EX-10.a
COAL TRANSLOADING AGREEMENT
By and Between
INTERSTATE POWER COMPANY
and
ORBA-XXXXXXX TRANSSHIPMENT COMPANY
December 20, 1995
Effective May 31, 1996
COAL TRANSLOADING AGREEMENT
Table of Contents
ARTICLE
I. DUTIES OF OJT: SCOPE
1.1 Compliance
1.2 Operating Capabilities
l.3 Limitations
1.4 Weights
II. DUTIES OF INTERSTATE
2.1 General Duties
2.2 Shipping Estimate
2.3 Minimum Tonnage
2.4 Responsibility for Interstate Coal
2.5 Consistent Delivery and Pickup
2.6 Equipment
III. COMPENSATION: PAYMENT TERMS
3.1 Schedule of Payments
3.2 Harbor and Fleeting Service
3.3 Excess Storage
3.4 Reconciliation and Verification
3.5 Third Party Contracts
3.6 Escalation
3.7 Barge and Train Weights
3.8 Train Storage
3.9 Winter Storage
3.10 Other Storage
3.11 Shipping Season
3.12 Remaining Coal
IV. INDEMNITIES
4.1 Indemnification by OJT
4.2 Indemnification by Interstate
4.3 Application of Available Insurance; Waiver of
Subrogation
V. TERM & TERMINATION
5.1 Term
5.2 Extended Term
5.3 Termination
VI. DEFAULTS
6.1 Events of Default
6.2 Remedies
VII. INSURANCE
7.1 OJT Coverages
VIII. FORCE MAJEURE
IX. RESOLUTION OF DISPUTES: ARBITRATION
X. REPRESENTATIONS AND WARRANTIES
10.1 Interstate Representation
10.2 OJT Representation
XI. MISCELLANEOUS
11.1 Delays
11.2 Notices
11.3 Entire Subject Matter
11.4 Governing Law
11.5 Binding Nature
11.6 Assignment
11.7 Representatives of Parties
11.8 Article and Section Headings
FORMULA
EXAMPLE 1
EXAMPLE 2
COAL TRANSSHIPMENT AGREEMENT
THIS COAL TRANSSHIPMENT AGREEMENT, made on this 20 day of
December, 1995, and effective as of May 31, 1996, (this "Agreement") by
and between
INTERSTATE POWER COMPANY, a Delaware corporation, having its
principal office at 0000 Xxxx Xxxxxx, Xxxxxxx, Xxxx 00000
("Interstate"); and
ORBA-XXXXXXX TRANSSHIPMENT COMPANY, an Iowa joint venture having
addresses c/o ORBA CORPORATION, P. O. Xxx 000, Xxxxx, Xxxxx 00000-0000,
and c/x XXXXXXX BROS. CORPORATION, P. O. Xxx 0000, Xxxxxxxxxx,
Xxxxxxxxx 00000 ("OJT").
W I T N E S S E T H:
WHEREAS, Interstate wishes to enter into an agreement with ORBA-
XXXXXXX TRANSSHIPMENT CO. "OJT") for the transloading of Interstate
coal thru the OJT terminal on the right descending bank of the
Mississippi River at River Mile 371, north of Keokuk, Iowa, (the
"Facility"); and
WHEREAS, OJT is a joint venture formed pursuant to a Partnership
Agreement, dated as of October 3, 1979, between ORBA TRANSSHIPMENT
CORPORATION OF IOWA, an Iowa corporation, which is a wholly-owned
subsidiary of ORBA CORPORATION ("ORBA"), and XXXXXXX BROS.
TRANSSHIPMENT CORPORATION OF IOWA, an Iowa corporation, which is a
wholly-owned subsidiary of XXXXXXX BROS. CORPORATION ("JBC"); and
WHEREAS, Interstate wishes to designate and to engage OJT for
the receiving, storage and transshipment of coal, ("Interstate Coal"),
and OJT is willing to so engage itself and the Facility, all on the
terms hereinafter set forth; and
NOW THEREFORE, in consideration of the premises, and of the
mutual covenants and agreements of the parties set forth herein, the
parties hereto agree as follows:
ARTICLE I
DUTIES OF OJT: SCOPE
1.1 Compliance
OJT will comply in all material respects with applicable laws,
ordinances, rules and regulations of any court or other
governmental authority having jurisdiction.
1.2 Operating Capabilities
During the term of this Agreement, OJT will:
a. Provide sufficient personnel and equipment to properly man
and operate the Facility in accordance herewith;
b. Unload railcars, store the coal and load barges in
accordance with sound and customary practice in the
industry.
c. Operate the Facility on a 24 hour demand schedule; i.e.,
unload trains upon arrival and load barges on a schedule to
minimize barge delays.
d. Operate the Facility so that each unit train is unloaded
during the allowable 4.5 hours of free time, unless
exempted by force majeure conditions.
1.3 Limitations
Notwithstanding any other provisions hereof, OJT shall have no
liability or obligation to Interstate, and OJT shall not be
deemed in default hereunder, with respect to any of the
following matters:
a. Any operating or other problems, delays, costs or expenses
incurred by Interstate due to Force Majeure conditions, or
due to the tender of coal by Interstate or any other party
in excess of the Shipping Estimate or the reasonable
receiving, storage or loading capacities of the Facility;
b. Any loss, cost, expense or damage arising out of or
attributable to operational requests or directives of
Interstate or of any railroad or barge line serving the
Facility other than as contemplated hereby;
c. Any loss, cost, expense or damage to the Facility or any
property of Interstate except (i) to the extent otherwise
provided by the insurance described in Article VII hereof,
and (ii) those matters as to which OJT has indemnified
Interstate pursuant to Section 4.1 hereof;
d. Any incidental, special or consequential damages of any
nature whatsoever incurred by Interstate or any other
person or entity;
e. Demurrage, delay charges, or any consequential costs
associated with transportation delays.
f. Inventory losses or gains due to wind, erosion, water or
for any other reasons.
1.4 Weights
OJT plans on using the existing scale system for weights for
loaded barges. In the event of a breakdown, OJT will use its
best efforts to fix the scales as soon as possible and, in the
meantime, will use calculated weights based on each barge
characteristics.
ARTICLE II
DUTIES OF INTERSTATE
2.1 General Duties
During the Term of this Agreement, Interstate will cooperate
with OJT in the performance of its duties under this Agreement,
and in any event shall:
(a) Provide OJT with reasonably current reports of the
scheduled arrival of trains and barges used for Interstate
Coal;
(b) Make the payments in the manner required by Article III
hereof;
(c) Obtain all required approvals or authorizations, if any, of
any governmental authority for the execution, delivery and
performance of this Agreement.
(d) Cause certification of each train weight.
2.2 Shipping Estimate
On or before March 1, 1996, and November 1st of each year during
the Term, Interstate shall submit to OJT its written estimate of
the anticipated number of tons of Interstate Coal to be
delivered to and loaded out from the Facility, but not less than
500,000 tons, forecast on a monthly basis for the succeeding
year (herein referred to as the "Shipping Estimate"). Interstate
may revise the Shipping Estimate as frequently as required, and
shall promptly notify OJT of such revisions.
2.3 Minimum Tonnage
Interstate agrees that during the Term hereof, it shall pay for
the transshipment of no less than 500,000 tons annually of
Interstate Coal (the "Minimum Annual Interstate Tonnage")
through the Facility. Failure to transship all or any part of
such Minimum Interstate Tonnage shall not under any
circumstances relieve Interstate of the obligation to make the
payments required by Article III hereof, which shall be computed
and paid as if the Minimum Interstate Tonnage had been
transshipped through the Facility, except for the 1996 fiscal
year for which the Minimum Interstate Tonnage will be the coal
actually transshipped from May 31, 1996 through December 31,
1996, and the payment obligations of Interstate under Article
III shall be absolute and unconditional and shall not be subject
to any abatement, diminution, setoff, counterclaim, recoupment,
agreement, defense, suspension, deferment, interruption, or
other right which Interstate may have against OJT or any other
person or entity for any reason whatsoever, including, without
limitation, (a) any damage to, destruction, theft or loss of the
Facility or any portion thereof,(b) any event of Force Majeure,
(c) breach of any warranty of any seller or manufacturer of the
Facility, or any component thereof, (d) the physical failure of
the Facility, or any component thereof due to inadequacy,
condemnation, confiscation or public requisition of the Facility
or any portion thereof, (e) any claim as a result of business
dealings between OJT and Interstate, (f) any circumstance which
might give rise to a claim by Interstate of commercial
frustration, or (g) any insolvency, bankruptcy, reorganization
or similar proceedings by or against Interstate.
2.4 Responsibility for Interstate Coal
Interstate is responsible for and owner of the Interstate Coal
and shall be liable for any costs or charges due to its
ownership thereof, including all taxes.
2.5 Consistent Delivery and Pickup
Interstate shall be responsible for reasonably consistent
deliveries and pickups. "Reasonably consistent" shall mean 75%
to 125% of the annual Shipping Estimate as projected on a
monthly basis.
2.6 Equipment
a. Rail equipment shall be rotary dump cars of a weight and
size consistent with OJT's existing capabilities as of
January 1, 1995.
x. Xxxxx equipment shall be standard jumbo xxxxxx barges with
a nominal capacity of 1400 tons for rake barges and 1600
tons for box barges and shall be seaworthy when brought to
the OJT dock. OJT reserves the right to not load any barge
that it deems to be unseaworthy at no cost to OJT for
recycling the barge.
c. No train delivered to OJT shall have more than 117 cars and
(3 engines and 1 caboose) or (4 engines).
d. OJT shall be indemnified by Interstate from any damage to
transportation equipment or personnel in accordance with
Section 4.2 hereof.
ARTICLE III
COMPENSATION: PAYMENT TERMS
3.1 Schedule of Payments (See attached Formula)
a. The fee will be $2.25 per transshipped ton plus Harbor and
Fleeting Service (as described in Section 3.2), and
escalation (as described in Section 3.6).
b. Interstate will pay OJT per the attached Formula, subject
to the reconciliation as described in Section 3.4.
c. Transshipped tons are defined as: Tonnage received plus
tonnage shipped, the sum of which is divided by two (2).
3.2 Harbor and Fleeting Service
Interstate shall pay to OJT the cost for Harbor and Fleeting
Service at OJT as contracted for and provided and invoiced to
and by OJT, subject to the Harbor and Fleeting Service Contract
attached.
3.3 Excess Storage
Interstate shall pay to OJT $0.10/ton per month for any coal
storage in excess of 150,000 tons. The tonnage shall be
calculated on the highest tonnage in the month in which the
tonnage is in excess of 150,000 tons.
3.4 Reconciliation and Verification
At the end of each calendar year, OJT shall verify the actual
transshipped tonnage and reimburse Interstate for over-payment
or invoice Interstate for under-payment. The verification will
be complete and submitted by December 31 of the current calendar
year. Interstate, upon proper notification, may perform an audit
of the reconciliation.
3.5 Third Party Contracts
To the extent that Interstate enters into contracts with third
parties that affect OJT's operations and/or costs to transship
coal, the unit price for each transshipped ton will be adjusted
accordingly.
3.6 Escalation
a. Escalation in the cost per ton shall be calculated in
December of each year and will be based on the increase in
the Producer Price Index (all commodities) from December,
1994. The Producer Price Index (all commodities) in
December 1994 was 121.9.
b. The index will be calculated annually in December and
escalation will be based on the December, 1994 publication
of the Producer Price Index (all commodities).
c. If the December publication is not available prior to
invoicing, the adjustment will be made as soon as the
publication is available and will be invoiced on the next
billing.
3.7 Barge and Train Weights
Interstate, or its agents, shall furnish to OJT, in writing, the
weight of each train loaded and OJT shall furnish to Interstate,
in writing, the weight of each barge loaded.
3.8 Train Storage
If train storage is available and Interstate desires to use it,
Interstate shall pay OJT $1.00 per day per car for car storage
on OJT property.
3.9 Winter Storage
Interstate shall pay OJT $0.01 per ton per day for coal left on
the ground at OJT from the end of the shipping season to the
beginning of the next shipping season. However, Interstate will
not be obligated for payment of the winter storage charges
beyond March 15th of any year if on or after March 15th force
majeure conditions exist that prevent the loading of coal into
barges.
3.10 Other Services
Interstate shall pay OJT for other services requested by
Interstate and agreed to by OJT at a rate equal to OJT's cost
plus 10%.
3.11 Shipping Season
The shipping season is nominally defined as March 15th through
November 15th.
3.12 Remaining Coal
Coal on the ground at the beginning of this Agreement (May 31,
1996) will be invoiced at one-half (1/2) of the transloading
rates as referred to in Section 3.1 (see Example 2).
ARTICLE IV
INDEMNITIES
4.1 Indemnification by OJT
OJT hereby agrees to indemnify Interstate, its directors,
officers, employees and agents from and against any and all
claims, damages, demands, expenses, liabilities and losses of
every kind, character and nature (other than incidental, special
or consequential damages) asserted by or on behalf of any
person, firm, corporation or governmental authority arising out
of or resulting from the acts or omissions of OJT in breach or
violation of the provisions of this Agreement, or on account of
the willful misconduct or gross negligence of OJT. OJT also
covenants and agrees at no expense to Interstate to indemnify
and save Interstate and such of its related persons harmless of,
from, and against all costs and expenses (including reasonable
counsel fees) incurred in investigating or defending against any
such claims and demands, including those arising in any
proceeding or action. In the event that any such claims or
demands are asserted against Interstate or any of its related
persons, Interstate shall give notice thereof to OJT within
twenty (20) days thereafter, and OJT shall thereupon have the
right and option to assume (and at the request of Interstate
shall assume) the defense of any such claim or demands,
including the right to compromise and settle the matter on such
basis as it shall deem appropriate. Interstate and its counsel
may, at the option of Interstate, participate in the defense,
compromise and settlement of such claims or demands as to which
OJT has assumed the defense, provided that Interstate shall bear
the costs and expenses relating to such participation.
Notwithstanding the foregoing, OJT shall not be required to
indemnify and save Interstate and such of its related persons
harmless with respect to any such claims, losses and the like
otherwise described in this section 4.1 (i) arising out of any
willful or negligent acts or omissions of Interstate or any of
such of its related persons, (ii) to the extent that such claims
or losses exceed the amount of the insurance proceeds available
therefor from the insurance to be procured and maintained by
OJT, as set forth in Section 7.1 hereof, or (iii) as to which
Interstate is obligated to indemnify OJT pursuant to Section 4.2
hereof.
4.2 Indemnification by Interstate
Interstate, for and on behalf of itself and its insurers,
successors and assigns, hereby covenants and agrees, at no
expense to OJT or the other indemnified parties set forth below,
to indemnify and save OJT, its joint venture participants, ORBA
and JBC, and the respective officers, directors, employees and
agents of any of them, of, from and against, any and all claims,
damages, demands, expenses, liabilities and losses of every
kind, character and nature (other than incidental, special or
consequential damages) asserted by or on behalf of any person,
firm, corporation or governmental authority arising out of, or
resulting from any (i) acts or omissions by railroad, barge line
or other transportation personnel or equipment, (ii) acts or
omissions of Interstate in breach of its obligations hereunder,
or (iii) the willful misconduct or gross negligence of
Interstate. Interstate also covenants and agrees to indemnify
and save OJT, and any other indemnified party set forth above,
harmless of, from and against all costs and expenses (including
reasonable counsel fees) incurred in investigating or defending
against any such claims and demands, including those arising in
any proceeding or action. In the event that any such claims or
demands are made against OJT or any of such other persons, the
persons claiming indemnity shall give notice thereof to
Interstate within twenty (20) days thereafter, and Interstate
shall thereupon have the right and option to assume (and at the
request of the indemnified party shall assume) the defense of
any such claims, demands, action or proceeding based upon or
arising out of any such claim or demand. The obligations of
Interstate to OJT hereunder shall not extend to any claims,
damages, demands, expenses, liabilities or losses of any kind
for which OJT is obligated to indemnify Interstate or its
related persons pursuant to Section 4.1 hereof.
4.3 Application of Available Insurance: Waiver of Subrogation
The obligations of the parties to provide the indemnification
set forth above shall be reduced to the extent that (or, in the
case of OJT limited to) proceeds received under any insurance
policies to cover any loss, cost or expense of any indemnified
party. Each party waives for itself and any insurer engaged by
it, any rights of subrogation whatsoever.
ARTICLE V
TERM & TERMINATION
5.1 Term
The term of this agreement shall be from May 31, 1996 to
December 31, 1998, (the "Term").
5.2 Extended Term
The Term may be extended for five (5) years, at a price mutually
agreed upon, in writing, by Interstate and OJT. In any event,
Interstate will notify OJT not less than twelve (12) months
prior to the end of the Term of its intention to extend or not
extend, as the case may be.
5.3 Termination
This Agreement may not be terminated prior to December 31, 1998
without the prior written approval of both parties.
ARTICLE VI
DEFAULTS
6.1 Events of Default
Any one of the following occurrences shall be an "Event of
Default" hereunder:
(a) Either party shall:
(i) Consent to the appointment of a receiver, trustee
or a liquidator of itself or of a substantial part
of its property, or admit in writing its inability
to pay its debts generally as they come due, or
shall make a general assignment for the benefit of
creditors; or
(ii) File a voluntary petition in bankruptcy or a
voluntary petition or an answer seeking reorgani-
zation in a proceeding under any bankruptcy laws
(as now or hereafter in effect) or an answer
admitting the material allegations of a petition
filed against it in any such proceeding or, by
voluntary petition, answer or consent, seek relief
under the provisions of any other now-existing or
future bankruptcy or other similar law (other than
a law which does not provide for or permit the
readjustment or alteration of its obligations
hereunder) providing for an agreement, composition,
extension or adjustment with its creditors; or
(iii) Suffer the entry of an order, judgment or decree in
any proceeding by any court of competent
jurisdiction appointing, without its consent, a
receiver, trustee or liquidator of such party or of
any substantial part of its property, which shall
remain in force undismissed, unstayed or unvacated
for a period of ninety (90) days after the date of
entry thereof; or
(iv) Permit a petition against it in a proceeding under
the Federal bankruptcy laws or other insolvency
laws to be filed and not withdrawn or dismissed
within sixty (60) days thereafter or, permit any
court of competent jurisdiction to assume
jurisdiction, custody or control of such party or
of any substantial part of its property, which
jurisdiction, custody or control shall remain in
force unrelinquished, unstayed or unterminated for
a period of sixty (60) days; or
(b) Interstate shall fail to make any payment required by
Section 3.1 (a) on the date such payment shall become due;
or
(c) Interstate shall fail to make any other payments required
by Article III with in ten (10) days after the same shall
become due; or
(d) Except as provided in Section 6.1 (e) and provided that
such failure is not due to Force Majeure cause, either
party is in default in the performance of any other
material covenant, agreement or undertaking to be performed
by it pursuant to this Agreement, and such default shall
continue for a period of thirty (30) days after notice
thereof from the other party (or, if such default is not
susceptible of being cured within thirty (30) days, such
longer period as shall be required to cure the same through
diligent effort, so long as the defaulting party is in good
faith exercising diligent efforts to cure the same); or
(e) OJT shall fail promptly to transship any Interstate Coal
tendered pursuant and subject to the terms and provisions
of this Agreement for transshipment, or shall fail to load
out any Interstate Coal requested by Interstate from the
Facility, provided that any such failure is not due to
Force Majeure cause, or that any such failure is not cured
by OJT within forty-five (45) days of notice of such
failure by Interstate to OJT.
6.2 Remedies
(a) Upon the occurrence of an Event of Default on the part of
Interstate, and so long as the same shall be continuing,
OJT shall, at its option, be excused from performance of
any of its obligations hereunder, and may, at its option,
declare this Agreement to be in default, and at any time
after such declaration, so long as Interstate shall not
have remedied all such outstanding Events of Default, OJT
may do any one or more of the following:
(i) terminate this Agreement;
(ii) exercise any other legal or equitable right or
remedy which may be available to it or proceed by
appropriate arbitration or court action to enforce
the terms hereof or to recover damages for the
breach hereof.
(b) Upon the occurrence of an Event of Default on the part of
OJT, and so long as the same shall be continuing,
Interstate may, at its option, declare this Agreement to be
in default, and at any time thereafter, so long as OJT
shall not have remedied all such outstanding Events of
Default, Interstate may do any one or more of the
following:
(i) with respect to defaults under Section 6.1 (a),
terminate this Agreement.
(ii) with respect to all defaults, including defaults
under Section 6.1 (e), exercise any legal right or
remedy which may be available to it (other than
termination of this Agreement or failure or refusal
to make the payments required hereunder or
otherwise to carry out its obligations hereunder)
or proceed by appropriate arbitration or court
action to enforce the terms hereof, or to recover
damages for the breach hereof;
(iii) with respect to any defaults under Section 6.1 (e)
(but only after all applicable cure and grace
periods have expired), upon written notice to OJT
given after such cure and grace periods have
expired, terminate this Agreement effective as of a
date no earlier than three (3) months from the date
of such notice (which date of termination may be
extended by Interstate from time to time by written
notice to OJT).
(c) Except as otherwise expressly provided above, no remedy
referred to in this Article is intended to be exclusive,
but each shall be cumulative and in addition to any other
remedy referred to above or otherwise available at law or
in equity, including without limitation the right to
enforce the terms hereof or to recover damages for breach
of any terms hereof; and the exercise or beginning of
exercise of any one or more of such remedies shall not
preclude the simultaneous or later exercise of any or all
such other remedies. No express or implied waiver of any
Event of Default shall in any way be, or be construed to
be, a waiver of any future or subsequent Event of Default.
(d) Notwithstanding any other provision of this Agreement,
neither party shall be liable for any incidental, special
or consequential damages arising out of or relating to this
Agreement for any reason whatsoever.
ARTICLE VII
INSURANCE
7.1 OJT Coverages
OJT shall furnish to Interstate certificates of insurance
evidencing the following coverages:
Worker's Compensation & Statutory
Employers Liability $ 100,000
General Liability $ 500,000 BI
$ 500,000 PD
Umbrella Liability $1,000,000
ARTICLE VIII
FORCE MAJEURE
As used herein, the term "Force Majeure" shall include an Act of
God, strike, lock-out or other labor dispute, act of the public
enemy, war declared or undeclared, riot, insurrection, civil
commotion, lightning, fire, storm, flood, earthquake, insured or
uninsured casualty, condemnation of all or any part of the
Facility, embargo, inability to obtain or delay in obtaining
governmental approvals, permits, licenses or allocations, fuel
or power shortages and rationing, lack of available coal to
ship, legal impediments to the transportation or storage of coal
or the use or operation of the Facility, any inability or
failure to the Facility to transship coal within its designed
capacity because of faulty design, construction, manufacture,
erection or materials, or otherwise, lack of available trains,
xxxxxx cars, river barges or tugs, equipment failures of any
kind, and other like or similar occurrences, whether of the kind
specifically enumerated above or otherwise, which like or
similar occurrences are not reasonably within the control of the
party claiming Force Majeure.
ARTICLE IX
RESOLUTION OF DISPUTES: ARBITRATION
(a) The parties hereto shall attempt in good faith to negotiate
between themselves a settlement or resolution of any
dispute which may arise under this Agreement. If no such
settlement or resolution is reached within sixty (60) days
after the existence of a dispute, such dispute shall be
submitted to arbitration in the following manner: Either
party hereto may request arbitration by delivery of written
notice to the other party, and within fifteen (15) days
after delivery of such notice each party shall appoint one
arbitrator, and the two arbitrators so appointed shall
appoint a third arbitrator. If either party shall fail to
appoint an arbitrator, or if their respective arbitrators
shall be unable to agree upon a third arbitrator, the
arbitrator or arbitrators not so appointed shall be
appointed by the American Arbitration Association
(b) All arbitrations hereunder shall be held in Chicago,
Illinois, under the rules of the American Arbitration
Association in effect at the time, although such
proceedings need not be conducted under the auspices of the
Association. The parties agree that there shall be no
suspension of work nor of payment when any such arbitrable
dispute arises, or while it is subject to arbitration.
(c) The award of any two of the arbitrators shall be final and
binding upon the parties, and a decree or judgment on the
award may be entered in any court having jurisdiction
thereof.
(d) Notwithstanding the foregoing, all matters involving
disputes as to financial or accounting matters shall be
submitted to a panel of three accountants who are members
of accounting firms of recognized national standing, and
who shall be selected as provided above.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 Interstate Representation
Interstate hereby represents and warrants to OJT, which
representations shall survive the execution and delivery of this
Agreement, as follows:
(a) Interstate has full power and authority to enter into this
Agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement, and the
performance thereof, has been authorized by all corporate
action required on the part of Interstate.
(b) The execution, delivery and performance of this Agreement
on the part of Interstate has received whatever consents,
approvals and other authorizations as may be required from
any governmental authority pursuant to existing law, and
Interstate has received opinions of counsel to such effect.
(c) The execution, delivery and performance of this Agreement
on the part of Interstate will not conflict with any
provision of any indenture, agreement or other instrument
to which Interstate is a party or by which it or its
properties are bound.
10.2 OJT Representations
OJT hereby represents and warrants to Interstate, which
representations and warranties shall survive the execution and
delivery of this Agreement, as follows:
(a) OJT has full power and authority to enter into this
agreement and to perform its obligations hereunder. The
execution and delivery of this Agreement, and the
performance thereof, has been authorized by all corporate
and other action required on the part of OJT.
ARTICLE XI
MISCELLANEOUS
11.1 Delays
Neither party hereto shall be liable for any delay or default
with respect to performance of its obligations hereunder
occasioned by any Force Majeure condition or occurrence, and the
time for performance in any such instance shall be extended for
a period equal to the delay caused by such condition or
occurrence, provided that except as provided in Section 6.2
(b)(iii) hereof, neither the occurrence of any Force Majeure
condition nor any other event of any sort shall relieve
Interstate of its obligations to pay when due the charges
payable pursuant to Article III. Promptly after a party becomes
aware of any Force Majeure condition, such party shall give
written notice thereof, specifying the nature and probable
duration of such condition and the resultant delay.
11.2 Notices
All notices and instruction permitted to be given or required
hereunder shall be deemed sufficiently given if delivered in
person or mailed by Registered or Certified Mail, postage
prepaid; or sent via facsimile, receipt acknowledged, as
follows:
(a) If to OJT:
TO: Orba-Xxxxxxx Transshipment Company
P. O. Xxx 000
Xxxxxx, XX 00000
Attention: General Manager
Facsimile: (000)000-0000
(b) If to Interstate:
TO: Interstate Power Company
P. O. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: President
Facsimile: (000)000-0000
Either party may change the address for sending of notices by
giving notice in compliance herewith.
11.3 Entire Subject Matter
This Agreement, together with the appendices, schedules and
examples referred to herein, contains the entire agreement of
the parties hereto with respect to the subject matter hereof and
may not be altered or amended except by an instrument in writing
executed by all of the parties hereto. This Agreement may be
executed in one or more counterparts, each of which shall be
deemed an original and which, together, shall constitute one and
the same instrument.
11.4 Governing Law
This Agreement shall be governed by and construed in accordance
with the laws of the State of Iowa applicable to agreements made
and to be performed in such state.
11.5 Binding Nature
This Agreement shall be binding upon and subject to the
provisions of Section 11.6, and shall inure to the benefit of
Interstate and OJT and their respective successors, assigns,
receivers and other representatives.
11.6 Assignment
(a) Neither party shall have the right to assign any of its
rights, duties or obligations under this Agreement without
the prior written consent of the other party, which consent
shall not be unreasonably withheld. Either party may,
however, upon thirty (30) days' prior written notice,
assign this Agreement to any other firm or corporation
controlling, controlled by or under common control with it,
but such assignment shall not relieve the assignor from
liability hereunder. In no event shall this Section
prohibit OJT's ability to sell or transfer all or a part of
its interest in the Facility provided the purchaser or
transferee agrees to assume OJT's obligations under this
Agreement.
11.7 Representatives of Parties
(a) Interstate hereby designates Xx Xxxxxxx as project manager
with respect to the Facility. OJT shall be entitled to deal
with such project manager as the duly authorized
representative of Interstate with respect to all actions to
be taken by Interstate. Interstate reserves the right to
change the designation of the project manager from time to
time upon advance written notice to OJT.
(b) OJT hereby designates Xxxxx Xxxxxx as project manager with
respect to the Facility. Interstate shall be entitled to
deal with such project manager as the duly authorized
representative of OJT with respect to all actions to be
taken by OJT. OJT reserves the right to change the
designation of project manager from time to time upon
advance written notice to Interstate.
11.8 Article and Section Headings
The use of Article and Section headings herein is merely for
convenience of reference and shall not be construed to limit,
broaden or affect the meaning of the provisions contained in
each paragraph. The illegality or invalidity of any provisions
of this Agreement shall not impair, affect or invalidate the
other provisions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by one of their duly authorized officers, effective as of the
date first above written.
Executed in the presence of: INTERSTATE POWER COMPANY
/s/ X. X. XxXxxxx By /s/ Xxxx X. Xxxxx
Date: 12/18/95 V.P. Power Production
ORBA-XXXXXXX TRANSSHIPMENT COMPANY
By ORBA Transshipment Corporation
of Iowa, a Partner
/s/ X. Xxxxx Xxxxxx By /s/ Xxxxxx X. Love
Date: 12/20/95 V.P.
By Xxxxxxx Bros. Transshipment
Corporation of Iowa, Partner
/s/ X. Xxxxx Xxxxxx By /s/ Xxxxxx X. Xxxxxxx
Date: 12/20/95 Pres.
FORMULA
Invoicing will be monthly beginning on January 1 and ending on
September 1.
The invoice amount will be the resultant of the Annual Shipping
Estimate Tonnage divided by 9 (months) times the effective rates per
ton as set out in Article III and shown in Example 1.
Adjustments for variations between actual and projected tonnage will be
resolved by December 31st of the current fiscal year.
OJT may request in writing an extension of the adjustment time not
later than December 1. Interstate may not unreasonably delay or
withhold its approval.
EXAMPLE 1
ANNUAL SHIPPING ESTIMATE x 1.0125 550,000 Tons
TIMES X
1/2 MOISTURE FACTOR 1.0125
TIMES X
BASE RATE $2.25/Ton
TIMES X
ESCALATION
PRODUCER PRICE INDEX (all commodities) 125.5
(December, 1995)
DIVIDED BY /
PRODUCER PRICE INDEX (all commodities) 121.9
(December, 1994)
EQUALS =
SUBTOTAL
$1,289,971.93
PLUS +
HARBOR SERVICE RATE $0.259/Ton
TIMES X
ANNUAL SHIPPING ESTIMATE 550,000
TIMES X
1/2 MOISTURE FACTOR 1.0125
EQUALS =
SUBTOTAL $
144,230.63
TOTAL
$1,434,202.56
DIVIDED BY /
9 MONTHS 9
EQUALS =
ACTUAL MONTHLY INVOICE $ 159,355.84
1. 55O,OOO is the projected tonnage for 1996.
2. Harbor Service ($0.259) is the average cost as bid by the Harbor
Service.
3. The Producer Price Index (all commodities) was 121.9 in
December, 1994, and projected Producer Price Index (all
commodities) for December, 1995, is an estimate.
EXAMPLE 2
COAL AT OJT ON 5-31-96 50,000 Tons
TIMES X
1/2 MOISTURE FACTOR 1.0125
TIMES X
BASE RATE $2.25/Ton
TIMES X
PRODUCER PRICE INDEX (all commodities) 125.5
(December, 1995)
DIVIDED BY /
PRODUCER PRICE INDEX (all commodities) 121.9
(December, 1994)
EQUALS =
SUBTOTAL $
117,270.18
PLUS +
HARBOR SERVICE RATE $0.259/Ton
TIMES X
ANNUAL SHIPPING ESTIMATE 50,000
TIMES X
1/2 MOISTURE FACTOR 1.0125
EQUALS =
HARBOR SERVICE CHARGES $ 13,111.88
SUBTOTAL $
130,382.06
DIVIDED BY /
TWO 2
ACTUAL CHARGES FOR REMAINING COAL $ 65,191.03
1. 5O,OOO is an estimate.
2. Harbor Service is the average cost as bid.
3. The Producer Price Index (all commodities) of 124.0 is an
estimate.
