sxcex10110-q2020q2






                                                                                             Exhibit 10.1                                                                                                                            SPECIFIC TERMS IN THIS EXHIBIT HAVE BEEN REDACTED, SINCE SUCH                         TERMS ARE BOTH (1) NOT MATERIAL AND (2) WOULD BE                COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.                   THE REDACTED                  TERMS HAVE BEEN MARKED AT THE APPROPRIATE PLACE WITH                                 FIVE ASTERISKS IN BRACKETS ([*****]).                                                                                                                                                                                                        SECOND AMENDMENT  TO COKE PURCHASE AGREEMENT                        THIS SECOND   AMENDMENT (this  "Second  Amendment'), dated as of July 7, 2020,  is  made  by  and  between  AK    Steel Corporation,  a Delaware corporation,  with  a principal office  and  place  of  business located at  9227 Centre Pointe    Drive, West Chester, OH 45069 ("Purchaser'') and Haverhill Coke Company,  LLC (f/k/a Haverhill North Coke Company),    a Delaware  limited liability  company,  with  a principal office  and  place  of  business  located  at 1011 Warrenville Road,    Suite 600,  Lisle,  IL  60532  ("Seller"). The foregoing named entities are sometimes referred to in this  Agreement each as    a "Party" and collectively as the "Parties."                                                   RECITALS:              WHEREAS,  Purchaser and Seller have entered into that certain Coke Purchase Agreement, dated as of August   31, 2009, as amended by a First Amendment, dated as of  May 8, 2012 (as  amended, modified or otherwise supplemented,   the  "Coke Purchase Agreement'); and            WHEREAS, Purchaser and Seller desire to amend the Coke Purchase Agreement as set forth in this Second   Amendment to, among other things, (i) extend the term by eighteen (18) months such that the Coke Purchase Agreement   will expire on June 30, 2023 instead of December 31, 2021, and reduce the Purchaser’s Coke purchase obligation and   Seller’s Coke supply obligation for the 2020 Contract Year.            NOW  THEREFORE,  in consideration  of the promises  and the mutual  agreements  herein contained  and for   other  good  and  valuable  consideration,  the receipt and  sufficiency  of which  are hereby  acknowledged,  the  Parties,   intending to be legally bound, hereby  agree as follows:    1.     Definitions.  Except  as otherwise  provided  herein,  capitalized  terms  used  in  this Second  Amendment but  not  otherwise  defined  herein  shall  have  the  respective meanings assigned to such terms in the Coke Purchase Agreement.   2.     Amendment Effective Date. This Second  Amendment shall be effective as  of the date first set forth above (the  "Amendment  Effective Date").   3.     Amendments.           (a)     Effective on and as of the Amendment Effective Date, Section 6.2 of the Coke Purchase Agreement                 shall be supplemented to add the following language:                  (i)  “Notwithstanding any term or condition to the contrary in this Section 6.2 or other section of this Coke                    Purchase Agreement, for the 2020 Contract Year only the following shall apply:                     (1)     Seller’s  Coke  Supply  Obligation  and  Purchaser’s  obligation  each  in  respect  of  the  Coke                            Supply  and  Purchase  Obligation  for  the  2020  Contract  Year  is  four  hundred  thirty  two                            thousand seven hundred seventy nine (432,779) Tons of Coke (the “2020 Coke Supply and                            Purchase Obligation”) or, as applicable, Third Party Supplied Coke;                     (2)     Targeted Coke Production with respect to all Coal Blends shall be defined as the 2020 Coke                            Supply and Purchase Obligation;                     (3)     In no event will Purchaser nominate or attempt to nominate a Production Turndown in the                            2020 Contract Year under Section 6.6 of the Coke Purchase Agreement and, notwithstanding                            Section  6.6  of  the  Coke  Purchase  Agreement,  Seller shall  not  be  obligated  to  honor  any                            Production Turndown nomination by Purchaser; and    





 






                      (4)     Purchaser agrees and acknowledges that the 2020 Coke Supply and Purchase Obligation is                            final and will not be subject to change for the 2020 Contract Year.                  (ii)  Seller’s  Coke  Supply  Obligation  and  Purchaser’s  obligation  in  respect  of  the  Coke  Supply  and                    Purchase Obligation shall be prorated for any partial calendar year occurring during the Extension                    Period or during any Renewal Term.                  (iii)  Notwithstanding the definition set forth in Appendix A of the Coke Purchase Agreement, Targeted                    Coke Production in any year less than a full calendar year shall be defined as the Coke Tonnage in                    respect of the applicable volatile matter content percentage set forth in the attached and incorporated                    Schedule 6.2(a) for the applicable Contract Year prorated for the number of days in such Contract Year                    before expiration of the Term or Renewal Term, as the case may be.          (b)     Effective on and as of the Amendment Effective Date, Section 2.1(a) of the Coke Purchase Agreement shall  be deleted in its entirety and replaced with the following:          “Subject to Section 2.1(b), the term of this Agreement (“Term”) shall commence on the Effective Date and, shall         continue in effect through June 30, 2023 (the period from January 1, 2022 through June 30, 2023 being referred to         herein as the “Extension Period”). Upon the conclusion of the Term, this Agreement shall automatically renew for         two (2) consecutive five (5) year terms (each such term, a “Renewal Term”) unless notice of termination is given by         either Party at least one (1) year prior to the end of the Term.”          (c)     Effective on and as of the Amendment Effective Date, Sections 11.6 “Termination by Purchaser Resulting  From Shutdown of Iron Producing Portion of Ashland Plant” and 11.8 “Waiver of Right to Terminate” of the Coke Purchase  Agreement shall be deleted in their entirety.          (d)     Effective  on  and  as  of  the  Amendment  Effective  Date,  for  purposes  of  determining  the  Production  Turndown Adjustment Fee under Section 3.4 of the Coke Purchase Agreement during the period from January  1,  2022  through June 30, 2023, if Purchaser validly nominates a Production Turndown under Section 6.6 of the Coke  Purchase  Agreement, “Monthly Coke Purchase Shortfall”, as set forth in Appendix A of the Coke Purchase Agreement shall be defined  as follows:          ‘“Monthly Coke Purchase Shortfall” means, for any Month during any Production Turndown Period, the difference         between (a) the result of [*****]% of the Purchaser’s Targeted Coke Production divided by three hundred sixty five         (365) and multiplied by the number of days in the Month in which the shortfall occurs, and (b) the actual amount of         Coke purchased by Purchaser during such Month.”          (e)     Effective on and as of the Amendment Effective Date and notwithstanding and terms or conditions in the  Coke Purchase  Agreement to contrary, Section 3.1(c)(vi) of the Coke Purchase Agreement shall not apply to the 2020  Contract Year.          (f)     Effective on and as of the Amendment Effective Date and notwithstanding Section 6.3(b) of the Coke  Purchase Agreement, to the extent, during the 2020 Contract Year, Seller stockpiles Coke Tonnage at the Coke Plants or  offsite location at Purchaser’s request or because Purchaser is incapable of taking delivery of Coke Tonnage at the Coke  Delivery Point, such shipment shall be deemed to be delivered F.O.B stockpile when Coke Tonnage is put to ground. Subject  to adjustments set forth in Section 3(f) of this Amendment, Purchaser shall pay Seller an amount equal to the product of the  Coke Price in respect of such Coke Tonnage in accordance with Section 3.3(d) of the Coke Purchase Agreement. For Coke  Tonnage stockpiled exceeding 90,000 aggregate Tons, Purchaser will reimburse Seller for Seller’s handling cost associated  therewith at a rate of $[*****] per Ton of Coke. Seller makes no representation, warranty, or commitment as to the volume  of Coke Tonnage it is able to stockpile at the Coke Plants and shall not be required to stockpile any minimum quantity of  Coke. The  moisture content  of such Coke Tonnage, or any blending of such Coke Tonnage  with other Coke Tonnage  performed at Purchaser’s request, shall not be required to conform to the moisture specification set forth in the Coke Quality  Standards. Upon delivery of Coke Tonnage F.O.B stockpile, Seller shall prepare the provisional invoice (“the Provisional  Invoice”) and calculate the Coke Price; provided that the following terms shall apply to calculation of the Coke Price and  preparation of the Provisional Invoice:                           (1)  Actual wet Coal charged into the coke ovens will be used                           (2)  Coal moisture for Coal charged into the coke ovens will used                          (3)   Use items 1 & 2 above to calculate the moisture adjusted Coal charged (the “Moisture                              Adjusted Coal Charged”)   





 






                            (4)  Assume an estimated coal- to-coke yield of [*****]% (the “Estimated Yield”) to calculate                              estimated Coke Tonnage to invoice                          (5)  Calculate estimated Coke Tonnage to invoice by multiplying the Moisture Adjusted Coal                              Charged by the Estimated Yield                          (6)  For Coke Tonnage stockpiled exceeding 90,000 aggregate tons, include a Coke handling                              charge of $[*****] per Ton of Coke   At Purchaser’s direction, stockpiled Coke Tonnage shall be destocked into trucks or rail cars. Destocked Coke will not be  screened prior to loading and delivery to Purchaser’s destination point. The destocking and billing procedure  for  Coke  Tonnage destocked to trucks shall be as follows:                         (1)   Coke will be destocked on a run of oven (unscreened) basis into trucks provided by Purchaser                            and for billing purposes such run of oven Coke will be assumed to consist of [*****]% Coke                            and [*****]% Breeze                        (2)  For billing purposes, the run of oven Coke weight will be reduced by [*****]% to account                            for the estimated Breeze content                         (3)  Destination point truck scale will be used to determine final weight of Coke Tonnage loaded                            into each truck                        (4)  Upon depletion of all Coke Tonnage from each pile, Seller will issue a true-up invoice or                            credit memo, as the case may be, accounting for any difference between the amount billed to                            Purchaser on the Provisional Invoices relating to the Coke in the applicable depleted stockpile                            and the sum of the same Provisional Invoices calculated using [*****]% of the Coke Tonnage                            trucked from the stockpile                        (5)  To the extent applicable, handling fees will be trued up and Seller will issue an invoice or                            credit  memo  based  the  difference  between  of  the  amount  of  handling  fee  charge  on  the                            Provisional Invoice and same Provisional Invoice calculated using [*****]% of the of the                            Coke Tonnage trucked.                        (6)  Final invoicing shall occur promptly after the stockpile is zeroed and Purchaser will pay or                            receive, as applicable, a credit memo in accordance with Coke Purchase Agreement payment                            terms set forth in Section 3.3(d)   The destocking and billing procedure for Coke Tonnage destocked in rail car shall be as follows:                         (1)   Coke  will  be  destocked  on  a  run  of  oven  (unscreened)  basis  into  rail  cars  provided  by                            Purchaser and for billing purposes such run of oven  Coke  will be assumed to consist  of                            [*****]% Coke and [*****]% Breeze                        (2)  For billing purposes, the run of oven Coke weight will be reduced by [*****]% to account                            for the estimated Breeze content                         (3)  Seller’s rail scale at the Phase II Plant will be used  to  determine  the  final  with  of  Coke                            Tonnage loaded into each rail car                        (4)  Upon depletion of all Coke Tonnage from each pile, Seller will issue a true-up invoice or                            credit memo, as the case may be, accounting for any difference between the amount billed to                            Purchaser on the Provisional Invoices relating to the Coke in the applicable depleted stockpile                            and the sum of the same Provisional Invoices calculated using [*****]% of the Coke Tonnage                            loaded in the rail cars from the stockpile                        (5)  To the extent applicable, handling fees will be trued up and Seller will issue an invoice or                            credit  memo  based  the  difference  between  of  the  amount  of  handling  fee  charge  on  the                            Provisional Invoice and same Provisional Invoice calculated using [*****]% of the of the                            Coke Tonnage loaded into rail cars.                        (6)  Final invoicing shall occur promptly after the stockpile is zeroed and Purchaser will pay or                            receive, as applicable, a credit memo in accordance with Coke Purchase Agreement payment                            terms set forth in Section 3.3(d)   4.     Miscellaneous   4.1    Counterparts. This Second Amendment may be executed in counterparts, each of which shall constitute an original,  but all of which when taken together shall constitute a single contract.   4.2    Mutuality in Drafting. The Parties hereby stipulate and agree that each of them fully participated and was adequately  represented by counsel in the negotiation and preparation of this Second Amendment and the Parties further stipulate and   





 






    agree that in the event of any ambiguity or other necessity for the interpretation to be made of the context of this Second  Amendment, this Second Amendment shall not be construed in favor of or against Seller or Purchaser as a consequence of  one Party having had a greater role in the preparation of this Amendment, but shall be construed as if the language were  mutually drafted by both parties with full assistance of counsel.    4.3    Governing Law.  This Second Amendment shall be construed in accordance with and governed by, the law of the  State of Ohio without regard to its conflicts of law provisions and the rights and remedies of the Parties will be determined  in accordance with such laws.   4.4    Captions.  The captions and headings in this Second Amendment are for convenience of reference purposes only  and have no legal force or effect. Such captions and headings shall not be considered a part of this Second Amendment for  purposes of interpreting, construing or applying this Second Amendment and will not define, limit, extend, explain or describe  the scope or extent of this Second Amendment or any of its terms and conditions   4.5    Terms and Conditions of the Agreement. Except as expressly modified hereby, all terms and conditions of the Coke  Purchase Agreement remain in full force and effect and are hereby in all respects ratified and confirmed.        





 






                       IN  WITNESS WHEREOF, the  Parties  have  executed  this Second  Amendment on,  and  effective as of, the  Amendment  Effective Date.                                                                                                      AK STEEL CORPORATION                                                                                By:  _/s/ Lourenco Goncalves_  _                                                                  Name:  Lourenco Goncalves                                                                  Title: Chairman, President & CEO                                                                                       HAVERHILL COKE COMPANY LLC                                                                                 By:  /s/ Michael G. Rippey                                                                  Name: Michael G. Rippey                                                                  Title: Authorized Representative                                                                                                                                                                                                                                                                                                                                      [Signature Page to Second Amendment  to Coke Purchase Agreement]