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EXHIBIT 10.43
[CSXT-C-67123]
RAILROAD TRANSPORTATION CONTRACT
BETWEEN
CSX TRANSPORTATION, INC.
AND
COGENTRIX OF NORTH CAROLINA, INC.
ISSUED JUNE 30, 1997 EFFECTIVE AUGUST, 1997
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RAILROAD TRANSPORTATION CONTRACT
THIS RAILROAD TRANSPORTATION CONTRACT [CSXT-C-67123] (this
"Contract"), dated as of June 30, 1997, is by and among COGENTRIX
OF NORTH CAROLINA, INC. ("Industry"), and CSX TRANSPORTATION,
INC. ("Carrier").
1. EFFECTIVE DATE: This Contract will be effective (the
"Effective Date") on August 5, 1997. This Contract shall be
pursuant to the provisions of 49 U.S.C. Section 10709.
2. TERM: The term of this Contract is from the Effective
Date through December 15, 2002. Such term is subdivided into six
(6) separate, consecutive, independent periods, the first of
which consists of the period commencing with the Effective Date
and continuing through December 31, 1997, and the next four (4)
of which consist of each calendar year thereafter and the final
of which shall be from January 1, 2002 through December 15, 2002.
Each such period is hereinafter referred to as a "Contract
Period."
Notwithstanding the foregoing, Industry and Carrier
acknowledge and agree that, pursuant to the Power Purchase
Agreement between Industry and Carolina Power & Light Company
("CP&L") relating to Industry's cogeneration facility in
Southport, NC (the "Plant"), CP&L has the right to reject this
Contract and enter into a replacement contract for the
transportation of Commodity to the Plant. Accordingly, and
notwithstanding anything contained herein to the contrary, in the
event CP&L exercises its right to reject this Contract and enter
into a replacement contract for the transportation of Commodity
to the Plant pursuant to the PPA, then this Contract shall
terminate automatically on December 31, 1997 and thereafter be of
no further force and effect. Buyer agrees to notify Seller of
CP&L's decision promptly after receipt of notice thereof from
CP&L, but in no event later than September 10, 1997.
3. TRANSPORTATION PARTICULARS: Carrier, acting solely as
a contract carrier, agrees to transport Commodity from Origins to
Destination in accordance with the Transportation Particulars
specified below:
COMMODITY AND Steam Coal, in Carrier-Supplied, Open Top
CAR TYPE: Xxxxxx Cars
STCC No.: 00-000-00
ROUTE AND CSXT direct to Leland, NC (for subsequent movement
DESTINATION: in Carrier-Supplied Open Top Xxxxxx Cars via military
railroad to Industry's Plant at Southport, NC).
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ORIGINS AND RATES:
-------------------- Rates -------------------------
Origin District Train (75-Car) Volume (40-Cars) Single Car
-------------- -------------- ---------------- ----------
Big Xxxxx $[xxx]/NT $[xxx]/NT $[xxx]/NT
Jellico-Middlesboro $[xxx]/NT $[xxx]/NT $[xxx]/NT
Hazard $[xxx]/NT $[xxx]/NT $[xxx]/NT
Kanawha $[xxx]/NT $[xxx]/NT $[xxx]/NT
Notes:
- Origins are as defined in Tariff CSXT 8200-Series.
- Rates shown are in dollars per net ton of 2,000 lbs. subject
to increases in Paragraph 7.
- Volume Incentive: If more than 100,000 tons of coal are
shipped in any Contract Period, Carrier will refund $[xxx] NT
on all tons shipped during such Contract Period. Such
amount shall be due within thirty (30) days after the
receipt of the verification certificate referred to in
Paragraph 7 hereof.
- Weighing: The charge for one weighing of each carload of
Commodity moving under this Contract is included in the
Rates provided in this Paragraph 3. Weights shall be
ascertained at the point of origin, or as near thereto as
practicable. All other provisions of Tariff CSXT 8200-
Series, as amended or superseded will govern. Any
additional weighing will be at the expense of Industry,
subject to the same charge applicable if the shipment had
remained under common carriage.
- Rates in Case of Automatic Termination. Notwithstanding
anything contained in this Contract to the contrary, if this
Contract is automatically terminated effective as of
December 31, 1997 as contemplated in the second paragraph of
Section 2, then, for the period from the Effective Date
through December 31, 1997, the Rates set forth above shall
each be increased by $[xxx]/NT for each ton of Commodity
shipped during such period. Such amount shall be due on
January 31, 1998. This increase in rates takes into account
the fact that the rates being charged by Carrier to Industry
under their Railroad Transportation Contract in effect
immediately prior to execution of this Contract are greater
than the Rates set forth above.
4. MINIMUM WEIGHT PER CAR: Minimum weight per car shall
be the marked capacity of car unless car is loaded to full
visible or cubical capacity and Industry or its agent so
certifies on shipping order or Xxxx of Lading. In that event,
actual weight shall apply.
5. MINIMUM PERCENTAGE: During each Contract Period,
Industry agrees to ship, pursuant to this contract, at least 95%
of Industry's entire shipments of Commodity transported by all
transportation modes from all originating points (whether an
Origin listed under this Contract or otherwise), to Industry's
Plant located at Southport, NC. Other than with respect to the
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----------------
[xxx] These portions of this exhibit have been omitted and filed
separately with the Commission pursuant to a request for
confidential treatment.
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percentage requirement set forth above, Carrier acknowledges and
agrees that Industry shall not be obligated to ship any minimum
amount of coal pursuant to this Contract.
Surplus Contract Periods may not be credited against deficit
Contract Periods. Purchases of Commodity by Industry shipped by
other transportation modes during periods of Force Majeure (as
defined herein) which prevent Carrier from delivering to Industry
a supply of Commodity shall not be included in the computation of
the minimum percentage hereunder.
If Industry fails to meet the percentage provision during a
Contract Period, Industry agrees to pay liquidated damages
("Liquidated Damages") to the Carrier in an amount equal to $[xxx]
per ton multiplied by the difference between: (a) the tons of
Commodity that should have been tendered pursuant to this
Contract to comply with the percentage provision, and (b) the
tons that were actually tendered pursuant to this Contract. Such
Liquidated Damages shall be the exclusive remedy of the Carrier
if Industry fails to meet such required percentage.
6. RESTRUCTURING EVENT. If at the end of any Contract
Period, Industry shall have failed, solely due to a Restructuring
Event (as defined below), to ship through Carrier the Expected
Level (as defined below) for that Contract Period, Industry shall
pay to Carrier a Restructuring Fee (as defined below). For
purposes of this Section 6: (a) a "Restructuring Event" shall
include (i) any buy-down of capacity, buy-out, or voluntary
termination of the Power Purchase Agreement between Industry and
CP&L (the "Power Agreement"), (ii) any modification to the Power
Agreement intended to reduce the quantity of energy expected to
be sold to CP&L thereunder and (iii) any sale, lease or transfer
of the Plant to any third party which does not also assume the
obligations of Industry under this Contract, and (b) "Expected
Levels" shall be 18,000 tons of Commodity during the first
Contract Period and 60,000 tons of Commodity during each of the
remaining five (5) Contract Periods. No more than one
Restructuring Fee may be payable hereunder and the Restructuring
Fee, if any, to be paid by Industry to Carrier shall depend on
the Contract Period during which the Restructuring Event
occurred, as follows:
Contract Period Restructuring Fees
--------------- ------------------
1 August 5, 1997 - December 31, 1997 $[xxx]
2 January 1, 1998 - December 31, 1998 [xxx]
3 January 1, 1999 - December 31, 1999 [xxx]
4 January 1, 2000 - December 31, 2000 [xxx]
5 January 1, 2001 - December 31, 2001 [xxx]
6 January 1, 2002 - December 15, 2002 [xxx]
The provisions of this Section 6 contain the exclusive
remedy of Carrier with respect to a Restructuring Event.
7. VERIFICATION: Industry agrees that, within thirty (30)
days after the end of each Contract Period, Industry shall send a
written certificate to Carrier that must include the following:
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-----------------
[xxx] These portions of this exhibit have been omitted and filed
separately with the Commission pursuant to a request for
confidential treatment.
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(i) the total number of tons of Commodity which Industry
actually shipped by all transportation modes from all
originating points, (whether an Origin listed under
this Contract or otherwise), to Industry's Plant at
Southport, NC.
(ii) the number of tons of Commodity which Industry shipped
under this Contract;
(iii) the amount of coal shipped under this Contract,
expressed as a percentage of the total amount of coal
received at Industry's Plant in Southport, NC; and
(iv) whether the percentage provision of this Contract was
met.
Such certificate shall be sent to:
CSX Transportation
Director - Non-Utility Generation
000 Xxxxx Xx. - X000
Xxxxxxxxxxxx, XX 00000
Industry agrees to allow Carrier or Carrier's inspection
bureau to inspect the relevant records of Industry to verify
compliance with the percentage provision. Industry will allow
Carrier or inspection bureau one (1) year from the last day of
the appropriate Contract Period to make such inspection and such
inspection shall be binding on the parties unless Industry
disputes the results of such inspection by extending a written
notice to Carrier within thirty (30) days from receipt of
inspection results. Upon such dispute, Industry may select a
third party, mutually satisfactory to the parties hereto, to make
an additional inspection at Industry's sole expense. If Carrier
and Industry are still in disagreement after receiving the report
of the third party, the disagreement shall be resolved under the
Commercial Arbitration Rules of the American Arbitration
Association. Any additional payment due from Industry to Carrier
as a result of any final adjustments will be paid by Industry
within thirty (30) days of the date of Carrier's adjustment xxxx
or the date of decision, as the case may be.
8. INCREASE IN RATES: The Rates contained in this
Contract shall be increased by two and one-half percent (2.5%) on
January 1, 1999, and by an additional two and one-half percent
(2.5%) each January 1 thereafter during the term of this
Contract.
9. CONTROL OF ROUTING AND PAYMENT: Industry represents to
Carrier that it controls the routing of the Commodity. Payment
of all rates and charges must be received by Carrier from
Industry within fifteen (15) days of the date of each xxxx.
Carrier may cancel these credit provisions at any time. Industry
may not credit or withhold any payment due under this Contract as
a setoff in any dispute with Carrier.
10. XXXX OF LADING: The nonconflicting provisions of the
Uniform Straight Xxxx of Lading ("Xxxx of Lading"), are
incorporated herein by reference. Industry will add the
following to each Xxxx of Lading:
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"Subject to Xxxxxxxx XXXX - X - 00000."
11.. DEMURRAGE: Demurrage rules and charges contained in
Tariff CSXT 8100 will govern shipments under this Contract
except: (A) five (5) credits will be allowed for each open-top
xxxxxx car released from unloading during the months of April
through December, and (B) six (6) credits will be allowed for
each open-top xxxxxx car released from unloading during the
months of January, February or March. Demurrage debits and
credits will be computed from the first 12:01 a.m. after proper
notification that car(s) is/are available for movement beyond
Leland, NC to Industry's Plant at Southport, NC.
Movement between the CSXT siding at Leland, North Carolina
and Industry's Plant at Southport is provided outside the scope
of this Contract by the U. S. Military Railroad at Sunny Point
Military Base.
Cars will be considered released when made empty and
properly placed for pick-up by the U. S. Military Railroad at
Sunny Point, North Carolina and telefax notification or telephone
notification, confirmed by telefax notification has been sent to
the railroad office responsible for maintaining records on the
involved movement. The railroad office responsible for this move
is currently located at Leland, North Carolina. Railroad shall
be responsible for notifying Industry if the address of the
railroad office is changed. Notice that cars are ready for
release must include identity of consignee, party furnishing
data, car initial and number.
Cars will not be charged demurrage debits nor earn credits
for days during conditions of force majeure as described in
Paragraph 18.
The provisions of this Section 11 apply only on coal moving
pursuant to this Contract.
12. INCORPORATION OF TARIFFS, RULES, ETC.: This Contract
incorporates herein by reference all tariffs (i.e. other service
terms), statutes and regulations that would apply to the
transportation of Commodity as contemplated hereunder if this
Contract did not exist as of the date of shipment tender;
provided, however, that, the express provisions of this Contract
shall control in the event of any conflict or inconsistency with
the provisions of any such tariff, statute or regulation.
13. DAMAGE CLAIMS: Any claims for loss, damage or delay to
Commodity shipments shall be governed by the same provisions
contained in 49 USC Section 11706 and 49 CFR Section 1005.
14. CAR SUPPLY: Carrier does not guarantee car supply, but
will furnish cars in accordance with the common carrier standard.
15. AGENT: In the event that Industry does not ship to
itself from Origins to Destination, and strictly for purposes of
this Contract, any third party performing any obligation of
Industry under this Contract is considered as its agent.
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16. CONFIDENTIALITY: The provisions of this Contract are
considered confidential and the parties shall not disclose the
terms of this Contract to a third party without the prior written
consent of the other party except: (A) as required by statute,
regulation or court order, (B) to a parent, subsidiary or
affiliated company, (C) to CP&L, (D) to Industry's lender(s) in
connection with any financing relating to the Plant, or (E) to a
party's legal advisors or to an auditing firm that is agreeable
to the confidentiality provisions. Notwithstanding the
foregoing, the terms of this Contract may be disclosed as
follows: (a) as required by statute or regulation; (b) as
required by court order, provided that the non-disclosing party
shall first be given written notice of such required disclosure
and the opportunity to object thereto in legal or equitable
proceedings; (c) to a parent, subsidiary or affiliated company of
the disclosing party, provided that the party receiving the
confidential information shall first have been instructed to
treat the information confidentially and not disclose it to any
third party; (d) to Industry's lender(s) in connection with any
financing relating to the Plant, in accordance with any
applicable confidentiality provisions of the loan agreement(s)
between Industry and lender(s); and (e) to CP&L, provided that
CP&L shall have first agreed in writing to treat the information
confidentially and not disclose it to any third party. This
Section 16 shall survive termination of this Contract for any
reason.
17. RESTRICTIONS:
(A) No transit, diversion or reconsignment privileges are
granted except if rail service beyond Leland, NC becomes
restricted or ceases to exist, shipments en route on Carrier's
lines may be diverted or reconsigned subject to rules and charges
governing common carriage shipments from Origins to Destination
or substitute destination. The administrative charge for such
diversion or reconsigning shall be $[xxx] per trainload, as defined
in Paragraph 3, in lieu of the otherwise applicable charge
published in the Diversion and Reconsignment Tariff.
(B) Industry recognizes that Carrier may abandon trackage
or service to Origin or Destination during the term of this
Contract. If the Destination is abandoned, this Contract will
automatically terminate at the time of abandonment, without
liability to any party, and the percentage provisions of
Paragraph 5 will be prorated as of that date. If a particular
Origin is abandoned, that particular Origin is automatically
deleted from this Contract at the time of abandonment without
liability to any party, but the remainder of the Contract will
continue in full force and effect.
(C) This Contract may not be used in connection with a
prior or subsequent rail movement of the Commodity without the
written consent of Carrier, except if otherwise provided herein.
(D) Any notice given under this Contract must be in writing
and sent by either: (1) U.S. certified, registered or express
mail; (b) wire, or (3) private express carrier and sent to the
appropriate address shown below:
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[xxx] These portions of this exhibit have been omitted and filed
separately with the Commission pursuant to a request for
confidential treatment.
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To Carrier: CSX Transportation
Director - Non-Utilitiy Generation
000 Xxxxx Xx. - X000
Xxxxxxxxxxxx, XX 00000
To Industry: General Counsel
Cogentrix of North Carolina, Inc.
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000
(E) The parties rely on the individual credit of each other
by entering into this Contract which may not be transferred or
assigned without the written permission of the other party(ies)
hereto. Subject to the foregoing, this Contract will inure to
the assignees and successors of the parties.
(F) The failure of a party to enforce any provision of this
Contract 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.
18. FORCE MAJEURE: A party shall be excused from
performance of its contractual obligations to the extent it is
prevented or delayed in such performance by a cause or condition
which is not reasonably within the control of such party, and the
adverse effects of which are not due to the fault or negligence
of such party (such cause or condition being hereinafter referred
to as "Force Majeure"). Force Majeure shall include, but shall
not be limited to, acts of God; acts of public enemy;
insurrection; riots; labor disputes; strikes; fires; explosions;
floods; breakdown or damage to mines, plants or Carrier's
facilities necessary to load, unload or transport coal;
embargoes; orders or acts of civil or military authorities; and
inability to obtain governmental permits or approvals required by
law and necessary to the transporting, storing or handling of
coal. Upon the termination of such period of Force Majeure, the
obligations hereunder shall resume as if no such event had
occurred.
The parties recognize that the foregoing list of Force
Majeure conditions is not all inclusive. Specific conditions not
listed herein may be brought to the attention of the other
parties for clarification. The parties agree to consider such
conditions in good faith and in the context of the Force Majeure
conditions that are specified, but are not bound to agree to any
condition not specifically listed herein.
The party claiming Force Majeure will: within five (5) days
from the date of disability, excluding Saturdays, Sundays and
holidays, notify the others when it learns of the existence of a
Force Majeure condition and will similarly notify the others
within a period of two (2) days, excluding weekends and holidays,
when the Force Majeure has ended.
19. GOVERNING LAW: This Contract shall be governed by and
construed in accordance with the laws of the State of North
Carolina to the extent not governed by and construed in
accordance with Federal Law.
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20. ARBITRATION. Any dispute arising out of or relating to
this Contract or the breach, termination or validity thereof
shall be settled through binding arbitration in accordance with
the American Arbitration Association ("AAA") Commercial
Arbitration Rules by three independent and impartial arbitrators.
The arbitration shall be governed by the United States
Arbitration Act, 9 U.S.C. Section 1-16, and any judgment upon the
award rendered by the arbitrators may be entered by any court having
jurisdiction thereof. The place of the arbitration shall be
Atlanta, Georgia.
The parties reserve the right to enter an appropriate
consent protective order to govern documents, testimony,
information or other items produced or inspected in discovery or
otherwise made available in connection with any arbitration
hereunder. The parties hereby agree that the following
information shall not be subject to discovery absent a specific
showing of relevance and an order by the arbitration panel: (i)
information relating to Carrier's contracts with other utility or
non-utility generators; (ii) information relating to Industry's
transportation contracts with providers other than Carrier; (iii)
information contained in any Power Purchaser Agreement or Power
Sale Agreement between Industry and any third party which does
not concern the Plant; (iv) information relating to each party's
cost structure, contribution or profits under this Contract.
Notwithstanding the parties' agreement to arbitrate
disputes, each party may seek injunctive or other equitable
relief to enforce its rights under this Contract.
21. CONSENT AND ASSIGNMENT: If requested by Industry in
connection with the financing arrangements relating to the Plant,
Carrier agrees to execute a "Consent and Agreement" subsequent to
the execution of this Agreement in a form mutually satisfactory
to the parties hereto.
22. ENTIRE UNDERSTANDING AND EXECUTION: This Contract
represents the entire understanding of the parties and may not be
modified without the written consent of all parties.
23. SURVIVAL. The terms and provisions of this Contract
that expressly by their terms survive the completion of
performance and termination of this Contract shall so survive.
The obligation to pay any amounts due under this Contract at the
time of any termination shall survive such termination.
24. MISCELLANEOUS.
(a) The section headings in this Contract are intended
to be for reference purposes only and shall in no way modify
or restrict any of the terms or provisions hereof.
(b) All rights and remedies conferred under this
Contract or by any other instrument or law shall be
cumulative (except as otherwise provided herein) and may be
exercised singularly or concurrently.
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(c) If any provision of this Contract shall be held to
be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall in no
way be affected or impaired thereby.
(d) This Contract may be executed in any number of
counterparts, each of which shall be deemed an original, but
all such counterparts together shall constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Contract to be executed by their duly authorized representatives
as of the day and year first above written.
COGENTRIX OF NORTH CAROLINA, INC.
By: /s/ Xxxxx X. Xxxxxx
Title: Group Senior Vice President
CSX TRANSPORTATION, INC.
By: /s/ Xxxxxx X. Xxxxxx
Title: Assistant Vice President -
Energy/Industrial
