Amendment
This amendment (the "Amendment") among Eastern Consolidated Energy, Inc.,
Kentucky corporation ("ECEI"), and New River Energy Sales Company, Inc., an Ohio
corporation ("New River"), (individually, a "Party"; collectively, the
"Parties"), is being executed for the purpose of amending the Agreement dated
February 8, 2005, among CEI, and New River.
Premises
Whereas, the above parties believe it is in the best interests of their
respective shareholders to amend the February 8, 2005 Agreement;
Whereas, the parties have negotiated alternative coal sales and marketing
fees
Whereas, all parties have agreed to provide the necessary written consent
to amend the coal sales and marketing fees language currently contained in the
February 8 2005 Agreement in consideration of the execution of this Amendment;
Now, therefore, the parties agree as follows.
Amendment
1. The Coal Sales and Marketing Fees language as described in the
February 8, 2005 Agreement which reads as follows:
For the sales and marketing services provided herein, New River will
receive a commission of 5 percent (5 %) of the selling price (f.o.b.
mine market loading point) on all coal sold by contract or otherwise
when the selling price (f.o.b. mine market loading point) is greater
than $45.00 per ton. If and when the selling price (f.o.b. mine market
loading point) is $44.99 per ton or less, the commission percentage
will not remain at 5% but will be renegotiated in good faith by both
ECEI and New River. New River will be responsible for all office
expenses for sales and contract administration associated with all
resulting coal supply agreements and contacts.
Shall be amended to read as follows:
For the sales and marketing services provided herein, New River will
receive a commission of 5 percent (5 %) of the selling price (f.o.b.
mine market loading point) on all coal sold by contract or otherwise
when the selling price (f.o.b. mine market loading point) is greater
than $45.00 per ton. If and when the selling price (f.o.b. mine market
loading point) is $44.99 per ton or less, the commission percentage
will not remain at 5% but will be renegotiated in good faith by both
ECEI and New River. New River will be responsible for all office
expenses for sales and contract administration associated with all
resulting coal supply agreements and contacts. Additionally, New River
agrees to reduce its coal sales commission from 5% to 2.5% of gross
coal sales less trucking cost on coal sold to AEP until such time as
the Company reaches $20 million in aggregate EBITDA production.
3. The balance of the Agreement, dated February 8, 2005 shall remain as
is.
4. Each Party hereby represents and warrants that it has all requisite
corporate power and authority to enter into this Amendment and to
consummate the transactions contemplated by this Amendment. The
execution and delivery of this Amendment and the consummation of the
transactions contemplated by this Amendment have been duly authorized
by all necessary corporate action on the part of each Party. This
Amendment constitutes the legal, valid and binding obligation of the
Parties, enforceable against each other in accordance with its terms.
The execution and delivery of this Amendment does not, and the
consummation of the transactions contemplated by this Amendment and
compliance with the provisions of this Amendment will not, conflict
with, or result in any violation of, or default (with or without
notice or lapse of time, or both) under, or give rise to a right of
termination, cancellation or acceleration of any obligation or loss of
a benefit under, or result in the creation of any lien upon any of the
assets to be transferred by any party under, (i) the articles of
incorporation or by-laws, (ii) any loan or credit amendment, note,
bond, mortgage, indenture, lease or other amendment, instrument,
permit, concession, license or similar authorization applicable to any
of the parties or their subsidiaries or their respective properties or
assets, or (iii) subject to the governmental filings and other matters
referred to in the following sentence, any judgment, order, decree,
statute, law, ordinance, rule or regulation applicable to any of the
Parties or any of their subsidiaries or their respective properties or
assets.
IN WITNESS WHEREOF, ECEI and NEW RIVER have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of
December __, 2005.
New River Energy Sales Company Inc. Eastern Consolidated Energy, Inc.
By: /s/ Xxxxxxx X. Xxxxxx Xx. By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxxxx X. Xxxxxx Xx. Name: Xxxxx Xxxxxxx
Title: CEO Title: President