PRIVATE SIDETRACK AGREEMENT
Exhibit 10.1
CSXT Form 1550 — Page 1
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
THIS AGREEMENT, Made and effective as of April 2, 2008 by and between CSX TRANSPORTATION,
INC., a Virginia corporation, whose mailing address is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, hereinafter called “Railroad,” and CARDINAL ETHANOL, LLC, a limited liability company of the
State of Indiana, whose mailing address is ▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, P. 0. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter called “Industry,” WITNESSETH:
1. PURPOSE:
1.1 The purpose of this Agreement is to detail the provisions of the construction, maintenance and use of Private Sidetrack Nos. QI-202(1), ▇, ▇, ▇, ▇, ▇, ▇, ▇▇-▇, ▇▇-▇, ▇▇-▇,
▇▇-▇, XO-5 and XO-6 between Mileposts Q1-201.98 and QI-202.52, for the tender and receipt of rail
freight traffic for the account of Industry. The private sidetracks, which consist of the track
structure (rails, ties and fastenings), ballast, grading, drainage structure, turnout, bumping post
and other appurtenances (hereinafter collectively, the “Sidetrack”), are located at or near
Harrisville, in the County of ▇▇▇▇▇▇▇▇, State of Indiana, as shown on attached Plan No. C070012,
dated September 20, 2007 and last revised as of March 25, 2008 (hereinafter the “Plan”).
2. OWNERSHIP AND CONSTRUCTION:
2.1 Railroad agrees to construct and shall own that portion of Track No. QI-202(1) from Point of Switch (hereinafter “P.S.”) in Railroad’s connecting mainline track at Valuation
Station 10693+45.28 = 0+00 to Valuation Station 2+58 and from Valuation Station
10664+76.71=28+76.57 to Valuation Station 26+18.57, as shown on the Plan (hereinafter
“Railroad’s Segment”). Industry agrees to construct and shall own the remainder of Track No.
QI-202(1), and all of Track Nos. ▇, ▇, ▇, ▇, ▇, ▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, ▇▇-▇, XO-5 and XO-6
(hereinafter, collectively, “Industry’s Segment”), as shown on the aforementioned Plan.
2.2 The construction of the Sidetrack shall be done in accordance with the provisions of the Railroad’s document entitled “Standard Guidelines and Specifications for the Design and
Construction of Private Sidetracks,” as amended, supplemented or superseded (hereinafter the
“Specifications”), which details the design, construction, clearance and similar requirements
regarding the Sidetrack. Industry acknowledges receipt of a current copy of the Specifications,
which are incorporated herein by reference.
2.3 Unless otherwise provided herein, all construction of the respective Segments of the Sidetrack will be done by or for Railroad and Industry at their sole expense, except that the
grading, drainage and subballast for the entire Sidetrack will be constructed by and at the sole
expense of Industry. Industry agrees: (A) to supply construction plans to Railroad for its review
and approval; and (B) to bear all reconstruction expenses that may be incurred by its failure to
follow the Specifications.
CSXT Form 1550 — Page 2
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
2.4 Notwithstanding any other provision of this Agreement, Industry agrees to advance
ONE MILLION NINETY SEVEN THOUSAND FOUR HUNDRED FIFTY AND 00/100 U.S. DOLLARS ($1,097,450.00)
to Railroad to be applied to the expense of the construction of Railroad’s Segment and any
signals, communication facilities, derail or other modifications to Railroad’s connecting
mainline track.
2.5 Industry shall provide Railroad’s Chief Engineer with all plans and specifications for construction of Industry’s Segment to review prior to commencement of construction. Any
modification or change Railroad requires in said plans shall be made, and any resultant
increases in cost shall be assumed by Industry.
2.6 Industry, at its sole cost and expense, shall: (i) perform all grading, drainage and
erosion control work; (ii) furnish and place subballast for Sidetrack; (iii) furnish all labor and
material for and construct Industry’s Segment; and (iv) install suitable bumping posts at stub ends
of Industry’s Segments.
2.7 If Industry fails to perform its work provided herein and Railroad performs same, or if Railroad at the request of Industry performs any other work in connection with the Sidetrack
not provided for herein, Industry shall promptly pay to Railroad the cost thereof upon receipt of
Railroad’s ▇▇▇▇ therefor. Such work shall not be eligible for refund.
2.8 Industry shall bear any and all expenses of reconstruction of Sidetrack necessitated by reason of
failure of Industry or its contractor to adhere to constructions plans approved by
Railroad.
2.9 “Refundable Item(s)” shall mean item(s) of cost or expense under Section 2.1. Only the costs for
labor and material for the items above subballast are refundable, as follows:
ballast, rails, spikes, ties, rail anchors, joint bars, tie plates, bolts, lock washers, signal and
communication line changes (excluding any pole line changes necessary for turnout installation),
and derails (if required).
2.10 Railroad shall refund: (1) the advance, as outlined in Section 2.4 to Industry at the of
ONE HUNDRED AND 00/100 U.S. DOLLARS $100.00) per loaded railcar of outbound shipments of
ethanol and dry distillery grain by Industry over the Sidetrack from which Railroad receives a
minimum of ONE THOUSAND AND 00/100 U.S. DOLLARS ($1,000.00) of linehaul revenue for its portion of
the movement of the railcar shipped from said Sidetrack during the five (5) year term beginning on
the date that the Sidetrack is approved for service by Railroad (the “In Service Date”), subject to
a maximum refund of $1,097,448.00, as approved by Railroad; and (2) the actual cost of Refundable
Item(s), as determined by the statement of costs of Industry’s contractor, as approved by Railroad
and as paid by Industry under Section 2.1; to Industry at the rate of SEVENTY FIVE AND 00/100 U.S.
DOLLARS ($75.00) per loaded railcar of outbound shipments of ethanol and dry distillery
grain by Industry over the Sidetrack and from which Railroad receives a minimum of ONE THOUSAND AND
00/100 U.S. DOLLARS ($1,000.00) of linehaul revenue for its portion of the movement of the railcar
from said Sidetrack during the five (5) year term beginning on the date that the Sidetrack is
approved for service by Railroad (the “In Service Date”), subject to maximum refund of ONE MILLION
AND 00/100 U.S. DOLLARS ($1,000,000.00), as approved by Railroad. The total per car refund(s) shall
be limited to the total combined amount of the construction cost in Section 2.1. Railroad and
Industry shall keep a record of each car consigned to or from Industry during said five (5) year
term. In the event of a dispute as to car count, Railroad’s records shall be final and conclusive
as to computation.
CSXT Form 1550 — Page 3
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
2.11 The term “Roadhaul Revenue” shall mean the revenue attributed to any shipment of
goods in interstate commerce (excluding switch traffic) generated to Railroad or its affiliated
CSX lines from traffic originated or terminated at Industry’s plant or facility served by the
Sidetrack.
2.12 Industry must file claims in order to receive refunds. The claims must include the reporting marks of each railcar, whether the railcar was received or tendered by Industry and
the date of receipt or tender. Claims may be filed annually on or after each anniversary of the In
Service Date, except that Industry may file for a full refund if that amount is due prior to the
fifth anniversary date. Claims not filed within 51/2 years from the In Service Date
shall not be accepted and refund rights terminate for claims not filed by that date. The claims
must be sent to the following address:
Manager — Contract Refunds
Finance Department-J650
CSX Transportation, Inc.
CSX H Building, 4th Floor
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Finance Department-J650
CSX Transportation, Inc.
CSX H Building, 4th Floor
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
3. GOVERNMENTAL REQUIREMENT(S):
3.1 Industry agrees, at its sole expense, to comply with all applicable laws and regulations and to
obtain all necessary governmental permits, authorizations, orders and approvals
(hereinafter collectively “Governmental Requirement(s)”) necessary for the construction,
maintenance and use of the Sidetrack. Industry agrees to assume the cost of Railroad’s defense and
to otherwise indemnify and hold Railroad harmless from Industry’s failure to comply with or to
obtain the Governmental Requirement(s).
4. MAINTENANCE:
4.1 Railroad and Industry, at their own expense, shall inspect, maintain and renew their respective
Segments of the Sidetrack: (A) in accordance with the Federal Railroad
Administration’s Track Safety Standards, (49 C.F.R. Part 213); (B) and Railroad Worker Safety
Regulations (49 C.F.R. Part 214); and (C) in a safe condition, consistent with the operating
circumstances and amount of use. Prior to each entry of Industry upon Industry’s Segment of the
Sidetrack for maintenance or renew purposes, Industry shall contact local representatives of Railroad’s
Operating and Engineering
Departments and obtain the agreement from those representatives for the dates and amount of time
that Industry’s Segment will be out of service for such maintenance or renewal purposes.
Additionally, both Industry and Railroad agree to keep their respective Segments free from debris,
weeds, potholes, ice or snow, poles, temporary or permanent structures, other obstructions
(Example: parked vehicles), and/or excavations. Railroad shall have the right, but not the duty, to
inspect Industry’s Segment.
CSXT Form 1550 — Page 4
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
5. CLEARANCES:
5.1 Industry agrees to provide and maintain: (A) the lateral clearance requirements (at least eight
feet, six inches [8’6"] from either side of the centerline of the Sidetrack, as
increased for flat curves, superelevated curves and approaches thereto); and (B) the vertical
clearance requirements (at least twenty-two feet [22’01 above the top of the rail), both as
detailed in the Specifications, for the entire length of the Sidetrack. Any clearance not in
compliance with the foregoing is a “Close” clearance. Each party further agrees to provide and
maintain increased lateral and/or vertical clearances, to the extent required by applicable
statutes or regulations. Lateral and vertical clearances for power poles and lines must also
comply with the National Electric Safety Code (NESC).
5.2 Notwithstanding the foregoing, Industry may maintain Close clearances if: (A) Industry obtains a
waiver from any conflicting Governmental Requirement(s); and (B) plans for such
Close clearances have been provided to Railroad and are not rejected within sixty (60) days after
the date of receipt. Industry agrees to install, maintain and replace (at its sole expense) any
warning signs or lighting or make other adjustments regarding such Close clearances as may be
required by Railroad or any Governmental Requirement(s).
5.3 Any gate installed by Industry across the Sidetrack must provide an appropriate
clearance, as provided in the Specifications, and must be equipped with a double-end bar
haspso that Railroad may install its own lock. If Railroad is unable to open the gate to deliver or
retrieve railcars. Industry shall reimburse Railroad for its costs of making an additional trip to
the Sidetrack.
6. RIGHT-OF-WAY:
6.1 Industry is responsible for obtaining all necessary right-of-way (through ownership, easement,
permit or otherwise), for its Segment of the Sidetrack that is not located on
Railroad’s right-of-way. The width of such right-of-way must be, at a minimum, sufficient to
provide for the Sidetrack and clearances, cuts, fills, drainage ditches, walkways or roads, as
determined by Railroad.
6.2 Industry may use Railroad’s right-of-way for a portion of Industry’s Segment, if shown on
the Plan. Such use, not to exceed six and one-half feet (6 1/2’) from either side of the
centerline of the Sidetrack, is granted only for the Term of this Agreement. Industry acknowledges
that such use is not adverse to Railroad’s title, and does not constitute the granting of any
right, title, easement or license to Railroad’s right-of-way.
CSXT Form 1550 — Page 5
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
6.3 Railroad may use Industry’s right-of-way for a portion of Railroad’s Segment, if shown on the Plan.
Such use, not to exceed six and one-half feet (6 1/2’) from either side of the
centerline of the Sidetrack, is granted only for the Term of this Agreement. Railroad acknowledges
that such use is not adverse to Industry’s title, and does not constitute the granting of any
right, title, easement or license to Industry’s right-of-way.
6.4 Industry shall not construct or allow the construction of any road (public or private), gate, tunnel,
bridge, culvert, pit, gasoline, pipe or similar items on, over, under or along
the entire Sidetrack or right-of-way without the written permission of Railroad. If Railroad’s
permission is granted, Industry understands that a separate agreement might be necessary and that
Industry shall be responsible for the construction, maintenance, repair and removal costs of the
foregoing items and ancillary structures, unless otherwise stated therein.
6.5 Industry shall not block or permit the blockage of the sight view area of any road crossing over the Sidetrack.
7. RAIL SERVICE:
7.1. Railroad agrees, pursuant to the provisions of this Agreement, its tariffs, circulars,
rules and rail transportation contracts, to operate over the Sidetrack in the delivery, placement
and removal of railcars consigned to or ordered by Industry, at such times established by Railroad.
Railroad may also use Industry’s Segment of the Sidetrack for its own general or emergency
operating purposes, so long as such purposes do not materially affect the use of the Sidetrack for
rail service to Industry. Industry agrees to abide by all applicable provisions of this Agreement
and Tariffs CSXT 8100/8200 Series, including, without limitation, those addressing responsibility
for and payment of demurrage and other accessorial charges. Railroad reserves the right to cancel
the Agreement for any breach of such provisions.
7.2 Industry shall not permit the use of the Sidetrack by or for the account of third parties
without the written consent of Railroad. If such use occurs without such consent, Industry
assumes the same responsibilities, as stated in this Agreement for such use as if for its own
account. Railroad shall not be required to provide rail service to such third parties.
7.3 Railroad shall be deemed to have delivered any railcar consigned to or ordered by Industry
when such railcar has been placed on Industry’s Segment, so as to allow access by
Industry, and Railroad’s locomotive has uncoupled from the railcar. At that time, Railroad shall be
relieved of all liability as a common or contract carrier or as a bailee, and possession of the
railcar and its contents shall be transferred to Industry. Similarly, any obligation of Railroad as
a common or contract carrier or as a bailee shall not begin until it has coupled its locomotive to
the loaded railcar and departed the Sidetrack.
7.4 Industry is responsible for all railcars and their contents while in Industry’s
possession and assumes all responsibility for payment of all damage to any railcar and its contents that
may occur during that time, even if caused by third parties.
CSXT Form 1550 — Page 6
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
7.5 If Railroad is unable to deliver a railcar on the Sidetrack for loading or unloading due
to the acts of Industry or any third party, then such railcar will be considered as constructively
placed for demurrage purposes at the time of attempted delivery.
8. HAZARDOUS MATERIALS:
8.1 The following provisions apply when the Sidetrack is used for the delivery or tender of any dangerous, flammable, explosive or hazardous commodity (hereinafter “Hazardous
Materials”), as determined by the U.S. Department of Transportation under the Hazardous Materials
Transportation Act (49 U.S.C. §§ 1801, et seq.) and the Hazardous Materials Regulations (49 C.F.R.
Parts 170-179) issued thereunder, as amended from time to time.
8.2 No Hazardous Materials shall be placed: (A) on the Sidetrack (except railcar shipments); (B) within the clearance requirements established herein; or (C) within one
hundred (100) feet of Railroad’s connecting mainline track.
8.3 Industry shall comply with all recommended practices of the Association of American Railroads and all Governmental Requirement(s) regarding the loading, unloading, possession,
transfer and/or storage of Hazardous Materials, including but not limited to the installation and
use of pollution abatement and control structures and other equipment that is prudent or required
under such practices and/or Governmental Requirement(s).
8.4 In the event of a Hazardous Materials leak, spill, or release, Industry shall immediately
notify the appropriate Governmental Response Center and Railroad’s Operations Center and, at its
sole expense, take all appropriate steps to clean, neutralize and remove the spill.
9. ALTERATIONS:
9.1 Industry shall supply Railroad with construction plans of any addition, deletion or modification (hereinafter jointly the “Alterations”) to Industry’s Segment of the Sidetrack,
and obtain Railroad’s written consent (which will not be unreasonably withheld) prior to making
any Alterations.
10. SUSPENSION AND TERMINATION:
10.1 Railroad may temporarily suspend its operations over the Sidetrack if, in its sole opinion, the condition of Industry’s Segment of the Sidetrack is unsafe or if such
operations would interfere with its common carrier duties. Railroad may impose the suspension
orally, but shall also provide a written notice to Industry regarding such temporary
suspension.
10.2 Either party may terminate this Agreement upon the default of the other party. The party claiming a default must provide the other party with notice. If the default is not
corrected within thirty (30) days of the date of such notice, the party claiming default may
terminate this Agreement upon written notice. Use of the Sidetrack by Railroad during any notice
period shall not be considered as a waiver of any default claimed by it.
CSXT Form 1550 — Page 7
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
10.3 Industry understands that it must tender and/or receive a sufficient number of railcar
shipments over the Sidetrack in order for Railroad to continue to keep Railroad’s Segment of the
Sidetrack in place. Should Railroad determine that the number of railcar shipments is insufficient,
Railroad may notify Industry and offer to continue to keep Railroad’s Segment in place in exchange
for payment of an annual continuation charge from Industry. The amount of the continuation charge
may vary from year to year. Industry shall have a period of thirty (30) days from the date of
notice from Railroad within which to either accept or decline payment of the continuation charge.
Should Industry decline to pay the continuation charge or not respond during the thirty (30) day
period, then Railroad shall have the right to suspend service over the Sidetrack or to terminate
this Agreement upon notice to Industry.
10.4 This Agreement will terminate, without the necessity of further notice, upon the
abandonment of Railroad’s connecting mainline track.
10.5 Either party may terminate this Agreement, beginning five (5) years after the In Service
Date by extending thirty (30) days’ notice to the other party.
10.6 Upon the termination of this Agreement, each party may remove any portion of its Segment
that rests upon the right-of-way of the other party. If not removed within sixty (60) days after
such termination, title to that remaining Segment will pass to the other party, who may then remove
it and restore the underlying right-of-way at the expense of the prior owner.
11. LIABILITY AND INSURANCE:
11.1 Except as otherwise provided herein, any and all damages, claims, demands, causes of
action, suits, expenses, judgments and interest whatsoever (hereinafter collectively “Losses”) in
connection with injury to or death of any person or persons whomsoever (including employees, invitees and agents of the parties hereto) or loss of or damage to any property whatsoever arising
out of or resulting directly or indirectly from the construction, maintenance, repair, use,
alteration, operation or removal of the Sidetrack shall be divided between the parties as follows:
(A) Each party shall indemnify and hold the other party harmless from all Losses arising from
the indemnifying party’s willful or gross negligence, its sole negligence and/or its joint or
concurring negligence with a third party.
(B) The parties agree to jointly defend and bear equally between them all Losses arising
from their joint or concurring negligence.
(C) Notwithstanding the foregoing, and irrespective of the sole, joint or concurring negligence of Railroad, Industry acknowledges that it is solely responsible for and agrees to
indemnify and save Railroad harmless from all Losses arising from: (i) the failure of Industry to
properly maintain its Segment of the Sidetrack; (ii) the construction, alteration or removal of
the Sidetrack by
CSXT Form 1550 — Page 8
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
Industry; (iii) the presence of a Close clearance on Industry’s Segment; or (iv) the explosion,
spillage and/or presence of Hazardous Materials on its properties, facility or on Industry’s
Segment, but only when such Losses would not have occurred but for the dangerous nature of the
Hazardous Materials.
(D) Railroad may be the lessee/operator of the mainline track that connects with the
Sidetrack. In that event, the indemnities from Industry to Railroad under this section shall also
include the lessor/owner of such track.
11.2 Industry at its sole cost and expense, must procure and maintain in effect during the
continuance of this Agreement, a policy of Commercial General Liability Insurance (CGL),
naming Railroad, and/or its designee, as additional insured and covering liability assumed by
Industry under this Agreement. A coverage limit of not less than THREE MILLION AND 00/100 U.S.
DOLLARS ($3,000,000.00) Combined Single Limit per occurrence for bodily injury liability and
property damage liability is required to protect Industry’s assumed obligations. The evidence of
insurance coverage shall be provided to Railroad and endorsed to provide for thirty (30) days’
notice to Railroad prior to cancellation or modification of any policy. Mail CGL certificate, along
with agreement, to CSX Transportation, Inc., Speed Code J180, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇. On each successive year, send certificate to Speed Code C907 at the address listed above.
If said CGL insurance policy(ies) do(es) not automatically cover Industry’s contractual
liability during periods of survey, installation, maintenance and continued occupation, a specific
endorsement adding such coverage shall be purchased by Industry. If said CGL policy is written on a
“claims made” basis instead of a “per occurrence” basis, Industry shall arrange for adequate time
for reporting losses. Failure to do so shall be at Industry’s sole risk.
Securing such insurance shall not limit Industry’s liability under this Agreement, but
shall be security therefor.
11.3 Specifically to cover construction or demolition operations within fifty feet (50’) of
any operated railroad track(s) or affecting any railroad bridge, trestle, tunnel, track(s),
roadbed, overpass or underpass, Industry shall: (a) notify Railroad; and (b) require its
contractor(s) performing such operations to procure and maintain during the period of construction
or demolition operations, at no cost to Railroad, Railroad Protective Liability (RPL)
Insurance, naming Railroad, and/or its designee, as Named Insured, written on the current
ISO/RIMA Form (ISO Form No. CG 00 35 01 96) with limits of FIVE MILLION AND 00/100 U.S. DOLLARS
($5,000,000.00) per occurrence for bodily injury and property damage, with at least TEN MILLION AND
00/100 U.S. DOLLARS ($10,000,000.00) aggregate limit per annual policy period, with Pollution
Exclusion Amendment (ISO CG 28 31 11 85) if an older ISO Form CG 00 35 is used. The original of
such RPL policy shall be sent to and approved by Railroad prior to commencement of such
construction or demolition. Railroad reserves the right to demand higher limits.
CSXT Form 1550 — Page 9
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
At Railroad’s option, in lieu of purchasing RPL insurance from an insurance company (but not
CGL insurance), Industry may pay Railroad, at Railroad’s current rate at time of request, the cost
of adding this Agreement, or additional construction and/or demolition activities, to Railroad’s
Railroad Protective Liability (RPL) Policy for the period of actual construction. This
coverage is offered at Railroad’s discretion and may not be available under all circumstances.
12. ASSIGNMENT:
12.1 This Agreement may not be assigned without the written consent of either party, but
shall be assumed by their successors through merger or acquisition. Industry may sell or assign
its Segment of the Sidetrack and right-of-way upon notice to Railroad, but such transactions
shall not affect this Agreement or carry any rights regarding any rail service described in
this Agreement.
12.2 Notwithstanding the provisions of Sections 12.1 or 10.4, Railroad may assign this
Agreement to any new owner or operator of its connecting mainline track.
13. MISCELLANEOUS:
13.1 Each provision of this Agreement is severable from the other provisions. If any such
provision is ruled to be void or unenforceable, the remaining provisions will continue in full
force and effect.
13.2 Other documents may also describe and cover a portion of the rail service and other
provisions of this Agreement. Should any conflict arise between such other documents and this
Agreement, Railroad may designate which provision will control.
13.3 The section captions in this Agreement are for the convenience of the parties and are
not substantive in nature. All words contained in this Agreement shall be construed in accordance
with their customary usage in the railroad industry.
13.4 The failure of either party to enforce any provision of this Agreement or to prosecute
any default will not be considered as a waiver of that provision or a bar to prosecution of that
default unless so indicated in writing.
13.5 All notices shall be in writing, shall be sent to the address contained in the
introductory section and shall be considered as delivered: (A) on the next business day, if sent
by telex, telecopy, telegram or overnight carrier; or (B) five (5) days after the postmark, if
sent by first class mail.
13.6 The late payment of any charge due Railroad pursuant to this Agreement will result in
the assessment of Railroad’s then standard late fee and interest charges at the rate of eighteen
percent (18%) per annum, or at the highest lawful rate, until payment in full is received.
13.7 Industry agrees to reimburse Railroad for all reasonable costs (including attorney’s
fees) incurred by Railroad for collecting any amount due under this Agreement.
CSXT Form 1550 — Page 10
Revised May, 2006
Agreement No. CSX-059237
Revised May, 2006
Agreement No. CSX-059237
14. INDUSTRY SWITCHING
14.1 Industry shall have the right to switch with its own trackmobile or locomotive power over
its Segment of the Sidetrack under the terms hereof. However, in no event shall Industry perform
any switching service or operate over Railroad’s Segment of the Sidetrack, or over any other
trackage owned by Railroad. Any device used by Industry to move railcars on its Segment of the
Sidetrack (whether trackmobile, locomotive or other) shall be disconnected from said railcars and
locked and secured by Industry when not in use. Further, in consideration therefor, Industry
assumes all risk of loss, damage, cost, liability, judgment and expense, (including attorneys’
fees) in connection with any personal injury to or death of any persons, or loss of or
damage to any property, whether employees of either Industry or Railroad or third persons, or
property of either Industry or Railroad or of other persons, that may be sustained or incurred in
connection with, or arising from or growing out of, the operation of Industry’s trackmobile or
locomotive power upon said Sidetrack.
15. ENTIRE UNDERSTANDING:
15.1 This Agreement constitutes the entire understanding of the parties, is to be construed
under the laws of the state in which the Sidetrack is located, may not be modified without the
written consent of both parties, and has been executed by their duly authorized officials.
| Witness for Railroad: | CSX TRANSPORTATION, INC. | |||||
| /s/ ▇▇▇▇▇▇ ▇. Deekard | By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Print/Type Name: | ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||||
| Print/Type Title: | Director Contract Management | |||||
| Witness for Industry | CARDINAL ETHANOL, LLC | |||||
| /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||||
| Who, by the execution hereof, affirms that he/she has the authority to do so and to bind the Industry to the terms and conditions of this Agreement. | ||||||
| Print/Type Name: | ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |||||
| Print/Type Title: | President | |||||
| Tax ID No. | ▇▇-▇▇▇▇▇▇▇ | |||||