RAILROAD TRANSPORTATION CONTRACT
CSXT-C-82011
SUBJECT TO 49 USC ss.10502 or ss.10709
This Railroad Transportation Contract (Contract) is by and between
GREEN POWER KENANSVILLE, LLC, (Industry) whose address is P. O. Xxx 000,
Xxxxxxxxxxx, XX, 00000; and CSX TRANSPORTATION, INC., (Carrier or CSXT) whose
address is 000 Xxxxx Xxxxxx, Xxxxxxxxxxxx, XX 00000.
1. EFFECTIVE DATE AND TERM: This Contract shall take effect as of
October 15, 2002 and shall have a term (Contract Term) through and including
December 31, 2007.
2. INCORPORATION OF DOCUMENTS: Except when in conflict, this Contract
incorporates all tariffs, exempt circulars, price lists, statutes and
regulations that would apply if this Contract did not exist, as of the date of
shipment tender. The other provisions of this Contract control in case of any
conflict without limitation.
3. TRANSPORTATION PARTICULAR: Carrier agrees to provide rail Contract
carriage transportation service with reasonable dispatch for Industry pursuant
to the following particulars:
Commodity: Bituminous Coal
STCC No.: 11 212 90
Car Type: Bottom Drop Hoppers
(Railroad Owned or Leased)
Origin Rate Rates
Districts(1) Per Net Ton
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Kanawha $23.00
Big Xxxxx $22.50
Hazard $23.75
Jellico/Middlesboro $21.75
(1) CSXT Rate Districts as defined in CSXT 8200 Series.
Destination: Warsaw, NC (for furtherance
by truck to Kenansville, NC)
Route: CSXT Direct
Minimum Wt.: Minimum weight per car shall be
as provided in Tariff CSXT 8200 Series.
Weights: Origin or railroad weights applicable.
Minimum
Shipment: 10 Car Blocks
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4. VOLUME: Industry agrees that it will tender or receive the following
shipments during each Contract Year.
95% of all shipments of Commodity from Origin to Destination,
regardless of transportation mode.
5. CERTIFICATE AND PAYMENT: Within thirty (30) days after the end of
the applicable Calendar Year, Industry shall provide CSXT with a certificate
showing the applicable tonnage/carloads received at Destination, the tonnage/
carloads transported by CSXT and payment of applicable liquidated damages: if
any are due. CSXT auditors may inspect Industry's records during normal business
hours at its own expense to verify compliance.
6 LIQUIDATED DAMAGES: If Industry fails to comply with the Volume
paragraph, Industry agrees to pay Liquidated Damages to Carrier in the amount of
$5.00 per net ton times the shortfall tonnage.
7. PAYMENT: Industry has been approved for Credit pursuant to the
Application for Credit Agreement (the "Credit Agreement") between CSXT and
Industry. Industry agrees to pay all rates and charges that accrue under this
Contract to CSXT, regardless of whether shipments are prepaid or collect, within
fifteen (15) calendar days of the date of each xxxx. Failure to make timely
payment shall result in the imposition of finance charges pursuant to CSXT
Tariff 8200 Series. Payment will be made in accordance with CSXT's ACH
Electronic Fund Transfer Agreement (the "Transfer Agreement"). The provisions of
the Transfer Agreement, the Credit Agreement (each as amended or succeeded from
time to time) are acknowledged by Industry and are incorporated herein by
reference. CSXT may at any time terminate these credit provisions and require
payments in advance for future shipments. If Industry fails to pay all rates and
charges as required by this paragraph, CSXT may, at CSXT's option, cancel or
suspend this Contract or the Credit Agreement or both. In any payment dispute
with Carrier, Industry will pay that portion of the xxxx not in dispute and the
remaining portion will be resolved pursuant to Section 19. Industry may not set
off any payment due under this Contract against any disputed payment amount with
Carrier.
8. RATE ADJUSTMENT: The Rates will be adjusted on a quarterly basis to
account for changes in the Forecasted Rail Cost Adjustment Factor (FRCAF-U)
(Unadjusted for Productivity), as determined by the Surface Transportation Board
(STB). The first adjustment shall be made as of April 1, 2003, and each quarter
thereafter during the Contract Term. The quarterly adjustment factor beginning
April 1, 2003 and each quarter thereafter, will be derived by dividing the
FRCAF-U (Unadjusted for Productivity) Index for the latest available quarter by
the same index for the previous quarter with both index numbers using the latest
base available. The quarterly adjustment factor will be rounded to the third
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decimal place. In percentage terms, this is to the nearest one-tenth of one
percent. The rates, however, may not go below the level in place on the
Effective Date of this CONTRACT. In the event the Quarterly Rate Adjustment
calculation would result in Rates) below the Rates) on the Effective Date of
this Contract, then such Rates) will not be decreased below the Contract
Effective Date Rate(s). In that event, such Rates) shall not be increased until
the Quarterly Rate Adjustment for any quarter is a positive number and
eliminates any decrease in Rates) below the Contract Effective Date Rate(s).
Should the Association of American Railroads, Surface Transportation Board
(STB), rebase/recalculate the RCAF-U index during the term of this Contract, the
rebased/recalculated series will be used to calculate the quarterly adjustment
for the rates in this Contract. If the RCAF-U is discontinued, the parties will
negotiate in good faith to agree upon a substitute provision. If no agreement is
reached within 30 days after negotiations start Carrier may cancel this Contract
on thirty (30) days' notice.
The following formula illustrates the calculations.
2nd QTR Current Year'- 1st QTR Current Year = Adjustment Factor
-------------------------------------------
1st QTR Current Year
This rate adjustment is in lieu of fuel surcharges in CSXT Tariff
8100(Merchandise)/8200(Coal) Series.
9. XXXX OF LADING: The nonconflicting provision 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:
"Subject to Contract CSXT-C-82011."
10. DAMAGE CLAIMS: Any claims for loss, damage or delay to Commodity
shipments shall be governed by the same provisions contained in 49 USC ss.11706
and 49 CFR ss.1005.
11. AGENT: For purposes of this Contract, any third party performing
any obligation of Industry is considered to be its agent.
12. CAR SUPPLY: Carrier does not guarantee car supply, but will furnish
cars upon request, subject to its availability and distribution considerations.
13. CONFIDENTIALITY; The provisions of this Contract are confidential
and shall not be disclosed to a third party without the consent of the other
parties except: (A) as required by statute, regulation or court order, (B) to a
parent, affiliate or subsidiary company on a need to know basis, (C) to an
auditing firm that is agreeable to the confidentiality provisions, or (D) to a
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CSXT-C-82011
company acquiring this Contract as a part of an acquisition. If this provision
is breached, this Contract may be terminated upon notice. This Contract will
inure to the successors of the parties by merger or acquisition.
14. FORCE MAJEURE: A party may be excused from its performance if
prevented or delayed by the following force majeure conditions: Act of God,
authority of law, weather impediments, fire, explosion, labor disputes, embargo,
war, insurrection, derailment or like causes beyond its control. The Contract
shall be suspended but not extended during the force majeure period. The party
claiming force majeure shall notify all other parties as soon as practical upon
the beginning and ending of the force majeure period.
15. MISCELLANEOUS:
o Any Origin or Destination is automatically deleted without penalty or
liability from this Contract on the date of abandonment by Carrier.
o If the Origin or Destination is sold or leased to a new operator,
this Contract will continue, but only if it is assumed by the new operator.
o No transit, diversion or reconsignment privileges apply.
o This contract may not be used in combination with any other contract,
rate or service unless otherwise provided herein.
o Any waiver of any provision in this Contract must be in writing.
Failure to enforce is not a waiver.
o Any claim for overcharges or undercharges must be filed within one
year from the date of the applicable Xxxx of Lading. Claims of less than $35.00
per car will not be allowed.
o Unless replaced by an amendment or new contract that is agreed to
prior to the termination date of this Contract, all shipments tendered
thereafter shall be billed and paid at the applicable tariff or circular rate.
16. COAL USE: Commodity transported by Carrier pursuant to this
Contract must be for consumption at Industry or Industry's affiliates.
17. CRITICAL VENDOR: In the event Industry files for bankruptcy,
voluntary or otherwise, Industry agrees to identify Carrier to the court as a
critical vendor with all status and priorities afforded any other critical
vendors to Industry.
18. SUCCESSION: This Agreement and the obligations created herein shall
inure to the benefit of and be binding in all
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respects on the successors and assigns of each of the Parties.
19. ENTIRE UNDERSTANDING: This Contract represents the entire
understanding of the parties, may not be modified without their written consent,
shall be construed (except for matters referring to federal laws or regulations)
according to the laws of the State of Florida and has been executed by the duly
authorized representatives of the parties.
GREEN POWER KENANSVILLE, LLC CSX TRANSPORTATION, INC.
BY: /s/ Xxxxxxx X. Xxxxxx BY: /s/ Xxxxxx X. Xxxxxx
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Title: Vice President Operations Title: Vice President
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Date: 2/6/03 Date: 2/25/03
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