, Series B, and the
Prospectus Dated April 4, 1995, relating
to (i) $80,000,000 of Registrant's Debt
Securities and Common Stock, $5.00 par
value, but not in excess of $40 million
aggregate initial offering price of such
Common Stock and (ii) 250,000 shares of
Registrant's Cumulative Preferred Stock,
par value $100 per share, which may be
issued as 1,000,000 shares of Depositary
Preferred Shares each representing 1/4
of a share of such Cumulative Preferred
Stock attached thereto, as filed
pursuant to Rule 424(b) in connection
with Registration Statement No. 33-
56349). (10)
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(ii) 31-- Form of the Registrant's 4.85%
Promissory Notes. ((9); Exhibit 1.9)
(ii) 32-- Participation Agreement, dated as of
November 1, 1985, by and between New
York State Energy Research and
Development Authority and the
Registrant. ((2); Exhibit (4)(ii)31)
(ii) 33-- The Registrant has entered into certain
other instruments with respect to long-
term debt of the Registrant. No such
instrument relates to securities
authorized thereunder which exceed 10%
of the total assets of the Registrant
and its subsidiaries on a consolidated
basis. The Registrant agrees to provide
the Commission, upon request, copies of
any instruments defining the rights of
holders of long-term debt of the
Registrant and subsidiaries for which
consolidated or unconsolidated financial
statements are required to be filed with
the Commission.
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<PAGE>
(10) Material contracts:
(i) 1-- Agreement dated October 31, 1968 between
the Registrant and Consolidated Edison
Company of New York, Inc. and Niagara
Mohawk Power Corporation. ((3); Exhibit
5.1)
(i) 2-- Agreement dated September 22, 1969
between Registrant and Algonquin Gas
Transmission Company. ((12); Exhibit
5.5)
(i) 3-- Agreement dated as of April 4, 1977
between Registrant, Consolidated Edison
Company of New York, Inc., Long Island
Lighting Company, New York State
Electric & Gas Corporation, Niagara
Mohawk Power Corporation, Orange and
Rockland Utilities, Inc., Rochester Gas
and Electric Corporation and the Power
Authority of the State of New York.
((3); Exhibit 5.6)
(i) 4-- Agreement dated April 27, 1973 between
Registrant and the Power Authority of
the State of New York. ((13); Exhibit
5.19)
(i) 5-- Agreement dated July 28, 1975 between
Registrant and the Power Authority of
the State of New York. ((14); Exhibit
5.18)
(i) 6-- Agreement dated as of September 22, 1975
between Registrant, Niagara Mohawk Power
Corporation, Long Island Lighting
Company, New York State Electric & Gas
Corporation, and Rochester Gas and
Electric Corporation. ((14); Exhibit
5.21)
(i) 7-- Agreement dated November 23, 1976
between Registrant and Consolidated
Edison Company of New York, Inc. ((15);
Exhibit 5.29)
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<PAGE>
(i) 8-- Agreement dated December 29, 1975
between Registrant and Niagara Mohawk
Power Corporation, Long Island Lighting
Company, New York State Electric & Gas
Corporation, and Rochester Gas and
Electric Corporation. ((16); Exhibit
(10)(i)18)
(i) 9-- Assignment and Assumption dated as of
October 24, 1975 between Registrant and
New York State Electric & Gas
Corporation. ((14); Exhibit 5.25)
(i) 10-- Amendment to Assignment and Assumption
dated October 30, 1978 between
Registrant and New York State Electric &
Gas Corporation. ((3); Exhibit 5.34)
(i) 11-- Agreement dated as of May 12, 1977
between Registrant and Niagara Mohawk
Power Corporation. ((17); Exhibit 5.34)
(i) 12-- Agreement, dated May 8, 1980, by and
between Registrant and Jersey Central
Power & Light Company. ((18); Exhibit
(10)(i)21)
(i) 13-- Purchase Agreement, dated as of June 1,
1980, by and between Registrant and
Consolidated Edison Company of New York,
Inc. ((18); Exhibit (10)(i)22)
(i) 14-- Purchase Agreement, dated as of June 16,
1980, by and between Registrant and
Philadelphia Electric Company. ((18);
Exhibit (10)(i)23)
(i) 15-- Purchase Agreement, dated as of June 18,
1980, by and between Registrant and
Public Service Electric and Gas Company.
((18); Exhibit (10)(i)24)
(i) 16-- Purchase Agreement, dated as of July 1,
1980, by and between Registrant and
Connecticut Light and Power Company.
((18); Exhibit (10)(i)25)
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<PAGE>
(i) 17-- Letter Amendment Agreement, dated
December 16, 1980, by and between
Registrant and Niagara Mohawk Power
Corporation. ((18); Exhibit (10)(i)26)
(i) 18-- Settlement Agreement, dated December 19,
1980, by and among the United States
Environmental Protection Agency, The
Department of Environmental Conservation
of the State of New York, The Attorney
General of the State of New York, Hudson
River Fisherman's Association, Inc.,
Scenic Hudson Preservation Conference,
Natural Resources Defense Council, Inc.,
Registrant, Consolidated Edison Company
of New York, Inc., Orange and Rockland
Utilities, Inc., Niagara Mohawk Power
Corporation and Power Authority of the
State of New York. ((18); Exhibit
(10)(i)27)
(i) 19-- Agreement dated April 2, 1980 by and
between Registrant and the Power
Authority of the State of New York.
((2); Exhibit (10)(i)24)
(i) 20-- Purchase Agreement, dated April 19,
1983, between Registrant and New York
State Electric & Gas Corporation. ((2);
Exhibit (10)(i)29)
(i) 21-- Transmission Agreement, dated October
25, 1983, between Registrant and Niagara
Mohawk Power Corporation. ((2); Exhibit
(10)(i)30)
(i) 22-- Underground Storage Service Agreement,
dated June 30, 1982, between Registrant
and Penn-York Energy Corporation. ((2);
Exhibit (10)(i)32)
(i) 23-- Interruptible Transmission Service
Agreement, dated December 20, 1983,
between Registrant and Power Authority
of the State of New York. ((19);
Exhibit (10)(i)33)
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<PAGE>
(i) 24-- Agreement, dated December 7, 1983,
between Registrant and the Power
Authority of the State of New York.
((2); Exhibit (10)(i)34)
(i) 25-- Specification of Terms and Conditions of
Settlement in State of New York Public
Service Commission Proceeding - Case
29124, dated September 3, 1985. ((2);
Exhibit (10)(i)35)
(i) 26-- Reimbursement Agreement, dated as of
November 1, 1985, between Registrant and
the Bank named therein. ((2); Exhibit
(10)(i)36)
(i) 27-- General Joint Use Pole Agreement between
Registrant and the New York Telephone
Company effective January 1, 1986 (not
including the Administrative and
Operating Practices provisions thereof).
((2); Exhibit (10)(i)37)
(i) 28-- Agreement, dated June 3, 1985, between
Registrant, Consolidated Edison Company
of New York, Inc. and the Power
Authority of the State of New York
relating to Marcy South Real Estate -
East Fishkill, New York. ((2); Exhibit
(10)(i)38)
(i) 29-- Agreement, dated June 11, 1985, between
the Registrant and the Power Authority
of the State of New York relating to
Marcy South Substation - East Fishkill,
New York. ((2); Exhibit (10)(i)39)
(i) 30-- Agreement, dated as of April 9, 1986,
among Registrant, Consolidated Edison
Company of New York, Inc., Niagara
Mohawk Power Corporation and the Power
Authority of the State of New York
relating to Real Estate - Roseton/
Danskammer. ((2); Exhibit (10)(i)40)
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<PAGE>
(i) 31-- Agreement, dated as of April 9, 1986,
between Registrant, for itself and as
agent for itself, Niagara Mohawk Power
Corporation and Consolidated Edison
Company of New York, Inc., and the Power
Authority of the State of New York
relating to Supplemental Land Use -
Roseton/Danskammer. ((2); Exhibit
(10)(i)41)
(i) 32-- Letter of intent, dated February 17,
1987, between Registrant and Niagara
Mohawk Power Corporation, for the
purchase of interests in the Roseton
Steam Electric Generating Plant. ((16);
Exhibits (19)(10)(i)75)
(i) 33-- Roseton Amendment Agreement, dated as of
September 9, 1987, between Registrant
and Niagara Mohawk Power Corporation,
for the purchase of interests in the
Roseton Steam Electric Generating Plant
(subject to PSC approval). ((20);
Exhibit (19)(10)(i)76)
(i) 34-- Agreement dated as of November 20, 1987
between Registrant and Consolidated Rail
Corporation to transport coal to
Danskammer Generating Station. [Certain
portions of said Agreement setting forth
or relating to pricing provisions are
omitted and filed separately with the
Securities and Exchange Commission
pursuant to a request for confidential
treatment under the rules of said
Commission.] ((20); Exhibit
(19)(10)(i)83)
(i) 35-- Reimbursement Agreement, dated as of
July 1, 1987, between Registrant and the
Bank named therein. ((20); Exhibit
(19)(10)(i)90)
(i) 36-- First Amendment, dated as of September
1, 1987, to the Reimbursement Agreement,
dated as of November 1, 1985, between
Registrant and the Bank named therein.
((20); Exhibit (19)(10)(i)93)
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<PAGE>
(i) 37-- Purchase and Administration Agreement,
dated as of November 25, 1987, between
Registrant and the finance corporation
named therein providing for the sale of
Registrant's accounts receivables.
((20); Exhibit (19)(10)(i)95)
(i) 38-- Contract dated October 5, 1987, between
Registrant and Norfolk and Western
Railway Company providing for
transportation of coal to the Danskammer
Plant. [Certain portions of said
Contract setting forth or relating to
pricing provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((20);
Exhibit (19)(10)(i)96)
(i) 39-- Memorandum of Understanding, dated as of
March 22, 1988, by and among Registrant,
Alberta Northeast Gas, Limited, the
Brooklyn Union Gas Company, New Jersey
Natural Gas Company and Connecticut
Natural Gas Corporation. ((20); Exhibit
(19)(10)(i)98)
(i) 40-- Agreement for the Sale and Purchase of
Coal, dated as of January 1, 1987, among
Registrant, Kentucky Carbon Corporation
and The Carbon Fuel Sales Company.
[Certain portions of said agreement
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((21);
Exhibit (28)(10)(i)100)
(i) 41-- Restatement of Purchase and
Administration Agreement, dated as of
April 4, 1989, between Registrant and
CSW Credit, Inc., amending and restating
the Purchase and Administration
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<PAGE>
Agreement, dated as of November 25,
1987, between such parties providing for
the sale of Registrant's accounts
receivables. ((21); Exhibit (28)
(10)(i)101)
(i) 42-- Nine Mile Point Nuclear Station Unit 2
Interim Operating Agreement, effective
August 22, 1989, between and among
Registrant, Niagara Mohawk Power
Corporation, Long Island Lighting
Company, New York State Electric & Gas
Corporation and Rochester Gas and
Electric Corporation. ((22); Exhibit
(28)(10)(i)102)
(i) 43-- Amendment of Nine Mile Point Nuclear
Station Unit 2 Interim Operating
Agreement, dated as of March 6, 1990,
among Registrant, Niagara Mohawk Power
Corporation, Long Island Lighting
Company, New York State Electric & Gas
Corporation and Rochester Gas and
Electric Corporation. ((18); Exhibit
(19)(10)(i)99)
(i) 44-- Amendment No. 2: One-Year Extension of
Nine Mile Point Nuclear Station Unit 2
Interim Operating Agreement, dated as of
November 27, 1990, among Registrant,
Niagara Mohawk Power Corporation, Long
Island Lighting Company, New York State
Electric & Gas Corporation and Rochester
Gas and Electric Corporation. ((23);
Exhibit (19)(10)(i)71)
(i) 45-- Second Amendment, dated as of July 1,
1990, to the Reimbursement Agreement,
dated as of November 1, 1985, between
Registrant and the Bank named therein.
((23); Exhibit (19)(10)(i)72)
(i) 46-- First Amendment, dated as of July 1,
1990, to the Reimbursement Agreement,
dated as of July 1, 1987, between
Registrant and the Bank named therein.
((23); Exhibit (19)(10)(i)73)
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<PAGE>
(i) 47-- Credit Agreement, dated as of December
17, 1990, among Registrant and the Banks
named therein. ((23); Exhibit
(19)(10)(i)74)
(i) 48-- Agreement, effective as of November 1,
1989, between Columbia Gas Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)75)
(i) 49-- Agreement, dated as of November 1, 1989,
between Columbia Gas Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)77)
(i) 50-- Agreement, dated as of November 1, 1989,
between Columbia Gas Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)78)
(i) 51-- Agreement, dated as of November 1, 1989,
between Columbia Gulf Transmission
Company and Registrant. ((23); Exhibit
(19)(10)(i)79)
(i) 52-- Agreement, dated October 9, 1990,
between Texas Eastern Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)80)
(i) 53-- Agreement, dated July 2, 1990, between
Texas Eastern Transmission Corporation
and Registrant. ((23); Exhibit
(19)(10)(i)81)
(i) 54-- Agreement, dated December 28, 1989,
between Texas Eastern Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)82)
(i) 55-- Agreement, dated December 28, 1989,
between Texas Eastern Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)83)
(i) 56-- Agreement, dated November 3, 1989,
between Texas Eastern Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)84)
E-16
<PAGE>
(i) 57-- Gas Sales Contract, dated as of January
1, 1989, between Tennessee Gas Pipeline
Company and Registrant. ((23); Exhibit
(19)(10)(i)86)
(i) 58-- Agreement, effective December 15, 1989,
between Algonquin Gas Transmission
Company and Registrant. ((23); Exhibit
(19)(10)(i)87)
(i) 59-- Storage Service Agreement, dated July 1,
1989, between CNG Transmission
Corporation and Registrant. ((23);
Exhibit (19)(10)(i)91)
(i) 60-- Agreement dated as of February 7, 1991
between Registrant and Alberta Northeast
Gas, Limited for the purchase of
Canadian natural gas from ATCOR Ltd. to
be delivered on the Iroquois Gas
Transmission System. ((23); Exhibit
(19)(10)(i)92)
(i) 61-- Agreement dated as of February 7, 1991
between Registrant and Alberta Northeast
Gas, Limited for the purchase of
Canadian natural gas from AEC Oil and
Gas Company, a Division of Alberta
Energy Company, Ltd. to be delivered on
the Iroquois Gas Transmission System.
((23); Exhibit (19)(10)(i)93)
(i) 62-- Agreement dated as of February 7, 1991
between Registrant and Alberta Northeast
Gas, Limited for the purchase of
Canadian natural gas from ProGas Limited
to be delivered on the Iroquois Gas
Transmission System. ((23); Exhibit
(19)(10)(i)94)
(i) 63-- Agreement No. 2 dated as of February 7,
1991 between Registrant and Alberta
Northeast Gas, Limited for the purchase
of Canadian natural gas from TransCanada
Pipelines Limited under Precedent
Agreement No. 2 to be delivered on the
Iroquois Gas Transmission System.
((23); Exhibit (19)(10)(i)95)
E-17
<PAGE>
(i) 64-- Agreement No. 1 dated as of February 7,
1991 between Registrant and Alberta
Northeast Gas, Limited for the purchase
of Canadian natural gas from TransCanada
Pipelines Limited under Precedent
Agreement No. 1 to be delivered on the
Iroquois Gas Transmission System.
((23); Exhibit (19)(10)(i)96)
(i) 65-- Agreement dated as of February 7, 1991
between Registrant and Iroquois Gas
Transmission System to transport gas
imported by Alberta Northeast Gas,
Limited to Registrant. ((23); Exhibit
(19)(10)(i)97)
(i) 66-- Service Agreement, dated September 30,
1986, between Registrant and Algonquin
Gas Transmission Company, for firm
storage transportation under Rate
Schedule SS-III. ((24); Exhibit
(19)(10)(i)95)
(i) 67-- Service Agreement, dated March 12, 1991,
between Registrant and Algonquin Gas
Transmission Company, for firm
transportation of 5,056 dth. of Texas
Eastern Transmission Corporation
incremental volume. ((24); Exhibit
(19)(10)(i)99)
(i) 68-- Agreement, dated December 28, 1990 and
effective February 5, 1991, between
Registrant and National Fuel Gas Supply
Corporation for interruptible
transportation. ((24); Exhibit
(19)(10)(i)100)
(i) 69-- Utility Services Contract, effective
October 1, 1991, between Registrant and
the U.S. Department of the Army, for the
provision of natural gas service to the
U.S. Military Academy at West Point and
Stewart Army Subpost, together with an
Amendment thereto, effective October 10,
1991. ((24); Exhibit (19)(10)(i)101)
E-18
<PAGE>
(i) 70-- Fuel Oil Supply Contract, effective
October 1, 1991, among Sun Oil Trading
Company and Registrant, Consolidated
Edison Company of New York, Inc. and
Niagara Mohawk Power Corporation, for
the supply of fuel oil to the Roseton
Plant. [Certain portions of said
contract setting forth or relating to
pricing provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((24);
Exhibit (19)(10)(i)102)
(i) 71-- Service Agreement, effective December 1,
1990, between Registrant and Texas
Eastern Transmission Corporation, for
firm transportation service under Rate
Schedule FT-1. ((24); Exhibit
(19)(10)(i)103)
(i) 72-- Service Agreement, dated February 25,
1991, between Registrant and Texas
Eastern Transmission Corporation, for
incremental 5,056 dth. under Rate
Schedule CD-1. ((24); Exhibit
(19)(10)(i)104)
(i) 73-- Agreement, dated November 6, 1991,
between Registrant and Mingo Logan Coal
Company, for the sale and purchase of
coal. ((24); Exhibit (19)(10)(i)105)
(i) 74-- Service Agreement, dated January 7,
1992, between Registrant and Texas
Eastern Transmission Corporation, for
the firm transportation of 6,000
dth./day under Rate Schedule FTS-5.
((24); Exhibit (19)(10)(i)106)
(i) 75-- Amendment Nos. 1-4, dated February 21,
1989, May 31, 1990, January 8, 1991 and
November 20, 1991, respectively, by and
between Registrant and Norfolk Southern
Railway, to Contract, dated October 5,
1987, between Registrant and Norfolk and
Western Railway Company, providing for
transportation of coal to the Danskammer
E-19
<PAGE>
Plant. [Certain portions of said
amendment 4 setting forth or relating to
pricing provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((24);
Exhibit (19)(10)(i)107)
(i) 76-- Amendment Nos. 1-3, dated August 30,
1988, December 10, 1990 (effective
December 22, 1990) and January 31, 1992,
respectively, to Agreement, dated as of
November 20, 1987, between Registrant
and Consolidated Rail Corporation to
transport coal to Danskammer Generating
Station. [Certain portions of said
amendments setting forth or relating to
pricing provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((24);
Exhibit (19)(10)(i)108)
(i) 77-- First Amendment, dated as of November 1,
1991, to Agreement for the Sale and
Purchase of Coal, dated as of January 1,
1987, among Registrant, Kentucky Carbon
Corporation and The Carbon Fuel Sales
Company. [Certain portions of said
amendment setting forth or relating to
pricing provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((24);
Exhibit (19)(10)(i)109)
(i) 78-- Agreement of Assignment, Assumption,
Consent and Release entered into as of
February 29, 1992 by and among Kentucky
Carbon Corporation, The Carbon Fuel
Sales Company, Massey Coal Sales Company
and Registrant. ((24); Exhibit
(19)(10)(i)111)
E-20
<PAGE>
(i) 79-- Agreement dated as of July 1, 1992
between Registrant and Tennessee Gas
Pipeline Company for storage of natural
gas. ((25); Exhibit (10)(i)114)
(i) 80-- Agreement dated as of July 1, 1992
between Registrant and Tennessee Gas
Pipeline Company for firm transportation
periods. ((25); Exhibit (10)(i)115)
(i) 81-- Fuel Oil Supply Agreement, effective as
of September 1, 1992 between Global
Petroleum Corporation and Registrant,
Consolidated Edison Company of New York,
Inc. and Niagara Mohawk Power
Corporation for the Roseton Electric
Generating Plant. [Certain portions of
said Agreement setting forth or relating
to pricing provisions are omitted and
filed separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((19);
Exhibit (19)(10)(i)99)
(i) 82-- Agreement, dated November 1, 1990,
between Tennessee Gas Pipeline and
Registrant for transportation of third-
party gas for injection into and
withdrawal from Penn York storage.
((19); Exhibit (19)(10)(i)100)
(i) 83-- Agreement, dated December 1, 1991,
between Registrant and Iroquois Gas
Transmission System for interruptible
gas transportation service. ((19);
Exhibit (19)(10)(i)101)
(i) 84-- Letter Agreement, dated August 24, 1992,
between Registrant and Iroquois Gas
Transmission System amending that
certain Agreement, dated December 1,
1991 between said parties for
interruptible gas transportation
service. ((19); Exhibit (19)(10)(i)102)
E-21
<PAGE>
(i) 85-- Tennessee Gas Pipeline Purchase and
Sales Agreement, dated November 1, 1992
between Registrant and Tenngasco
Corporation. ((19); Exhibit
(19)(10)(i)103)
(i) 86-- Agreement, dated as of July 16, 1993,
between Registrant, Consolidated Edison
Company of New York, Inc., Long Island
Lighting Company, New York State
Electric & Gas Corporation, Niagara
Mohawk Power Corporation, Orange and
Rockland Utilities, Inc., Rochester Gas
and Electric Corporation and the Power
Authority of the State of New York.
((19); Exhibit (19)(10)(i)104)
(i) 87-- Nine Mile Point Nuclear Station Unit 2
Operating Agreement, effective January
1, 1993, between and among Registrant,
Niagara Mohawk Power Corporation, Long
Island Lighting Company, New York State
Electric & Gas Corporation and Rochester
Gas and Electric Corporation. ((19);
Exhibit (19)(10)(i)105)
(i) 88-- Third Amendment, dated as of July 29,
1992, to the Reimbursement Agreement,
dated as of November 1, 1985, between
Registrant and the Bank named therein.
((2); Exhibit (19)(10)(i)106)
(i) 89-- Second Amendment, dated as of July 29,
1992, to the Reimbursement Agreement,
dated as of July 1, 1987, between
Registrant and the Bank named therein.
((2); Exhibit (19)(10)(i)107)
(i) 90-- Gas Transportation Agreement, dated as
of September 1, 1993, by and between
Tennessee Gas Pipeline Company and
Registrant. ((1); Exhibit
(19)(10)(i)108)
(i) 91-- First Amendment, dated as of October 1,
1993, to Fuel Oil Supply Contract,
effective as of September 1, 1992,
between Global Petroleum Corporation and
Registrant, Consolidated Edison Company
E-22
<PAGE>
of New York, Inc. and Niagara Mohawk
Power Corporation for the Roseton
Electric Generating Station. ((1);
Exhibit (19)(10)(i)109)
(i) 92-- Second Amendment, dated as of November
1, 1993, to the Agreement for the Sale
and Purchase of Coal, dated as of
January 1, 1987, among Registrant,
Kentucky Carbon Corporation and The
Carbon Fuel Sales Company. [Certain
portions of said amendment setting forth
or relating to pricing provisions are
omitted and filed separately with the
Securities and Exchange Commission
pursuant to a request for confidential
treatment under the rules of said
Commission.] ((29); Exhibit (10)(i)92)
(i) 93-- Agreement, dated as of May 20, 1993,
between Registrant and New York State
Electric & Gas Corporation. ((29);
Exhibit (10)(i)93)
(i) 94-- Nine Mile Point Nuclear Station Unit 2
Operating Agreement, effective January
1, 1993, among Registrant, Niagara
Mohawk Power Corporation, Long Island
Lighting Company, New York State
Electric & Gas Corporation and Rochester
Gas and Electric Corporation. ((29);
Exhibit (10)(i)94)
(i) 95-- Amendment No. 2 to Irrevocable Letter of
Credit No. S01880, dated August 12,
1993, relating to the Reimbursement
Agreement, dated as of July 1, 1987, as
amended, between Registrant and the Bank
named therein. ((29); Exhibit (10)(i)95)
(i) 96-- Amendment No. 2 to Irrevocable Letter of
Credit No. S01881, dated August 12,
1993, relating to the Reimbursement
Agreement, dated as of July 1, 1987, as
amended, between Registrant and the Bank
named therein. ((29); Exhibit (10)(i)96)
E-23
<PAGE>
(i) 97-- Amendment No. 2 to Irrevocable Letter of
Credit No. A95056-S, dated August 17,
1993, relating to the Reimbursement
Agreement, dated as of November 1, 1985,
as amended, between Registrant and the
Bank named therein. ((29); Exhibit
(10)(i)97)
(i) 98-- Amendment No. 2 to Irrevocable Letter of
Credit No. A95057-S, dated August 17,
1993, relating to the Reimbursement
Agreement, dated as of November 1, 1985,
as amended, between Registrant and the
Bank named therein. ((29); Exhibit
(10)(i)98)
(i) 99-- Second Amendment, effective as of
September 1, 1994, to Fuel Oil Supply
Contract, effective as of September 1,
1992, between Global Petroleum
Corporation and Registrant, Consolidated
Edison Company of New York, Inc. and
Niagara Mohawk Power Corporation for the
Roseton Electric Generating Station.
((31); Exhibit (10)(i)99)
(i) 100-- Third Amendment, dated as of November 1,
1994, to the Agreement for the Sale and
Purchase of Coal, dated as of January 1,
1987, among Registrant, Kentucky Carbon
Corporation and The Carbon Fuel Sales
Company (Exhbit (10)(i)(40) to
Registrant's 10-K Report), as amended.
[Certain portions of said amendment
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((32);
Exhibit (10)(i)100)
(i) 101-- Agreement of Assignment, Assumption,
Consent and Release, entered into as of
July 1, 1994 by and among Global
Petroleum Corporation, Montello Oil
Corporation, and Registrant for itself
and as Agent for Consolidated Edison
E-24
<PAGE>
Company of New York, Inc., and Niagara
Mohawk Power Corporation for the Roseton
Electric Generating Station, relating to
a Fuel Supply Contract, effective
September 1, 1992 (Exhibit (10)(i)81),
as amended. ((32); Exhibit (10)(i)101)
(i) 102-- Amendment No. 4, dated November 28,
1994, to Agreement, dated as of November
20, 1987, between Registrant and
Consolidated Rail Corporation to
transport coal to Danskammer Generating
Station, as amended. [Certain portions
of the amendment setting forth or
relating to pricing provisions are
omitted and filed separately with the
Securities and Exchange Commission
pursuant to a request for confidential
treatment under the rules of said
Commission.] ((33); Exhibit (10)(i)102)
(i) 103-- Amendment No. 5, dated February 28,
1995, to Agreement, dated as of November
20, 1987, between Registrant and
Consolidated Rail Corporation to
transport coal to Danskammer Generating
Station, as amended. [Certain portions
of the amendment setting forth or
relating to pricing provisions are
omitted and filed separately with the
Securities and Exchange Commission
pursuant to a request for confidential
treatment under the rules of said
Commission.] ((34); Exhibit (10)(i)103)
(i) 104-- Fuel Oil Supply Contract, effective as
of September 1, 1995, between Montello
Oil Corporation and Central Hudson Gas &
Electric Corporation, Consolidated
Edison Company of New York, Inc. and
Niagara Mohawk Power Corporation for the
Roseton Electric Generating Plant.
[Certain portions of the amendment
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((36);
Exhibit (10)(i)104)
E-25
<PAGE>
(i) 105-- Fourth Amendment, dated as of November
1, 1995, to the Agreement for the Sale
and Purchase of Coal, dated as of
January 1, 1987, among Registrant,
Kentucky Carbon Corporation and The
Carbon Fuel Sales Company (Exhibit
(10)(i)40 to Registrant's 10-K Report.
[Certain portions of the amendment
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((36);
Exhibit (10)(i)105)
(i) 106-- Fuel Oil Supply Contract, effective as
of September 1, 1996, between Bayway
Refining Company and Central Hudson Gas
& Electric Corporation, Consolidated
Edison Company of New York, Inc. and
Niagara Mohawk Power Corporation for the
Roseton Electric Generating Plant.
[Certain portions of the contract
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to a
request for confidential treatment under
the rules of said Commission.] ((40);
Exhibit (10)(i)106)
(i) 107-- Agreement for the Sale and Purchase of
Coal, dated as of December 1, 1996,
among Registrant, Inter-American Coal
N.V. and Inter-American Coal, Inc. [The
Agreement is being refiled herein in
which certain portions of the agreement
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to
confidential treatment approved by the
Commission under the rules of said
Commission.]
E-26
<PAGE>
(i) 108-- Agreement for the Sale and Purchase of
Coal, dated as of January 1, 1997, among
Registrant, HPM Corporation and
Integrity Coal Sales, Inc. [The
Agreement is being refiled herein in
which certain portions of the amendment
setting forth or relating to pricing
provisions are omitted and filed
separately with the Securities and
Exchange Commission pursuant to
confidential treatment approved by the
Commission under the rules of said
Commission.]
(i) 109-- Transportation Contract by and between
Registrant and Consolidated Rail
Corporation, dated as of November 26,
1996. [Certain portions of the
agreement setting forth or relating to
pricing provisions have been omitted and
filed separately with the Securities and
Exchange Commission pursuant to
confidential treatment approved by the
Commission under the rules of said
Commission.]
(i) 110-- Credit Agreement, dated as of October
23, 1996, among Registrant and The Banks
listed herein and Morgan Guaranty Trust
Company of New York, as Agent.
(iii) 1-- Directors' Deferred Compensation Plan,
effective October 1, 1980. ((18);
Exhibit (10)(iii)1)
(iii) 2-- Trust Agreement between Registrant and
Dutchess Bank & Trust Company, as
trustee, dated as of January 1, 1984,
pursuant to Registrant's Savings
Incentive Plan. ((2); Exhibit
(10)(iii)2)
(iii) 3-- First Amendment, dated December 31,
1990, to Trust Agreement between
Registrant and The Bank of New York, as
successor trustee, dated as of January
1, 1984, pursuant to Registrant's
Savings Incentive Plan. ((23); Exhibit
(19)(10)(i)99)
E-27
<PAGE>
(iii) 4-- Savings Incentive Plan of Registrant, as
restated as of January 1, 1987, together
with Amendments thereto dated September
23, 1988 and March 17, 1989,
respectively. ((18); Exhibit
(19)(10)(iii)3)
(iii) 5-- Amendment, dated December 31, 1990, to
Savings Incentive Plan of Registrant, as
amended. ((23); Exhibit (19)(10)(i)98)
(iii) 6-- Amendment, dated January 14, 1991, to
Savings Incentive Plan of Registrant, as
amended. ((26); Exhibit (19)(10)(iii)4)
(iii) 7-- Amendment, dated October 25, 1991, to
Savings Incentive Plan of Registrant, as
amended. ((26); Exhibit (19)(10)(iii)5)
(iii) 8-- Executive Deferred Compensation Plan of
Registrant, effective March 1, 1992.
((24); Exhibit (19)(10)(iii)8)
(iii) 9-- Amendment, dated December 11, 1992, to
Savings Incentive Plan of Registrant, as
amended. ((2); Exhibit (19)(10)(iii)9)
(iii) 10-- Retirement Benefit Restoration Plan of
Registrant, effective May 1, 1993.
((27); Exhibit (10)(iii)10)
(iii) 11-- Amendment, dated July 23, 1993, to
Retirement Benefit Restoration Plan of
Registrant. ((27); Exhibit (10)(iii)11)
(iii) 12-- Amendment, dated July 23, 1993, to the
Savings Incentive Plan of Registrant.
((27); Exhibit (10)(iii)12)
(iii) 13-- Amendment, dated September 24, 1993, to
the Savings Incentive Plan of
Registrant, as amended. ((29); Exhibit
(10)(iii)13)
(iii) 14-- Amendment, dated December 17, 1993, to
the Savings Incentive Plan of
Registrant, as amended. ((29); Exhibit
(10)(iii)14)
E-28
<PAGE>
(iii) 15-- First Amendment, dated December 17,
1993, to the Registrant's Executive
Deferred Compensation Plan. ((29);
Exhibit (10)(iii)15)
(iii) 16-- Amendment, dated March 3, 1994, to the
Savings Incentive Plan of Registrant, as
amended. ((29); Exhibit (10)(iii)16)
(iii) 17-- Executive Incentive Compensation Plan of
Registrant, effective January 1, 1993.
((29); Exhibit (10)(iii)17)
(iii) 18-- Agreement, made March 14, 1994, by and
between Registrant and Mellon Bank,
N.A., amending and restating, effective
April 1, 1994, Registrant's Savings
Incentive Plan and related Trust
Agreement with The Bank of New York.
((31); Exhibit (10)(iii)18)
(iii) 19-- Amendment 1, dated July 22, 1994
(effective April 1, 1994) to the Amended
and Restated Savings Incentive Plan of
Registrant. ((33); Exhibit (10)(iii)19)
(iii) 20-- Amendment 2, dated December 16, 1994
(effective January 1, 1995) to the
Amended and Restated Savings Incentive
Plan of Registrant, as amended. ((33);
Exhibit (10)(iii)20)
(iii) 21-- Amendment, dated April 4, 1995, to the
Executive Incentive Compensation Plan of
Registrant.
(iii) 22-- Stock Plan for Outside Directors of
Registrant, dated November 17, 1995.
(iii) 23-- Management Incentive Program of
Registrant, effective April 1, 1994.
(12) -- Statement showing the computation of the ratio of
earnings to fixed charges.
E-29
<PAGE>
(13) (ii)-- Registrant's Consolidated Financial Statements for
the fiscal year ended December 31, 1996, and the
report thereon of Price Waterhouse LLP,
independent accountant, including the Notes to
Consolidated Financial Statements, which form a
part thereof (pages 29 through 72); Management's
Discussion and Analysis of Financial Condition and
Results of Operations (pages 6 through 28); Five-
Year Summary of Consolidated Operations and
Selected Financial Data (pages 4 and 5); Selected
Quarterly Financial Data (Unaudited) (page 73);
and Financial Highlights (pages 1 through 3),
included in Registrant's annual report to
shareholders for the fiscal year ended December
31, 1996. [Note: Except for those portions of
such annual report specified above, such annual
report is not deemed "filed" as part of the filing
of this Report on Form 10-K.]
(21) -- Subsidiaries of the Registrant:
State or other Name under which
Jurisdiction of Subsidiary conducts
Name of Subsidiary Incorporation Business
__________________ ______________ ______________________
Phoenix Development New York Phoenix Development
Company, Inc. Company, Inc.
Greene Point New York Greene Point
Development Corporation Development Corporation
CH Resources, Inc. New York CH Resources, Inc.
Central Hudson New York Central Hudson
Enterprises Enterprises Corporation
Corporation (formerly
Cruger Development
Corporation)
(23) -- Consent of Experts:
The consents of Price Waterhouse LLP appear on page 29
of this Annual Report on Form 10-K.
E-30
<PAGE>
(27) -- Financial Data Schedule
(99) -- Additional Exhibits:
(i) 1 -- Offer to Induce Settlement, dated July 15,
1986, among Niagara Mohawk Power Corporation,
Long Island Lighting Company, New York State
Electric & Gas Corporation, Rochester Gas and
Electric Corporation and Registrant. ((2);
Exhibit (28)(i)1)
(i) 2 -- Response by the Co-tenants to the Public
Service Commission's Inquiry As to
Modification of the Specification of Terms
and Conditions of Offer of Settlement to
Substitute an Allowed Cost of $4.16 Billion,
dated July 15, 1986. ((2); Exhibit (28)(i)2)
(i) 3 -- Stipulation and Order on Consent signed on
behalf of the Department of Environmental
Protection of the City of New York,
Environmental Defense Fund, Inc., Department
of Environmental Conservation of the State of
New York, Central Hudson Gas & Electric
Corporation and Consolidated Edison Company
of New York, Inc. ((28); Exhibit 28.1)
(i) 4 -- Settlement Agreement on Issues Related to
Nine Mile Two Nuclear Plant, dated June 6,
1990, among the Staff of the Department of
Public Service, the Consumer Protection
Board, the Attorney General of the State of
New York, Assemblyman Maurice Hinchey,
Multiple Intervenors, Registrant, Long Island
Lighting Company, New York State Electric &
Gas Corporation, Niagara Mohawk Power
Corporation and Rochester Gas and Electric
Corporation. ((23); Exhibit (19)(28)(i)4)
(i) 5 -- Order on Consent signed on behalf of the New
York State Department of Environmental
Conservation and Registrant relating to
Registrant's former manufactured gas site
located in Newburgh, New York. ((36);
Exhibit (99)(i)5)
____________________
E-31
<PAGE>
The following are notes to the Exhibits listed above:
(1) Incorporated herein by reference to
Registrant's Quarterly report on Form 10-Q
for fiscal quarter ended September 30, 1993
(File No. 1-3268).
(2) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K/A for
the fiscal year ended December 31, 1992 (File
No. 1-3268).
(3) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
65127.
(4) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
67537.
(5) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
69640
(6) (a) Incorporated herein by reference to
Prospectus Supplement Dated May 28, 1992 (To
Prospectus Dated April 13, 1992) relating to
$125,000,000 principal amount of First
Mortgage Bonds, designated Secured Medium-
Term Notes, Series A, and to the Prospectus
Dated April 13, 1992 relating to $125,000,000
principal amount of Registrant's debt
securities attached thereto, as filed with
the Securities and Exchange Commission
pursuant to Rule 424(b)(5) under the
Securities Act of 1933, in connection with
Registration Statement No. 33-46624.
(b) Incorporated herein by reference to Pricing
Supplement No. 1, Dated June 4, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
E-32
<PAGE>
(c) Incorporated herein by reference to Pricing
Supplement No. 2, Dated June 4, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(d) Incorporated herein by reference to Pricing
Supplement No. 3, Dated June 4, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(e) Incorporated herein by reference to Pricing
Supplement No. 4, Dated August 20, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(f) Incorporated herein by reference to Pricing
Supplement No. 5, Dated August 20, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(g) Incorporated herein by reference to Pricing
Supplement No. 6, Dated July 26, 1993 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
E-33
<PAGE>
(h) Incorporated herein by reference to Pricing
Supplement No. 7, Dated July 26, 1993 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(7) Incorporated herein by reference to
Registrant's Current Report on Form 8-K,
dated May 27, 1992 (File No. 1-3268).
(8) (a) Incorporated herein by reference to
Prospectus Supplement Dated May 28, 1992 (To
Prospectus Dated April 13, 1992) relating to
$125,000,000 principal amount of Medium-Term
Notes, Series A, and to the Prospectus Dated
April 13, 1992, relating to $125,000,000
principal amount of Registrant's debt
securities attached thereto, as filed with
the Securities and Exchange Commission
pursuant to Rule 424(b)(5) under the
Securities Act of 1933, in connection with
Registration Statement No. 33-46624.
(b) Incorporated herein by reference to Pricing
Supplement No. 1, Dated June 26, 1992 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
(c) Incorporated herein by reference to Pricing
Supplement No. 2, Dated October 6, 1993 (To
Prospectus Dated April 13, 1992, as
supplemented by a Prospectus Supplement Dated
May 28, 1992), as filed with the Securities
and Exchange Commission pursuant to Rule
424(b)(3) under the Securities Act of 1933 in
connection with Registration Statement No.
33-46624.
E-34
<PAGE>
(9) Incorporated herein by reference to
Prospectus Supplement Dated May 15, 1995 (To
Prospectus Dated April 4, 1995) relating to
$80,000,000 principal amount of First
Mortgage Bonds, designated Secured Medium-
Term Notes, Series B, and the Prospectus
Dated April 4, 1995, relating to (i)
$80,000,000 of Registrant's Debt Securities
and Common Stock, $5.00 par value, but not in
excess of $40 million aggregate initial
offering price of such Common Stock and (ii)
250,000 shares of Registrant's Cumulative
Preferred Stock, par value $100 per share,
which may be issued as 1,000,000 shares of
Depositary Preferred Shares each representing
1/4 of a share of such Cumulative Preferred
Stock attached thereto, as filed pursuant to
Rule 424(b) in connection with Registration
Statement No. 33-56349.
(10) Incorporated herein by reference to
Prospectus Supplement Dated May 15, 1995 (To
Prospectus Dated April 4, 1995) relating to
$80,000,000 principal amount of Medium-Term
Notes, Series B, and the Prospectus Dated
April 4, 1995, relating to (i) $80,000,000 of
Registrant's Debt Securities and Common
Stock, $5.00 par value, but not in excess of
$40 million aggregate initial offering price
of such Common Stock and (ii) 250,000 shares
of Registrant's Cumulative Preferred Stock,
par value $100 per share, which may be issued
as 1,000,000 shares of Depositary Preferred
Shares each representing 1/4 of a share of
such Cumulative Preferred Stock attached
thereto, as filed pursuant to Rule 424(b) in
connection with Registration Statement No.
33-56349.
(11) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
66511.
(12) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
36680.
E-35
<PAGE>
(13) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
50276.
(14) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
54690.
(15) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
58500.
(16) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1986 (File
No. 1-3268).
(17) Incorporated herein by reference to
Registrant's Registration Statement No. 2-
60496.
(18) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1989 (File
No. 1-3268).
(19) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1992 (File
No. 1-3268).
(20) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1987 (File
No. 1-3268).
(21) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 1989
(File No. 1-3268).
(22) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1989 (File No. 1-3268).
(23) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1990 (File
No. 1-3268).
E-36
<PAGE>
(24) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1991 (File
No. 1-3268).
(25) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1992 (File No. 1-3268).
(26) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1991 (File No. 1-3268).
(27) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1993
(File No. 1-3268).
(28) Incorporated herein by reference to
Registrant's Current Report on Form 8-K,
dated May 15, 1987 (File No. 1-3268).
(29) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1993 (File
No. 1-3268).
(30) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 1994
(File No. 1-3268).
(31) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1994
(File No. 1-3268).
(32) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1994 (File No. 1-3268).
(33) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1994 (File
No. 1-3268).
E-37
<PAGE>
(34) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended March 31, 1995
(File No. 1-3268).
(35) Incorporated herein by reference to
Registrant's Current Report on Form 8-K,
dated May 15, 1995 (File No. 1-3268).
(36) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1995 (File No. 1-3268).
(37) Incorporated herein by reference to
Registrant's Annual Report on Form 10-K for
the fiscal year ended December 31, 1995 (File
No. 1-3268).
(38) Incorporated herein by reference to
Registrant's Current Report on Form 8-K,
dated June 11, 1996 (File No. 1-3268).
(39) Incorporated herein by reference to
Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended September 30,
1996 (File No. 1-3268).
(40) Incorporated herein by reference to
Registrant's Quarterly Report on Form 8-K,
dated October 15, 1996 (File No. 1-3268).
* Exhibits preceded by an asterisk have heretofore been
classified as basic documents under previous Rule 24(b)
of the SEC Rules of Practice.
E-38
</PAGE>
<PAGE> 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 HUDSON GAS & ELECTRIC CORPORATION
AND
INTER-AMERICAN COAL N.V.
AND
INTER-AMERICAN COAL, INC.
Central Hudson Contract #__________
<PAGE>
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<PAGE>
INTER-AMERICAN CONTRACT
Attachment I - Coal Quality Specifications
Attachment II - Roseton Dock and Hudson River
Limitations
<PAGE>
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 Hudson Gas & Electric
Corporation (hereinafter referred to as "Buyer"), with its
principal office at 284 South Avenue, Poughkeepsie, New York
12601-4879, a New York corporation, and Inter-American Coal N.V.,
(hereinafter referred to as "Producer"), with an office at L.G.
Smith Boulevard No. 90, Oranjestad, Aruba an Aruban corporation,
and Inter-American Coal, Inc. (hereinafter referred to as "Sales
Agent"), with its principal office at 5016 Dorsey Hall Drive,
Suite 202, Ellicott City, Maryland 21042, 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.
BL - Bill of Lading.
Buyer's Agent - Party retained by Buyer to represent its
interests at Load Port and other facilities of Seller and Buyer.
1
<PAGE>
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 Hudson 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
<PAGE>
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 hopper 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.
3
<PAGE>
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
<PAGE>
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 Hudson Gas &
Electric Corporation, 284 South Avenue, Poughkeepsie, New York
12601-4879, 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
<PAGE>
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 Hudson 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 hopper. 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
<PAGE>
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
<PAGE>
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
<PAGE>
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 Bill 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 021-000-089
For Credit to the Account of
Interbank Aruba N.V.
Oranjestad, Aruba
Account No. 36057156
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.
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<PAGE>
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)
10
<PAGE>
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.
11
<PAGE>
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
<PAGE>
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
<PAGE>
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 bill 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<PAGE>
* 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
<PAGE>
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 Hudson 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 sue 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 HUDSON GAS & ELECTRIC CORPORATION
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
ATTENTION: MANAGER OF FUELS RESOURCES
FAX: (914) 486-5268
PHONE: (914) 486-5754
PHONE: (914) 486-5562
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<PAGE>
DANSKAMMER GENERATING STATION
FAX: (914) 561-4845
FINANCIAL RECORDS
FAX: (914) 486-5335
TO SALES AGENT:
INTER-AMERICAN COAL, INC.
5016 DORSEY HALL DRIVE, SUITE 202
ELLICOTT CITY, MARYLAND 21042
ATTENTION: MARCEL VAN DEN BERG, PRESIDENT
FAX: (410) 997-6842
PHONE: (410) 730-6800
TO PRODUCER:
C/O INTER-AMERICAN COAL N.V.
L.G. SMITH BOULEVARD NO. 90
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 HUDSON GAS & ELECTRIC CORPORATION
BY
PAUL J. GANCI
ITS President and Chief Operating Officer
PRODUCER: INTER-AMERICAN COAL N.V.
BY
MARCEL L.J. VAN DEN BERG
ITS President and Chief Executive Officer
SALES AGENT: INTER-AMERICAN COAL, INC.
BY
MARCEL L.J. VAN DEN BERG
ITS President
21
<PAGE>
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.
<PAGE>
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)
<PAGE>
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 Platt's Oilgram for the port of
New York issued most recently preceding the bill 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
Platt's Oilgram for the relevant date as backup on invoicing.
Example: Bill of Lading Date: January 15th
Platt's 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.
<PAGE>
November 25, 1996
Mr. Marcel Van den Berg
President
Inter-American Coal, Inc.
5016 Dorsey Hall Drive, Suite 202
Ellicott City, MD 21042
In furtherance of the Agreement for the Sale and
Purchase of Coal between Central Hudson 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 HUDSON GAS & ELECTRIC CORPORATION
BY
PAUL J. GANCI
ITS President and Chief Operating Officer
PRODUCER: INTER-AMERICAN COAL N.V.
BY
MARCEL L.J. VAN DEN BERG
ITS President and Chief Executive Officer
SALES AGENT: INTER-AMERICAN COAL, INC.
BY
MARCEL L.J. VAN DEN BERG
ITS President
</PAGE>
<PAGE> EXHIBIT (10)(i) 108
THIS EXHIBIT CONTAINS CONFIDENTIAL INFORMATION WHICH HAS BEEN
REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
CONTRACT
This Agreement, made and entered into as of the 1st day
of January, 1997 by and between Central Hudson Gas & Electric
Corporation (hereinafter referred to as "Buyer"), with its
principal office at 284 South Avenue, Poughkeepsie, New York
12601-4879, a New York corporation, and HPM Corporation
(hereinafter referred to as "Seller" or "Producer"), with an
office at Drennen, West Virginia a Delaware corporation, and
Integrity Coal Sales, Inc. (hereinafter referred to as "Sales
Agent"), with its principal office at 490 Wheeler Road, Suite
165M, Hauppauge, New York, a New York corporation.
WITNESSETH:
WHEREAS, Seller controls coal reserves and has mining,
preparation and loading facilities known as the High Power
Mountain ("Operations"), located near Drennen, West Virginia and
which Operations (except as hereinafter provided) are the source
of coal to be sold and purchased hereunder; and,
WHEREAS, Sales Agent is the sales agent for Seller and
is duly authorized to contract to sell said coal and otherwise
represent Seller, 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
TERM OF AGREEMENT
The term of this Agreement shall be for the period
commencing January 1, 1997 and continuing until midnight,
December 31, 1998, unless sooner terminated as provided for
herein. A Contract Year is defined as the period from January 1
of a year through December 31 of the same year. This Agreement
shall terminate automatically, without further obligation or
liability to either party, except for payments for coal
delivered, at the end of the Term.
ARTICLE II
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 no less than 240,000 tons
per year ("Firm Tonnage"). In addition, there will be 120,000
tons per year called incremental tonnage ("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 Point Plant ("Danskammer Plant" or
"Buyer's Plant") exceeds the applicable delivered Base Price of
coal in delivered cost per million Btu's.
The Sales Agent/Seller will assume that three trains of
approximately 12,000 tons each will be loaded for shipment during
odd numbered months (1, 3, 5, 7, 9, 11) and two trains of
approximately 12,000 tons each will be loaded in the even
numbered months (2, 4, 6, 8, 10, 12). Buyer will provide
scheduled loading dates to Sales Agent/Seller on or before the
twenty-fifth (25th) of the month preceding the loading month.
Every third train in a contract year will be an
incremental train subject to the provisions contained herein.
The Buyer must indicate to the Sales Agent not later than the
20th day of the first month of the calendar quarter preceding the
calendar quarter of each proposed Incremental Tonnage shipment if
the then-current delivered price of oil, natural gas or spot coal
to the Danskammer Plant is below the delivered Base Price of
coal. Note: Spot coal must meet or be adjusted to the
specifications contained herein. If such notice is not received
by the Sales Agent by the 20th day of the first month of the
calendar quarter preceding the calendar quarter of each proposed
Incremental Tonnage shipment then all trains will be shipped the
next quarter at the Base Price. In the event such a notice is
received, and the Sales Agent/Producer wishes to match the then-
current delivered price of oil, natural gas or spot coal, the
Sales Agent/Seller must notify the Buyer of the same not later
than the last working day of that notice month. In the event
that such notification is given, then the coal will be shipped,
with the Incremental Tonnage at the "matched price" and the Firm
Tonnage at the Base Price. If the notice to match the price is
not received by the Buyer by the last working day of the notice
month, the Incremental Tonnage trains will not be shipped. The
Sales Agent reserves the right to re-offer any unshipped
Incremental Tonnage to the Buyer at another time in the
ensuing 12 months (commencing with the month 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 Producer 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 any of the coal contracted for
hereunder, Buyer shall so notify the Seller in writing sixty days
in advance of the scheduled loading of the applicable firm
tonnage. 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:
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: Two
trains of Firm Tonnage will be delivered for every single train
of Incremental Tonnage. Both Firm Tonnage and Incremental
Tonnage can be delivered during the same month, but Seller will
not be obligated to deliver more than three (3) 12,000-ton
shipments of coal during any one month, unless otherwise mutually
agreed. There shall be a minimum of seven (7) calendar days
between shipment releases from the Operations unless otherwise
mutually agreed.
Section 4. Passage of Title: The coal sold and
delivered to Buyer hereunder is f.o.b. railway car at the
Operations; and, title to and risk of loss of the coal supplied
hereunder shall pass to Buyer when Seller completes loading coal
and tenders the loaded cars to the carrier for destination to
Buyer's Plant.
Section 5. Initial Quality Notification: The
parties recognize the need to know the quality of the coal prior
to receipt of the shipment at the Danskammer Plant. Therefore,
the coal shall be sampled as it is loaded into railway cars and
analyzed by an independent coal testing laboratory that will
within 48 hours after the coal is loaded notify Seller and Buyer
by telephone, telegram, or TWX of the average "as received"
analytical results of each shipment.
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 Hudson Gas &
Electric Corporation, 284 South Avenue, Poughkeepsie, New York
12601-4879, a shipping notice showing weight, type of car and
number of each railway car contained in the shipment, shipping
date and origin mine.
Section 7. Railroad: Except as otherwise expressly
provided herein, Seller shall deliver coal sold and purchased
hereunder in accordance with the contract between Buyer and
railroad (said price redacted contract to be provided to Seller)
and the applicable railroad tariff provisions. Buyer shall be
responsible for providing any applicable amendments or revisions
to said railroad tariff provisions to Sales Agent and/or Seller.
Buyer shall cooperate with Seller in the scheduling of
work at Seller's Operations and shall be responsible for
arranging and coordinating with the railroad (also referred to
herein as "carrier") the arrival of rail cars for loading. Buyer
shall pay carrier for all rail transportation charges for coal
purchased from Seller under this Agreement, except as provided
for in the remainder of this Section 7 and Article III Section 3.
SELLER SHALL INSPECT ALL COAL CARS FOR THE PRESENCE OF FOREIGN
MATERIAL PRIOR TO LOADING AND SHALL ONLY LOAD CLEAN COAL CARS.
Seller will pay all additional freight charges,
required by Buyer's rail transportation agreements or the
applicable railroad tariffs, on coal delivered hereunder that are
a result of Seller's failure to deliver the quantity of coal as
scheduled by Buyer, in accordance with this Agreement unless the
tonnage deficiency is excused by other provisions of this
Agreement.
Buyer shall be responsible for payment of any and all
increased freight charges which result solely from or on account
of the coal being shipped to more than one destination.
Seller shall pay all additional freight charges,
required by the applicable railroad tariffs or Buyer's rail
transportation agreements on coal delivered hereunder that are a
result of Seller's failure to notify the railroad, in writing, in
accordance with the applicable railroad tariffs or Buyer's rail
transportation agreement, of Seller's inability to make shipment
as scheduled.
Seller shall pay all detention and switching charges at
Seller's Operations resulting from Seller's failure to load and
ship the coal in accordance with the applicable railroad tariffs
or Buyer's rail transportation agreement. Seller shall load coal
so as to permit loading of 12,000-ton trains within a 6-hour
period.
Seller shall pay all charges resulting from overloading
or underloading cars in accordance with the applicable tariffs or
Buyer's rail transportation agreement.
ARTICLE III
SPECIFICATIONS & QUALITY & WEIGHT
Section 1. Origin: The coal shall be from the
Winifred Seam and other such seams meeting the specifications
herein. Coals from other sources shall not be shipped without
prior written approval of Buyer.
Section 2. 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 36 D 3175
Fixed Carbon % 51 47 60 D 3172
Ash % 8.0 -- 10 D 3174
BTU/LB. 13,100 12,500 -- D 3286
Sulphur % 0.66 0.47 0.70 D 3177/4239
SO2 (LBS./MMBTU) 1.0 -- 1.1 Calculated
Grind (HGI) 42 40 60 D 409-85
Ash Fusion (I.D., F) 2,700 2,300 D 1587
THIS COAL SHALL BE FREE OF EXTRANEOUS MATERIAL AND
SHALL HAVE A MAXIMUM TOP SIZE OF TWO INCHES.
Section 3(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 VI 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.
(b). Buyer's Right to Reject 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 rejection limits
shown below:
INDIVIDUAL SHIPMENT REJECTION LIMITS
Sulphur (As Received) 0.7% Maximum
Volatiles (As Received) 30% Minimum
Ash Fusion (I.D.) 2,300 F Minimum
BTU/LB (As Received) 12,500 Minimum
SO2/Million BTU 1.1 LBS. Maximum
Grind 40 Minimum
The delivered coal must meet the following weighted
average specifications for three consecutive shipments:
THREE CONSECUTIVE SHIPMENTS LIMITS
Grind 42 Minimum
Ash (As Received) 8.51% Maximum
Moisture (As Received) 8% Maximum
If the weighted average grind, ash or moisture of coal
in a series of three consecutive shipments delivered hereunder,
as determined by sampling and analysis, does not meet the above
Three Consecutive Shipments Limits, Buyer shall have the right to
reject the immediately following shipment in the event that such
shipment does not meet said limitation. The basis of any such
rejection shall be the averaged results of 2 different
independent laboratories as provided for in Article VIII. One of
the independent laboratories is that providing the initial
testing results.
(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 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 and 3. Nothing in this Article III
shall be construed to relieve Seller of its obligation to conduct
its mining and coal cleaning operations in a competent manner,
consistent with good industry practices, so as to produce coal
which will meet the specifications set forth above.
Section 5. Weight Measurement: The weight of coal
sold hereunder shall be determined on Buyer's certified track
scales at the Danskammer Plant, which scales shall be maintained
and certified in accordance with the provisions of the U.S.
Department of Commerce National Bureau of Standards Handbook 44.
If such scales are inoperative at the time of any coal delivery,
the weight of coal shall be the weight as determined by Seller's
batch weighing system at the High Power Mountain loadout.
ARTICLE IV
PAYMENT
Section 1. Price: For coal delivered and accepted,
Buyer shall pay Seller the Base Price herein provided.
Section 2. Submission of Weight to Seller: Buyer
shall submit to Sales Agent the certified weights within five (5)
working days after the certified weights become available.
Section 3. Invoice: Thereafter, an invoice for any
adjustments for quality as hereinafter defined, FCA application
and all coal shipped from the Operations based on certified
weights will be submitted by the Sales Agent to the Buyer. The
coal shipped will be invoiced at the Base Price (hereinafter
defined).
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. Payment: Buyer shall make payment to
Seller within twenty-five (25) calendar days from shipment of the
coal from the Operations.
Payment to Seller shall be made by wire transfer, as
follows:
Chase Manhattan Bank in New York
Account 323363199
ABA # 021000021
The above address may be changed by Seller upon written notice to
Buyer.
ARTICLE V
BASE PRICE
The Base Price for the Term of this Agreement for Firm
Tonnage and Base Priced Incremental Tonnage shall be $xx.xx (U.S.
Dollars) per net ton, f.o.b. railcar at Seller's loading
facility. Match Priced Firm or Incremental tonnage shall be
priced in accordance with the provisions of Article II.
The Base Price is based on the use of Buyer's track
scales to determine the weight of coal on each train delivered
hereunder. If the delivering railroad determines accurate car
tare weights at delivery, the Base Price charged to Buyer will be
decreased by $.xx per ton. If Buyer's track scales are
inoperative and Seller's batch weights are used for weight
determination, then the Base Price charged to Buyer will be
reduced by $.xx per ton. This reduction relative to weight
determination will also apply to incremental tonnage shipped at
either the Base Price or a Matched Price.
The Base Price shall be adjusted for all costs incurred
by Seller to comply with any Federal, State or Local law,
regulation or order enacted, promulgated, repealed or altered,
after January 1, 1997, including, without limitation, laws
regulations or orders relating to health, safety, conservation,
reclamation, environmental protection, pollution control and air,
water and soil standards. Laws, legislation, rules, regulations
or orders or a new application, interpretation or implementation
of same which are pending as of January 1, 1997 and which are
enacted, repealed, altered, promulgated or effective after
January 1, 1997 shall be considered enacted or promulgated prior
to January 1, 1997.
ARTICLE VI
ADJUSTMENT IN BASE PRICE FOR QUALITY
Section 1. BTU Value: The Base Price to be paid to
Seller by Buyer is based upon coal with 13,100 BTU/LB heat
content (BTU Value) for each ton of coal in each shipment. The
BTU Value of the coal sold hereunder may vary, and the Base Price
for such coal shall be adjusted to compensate for variations in
BTU Value, as described below.
CONFIDENTIAL INFORMATION REPRESENTED IN THIS FILING BY AN "X" HAS
BEEN REDACTED AND FILED SEPARATELY WITH THE U.S. SECURITIES AND
EXCHANGE COMMISSION.
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 Base Price for a shipment shall be adjusted, based
upon variations from the 13,100 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 Base Price at
the rate of $X.XX per XXX BTU/LB, fractions pro rata.
Section 3. Adjustments for Ash Value: The Base
Price to be paid to Seller by Buyer is based upon coal with an
ash content (Ash Value) of eight percent (8%) 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 ton
shall be paid to Seller for each X.X% Ash Value variation below
8.0%. If the Ash Value is greater than X.X% then a penalty of
$X.XXX per ton shall be deducted from the Base Price for each
X.X% Ash Value variation in excess of 8.0%.
ARTICLE VII
FREEZE CONDITIONING
Section 1. Freeze Conditioning Agent: Seller shall
apply a freeze conditioning agent ("FCA") at cost to coal
purchased and delivered hereunder as directed by Buyer and in the
manner set forth herein.
Section 2. Method of Application: When application
of a FCA is directed, it will be applied to the full coal stream
as coal is loaded into railroad cars at the Operations at a rate
specified by Buyer. At any time Buyer may have a representative
present to observe and monitor the application of the FCA and to
obtain a sample of the FCA.
Section 3. Buyer's Approval: Seller shall utilize
an FCA with a Diethylene Glycol base that has been approved in
writing by Buyer. Seller shall have the right to use any of the
approved FCA's but shall not change from one FCA to another
without notifying Buyer, such notification to be confirmed in
writing.
Section 4. Price: For application of the FCA,
Buyer shall pay Seller at Seller's cost per gallon of FCA at the
rate of application (pints per ton) as specified by Buyer on each
ton of coal shipped. Buyer shall have the right to purchase and
supply FCA to Seller, in which case there shall be no charge by
Seller to Buyer for application.
ARTICLE VIII
SAMPLING AND ANALYSES
A recognized independent laboratory ("Independent
Lab"), experienced in the sampling and analyzing of coal, shall
be mutually agreed upon by Buyer and Sales Agent/Producer, and
shall be engaged by each Party to perform the sampling and
analysis of all coal shipped hereunder. Independent Lab shall
sample shipments at the Operations, located near Drennen, West
Virginia. The Independent Lab shall perform its sampling and
analysis in accordance with standards approved by the American
Society for Testing and Materials ("ASTM"). The Independent
Laboratory shall divide the sampled material into four (4) sample
splits identified as follows: (a) Laboratory analyses, (b)
Referee split, (c) Seller's split and (d) Buyer's split. The
Independent Laboratory shall provide upon request the sample
splits to Buyer and/or Seller as soon as the sample is prepared.
A proximate and grind analysis shall be done by the
Independent Lab for each shipment. Except as hereinafter
provided the results of the sampling and analyses by the
Independent Lab with respect to samples taken from any shipment
shall be accepted as the quality and characteristics of that
shipment. 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 the Seller equally.
Buyer shall have the right to have a representative
present at any and all times to observe the sampling, inspect the
Independent Lab and take check samples at the Operations, and
Buyer may also analyze the coal either from its own samples or
from samples taken by Independent Lab. The Independent Lab shall
retain for a period of 60 days the Referee split coal sample
taken so that Buyer and/or Seller or a commercial laboratory of
their choice may analyze such sample.
If the Buyer or Seller should question the correctness
of the analyses made by the Independent Laboratory, they may,
within 30 days after the train's unloading, notify the other
Party in writing to request that the Referee split be analyzed by
a second mutually agreeable Independent Laboratory. This
notification should specify which analytical parameter or
parameters are in dispute. The Independent Laboratory shall
provide the Referee Laboratory with the properly identified
sealed sample.
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 values
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 Laboratory 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 Laboratory will prepare a physical composite sample from
the Referee sample, 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 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 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 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, 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 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 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, or processing or shipping, as may be
applicable, of the coal specified in this Agreement, Seller 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
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, 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
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. 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 near Drennen, West Virginia and are accessible
to the Conrail Railway and are part of the mining properties
constituting the Producer's mines. The total quantity of
suitable and economically recoverable coal of the quality
required to meet Sales Agent/Seller's maximum annual obligation
to Buyer under this Agreement is 360,000 tons. Sales
Agent/Seller shall not enter into other agreements 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 Sales Agent/Seller.
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 Hudson 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 sue 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) as follows:
TO BUYER:
CENTRAL HUDSON GAS & ELECTRIC CORPORATION
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
ATTENTION: MANAGER OF FUELS RESOURCES
TO SALES AGENT:
INTEGRITY COAL SALES, INC.
490 WHEELER ROAD, SUITE 165M
HAUPPAUGE, NEW YORK 11788
TO SELLER:
HPM CORPORATION
P. O. BOX 138
DRENNEN, WEST VIRGINIA 26667
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.
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 Sales Agent/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. Sales Agent/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 Sales Agent/Seller has
dealt, or is alleged to have dealt regarding this Agreement.
ARTICLE XX
TRANSPORTATION AGREEMENTS
If Buyer is unable to conclude and maintain rail
transportation agreements on terms satisfactory to Buyer, Buyer
shall notify Sales Agent/Producer and these parties will use
their best efforts to make the terms satisfactory.
ARTICLE XXI
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.
ARTICLE XXII
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 XXIII
BUYER'S RIGHT TO ADEQUATE ASSURANCE-TERMINATION
If, during the Term of this Agreement, the Producer's
ability to meet its obligations under this Agreement become
impaired to the point that Buyer has reasonable grounds for
believing that Producer may not be able to meet such obligations,
then Buyer, by a written notice to Producer, may require that
Producer provide adequate assurance that Producer 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 Producer'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 Sales Agent and Producer, which thereupon
shall become an amendment to this Agreement. In the event that
Producer cannot offer such adequate assurance to Buyer upon
Buyer's request or in the event Producer and/or Sales Agent has
made a material misrepresentation with respect to its Warranties
and Representations in Article XXV herein, Buyer shall also have
the right at its option to immediately terminate this Agreement
by written notice to Sales Agent and Producer.
ARTICLE XXIV
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.
ARTICLE XXV
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.
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 HUDSON GAS & ELECTRIC CORPORATION
BY ___________________________________________
PAUL J. GANCI
ITS President and Chief Operating Officer
SELLER: HPM CORPORATION
BY ___________________________________________
JAY FRANTZ
ITS President
SALES AGENT: INTEGRITY COAL SALES, INC.
BY ___________________________________________
KEVIN P. MCEVOY
ITS General Manager
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