EX-10.b
AMENDED AND RESTATED
COAL TRANSSHIPMENT AGREEMENT
By and Between
INTERSTATE POWER COMPANY
and
ORBA-XXXXXXX TRANSSHIPMENT COMPANY
December 20, 1979
As of October 3, 1979
AMENDED AND RESTATED
COAL TRANSSHIPMENT AGREEMENT
Table of Contents
ARTICLE
I. Duties of OJT; Scope
1.1 Acquisition of Facility
1.2 General Duties
1.3 Start-up of Operations
1.4 Annual Operating Budget; Estimated Operating Charge Per
Ton
1.5 Limitation on OJT Obligations
II. Duties and Responsibilities of Interstate
2.1 General Duties
2.2 Shipping Estimate
2.3 Minimum Tonnage
III. Compensation; Payment Terms
3.1 Amount of Compensation for OJT Services
3.2 Definition of Financial Terms
3.3 Payments During 1979
3.4 Payment during 1980 and Thereafter
3.5 Payment of Usage Fee
3.6 Reconciliation and Verification
IV. Third Party Coal
4.1 Authorization
4.2 Fees for Third Party Coal
4.3 Expenses of Third Party Coal
4.4 Priority of Interstate Coal
4.5 Procedures for Third Party Coal
4.6 Third Party Coal Revenues After Expiration of Term
4.7 Competitive Ventures
V. Special Arrangements
5.1 Prohibition on Other Activities
5.2 Contracts with Venture Partners and Affiliates
5.3 Obligations of Orba and JBC
5.4 Responsibility for Interstate Coal
5.5 Disposition of Excess Property
VI. Indemnities
6.1 Indemnification by OJT
6.2 Indemnification by Interstate
6.3 Application of Available Insurance; Waiver of Subrogation
VII. Term and Termination
7.1 Initial Term; Extended Terms
7.2 Termination for Delay in Start-up, Lack of Facility
Financing or Litigation
VIII. Defaults
8.1 Events of Default
8.2 Remedies
IX. Insurance; Casualty; Condemnation
9.1 OJT Coverages
9.2 Casualty
9.3 Condemnation
X. Force Majeure
XI. Resolution of Disputes; Arbitration
XII. Representations and Warranties
12.1 Interstate Representations
12.2 OJT Representations
XIII. Miscellaneous
13.1 Delays
13.2 Notices
13.3 Entire Subject Matter
13.4 Governing Law
13.5 Binding Nature
13.6 Assignment
13.7 Representatives of Parties
13.8 Article and Section Headings
AMENDED AND RESTATED
COAL TRANSSHIPMENT AGREEMENT
THIS AGREEMENT, made on the 3rd day of December, 1979, and effective
as of October 3, 1979, 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, Xxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx
00000, and c/x XXXXXXX BROS. CORPORATION, X.X. Xxx 0000, Xxxxxxxxxx,
Xxxxxxxxx 00000 ("OJT").
W I T N E S S E T H:
WHEREAS, Interstate has entered into an agreement (the "Facility
Development Agreement") with ORBA-XXXXXXX SYSTEMS, INC. ("OJS") for the
construction and development of a rail-to-barge coal transloading and
storage facility located on the right descending bank of the Mississippi
River at River Mile 371, north of Keokuk, Iowa (hereinafter referred to
as the "Facility") on the real property described in Schedule A annexed
hereto; 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 ("O-Sub"), which is a wholly-
owned subsidiary of ORBA CORPORATION ("ORBA"), and XXXXXXX BROS.
TRANSSHIPMENT CORPORATION OF IOWA, an Iowa corporation ("J-Sub"), which
is a wholly-owned subsidiary of XXXXXXX BROS. CORPORATION ("JBC"); and
WHEREAS, the Facility Development Agreement provides for the
purchase by Interstate or its designee of the Facility upon the
completion thereof; and
WHEREAS, the Facility is now complete and has been accepted by
Interstate, and Interstate wishes to designate OJT under the Facility
Development Agreement as the purchaser of the Facility, and to engage OJT
and the Facility for the receiving, storage and transshipment of coal,
and OJT is willing to so engage itself and the Facility, all on the terms
hereinafter set forth; and
WHEREAS, Interstate and OJT have previously entered into a Coal
Transshipment Agreement, dated as of October 3, 1979 (the "Original
Transshipment Agreement") and now desire to amend and restate the terms
of the Original Transshipment Agreement as hereinafter set forth, all
effective as of October 3, 1979.
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 Acquisition of Facility.
Interstate hereby designates OJT as its designee to
acquire the Facility from OJS pursuant to the Facility Development
Agreement and OJT agrees to use its best efforts to acquire the Facility
and to make the Facility available pursuant hereto. In addition, OJT
shall use its best efforts to obtain long-term financing for such
acquisition.
1.2 General Duties.
During the term of this Agreement and following
acquisition of the Facility, OJT will operate, manage and maintain the
Facility and all Mobile Equipment (hereinafter defined) Inventory Items
(hereinafter defined) and other supplies and equipment acquired by it by
purchase or lease for use in performing its obligations hereunder (which
items, together with the Mobile Equipment and Inventory Items, are
hereinafter collectively referred to as the "Ancillary Hardware") in a
good and workmanlike manner in accordance with sound and customary
practices in the industry. OJT shall dedicate all reasonable efforts to
the proper and efficient management of the Facility and the transshipment
operations in a manner consistent with the reasonable requirements of
Interstate, and subject to the conditions and limitations contained in
this Agreement, including limitations relating to the reasonable
receiving, storage and loading capacities of the Facility and Ancillary
Hardware, OJT shall receive, store and transship through the Facility all
of the coal which Interstate may tender to it for transshipment. The
parties acknowledge and agree that the factors listed on Schedule 1.2
hereof relating to the construction and design of the Facility are the
limitations which determine the reasonable receiving, storage and loading
capacities of the Facility and Ancillary Hardware.
As used herein, "Interstate Coal" shall mean all coal
owned by Interstate tendered for transshipment through the Facility and
intended for use at any generating plant owned by Interstate.
By way of amplification and not by way of limitation of
the foregoing, OJT shall:
(a) Operate, service and maintain the Facility and
Ancillary Hardware and the components and equipment thereof in a manner
comparable to that which is employed by other concerns similarly
situated, having due regard, however, for the operational requirements of
the Facility and the Ancillary Hardware and the requirements of
Interstate as outlined herein and in the Shipping Estimate;
(b) Form and maintain an organization of qualified
personnel and/or subcontractors capable of meeting the reasonable
requirements of Interstate for the storage and transshipment of coal as
set forth on the Shipping Estimate, as in effect from time to time;
(c) Procure (subject to the prior approval of Interstate
as provided in Sections 1.3 and 1.4 hereof) and maintain an inventory of
spare parts, supplies, equipment and tools (hereinafter referred to as
"Inventory Items") to support the operation of the Facility;
(d) Maintain accurate accounting and cost records in
reasonable detail and prepare and submit the Annual Operating Budget
hereinafter referred to, together with periodic updates and quarterly
reports showing variance of actual cost from the Annual Operating Budget;
(e) Keep the Facility and the Ancillary Hardware and the
components thereof in good operating order and perform in a timely manner
any repairs and service to the Facility and Ancillary Hardware and their
components as shall be reasonably required to keep the Facility and
Ancillary Hardware in usable condition for the intended purposes;
(f) Comply in all material respects with all applicable
laws, ordinances, rules and orders of any court or other governmental
authority with respect to the maintenance and operations of the Facility
and Ancillary Hardware and with any reasonable operational regulations
and procedures as will not unduly interfere with the operation of the
Facility and as shall be mutually agreed upon in writing by Interstate
and OJT;
(g) Procure and maintain in effect the insurance required
to be provided by OJT pursuant to Section 9.1; and
(h) Take such action as the designee of Interstate, as
shall be reasonable to enforce the warranties with respect to design,
construction and installation of the Facility available pursuant to the
Facility Development Agreement and the subcontracts thereunder.
1.3 Start-up of Operations.
The parties acknowledge that in order to be fully
operational as a coal storage and transshipment facility, it will be
necessary for OJT to obtain an adequate supply of Inventory Items (as
defined in Section 1.2(c)) and certain bulldozing and other mobile
equipment (the "Mobile Equipment"). OJT shall promptly provide
Interstate with its estimate of the Inventory Items and Mobile Equipment
(and estimated costs thereof) initially required for operation of the
Facility, which shall be subject to the approval of Interstate. After
such approval, OJT shall promptly procure such Inventory Items and Mobile
Equipment, either by purchase or under lease, on such basis as OJT and
Interstate may agree.
Additions or replacements of the Inventory Items and Mobile
Equipment shall be made by OJT as and when required for the proper and
prudent operation of the Facility, provided that the cost of any such
items acquired during any Fiscal Year shall either have been included in
the Annual Operating Budget for such Fiscal Year or shall otherwise have
been approved by Interstate.
1.4 Annual Operating Budget; Estimated Operating Charge Per Ton.
(a) On or before December 1, 1979 and December 1st of
each succeeding year during the Term, OJT shall submit to Interstate its
itemized written estimate of the Reimbursable Costs, as hereinafter
defined, for providing the services required hereunder for the succeeding
Fiscal Year (herein referred to as the "Annual Operating Budget"). The
Annual Operating Budget shall be limited to said Reimbursable Costs and
shall not include the Base Charge per Ton, as hereinafter defined, which
shall be payable to Interstate under all circumstances until this
Agreement is terminated as provided in Articles VII or VIII hereof. In
addition, commencing with 1980, each Annual Operating Budget shall also
contain a computation of the "Estimated Operating Charge Per Ton", which
shall be the per ton charge derived by dividing the Reimbursable Costs
shown on the Annual Operating Budget, by the greater of the Minimum
Interstate Tonnage or the number of tons of Interstate Coal shown on the
Shipping Estimate. Interstate shall have the right to dispute such
Annual Operating Budget, by written notice to OJT within thirty (30) days
after the receipt thereof, specifying its objection. If any such written
objections are submitted, and the parties are unable to resolve such
objections within thirty (30) days after submission thereof, the matter
shall be submitted to arbitration as hereinafter provided. The
submission of any such objections to arbitration shall not relieve
Interstate from its obligation to make interim payments of the Estimated
Operating Charge Per Ton required by such Annual Operating Budget, as
provided in Section 3.4 hereof, subject to adjustment as determined by
said arbitration.
(b) OJT may revise the Annual Operating Budget (and the
Estimated Operating Charge Per Ton) not more frequently than quarterly,
based upon actual or projected variations from its prior estimates or
from the Shipping Estimates of Interstate or any Third Party User
(hereinafter defined). Any such revision shall be subject to the review
and objection of Interstate in accordance with the provisions of Section
1.4(a) above, provided that subsequent interim payments of the Estimated
Operating Charge Per Ton shall be made on the basis of such revision,
subject to credit to Interstate for excess prior payments or
reimbursement to OJT for deficient prior payments, as provided in Section
3.6 hereof.
1.5 Limitations on OJT Obligations.
Notwithstanding any other provision 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 and Ancillary Hardware;
(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
Ancillary Hardware or any property of Interstate except (i) to the extent
otherwise provided in Article IX hereof, and (ii) those matters as to
which OJT has indemnified Interstate pursuant to Section 6.1 hereof;
(d) Any incidental, special or consequential damages of
any nature whatsoever incurred by Interstate; or
(e) Any modifications, additions or improvements to the
Facility or Ancillary Hardware required (i) to bring the Facility or
Ancillary Hardware into compliance with any present or future laws,
regulations or ordinances of any federal, state or local governmental
entity, except that, at the written request of Interstate, OJT shall use
its best efforts to accomplish such modifications, additions or
improvements required to bring the Facility into such compliance, so long
as Interstate shall agree in writing in advance that the costs of doing
so are Reimbursable Costs hereunder, and except that, if in accordance
with the provisions of the Facility Development Agreement and the
Subcontracts thereunder, OJS (or ORBA or JBC) would be obligated to
provide modification, additions or improvements without cost to
Interstate, OJT and, to such extent as shall be reasonable and
appropriate, Interstate, each hereby covenants to enforce such rights as
each, respectively, shall have under the Facility Development Agreement
and said Subcontracts to cause OJS to fulfill such obligations, or (ii)
to meet the operational requirements of Interstate in order to transship
in excess of 1,000,000 tons of Interstate Coal in any Fiscal Year, or if
such operational requirements are materially more burdensome on OJT than
those contemplated hereunder as mutually agreed upon in writing between
Interstate and OJT.
ARTICLE II
DUTIES AND RESPONSIBILITIES 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 authorization, if
any, of any governmental authority for the execution, delivery and
performance of this Agreement or the utilization of the Facility and the
Ancillary Hardware on the part of Interstate; and
(d) to such extent as shall be reasonable and proper,
take such action as may be directed by OJT or any lender providing the
Facility Financing to enforce the warranties with respect to the design,
construction and installation of the Facility available to Interstate
pursuant to the Facility Development Agreement and subcontracts
thereunder. Interstate hereby acknowledges that any such warranties are
not enforceable against OJT.
2.2 Shipping Estimate.
On or before November 1, 1979 and November 1st of each
succeeding 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, forecast on a monthly
basis for the succeeding Fiscal 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. Interstate
recognizes that its operational requirements do not permit the efficient
operation or utilization of the Facility and agrees that Reimbursable
Costs shall reflect its transloading requirements.
2.3 Minimum Tonnage.
Interstate agrees that during each Fiscal Year during the
Term hereof, it shall pay for the transshipment of no less than 800,000
tons of Interstate Coal (the "Minimum Interstate Tonnage") through the
Facility. Unless and until this Agreement is terminated in accordance
with the provisions of Article VII or Article VIII hereof, or Interstate
is relieved of its obligation to pay the Operating Charge Per Ton under
Section 8.2(b)(iii) hereof (but only to such extent), 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, and the payment obligations of Interstate under Article III
shall be absolute and unconditional and shall not be subject to any
abatement, diminution, set-off, 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 the Ancillary Hardware, or any component
thereof, (d) the physical failure of the Facility, the Ancillary Hardware
or any component thereof due to inadequacy, condemnation, confiscation or
public requisition of the Facility or the Ancillary Hardware 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.
ARTICLE III
COMPENSATION; PAYMENT TERMS
3.1 Amount of Compensation for OJT Services.
As compensation for its services hereunder, Interstate
shall pay OJT during each Fiscal Year an amount equal to:
(i) a Base Charge Per Ton for each ton of the Minimum Interstate
Tonnage; plus
(ii) an Operating Charge Per Ton for the greater of (1) each ton of
Minimum Interstate Tonnage, or (2) each ton of Interstate Coal
transshipped through the Facility during such Fiscal Year;
plus
(iii) a Usage Fee for each ton of Interstate Coal in excess
of 1,000,000 tons transshipped through the Facility in
each Fiscal Year during the Initial Term, and for each
ton of Interstate Coal so transshipped in each Fiscal
Year during any Extended Term.
3.2 Definition of Financial Terms.
(a) "Base Charge Per Ton" shall mean the per ton charge
derived by dividing (i) the aggregate amount of all debt service payments
due in any Fiscal Year with respect to the Facility Financing (including
any balloon payments), by (ii) the Minimum Interstate Tonnage.
(b) "Facility Financing" shall mean any indebtedness
incurred by OJT to finance the acquisition of the Facility, any portion
of the Ancillary Hardware and certain of the start-up expenses, and any
renewals or refinancings thereof, including any construction financing
assumed by OJT in connection with the acquisition of the Facility (the
"Construction Financing").
(c) "Estimated Monthly Interstate Tonnage" shall be the
greater of (i) 67,000 tons, or (ii) one-twelfth (1/12th) of the aggregate
annual tons of Interstate Coal shown on the Shipping Estimate then in
effect.
(d) "Estimated Operating Charge Per Ton" shall be the
annual Operating Charge Per Ton as estimated from time to time by OJT on
the basis of the Annual Operating Budget and the Shipping Estimate, all
in accordance with Section 1.4 hereof.
(e) "Operating Charge Per Ton" shall mean total aggregate
Reimbursable Costs incurred by OJT during any Fiscal Year, divided by the
number of tons of Interstate Coal transshipped during such Fiscal Year.
(f) "Fiscal Year" shall mean the year or other fiscal
period ending on December 31st, or such other date as OJT and Interstate
may agree in writing. In the event that any Fiscal Year during the Term
of this Agreement is less than twelve full calendar months, then all
computations and calculations hereunder dependent upon passage of time
during a full Fiscal Year shall be equitably pro-rated; and
(g) "Reimbursable Costs" shall mean all costs reasonably
incurred by OJT in the performance of its services hereunder, including
services for the handling, storage and transshipment of Third Party Coal
pursuant to Article IV hereof, except those otherwise specifically
limited by the terms of this Agreement.
(h) "Ton(s) ... transshipped through the Facility" during
any Fiscal Year when used as the basis for any computations under this
Agreement shall mean the aggregate number of tons of coal received at the
Facility during such Fiscal Year. Computation of the number of tons
shall be based upon the weight records of the incoming railroads, or on
such other basis as OJT and Interstate may agree in writing.
(i) "Usage Fee" shall mean initially a fee of $.25 per
ton for each ton of Interstate Coal over 1,00,000 Tons transshipped
through the Facility in any Fiscal Year during the Initial Term
commencing with 1980, and for each ton of Interstate Coal transshipped
through the Facility in any Fiscal Year during any Extended Term,
provided that the Usage Fee shall be increased or decreased, as the case
may be, on an annual basis commencing with such Fee due during 1981 and
succeeding Fiscal Years in such a manner that the amount due during such
Fiscal Year shall be determined by multiplying the Usage Fee in effect
for 1980 by a fraction, the numerator of which is the Gross National
Product Implicit Prices Deflator, as published by the U.S. Department of
Commerce Bureau of Economic Analysis in the "Survey of Current Business"
(the "GNP Deflator") for the last quarter of the preceding Fiscal Year,
and the denominator of which is such GNP Deflator for the last calendar
quarter of 1979.
3.3 Payments During 1979.
Interstate shall make the following payments to OJT during
1979:
Due Date Amount
October 15, 1979 $250,000
November 1, 1979 535,000
December 1, 1979 525,000
The foregoing payment schedule shall remain in effect until submission of
the 1979 Operating Budget, which shall thereafter be subject to monthly
revision by OJT, and all payments due in 1979 shall be based upon the
Operating Budget then in effect. The 1979 Operating Budget and any
revisions thereof shall be subject to the arbitration provisions of
Section 1.4. All such payments shall be made in immediately available
funds and shall be credited against the obligations of Interstate to pay
the Base Charge Per Ton and Operating Charge Per Ton on all tons of
Interstate Coal transshipped during 1979. The parties acknowledge and
agree that the Minimum Interstate Tonnage for 1979 to be utilized in
measuring the per ton charge incurred during 1979 shall be 200,000 Tons.
Any excess or deficiency of the amounts paid by Interstate during 1979
shall be reconciled, verified and adjusted in accordance with Section
3.6.
3.4 Payments During 1980 and Thereafter.
(a) On the first day of each month, commencing with
January, 1980, Interstate shall pay to OJT, or its designee, an amount
equal to the Base Charge per Ton multiplied by 67,000 tons, which is the
allocable share of the Minimum Interstate Tonnage attributable to each
month. The parties acknowledge that OJT intends to designate an escrow
agent to receive all payments due from Interstate pursuant to this
Section 3.4(a) and that all such payments received by such escrow agent
are to be applied to the payments due from OJT with respect to the
Facility Financing. OJT agrees that all investment income, if any,
earned on any such payments deposited with such escrow agent, net of the
costs of such escrow agent's services, may be paid out by such escrow
agent to OJT from time to time, and the amount thereof so paid to OJT
shall be credited against the obligation of Interstate for the next
succeeding monthly payment due pursuant to Section 3.4(b). OJT or the
escrow agent shall promptly notify Interstate of the payment of any such
amount.
(b) On the first day of each month commencing with
January, 1980, Interstate shall pay to OJT an amount equal to the
Estimated Operating Charge Per Ton multiplied by the Estimated Monthly
Interstate Tonnage. On or about the 20th of each month, OJT shall
invoice Interstate for the payment with respect to the Operating Charge
Per Ton due on the first of the next succeeding month. The monthly
payment due under this Section 3.4(b) shall be made in immediately
available funds and may be adjusted no more frequently than quarterly on
the basis of revisions to the Annual Operating Budget, Estimated
Operating Charge Per Ton and the Shipping Estimate. In the event that
the Annual Operating Budget is revised, as provided in Section 1.4(b),
then all monthly payments due under this Section 3.4(b) after the
submission of such revised Annual Operating Budget, Estimated Operating
Charge Per Ton and/or Shipping Estimate shall be based upon such
revision, provided that Interstate shall be entitled to credit for any
excess payments made pursuant to this Section 3.4(b) prior to such
revisions against the next monthly payment(s) due under this Section
3.4(b) (and not against any payments due under Section 3.4(a)), or
Interstate shall promptly pay OJT any deficiency in such prior payments
arising on account of such revisions.
OJT shall use reasonable efforts to invest such amounts
received from Interstate pursuant to this Section 3.4(b) in short-term
United States Government securities or in a "Business Investment Account"
or its equivalent with the escrow agent or agents referred to in Section
3.4(a), and any investment income received by OJT pursuant to said
investment shall be credited to Interstate's obligations under this
Section 3.4(b) for the month following the month of receipt of such
income.
(c) No objection by Interstate to the annual Operating
Budget or the Estimated Operating Charge Per Ton, or any revision
thereof, nor to any computation of the Transshipment Fee or other payment
due to OJT hereunder, shall entitle Interstate to withhold or delay
payment to OJT in accordance with the terms hereof. Any such objection
shall be resolved by the parties as provided herein, either informally or
pursuant to the procedures for arbitration set forth in Article XI,
provided, however, that Interstate shall have no right to object to
payments required pursuant to Section 3.4(a) or to withhold or delay any
such payments.
3.5 Payment of Usage Fee.
OJT shall promptly notify Interstate during the Initial
Term when the number of tons of Interstate Coal transshipped during any
Fiscal Year has exceeded 1,000,000 tons. Thereafter, on or before the
tenth day of the month following the remaining months of the Fiscal Year,
and on or before the tenth day of each month during any Extended Term,
OJT shall compute and provide a written statement to Interstate of the
amount of Usage Fee due for the prior month, which amount shall be paid
to OJT within twenty (20) days after receipt of such statement.
3.6 Reconciliation and Verification.
(a) Not later than sixty (60) days after the end of each
Fiscal Year, OJT shall prepare and submit to Interstate (i) an audited
statement of its Reimbursable Costs actually incurred with respect to
such Fiscal Year in providing its services hereunder (hereinafter
referred to as the "Operating Statement"), with itemized statements
conforming to the cost classification of its Annual Operating Budget,
(ii) a statement of the actual amounts due and payable with respect to
the Facility Financing during such Fiscal Year, (iii) a computation of
the number of Tons of Interstate Coal transhipped through the Facility
during such Fiscal Year, (iv) a computation of the aggregate Base Charge
Per Ton and Operating Charges Per Ton due from Interstate to OJT for such
Fiscal Year, and (v) a computation of the Usage Fee earned during such
Fiscal Year. Subject to possible adjustment arising out of the review
provided for in subsection (b) below, Interstate shall pay to OJT (or OJT
shall pay or apply to subsequent obligations of Interstate to pay the
Operating Charge Per Ton or the Usage Fee, as the case may be), within
twenty (20) days after submission of the Operating Statement and such
other computations, the difference between the amounts shown to be due
from Interstate with respect to the Operating Charge Per Ton, Base Charge
Per Ton and Usage Fee on the basis of such Operating Statement and other
computations, and the aggregate interim payments to OJT by Interstate
with respect to such Fiscal Year.
(b) Interstate shall have a period of sixty (60) days
from the date of submission of the Operating Statement and such other
computations to give written notice to OJT of any exceptions to such
information, specifying each item with respect to which an exception is
raised, and the grounds for the exceptions, provided, however, that
Interstate shall have no such right to raise any exception with respect
to any payments required to be made pursuant to Section 3.4(a). The
Operating Statement and such other computations shall become final and
binding upon the parties as to those items to which no exception is made
during such period, and as to those items to which exception is taken,
such items not resolved by the parties in accordance with the provision
of Article XI.
(c) OJT shall keep and have audited all books and records
of its Reimbursable Costs, costs for Facility Financing and other
financial data required hereunder in accordance with this Agreement and
generally accepted accounting principles consistently applied, and such
books and records shall be available, at reasonable times and upon
reasonable notice, for audit and review by Interstate or by any
nationally recognized independent accounting firm engaged by Interstate,
provided that the right to such audit shall not affect the obligation to
make payments in the manner required by Sections 3.3, 3.4 and 3.5. OJT
shall maintain satisfactory records of the time spent by its personnel in
the performance of services under this Agreement, and shall furnish to
Interstate such statements, invoices, receipts, vouchers, and other
information as may be reasonably required by Interstate to verify the
Reimbursable Costs incurred by OJT.
(d) OJT shall use its best efforts to include in any
contracts with subcontractors and vendors which are on a "cost-plus"
basis, provisions as to the verification of costs which are similar to
those contained in this Article III.
(e) OJT shall submit to Interstate such evidence,
including waivers of lien from subcontractors, as Interstate may
reasonably request, that all payrolls, material bills, and other
obligations theretofore incurred by OJT in connection with the
performance of its services have been paid.
ARTICLE IV
THIRD PARTY COAL
4.1 Authorization.
The parties acknowledge that the Facility and Ancillary
Hardware have a capacity for storage and transloading of coal exceeding
the anticipated requirements of Interstate. Accordingly, subject to the
prior written approval of Interstate as to each agreement for handling
the coal ("Third Party Coal") owned by others ("Third Party Users"), and
all of the terms and conditions thereof (which approval may not be
unreasonably withheld or delayed), OJT may contract with Third Party
Users for the transloading of Third Party Coal through the Facility. OJT
shall use its best efforts to locate potential Third Party Users of the
Facility and to negotiate satisfactory arrangements with them, provided
that OJT shall have no liability or obligation to Interstate in the event
that OJT is unable to locate Third Party Users, and provided further that
OJT shall have no obligation to make additions to the Facility or
Ancillary Hardware to accommodate the transshipment of Third Party Coal.
4.2 Fees for Third Party Coal.
(a) Any gross revenues received by OJT for the
transloading of Third Party Coal through the Facility during the Initial
Term, or either Extended Term hereof, shall be shared and credited two-
thirds (2/3rds) for the account of Interstate and one-third (1/3rd) for
the account of OJT.
(b) The amount of any such Third Party Coal revenues
actually received by OJT which is due to Interstate shall be promptly
paid to Interstate, or may, at the option of Interstate, be credited
against payments due (i) on account of the Base Charge Per Ton or the
Usage Fee due to OJT pursuant to Section 3.4(a) hereof, but only to the
extent that the funds so applied as a credit have been deposited in an
escrow account solely for the benefit of the lenders providing the
Facility Financing, or (ii) on account of the Operating Charge Per Ton or
the Usage Fee due to OJT pursuant to Sections 3.3, 3.4(b) or 3.5 hereof.
At the request of Interstate, OJT shall make such escrow account
deposits. Promptly after the end of each month, OJT shall provide
Interstate with written reports of the tons of Third Party Coal
transloaded through the Facility, and the fees paid or accrued with
respect thereto.
4.3 Expenses of Third Party Coal.
All expenses in locating potential Third Party Users and
of negotiating arrangements with them shall be borne by OJT, and all
costs of receiving, storage and transshipment of Third Party Coal (other
than costs required for additions to the Facility or Ancillary Hardware
required to transship Third Party Coal) shall be deemed to be part of the
Reimbursable Costs and paid by Interstate as part of the Operating Charge
Per Ton. The Annual Operating Budget prepared by OJT shall be
appropriately modified to reflect any gain or loss of Third Party Coal
during any Fiscal Year.
4.4 Priority of Interstate Coal.
OJT acknowledges that, to the maximum extent feasible and
consistent with agreements with Third Party Users which have been
approved by Interstate, Interstate Coal shall be entitled to priority
over Third Party Coal in the receiving, storage and loading functions of
the Facility and Ancillary Hardware.
4.5 Procedures for Third Party Coal.
OJT shall develop and submit for the approval of
Interstate, prior to the transloading of any Third Party Coal, procedures
for the handling, segregation and storage of Third Party Coal and
determining the respective amounts of Interstate Coal and Third Party
Coal received and stored at and shipped from the Facility, and shall
maintain appropriate records relating to such matters.
4.6 Third Party Coal Revenues After Expiration of Term.
Following the Initial Term or the First Extended Term, in
the event that Interstate does not elect to extend this Agreement for the
First Extended Term and/or the Second Extended Term, then during the
period as to which Interstate has not elected to extend, OJT shall pay to
Interstate, within 120 days after the end of each Fiscal Year, or at such
other time or times as the parties may agree, an amount equal to 50% of
the net pre-tax profit earned by OJT with respect to all tons of Third
Party Coal transshipped through the Facility during such Fiscal Year
pursuant to agreements with such Third Party Users in effect for the
Facility at the end of the Initial Term, or First Extended Term, as the
case may be, for ten or five years, respectively.
4.7 Competitive Ventures.
OJT, ORBA and JBC agree that during the Term hereof, none
of them, nor any subsidiary of any of them, shall have any material
financial interest in any coal transshipment facilities located on the
Mississippi River within 200 river miles of the Facility unless all
proposals for the transshipment of coal through such facilities shall
first have been submitted to Interstate for approvals as Third Party Coal
contracts for the Facility, or any such potential Third Party User shall
have certified to OJT and Interstate in writing its objections to use of
the Facility, specifying the reasons therefor provided that nothing
contained herein shall limit the right of either ORBA or JBC, or any
affiliate of either, from participating in the design, construction or
erection of any coal handling facilities, nor shall the provision hereof
extend to any contact with a single transshipper for an annual volume of
coal in excess of the then remaining unused reasonable capacity of the
Facility.
ARTICLE V
SPECIAL ARRANGEMENTS
5.1 Prohibition on Other Activities.
Neither O-Sub nor J-Sub shall engage in any material
business activities, or incur any material liabilities, except in
connection with its participation in OJT. In addition, without the prior
written consent of Interstate, OJT shall not engage in any material
business activities, either at the Facility or elsewhere, other than the
storage and transshipment of Interstate Coal approved by Interstate.
5.2 Contracts with Venture Partner and Affiliates.
Any contracts, agreements or arrangements between OJT and
any of O-Sub, J-Sub, ORBA or JBC, or any entity controlled by or
controlling any such corporation shall be performed on a cost-plus basis
on terms satisfactory to Interstate.
5.3 Obligations of ORBA and JBC.
In the event that OJT becomes obligated or liable to
Interstate hereunder and is unable to fully discharge such obligation or
liability, then each of ORBA and JBC have agreed to advance funds to OJT
to discharge any such obligation or liability thus undischarged (but no
more than $1,000,000 in the aggregate, or $500,000 each as to ORBA and
JBC respectively, less (i) the amount of such liability discharged by
OJT, and (ii) in each case less the amount of funds otherwise advanced by
ORBA and JBC in O-Sub and J-Sub, respectively, by way of equity, debt or
open account advance.) Notwithstanding the fact that employees and
agents of JBC and ORBA may, from time to time, perform managerial or
professional services for OJT related to the Facility, except as stated
above, nothing herein shall impose any liability or other obligations
upon JBC or ORBA, as parents of their respective subsidiaries which make
up the joint venture of OJT and, except as expressly stated in this
Section 5.3, Interstate agrees to look solely to such subsidiaries and
OJT with respect to any damages, obligations or liabilities arising
hereunder. In measurement of any damage assessed hereunder against OJT,
there shall be allocated to OJT only such amount of damages as shall be
commensurate with the responsibility which its fault bears to the
aggregate of the circumstances which cause such damages to be incurred,
provided that such limitation shall be effective only in such
circumstances where Interstate shall be entitled to recover from all
other parties at fault the balance of such damages not allocated to OJT.
5.4 Responsibility for Interstate Coal.
Interstate and OJT acknowledge that Interstate is and
shall be deemed for all purposes to be the owner of the Interstate Coal
received and stored at the Facility and transloaded from the Facility,
and that all risk of loss to such Interstate Coal, whether by casualty,
disappearance or causes unknown, shall be borne by Interstate, except for
loss caused solely by the willful misconduct or gross negligence of OJT
or loss required to be indemnified by OJT pursuant to section 6.1. The
parties shall develop mutually satisfactory written procedures for
determining the number of tons of coal received at and transloaded from
the Facility during any Fiscal Year and stored at the Facility at any
time.
5.5 Disposition of Excess Property.
In the event that OJT acquires the Facility or Ancillary
Hardware and subsequently disposes of any portion of the property or
rights so acquired, all proceeds received upon such disposition shall be
promptly applied by OJT against the outstanding balance of the Facility
Financing to the extent permitted by the lender thereof. Otherwise, such
proceeds shall be applied as agreed in writing by Interstate and OJT.
Notwithstanding the foregoing, proceeds of disposition of excess or
obsolete Ancillary Hardware may be utilized to acquire replacement
Ancillary Hardware. The provisions of this Section 5.5 are subject to
the requirements of any agreements with any lenders providing the
Facility Financing.
ARTICLE VI
INDEMNITIES
6.1 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 6.1 (i) solely 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 9.1 hereof, or (iii) as to
which Interstate is obligated to indemnify OJT pursuant to Section 6.2
hereof. Nothing herein shall limit or impair the rights of Interstate to
obtain damages or any other remedy expressly permitted pursuant to
Section 8.2 hereof.
6.2 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, as well as the
lenders providing the Facility Financing harmless 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, resulting from or
in any way connected with (i) the acts or omission of Interstate in
breach of its obligations hereunder, or (ii) 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 demand 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
(but not to the lenders providing the Facility Financing) 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 6.1 hereof.
6.3 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
proceeds are 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 VII
TERM AND TERMINATION
7.1 Initial Term; Extended Terms.
(a) The initial term of the Agreement shall commence as of
October 3, 1979, and shall continue until May 30, 1996, subject to
earlier termination as provided herein and in Article VIII (the "Initial
Term").
(b) Interstate shall have the right to extend this
Agreement beyond the Initial Term for an additional term of five (5)
years ending May 30, 2001 (the "First Extended Term") and for an
additional extended term of five (5) years ending May 30, 2006 (the
"Second Extended Term"), all on the same terms and conditions as
contained herein, provided that (i) the Usage Fee provided for in Section
3.5 shall apply to each ton on Interstate Coal transshipped during either
such Extended Term, and (ii) there shall be no Base Charge per Ton,
except with respect to Facility changes and additions agreed upon in
writing by OJT and Interstate. Interstate shall exercise its options to
extend by notice in writing to OJT not less than six months prior to the
end of the Initial Term, or First Extended Term, as the case may be.
7.2 Termination for Delay in Start-Up, Lack of Facility Financing
or Litigation.
(a) Provided that no Facility Financing in addition to
the Construction Financing has been consummated, in the event that the
acquisition and start-up of the Facility is not accomplished by OJT on or
before December 31, 1979, then either party may terminate this Agreement
upon not less than ten (10) days' prior written notice.
(b) In the event that OJT acquires the Facility on or
before December 31, 1979, but Facility Financing in addition to the
Construction Financing is not consummated by such date for any reason
whatsoever, then upon not less than ten (10) days' prior written notice
from either party this Agreement shall be terminated, and Interstate, or
an entity designated by Interstate, shall purchase the Facility and
Ancillary Hardware from OJT for a price equal to (i) the price paid or
payable to OJS to purchase the Facility pursuant to the Facility
Development Agreement, (ii) all Reimbursable Costs incurred by OJT in
acquiring, owning and disposing of the Facility to the extent not covered
by the payments required to be made by Interstate pursuant to Article 3
hereof, (iii) the costs of acquiring the Ancillary Hardware, and (iv) any
amounts then due to OJT pursuant to any indemnity or other arrangements
or agreements between Interstate and OJT.
(c) If hereafter governmental regulatory jurisdiction
were to be established over the execution, delivery and/or performance of
this Agreement, by a final, non-appealable order of any governmental
agency or court of competent jurisdiction and governmental regulatory
approval or authority is not forthcoming within a period of one hundred
twenty (120) days from the date of any such order becoming final and non-
appealable, then, at the option of OJT, (i) Interstate, or an entity
designated by it, shall purchase the Facility and all Ancillary Hardware
owned by OJT, and all other assets of OJT (all of which shall be
transferred free and clear of any liens securing the Facility Financing),
and satisfy or assume all liabilities of OJT incurred in connection with
the operation of the Facility and Ancillary Hardware and the performance
of its services hereunder, other than OJT's liabilities for the Facility
Financing or any liabilities incurred in violation or contravention of
the provisions of this Agreement (the "Operating Liabilities") for a
price equal to the aggregate amount of the higher of (A) or (B) below,
plus the amount of the Operating Liabilities, and (ii) effective upon a
conveyance of the Facility to Interstate or such designated entity and
the release of any liens securing the Facility Financing, this Agreement
shall terminate. Concurrently with tender of appropriate documents of
transfer and conveyance, Interstate (or such entity), shall pay the
purchase price thereof to OJT by a cash payment in an amount equal to the
higher of (A) the Net Book Value of the Facility and Ancillary Hardware
owned by OJT, as defined in Section 8.2 (a) (ii), or (B) the outstanding
principal, interest and other charges (including prepayment premium, if
any) payable with respect to the Facility Financing, and by satisfaction
or assumption of the Operating Liabilities.
(d) In the event that OJT acquires the Facility and
successfully consummates or assumes the Facility Financing (including
Construction Financing), and thereafter is ordered by any court or
governmental agency of competent jurisdiction under a final, non-
appealable order to transfer the Facility to any third party, then,
effective upon such conveyance, this Agreement shall terminate, and
Interstate shall purchase, for cash, all Ancillary Hardware owned by OJT,
and other assets of OJT not required to be transferred all of which
shall be transferred free and clear of any lien securing the Facility
Financing, and shall pay OJT concurrently with such transfer and
conveyance a cash payment in an amount equal to the excess of (i) the
higher of the Net Book Value of the Facility and Ancillary Hardware and
other assets transferred, or the aggregate amount of the outstanding
principal, interest and other charges (including prepayment premium, if
any), payable with respect to the Facility Financing (including the
Construction Financing), plus in each case, all other amounts then due to
OJT pursuant to this Agreement, over (ii) the cash payment received by
OJT from the transferee in consideration of such conveyance of the
Facility and any other properties or assets conveyed in connection
therewith. In addition, concurrently with such conveyance, Interstate
shall satisfy or assume all Operating Liabilities of OJT and secure or
cause to be secured the release of any liens on the Facility or the
Ancillary Hardware securing the Facility Financing. Any cash proceeds
subsequently received by OJT from the transferee of the Facility and such
other properties or assets on account of such conveyance shall be
promptly turned over to Interstate.
ARTICLE VIII
DEFAULTS
8.1 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
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 reorganization 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, judgement 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
provided, however, that no such occurrence with respect to OJT or
Interstate, respectively shall constitute an "Event of Default" hereunder
where such occurrence has been caused, directly or indirectly, by any
default by the other party of any of such other party's obligations
hereunder; or
(b) Interstate shall fail to make any payment required by
Section 3.4(a) on the date such payment shall become due; or
(c) Interstate shall fail to make any other payments
required by Article III within ten (10) days after the same shall become
due; or
(d) Except as provided in Section 8.1(e) and provided
that such failure is not due to Force Majeure cause, either party is in
material default in the performance of any other 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.
8.2 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 may,
at its option, declare this Agreement to be in default, and at any time
thereafter, 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) require that Interstate purchase the Facility and all
Ancillary Hardware owned by OJT, and all other assets of OJT
(all of which shall be transferred free and clear of any
liens securing the Facility Financing) and satisfy or assume
all liabilities of OJT incurred in connection with the
operation of the Facility and the performance of its services
hereunder, other than OJT's Facility Financing liabilities or
liabilities incurred in violation or contravention of the
provisions of this Agreement (the "Operating Liabilities"),
for a price equal to the aggregate amount of the highest of
(A),(B) or (C) below, plus the amount of the Operating
Liabilities, and upon tender of appropriate documents of
transfer and conveyance, Interstate shall pay the purchase
price by a cash payment equal to the greatest of (A) the fair
market value of the property purchased, as determined by
independent appraisal, (B) the depreciated book value of the
property purchased, as shown on the books of OJT (the "Net
Book Value"), or (C) the outstanding principal, accrued
interest and other charges (including prepayment premium, if
any) payable with respect to the Facility Financing as of the
date of purchase, and by satisfaction or assumption of the
Operating Liabilities and shall secure or cause to be secured
the release of any liens on the Facility or Ancillary
Hardware securing the Facility Financing. The foregoing
obligation of Interstate may be fulfilled by an entity
designated by it. In the event of the exercise of OJT of its
rights under this Subsection 8.2(a)(ii), the amount due under
(C) above shall be paid in cash immediately upon such
exercise, and the excess, if any, of (A) or (B) over such
amount shall be paid immediately upon the determination of
the purchase price;
(iii) 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 outstanding Events
of Default, Interstate may do any one or more of the following:
(i) with respect to defaults under Section 8.1(a), terminate this
Agreement, provided that upon termination, Interstate, or any
entity designated by it in writing shall have the right and
option to purchase the Facility and all Ancillary Hardware
owned by OJT, and all other assets of OJT, provided that in
connection therewith Interstate shall satisfy or assume the
Operating Liabilities and upon tender of appropriate
documents of transfer and conveyance Interstate shall pay the
purchase price by a cash payment equal to the greater of (A)
the Net Book Value of the property purchased, or (B) the
outstanding principal, interest and other charges (including
prepayment premium, if any) payable with respect to the
Facility Financing as of the date of purchase and by
satisfaction or assumption of the Operating Liabilities, and
shall secure or cause to be secured the release of any liens
on the Facility or the Ancillary Hardware securing the
Facility Financing.
(ii) with respect to all defaults, including defaults under
Section 8.1(e) exercise any legal or equitable 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 8.1(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 and subject to the right to cure
hereinafter set forth, terminate this Agreement effective as
of a date no earlier than six (6) months from the date of
such notice (which date of termination my be extended by
Interstate from time to time by written notice to OJT), and
during any such period, Interstate need not tender any
Interstate Coal for transshipment, provided that prior to the
date of termination of this Agreement, (A) Interstate shall
continue payment of the Base Charge Per Ton in the amount and
at the times required hereunder, and (B) Interstate shall
continue to pay the Operating Charge Per Ton unless it, or an
entity designated by Interstate in writing, shall exercise
the right and option hereby granted, upon written notice to
OJT, to assume and take over control of the operations of the
Facility and Ancillary Hardware, provided that Interstate's
operation of the Facility and Ancillary Hardware shall at all
times be consistent with the obligations and duties of OJT
pursuant to any agreements with lenders providing the
Facility Financing, and all costs arising out of the
operations or use of the Facility and Ancillary Hardware by
Interstate, or its designee, during such period shall be paid
by Interstate, and (C) if at any time prior to the date of
termination, and regardless of whether Interstate shall have
exercised its option provided in clause (B) hereof, any
assignee of OJT's rights hereunder or, with the written
consent of such assignee, OJT shall cure (and Interstate and
OJT hereby jointly grant OJT and any such assignee the right,
directly or indirectly, to assume and take control of the
Facility and Ancillary Hardware at any time during any such
period in order to attempt to effect such cure) all existing
defaults of OJT, then Interstate shall relinquish its control
of the Facility and Ancillary Hardware to OJT (or such
assignee) and this Agreement shall not be terminated except
pursuant to the provisions hereof for defaults occurring
subsequent thereto. Nothing contained herein shall limit or
impair the rights of Interstate to seek and recover damages
from OJT on account of such default, notwithstanding any
period of control of the Facility and Ancillary Hardware by
Interstate or any cure of defaults, provided that no assignee
of OJT's rights shall be or become liable for any damages
resulting from such a default.
(c) Except as otherwise expressly provided above, no
remedy referred to in this Section 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 for any reason whatsoever.
ARTICLE IX
INSURANCE; CASUALTY; CONDEMNATION
9.1 OJT Coverages.
During the term of this Agreement, OJT shall maintain the
insurance coverages required by Schedule 9.1 annexed hereto.
The insurance policies shall name Interstate as an
additional insured, and OJT shall furnish Certificates of Insurance
providing for not less than thirty (30) days' prior notice to Interstate
and any assignee of OJT's rights hereunder of cancellation or non-
renewal. Such policies shall otherwise comply with the requirements of
Schedule 9.1 hereof.
All losses, costs, damages, expenses and other similar
items of cost covered by insurance but within the deductible amounts
permitted in such insurance coverage or in excess of the policy limits or
similar items of cost which could be insured against but are not required
to be so insured against by the requirements of Schedule 9.1 shall be
Reimbursable Costs hereunder.
9.2 Casualty.
In the event that the Facility or Ancillary Hardware or
any component thereof shall be damaged or destroyed by fire or other
casualty, then, subject to any requirements of the agreements with any
lenders providing the Facility Financing, the following provisions shall
apply:
(a) If the estimated cost to repair, rebuild or replace
the damaged portion of the Facility or Ancillary Hardware shall be less
than $100,000, then OJT shall promptly commence work to accomplish such
repair, rebuilding and/or replacement and to bring the Facility and
Ancillary Hardware into operating condition in compliance with this
Agreement. All proceeds of any insurance recoverable or paid on account
of such casualty shall be paid over to OJT to cover the cost of such
repair and/or replacement work, and any excess cost not covered by such
proceeds shall be deemed to be part of the Reimbursable Expenses for
operating the Facility, except to the extent that OJT is required to
indemnify Interstate with respect thereto pursuant to Section 6.1 hereof.
(b) If the estimated cost to repair or replace the
damaged portion of the Facility or Ancillary Hardware equals or exceeds
$100,000, then OJT shall not be obligated to repair, rebuild or replace
such damaged portions except to the extent that the aggregate amount of
insurance proceeds and other funds made available by Interstate (at no
cost to OJT) for such purpose shall equal or exceed the estimated cost of
such repair, rebuilding or replacement. In the event that such funds are
sufficient, OJT shall promptly prepare plans and specifications covering
such work and submit the same to Interstate for approval, and upon
receipt of such approval, OJT shall diligently commence and complete such
repair, rebuilding, or replacement work. All proceeds of any insurance
or payments by Interstate shall be deposited with an escrow agent
satisfactory to Interstate and OJT and shall be released to OJT
periodically to cover the cost of work completed in such repair,
rebuilding, or replacement.
(c) In the event that any damage to the Facility or
Ancillary Hardware results in the inability of OJT to use the Facility as
contemplated by this Agreement and proceeds from any business
interruption insurance are paid or payable to OJT, then any such proceeds
actually received by OJT shall be promptly deposited with the escrow
agent designated by OJT to receive payments on account of the Base Charge
Per Ton due under Section 3.4(a), and to the extent of such deposits,
shall be applied against the obligations of Interstate to make such
payments required by Section 3.4(a) hereof.
9.3 Condemnation.
(a) OJT shall give Interstate prompt written notice of
the institution of any proceedings for the taking of the Facility or any
part thereof in condemnation or by the power of eminent domain, and will
keep Interstate fully advised of the status thereof. OJT shall not
consent to any such taking except as approved by Interstate.
(b) In the event of the taking of all of the Facility, or
of a substantial part thereof to the extent that the Facility cannot be
practicably utilized for the transshipment of at least 1,125,000 tons of
coal in any Fiscal Year, then (i) all proceeds arising out of such taking
shall be applied, first to the payment of the outstanding principal,
interest and other charges (including prepayment premium, if any) payable
with respect to the Facility Financing, second to the reimbursement of
OJT for any costs incurred in connection with such taking, and third to
OJT in an amount equal to the excess of the then book value of the
property subject to the taking over the amount of the Facility Financing,
and (ii) the balance shall be divided between the parties as partial
compensation for their respective loss of bargain hereunder, 50% to OJT
and 50% to Interstate. Any remaining portions of the Facility may be
retained by OJT for its own uses and purposes.
(c) In the event of a partial taking of the Facility such
that it can be utilized, or with the performance of a reasonable amount
of repair, rebuilding or restoration work having an estimated cost of no
more than the proceeds arising out of such taking, can be practicably
utilized for the transshipment of at least 1,125,000 tons of coal in any
Fiscal Year, then OJT shall promptly commence work to repair, rebuild and
restore the Facility to such capacity. The proceeds arising out of any
such taking shall be deposited with an escrow agent satisfactory to
Interstate and OJT and shall be paid out, first to OJT periodically to
reimburse it for the cost of such repair, rebuilding and restoration work
completed, second to OJT to reimburse it for other costs incurred in
connection with or as a result of such taking, and third to OJT in an
amount equal to the excess of the then book value of the property subject
to the taking over, the cost of the repair, rebuilding and restoration
work, and the balance shall be divided between the parties as partial
compensation for their loss of bargain hereunder, 50% to OJT and 50% to
Interstate.
(d) In the event of any temporary taking of the Facility
or any portion thereof, all proceeds arising out of such taking actually
received by OJT shall be promptly deposited with the escrow agent
designated by OJT to receive payments under section 3.4(a), and to the
extent of such deposit, shall be applied against the obligations of
Interstate to make such payments required by Section 3.4(a) hereof.
(e) The foregoing provisions of this Section 9.3 shall be
subject to the requirements of any agreements with any lenders providing
the Facility Financing.
ARTICLE X
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 of 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 XI
RESOLUTION OF DISPUTES; ARBITRATION
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.
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.
The award of any two of the arbitrators shall be final and
binding upon the parties, and a decree or judgement on the award may be
entered in any court having jurisdiction thereof.
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.
The costs incurred by OJT in connection with the
arbitration of the Annual Operating Budget or the Operating Statement
shall be a Reimbursable Cost, except in instances where the position or
claim of OJT is specifically found by the arbitrator to be without
reasonable basis, in which case OJT shall bear its own cost.
The parties hereto shall give notice of any arbitration or
other proceedings pursuant to this Article XI to each lender providing
the Facility Financing.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
12.1 Interstate Representations.
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;
and
(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.
12.2 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, and that the
execution and delivery of this Agreement, and the performance hereof, has
been authorized by all corporate and other action required on the part of
OJT; and
(b) Based upon the representations of qualified
environmental consultants, OJT believes that all permits, approvals and
authorizations of all governmental agencies required for the use and
operation of the Facility and Ancillary Hardware either have been
obtained or can be obtained within a reasonable period without
jeopardizing the continuous use of the Facility.
ARTICLE XIII
MISCELLANEOUS
13.1 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 8.2(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.
13.2 Notices.
(a) All notices and instructions 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, as
follows:
(a) If to OJT:
TO: Orba-Xxxxxxx Transshipment Company
c/o Orba Corporation
One Gothic Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: President
and:
c/x Xxxxxxx Bros. Corporation
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: President
(b) If to Interstate:
TO: Interstate Power Company
0000 Xxxx Xxxxxx
Xxxxxxx, Xxxx 00000
Attention: President
Either party may change the address for sending of notices
by giving notice in compliance herewith.
(b) Any notices hereunder shall also be given to any
lenders providing the Facility Financing and to any assignee of OJT's
rights hereunder.
13.3 Entire Subject Matter.
This Agreement, together with the appendices 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, provided
that after the Facility Financing has been consummated, no such
alteration or amendment shall be effective without the written consent of
the lender thereof and of any assignee of OJT's rights hereunder. 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.
13.4 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.
13.5 Binding Nature.
This Agreement shall be binding upon and, subject to the
provisions of Section 13.6, shall inure to the benefit of Interstate and
OJT and their respective successors, assigns, receivers and other
representatives.
13.6 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, provided, however, that (i) either
party, upon thirty (30) days' prior written notice, may assign this
Agreement to any other firm or corporation controlling, controlled by or
under common control with it, but no such assignment shall relieve the
assignor from liability hereunder, and (ii) as permitted by Subsection
(b) below, OJT may assign its rights hereunder in connection with
obtaining the Facility Financing.
(b) The parties acknowledge that OJT contemplates making
a security assignment to the lender(s) providing the Facility Financing
of OJT's rights to payments due under Sections 3.4(a), 5.5, 7.2 and 8.2,
and its rights to enforce the performance of Interstate's obligations
hereunder (but excluding any obligations or liabilities of OJT
hereunder), including the rights of OJT to receive the Base Charge Per
Ton in the manner contemplated hereby and subject to the terms hereof.
No consent or acknowledgement by Interstate of any such assignment by OJT
of its rights hereunder shall in any manner whatsoever obligate
Interstate to assume any obligation or liability, whether as endorser,
guarantor, surety or otherwise, with respect to any indebtedness of OJT
or any security issued by it or on its behalf.
Upon any such assignment by OJT, the parties hereto
recognize and agree that, to the extent set forth in said assignment or
in other documents relating to the Facility Financing, OJT will be
prohibited, without the prior consent of said assignee, from giving
consents, reaching mutual agreement with Interstate, amending this
Agreement, acting with respect to the resolution of certain disputes or
arbitration or taking certain other action contemplated by this
Agreement.
13.7 Representatives of Parties.
(a) Interstate hereby designates Xxxx Xxxxxxxx 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 Xxxxxxx X. Xxxx XX 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.
13.8 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 INTERSTATE POWER COMPANY
presence of:
BY /s/ X. X. Xxxxxxx
Title: Vice President
ORBA-XXXXXXX TRANSSHIPMENT COMPANY
By ORBA Transshipment Corporation
of Iowa, a Partner
By /s/ X. X. Xxxxxx, Xx.
Title: Executive Vice President
By Xxxxxxx Bros. Transshipment
Corporation of Iowa, a Partner
By /s/ Xxxxxx X. Xxxxxxx
Title: Secretary
Agreement of ORBA and JBC
The undersigned ORBA Corporation and Xxxxxxx Bros.
Corporation are executing this Agreement solely to evidence their
respective consent and agreement to the provisions of Sections 4.7 and
5.3 hereof, and for no other purpose whatsoever.
ORBA CORPORATION
By /s/ X. X. Xxxxxx, Xx.
Title: Executive Vice President
XXXXXXX BROS. CORPORATION
By /s/
Title: Vice President
STATE OF MINNESOTA)
) ss
COUNTY OF HENNEPIN)
On the 4th day of December, 1979, before me, the undersigned,
in and for said County and State, personally appeared X. X. Xxxxxxx, to
me personally known, who, being duly sworn, did say that he is the Vice
President of Interstate Power Company; that the seal affixed thereto is
the seal of said corporation; that said instrument was signed and sealed
on behalf of said corporation by authority of its Board of Directors;
that the said X. X. Xxxxxxx as such officer acknowledged the execution of
said instrument to be the voluntary act and deed of said corporation, by
it and by him voluntarily executed.
/s/ W. A. Xxxxxxxx
Notary Public in and for said
County and State
(SEAL)
W. A. XXXXXXXX
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My Commission Expires June 16, 0000
XXXXX XX XXXXXXXXX)
) ss
COUNTY OF HENNEPIN)
On the 4th day of December, 1979, before me, the undersigned,
in and for said County and State, personally appeared Xxxxxxx X. Xxxxxx,
Xx. to me personally known, who being duly sworn, did say that he is the
President of ORBA Transshipment Corporation of Iowa, one of the partners
of ORBA-Xxxxxxx Transshipment Company, an Iowa partnership, that said
corporation has no seal; that said instrument was signed by him on behalf
of such corporation as a partner of such partnership by authority of the
board of directors of such corporation; and that the said Xxxxxxx X.
Xxxxxx, Xx. in such capacity acknowledged the execution of said
instrument to be the voluntary act of said corporation as a partner of
such partnership, by it and him voluntarily executed.
/s/ W. A. Xxxxxxxx
Notary Public in and for said
County and State
(SEAL)
W. A. XXXXXXXX
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My Commission Expires June 16,
STATE OF MINNESOTA )
) ss
COUNTY OF HENNEPIN )
On the 4th day of December, 1979, before me, the undersigned, in and
for said County and State, personally appeared Xxxxxx X. Xxxxxxx to me
personally known, who, being duly sworn, did say that he is the Secretary
of Xxxxxxx Bros. Transshipment Corporation of Iowa, one of the partners
of ORBA-Xxxxxxx Transshipment Company, an Iowa partnership; that said
corporation has no seal; that said instrument was signed by him on behalf
of such corporation as a partner of such partnership by authority of the
board of directors of such corporation; and that the said Xxxxxx X.
Xxxxxxx in such capacity acknowledged the execution of said instrument to
be the voluntary act of said corporation as a partner of such
partnership, by it and him voluntarily executed.
/s/ W. A. Xxxxxxxx
Notary Public in and for said
County and State
(SEAL)
W. A. XXXXXXXX
NOTARY PUBLIC - MINNESOTA
HENNEPIN COUNTY
My Commission Expires June 16, 1985
SCHEDULE A
TO
COAL TRANSSHIPMENT AGREEMENT
Tract I
The Fractional North 1/2, N1/2, NW1/4, Fractional Xxxxxxx 00, X00X, X0X,
0xx X.X., Xxx Xxxxxx, Xxxx, described by the following metes and bounds:
Beginning at the NW corner of said Sec. 30; thence East, 19 chains, 1,254
ft., to the original meander line of the Mississippi River; thence
Southerly parallel with the shoreline to the south line of the N1/2,
N1/2, NW1/4, said Sec. 30; thence west with said line to the west line of
said Sec. 30; thence North, 667.5 ft. with the section line to the point
of beginning and subject to public road easement over the West 33 ft. and
an 80 ft. railroad right of way along the Mississippi River, and
excepting therefrom the House Tract sold to Xxxxxx and Xxxxxx Xxxxxxxx.
(Xxxxxx Xxxx Farm)
Tract II
The Fractional North 106.0 ft. of the S1/2, N1/2, NW1/4, Fractional
Xxxxxxx 00, X00X, X0X, 0xx X.X., Xxx Xxxxxx, Xxxx, fronting 106.0 ft. on
the East side of the Keokuk-Montrose River Road and extending to the
Mississippi River, containing 3.0 acres, including the county highway
right of way along the west boundary and the Burlington Northern Railroad
right of way along the river, and excepting therefrom the House Tract
sold to Xxxxxx and Xxxxxx Xxxxxxxx. (Xxxxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxx Tract)
Tract III
Commencing at the NW corner of Fractional Xxxxxxx 00, X00X, X0X, 0xx
X.X., Xxx Xxxxxx, Xxxx; thence S00deg55'E, 600.9 ft. with the section
line and centerline of county road to the point of beginning; thence
S89deg52'E, 600 ft.; thence N19deg30'E, 452 ft.; thence S89deg52'E, 150
ft.; thence S00deg08'W, 600 ft.; thence N89deg52'W, 900 ft. to the
section line and centerline of county road; thence N00deg55'E, 173.5 ft.
to the point of beginning and subject to public road right of way along
the west boundary. (Xxxxxxxx House Tract)
Tract IV
The S1/2, N1/2, of the Fractional NW1/4, Section 30, except the North 106
ft. thereof, and all of the S1/2, Fractional NW1/4, Section 30 which is
north of the following described line:
Beginning on the West line of said Fractional Sec. 30 at a point
located 1258.7 ft. south of the NW corner of said Sec. 30; thence East,
33 ft. to the east right of way line of the county road (River Road);
thence the following courses with an existing fence: S63deg26'E, 76.6
ft.; S52deg57'E, 147.6 ft.; S79deg29'E, 159.7 ft.; S44deg23'E, 326.3 ft.;
S00deg14'E, 457.2 ft. to a corner located 400 ft. normal to the Xxxxxx
south property line; thence N89deg46'E, 589.7 ft. parallel and 400 ft.
normal to the said south property line to a point located 60 ft. normal
to the westerly right of way line of the Burlington Northern Railroad;
thence S04deg56'W, 301.2 ft. parallel to an 50 ft. normal to westerly
right of way of the Burlington Northern Railroad; thence East to the
Original Meander Line of the Mississippi River.
except, the right of way of the Burlington Northern Railroad along
the Easterly side of said tracts;
a strip of land along the Easterly side of said tract heretofore
conveyed to the Keokuk and Xxxxxxxx Water Power Company by two deeds
recorded in Deed Book 73, at pages 281 and 294; and
a strip of land Sixty (60') feet in width along the Westerly side of
said tracts conveyed to Xxx County, Iowa, for road purposes
described in Deed Book 77, page 179. (Xxxxxx Tract)
Tract V
A wedge shaped tract in the XX xxxxxx xx Xxxxxxx 00, X00X, X0X, 0xx P.M.,
described as follows: Beginning at the SE corner of said Sec. 24, thence
North, 75 ft. with the section line thence West, 285.5 ft. to the
centerline of Keokuk-Montrose River Road; thence with said road
centerline the following courses and distances: S03deg40'E, 448 ft. and
S35deg00'E, 398 ft. to the South line of said Sec. 24; thence East, 28.6
ft. to the place of beginning, of which 0.60 acre is subject to road
right of way.
Also, a rectangular tract in the SW corner of Xxxx. Xxx. 00, X00X, X0X,
0xx X.X., described as follows: beginning at the southwest corner of
said Sec. 19; thence North, 1449 ft. with the section line; thence East,
820 ft. to the westerly right of way line of the Burlington Northern
Railroad; thence S09deg21'E, 1465 ft. with said railroad right of way
line to the south line of said Sec. 19; thence West, 1058.5 ft. to the
section corner and point of beginning. (Xxxx Xxxxxxxx Tracts)
Tract VI
The West Half (W1/2) of the Southeast Quarter (SE1/4) of Section 24,
T66N, R5W, of the 5th P.M., Xxx County, Iowa, containing 80 acres, and
subject to public road right of way along the south and west boundaries.
(Xxxx X. Xxxx and Xxxx X. Xxxx Tract)
Tract 1:
The Northwest Quarter (NW 1/4) of Fractional Section 30, Township 66
North, Range 4 West of the 5th P.M., Xxx County, Iowa, EXCEPTING
therefrom the following:
The South 166.6 feet thereof;
The right of way of the Burlington Northern Railroad along the
easterly side of said tract;
A strip of land along the easterly side of said tract conveyed to
the Keokuk and Xxxxxxxx Power Company by two deeds recorded in Deed Book
73, at Pages 281 and 294;
A strip of land 60 feet in width along the Westerly side of said
tract conveyed to Xxx County, Iowa, for road purposes described in Deed
Book 77, Page 179; and
That part thereof lying North of the following described line:
Beginning at a point on the West line of said Fractional Section 30
at a point located 1258.7 feet South of the NW corner of said Section 30;
thence East 33 feet to the east right of way line of the County road
(River Road); thence the following courses with an existing fence: South
63deg26' East, 76.6 feet; South 52deg57' East, 147.6 feet; South 79deg29'
East, 159.7 feet; South 44deg23' East, 326.3 feet; South 00deg14' East,
457.2 feet to a corner located 566.6 feet normal to the 1/4 Section line;
thence North 89deg46' East, 589.7 feet parallel with and 566.6 feet
normal to the 1/4 Section line to a point located 50 feet normal to the
westerly right of way line of the Burlington Northern Railroad; thence
South 04deg56' West, 301.2 feet parallel with and 50 feet normal to the
said railroad right of way; thence North 89deg46' East to the original
meander line of the Mississippi River, extending parallel with and 266.6
feet normal to the 1/4 Section line.
Tract 2:
All that part of Lots Thirty-three (33), Thirty-four (34) and One
Hundred Eighty-Six (186) in the Town of Xxxxxxx, formerly known as
Nashville, which lies East of the Keokuk, and Montrose River Road; also
those parts of the North one-half (N1/2) of Broadway Street, and West
one-half (W1/2) of Main Street adjacent to said portion of said lots
except for Railroad Right of Way.
Tract 3:
That part of the South One Hundred Sixty-six and Six-tenths (166.6)
feet of the fractional Northwest Quarter (NW1/4) of Section Thirty (30)
Township Sixty-six (66) North, Range Four (4) West, which lies easterly
of a line drawn parallel to, 45 feet Westerly of and normal to the
westerly right of way line of the Burlington Northern Railroad, except
that part thereof included within said right of way.
Tract 4:
All that part of the following described premises: the Fractional
Northwest Quarter of the Southwest Quarter of Section Thirty, Township
Sixty-six north, Range Four West in Xxx County, Iowa, except the north
400 feet thereof; lying easterly of a line drawn parallel with, 25 feet
westerly of and normal to the westerly right of way line of the
Burlington Northern Railroad, except that part thereof included within
said right of way.
Tract 5:
A 1.11 Acre Tract in the Southeast quarter (SE1/4) of Section
Twenty-four (24), Township Sixty-six (66) North, Range Five (5) West of
the 5th Principal Meridian, Montrose Township, Xxx County, Iowa, fronting
on the Easterly side of River Road and described by the following metes
and bounds:
Commencing at the Southeast Corner of said Southeast Quarter (SE1/4)
of Section Twenty-four (24); thence North, One Thousand Six Hundred
Seventy-seven and Eight-tenths (1667.8) feet with the Section Line;
thence West One Hundred Ninety-one and Eight-tenths (191.8) feet to the
Point of Beginning; thence continuing West, Two Hundred Sixteen and Two-
tenths (216.2) feet to the centerline of River Road; thence Northerly,
Three Hundred Thirty-five and Six-tenths (335.6) feet with a Three
Hundred Seventy (370) Foot Radius Curve Concave Southeasterly to the
centerline of an entrance roadway; thence with said centerline the
following courses and distances; South Forty-five (45) Degrees Twenty-
eight (28) minutes East, Two Hundred Forty-six and Eight-tenths (246.8)
feet and East Twenty-two and Five-tenths (22.5) feet; thence South One
Hundred Fifty and Nine-tenths (150.9) feet to the point of beginning,
containing One and Eleven Hundredths (1.11) Acres, of which the Westerly
Thirty-three (33) feet is subject to right of way for River Road, Xxx
County, Iowa.
Tract 6:
A Two (2) Acre Tract Fronting Two Hundred Ninety-seven (297.0) feet
on the East side of the County River Road, located in the Southeast
Quarter (SE 1/4) of the Southeast Quarter (SE 1/4) of Section Twenty-four
(24), Township Sixty-six (66) North, Range Five (5) West, of the Fifth
Principal Meridian, Xxx County, Iowa, and described by the following
metes and bounds: Beginning on the East line of said Section Twenty-four
(24) at a point located Seven Hundred Seventy-five (775) feet North of
the Southeast Corner; thence West Two Hundred Eighty-five and Five-tenths
(285.5) feet to the center of the Keokuk-Montrose River Road; thence
North Three (03) Degrees Forty (40) Minutes West, Two Hundred Ninety-
seven (297.0) feet with the said Center of the Road; thence East Three
Hundred Four and Five-tenths (304.5) feet to the Section line; thence
South Two Hundred Ninety-six and Four-tenths (296.4) feet with the
Section line to the point of beginning and containing Two and One-
hundredths (2.01) Acres with the Westerly Thirty-three (33) feet, more or
less, subject to Public Road Right-of-way, in Xxx County, Iowa.
Tract 7:
Lots One Hundred Seven (107), One Hundred Eight (108) and One
Hundred Nine (109) in the Town of Xxxxxxx, (Formerly Nashville) in Xxx
County, Iowa; also those parts of the West one-half (W1/2) of Main
Street, South one-half (S1/2) of Broadway Street, and East one-half
(E1/2) of Alley, all adjacent to said lots except Keokuk and Montrose
River Road.
Tract 8:
All of the South half of Section Nineteen (19), Township Sixty-six
(66), Range Four (4) lying West of the right-of-way of C. B. & Q.
Railroad, South of a line beginning at the center of the County Highway
on the West line of Lot One Hundred Eighty-two (182) in the town of
Xxxxxxx; thence Easterly following the center line of the highway to the
center line of Prospect Street in said town; thence South on the center
line of Prospect Street to the line dividing former Lots One Hundred
Fifty-three (153) and One Hundred Fifty-four (154) in said town, produced
Westerly; thence East on said produced line and on line between former
Lots One Hundred Fifty-three (153) and One Hundred Fifty-four (154) and
on line between former Lots One Hundred Nine (109) and One Hundred Ten
(110) and said line produced Easterly to the center line of vacated Main
Street in this portion of said town; thence South on said center line of
vacated Main Street to center line of vacated Xxxxxxxx Street; thence
East on center line of vacated Xxxxxxxx Street to the right of way of
said C. B. & Q. Railroad, and North of a line beginning on the West line
of said Section Nineteen (19), Fourteen Hundred Forty-nine (1449) feet
North of the Southwest corner of said Section Nineteen (19), said point
being in the center of the West line of former Lot One Hundred Seventy-
eight (178) in the town of Xxxxxxx; thence East on center line of former
Lots One Hundred Seventy-eight (178) and One Hundred Sixty-one (161) and
the North line of former Lots One Hundred Forty-seven (147), One Hundred
Sixteen (116) and Ninety-seven (97), Eight Hundred Twenty (820) feet,
more or less, to the Westerly right of way line of C. B. & Q. Railroad,
in Xxx County, Iowa.
Tract 9:
A 4.61 Acre Tract fronting 2670.4 Feet on the West side of the
Burlington Northern Railroad, located in Section Thirteen (13), Township
Sixty-six (66) North, Range Five (5) West, of the 5th P.M., Xxx County,
Iowa, more particularly described as follows:
Commencing at the Northwest Corner of the Southeast Quarter of said
Section Thirteen (13): thence Easterly, 575.00 Feet with the North line
of said Southeast Quarter (SE 1/4); thence North 52deg24' East, 301.7
Feet, more or less, to the Westerly right of way line of the Burlington
Northern Railroad, being 33 feet normally distant from and parallel to
the centerline of said Railroad; thence South 30deg21'10" East, 983.2
feet with said Right of Way line to the Southeast Corner of a Tract
presently owned by Xxxx X. and Xxxx X. Xxxxxxx, said Southeast corner
being the true point of beginning; thence South 55deg25'00" West, 75.2
feet with the North line of Union Electric Company's Lot 48 to the
Southwest Corner of the Tract; thence North 30deg21'10" West, 2675.96
feet on a line 75 feet normally distant from and parallel to said
Westerly Right of Way line to the centerline of an existing 30 foot
access road; thence North 59deg38'57" East, 75.00 feet with the
centerline of said access road to the Westerly Right of Way Line of said
Railroad and the Northwest Corner of the Tract; thence South 30deg21'10"
East, 2670.4 feet with the Westerly Right of Way Line to the point of
Beginning, containing 4.61 Acres, more or less, of which the Northerly
.03 Acre is subject to said access roadway easement, being 15 foot normal
and parallel to the centerline of said access roadway.
Tract 10:
The North Six and Eighty-eight Hundredths (6.88) Acres in the
Southeast Quarter (SE 1/4) of Section Twenty-four (24), Township Sixty-
six (66) North, Range Five (5) West, Fifth Principal Meridian, Xxx
County, Iowa, located South and East of the centerline of River Road;
described by the following metes and bounds:
Beginning at the Southeast corner of this tract, located on the East
line of said Section Twenty-four (24) at a point One Thousand Four
Hundred Seventy-seven and Three-tenths (1477.3) feet North of the
Southeast corner of the Section; thence West, Three Hundred Thirty and
Five-tenths (330.5) Feet to the centerline of the River Road; thence the
following courses and distances with said centerline of roadway;
Northwesterly, One Hundred Forty and One-tenth (140.1) Feet with a Seven
Hundred Sixteen and Two-tenths (716.2) Foot Radius Curve Concave Westerly
(L.C. North Twelve (12) Degrees Fifty-two (52) Minutes West, One Hundred
Thirty-nine and Nine-tenths (139.9) Feet) and tangent to the following
course; North Nineteen (19) Degrees Forty (40) Minutes West, Eighty-seven
and Six-tenths (87.6) Feet; Northeasterly, Six Hundred Seventeen and Two-
tenths (617.2) Feet with a Three Hundred Ninety-five and Fourteen
Hundredths (395.14) Foot Radius Curve Concave Easterly and tangent to the
preceding course (L.C. North Twenty-five (25) Degrees Five (05) Minutes
East, Five Hundred Fifty-six and Thirty-seven Hundredths (556.37) Feet);
North Sixty-nine (69) Degrees Fifty (50) Minutes East, Sixty-nine and
Six-tenths (696) Feet; Northeasterly, Ninety-seven and Three-tenths
(97.3) Feet with a Two Hundred Eighty-six and Forty-eight Hundredths
(286.48) Foot Radius Curve Concave Southerly (L.C. North Seventy-nine
(79) Degrees Fifty-five (55) Minutes East, Ninety-six and Eight-tenths
(96.8) Feet) to the East line of said Section; thence South, Seven
Hundred Sixty-two and Seven-tenths (762.7) Feet with the Section Line to
the point of beginning, containing Six and Thirteen Hundredths (6.13)
Acres exclusive of the West and Northerly Thirty-three (33) Feet that is
subject to public road right of way, in Xxx County, Iowa.
EXCEPTING THEREFROM: Beginning at a point 1477.3 Feet North of the
Southeast Corner of Section 24, Township 66, North, Range 5 West, which
is also the Northeast corner of a tract presently owned by Xxxxxxxx
Xxxxxxx Xxxxxxxxx, thence due North with the East line of said Section
200 Feet; thence West to the center line of the Keokuk-Montrose River
Road approximately 387.4 feet; thence Southerly following the center line
of said River Road 208.4 feet to a point xxx Xxxx of point of beginning;
thence due East to the point of beginning with the Northerly line of said
Breakbill tract 330.5 feet, subject to the right of way of said River
Road and containing approximately 1-1/2 acres.
ALSO EXCEPTING THEREFROM: A 1.11 Acre Tract in the Southeast
Quarter of Section 24, Township 66 North, Range 0 Xxxx xx xxx 0xx X.X.,
Xxxxxxxx Xxxxxxxx, Xxx Xxxxxx, Xxxx, fronting on the Easterly side of
River Road and described by the following metes and bounds:
Commencing at the Southeast Corner of said Southeast Quarter of
Section 24; thence North 1,677.8 Feet with the Section Line; thence West
191.8 Feet to the Point of Beginning; thence continuing West 216.2 Feet
to the centerline of River Road; thence Northerly 335.6 Feet with a 370
Foot Radius Curve Concave Southeasterly to the centerline of an entrance
roadway; thence with said centerline the following courses and distances;
South 45 Degrees 28 Minutes East, 246.8 Feet and East 22.5 Feet; thence
South 150.9 Feet to the point of beginning, containing 1.11 acres, of
which the Westerly Thirty-three feet is subject to right of way for River
Road, Xxx County, Iowa.
Tract 11:
That part of the Southeast Quarter (SE 1/4) of Section Thirteen
(13), in Township Sixty-six (66) North, Range Five (5) West of the Fifth
Principal Meridian, in Xxx County, Iowa, described as follows, to-wit:
Beginning at the Southwest Corner of the Southeast Quarter (SE 1/4) of
said Section Thirteen (13); thence South 89 Degrees East 1165 Feet, the
South line of said Section Thirteen (13) to the Westerly right of way
line of the Chicago, Burlington and Quincy Railroad; thence North 28
Degrees 45 Minutes West thereon 1800 feet; thence North 63 Degrees 59
Minutes West 430 feet; thence South 82 Degrees 14 Minutes West 193 feet
to the Intersection of the center lines of the relocated Keokuk and
Montrose Wagon Road and Xxxxxx'x Creek; thence along the center line of
said Xxxxxx'x Creek on the following courses: South 71 Degrees 30
Minutes West 60 Feet, South 24 Degrees 15 Minutes West 128 Feet, South 70
Degrees 00 Minutes West 262 Feet to the West line of the Southeast
Quarter (SE 1/4) of the Northwest Quarter (NW 1/4) of the Southeast
quarter (SE 1/4) of said Section Thirteen (13); thence South 1 Degree 5
Minutes West 837.4 feet; thence South 89 Degrees 04 Minutes East 649.5
feet; thence South 00 Degrees 45 Minutes West 664.4 feet, more or less,
to the place of beginning.
Excepting therefrom that part lying Westerly of the relocated
Keokuk-Montrose Wagon Road, and further excepting therefrom the said
relocated Keokuk-Montrose Wagon Road extending across the same and being
60 feet in width; also that part conveyed to Xxx County, Iowa for road
purposes by Easement for Public Highway document dated September 13,
1977, filed for record November 18, 1977 in Deed Book 169 at Page 434.
Tract 12:
All that part of the north 400 feet of the Northwest Quarter of the
Southwest Quarter of Fractional Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx Xxxx
Xxxx, lying easterly of a line drawn parallel to and 25 feet Westerly of
and normal to the Westerly right of way line of the Burlington Northern
Railroad, except that part thereof included within said right of way.
Tract 13:
That part of the East Half of the SE 1/4 of Section 24, Township 66,
Range 5 lying South of center of public highway running East and West
through said tract as located on June 1, 1912, and West of the public
highway running North and South through said tract, being known as the
Keokuk to Montrose Highway, in Xxx County, Iowa.
Parcel 13-1:
All that part of the Southeast 1/4 of Fractional Section 13,
Township 66 North, Range 5 West, 5th P.M., Xxx County, Iowa,
described as follows: Commencing at the Northwest corner of said
Southeast 1/4; thence Easterly on the North line of said Southeast
1/4, 575 feet; thence N52deg24'E, 301.7 feet to the Westerly right
of way line of the Burlington Northern Railroad; thence
Southeasterly along said Westerly right of way line 983.2 feet to
the point of beginning; thence continuing on said Westerly right of
way line 465.3 feet to a point distant 1800 feet measured along said
Westerly right of way line from the South line of said Southeast
1/4; thence N63deg09'W, 430 feet; thence S82deg14'W, 62.75 feet;
thence N43deg52'30"W, 59.43 feet; thence N55deg26'E, 306.12 feet to
the point of beginning.
Parcel 19/24-1:
All that part of the Northeast 1/4 of Fractional Section 24,
Township 66 North, Range 5 West, 5th P.M., and the Northwest 1/4 of
Fractional Section 19, Township 66 North, Range 4 West, 5th P.M.,
Xxx County, Iowa, and Lots 211, 212 and 000, Xxxxx Xxxxxx and
Franklin Street, as platted for the Town of Xxxxxxx (formerly
Nashville), lying East of the Keokuk and Montrose River Road and
lying West of the Westerly right of way line of the Burlington
Northern Railroad.
Parcel 19-2:
All that part of Lots 103, 104, 105 and 106, as platted for the Town
of Xxxxxxx (formerly Nashville), Xxx County, Iowa, lying West of the
Westerly right of way line of the Burlington Northern Railroad.
Also, that part of the Xxxxx 0/0 xx Xxxxxxxx Xxxxxx lying East of
the centerline of Main Street and West of the Westerly right of way
line of the Burlington Northern Railroad, and that part of the Xxxx
0/0 xx Xxxx Xxxxxx lying North of the Westerly extension of the
South line of Lot 103 and West of the Westerly right of way line of
said railroad, all as platted for the Town of Xxxxxxx (formerly
Nashville), Xxx County, Iowa.
Parcel 19-2A:
All that part of Lots 31 and 32, as platted for the Town of Xxxxxxx
(formerly Nashville), Xxx County, Iowa, lying East of the Keokuk and
Montrose River Road.
Also that part of the Xxxx 0/0 xx Xxxx Xxxxxx, as platted for the
Town of Xxxxxxx (formerly Nashville), Xxx County, Iowa, lying North
of the Easterly extension of the South line of Xxx 00, Xxxx xx
Xxxxxxx, xxx Xxxx of the Westerly right of way line of the
Burlington Northern Railroad.
Parcel 19-3:
All that part of the Southwest 1/4 of Fractional Section 19,
Township 66 North, Range 4 West, 5th P.M., Xxx County, Iowa,
described as follows: Beginning at the intersection of the South
line of said Fractional Southwest 1/4 and the Easterly right of way
line of the Burlington Northern Railroad, said point lying 1148.1
feet East of the Southwest corner of said Fractional Southwest 1/4;
thence 38deg39'W along said Easterly right of way line 2692 feet to
the North line of said Fractional Southwest 1/4; thence Easterly on
said Fractional 1/4 Section line 150 feet to the bank of a creek;
thence Southerly and Southwesterly 350 feet on said bank of creek;
thence S68deg39'E, 2350 feet to the intersection of the West bank of
the Des Moines Rapids Canal and the South line of said Fractional
Southwest 1/4; thence Westerly on said Section line 60 feet to the
point of beginning, including portions of Lots 38-42 and 102-106,
Union, Xxxxxxxx, Main and Broadway Streets, and the alley adjacent
to Lots 51-54, but excluding Lots 49-55, as platted for the Town of
Xxxxxxx (formerly Nashville).
Parcel 19-3A:
All that part of the Fractional Northwest 1/4 of Section 19,
Township 66 North, Range 4 West, 5th P.M., Xxx County, Iowa, being
an irregularly shaped strip of land lying East of and abutting the
Easterly right of way line of the Burlington Northern Railroad and
comprising part of Xxxx 0, 0, 0, 00, 00, 00, 00, 00 and 37 in the
Town of Xxxxxxx (formerly Nashville) and Main Street, Liberty
Street, Monroe Street and Wall Street, in the platted Town of
Xxxxxxx (formerly Nashville), more particularly described as
follows, to wit: Commencing at the intersection of the said
Easterly right of way line and the South line of said Fractional
Northwest 1/4 Easterly 693.2 feet from the Southwest corner thereof;
thence North 8deg39' West 696 feet on said Easterly right of way
line; thence Northwesterly 1960 feet by a 50 minute curve to the
Left on said right of way line to the West line of said Fractional
Northwest 1/4; thence Northerly 70 feet thereon to bank of the
Mississippi River; thence Southeasterly and Southerly following the
shore line of said river 2870 feet more or less to the South line of
said Fractional Northwest 1/4; thence Westerly 150 feet thereon to
the place of beginning.
Parcel 13/24-1:
All that part of the Southeast 1/4 of Fractional Section 13,
Township 66 North, Range 5 West, 5th P.M., Xxx County, Iowa, lying
South of the centerline of Xxxxxx'x Creek, and the Northeast 1/4 of
Fractional Xxxxxxx 00, Xxxxxxxx 00 Xxxxx, Xxxxx 0 Xxxx, 0xx X.X.,
Xxx Xxxxxx, Xxxx; all of same lying East of the Easterly right of
way line of the Burlington Northern railroad.
A tract formerly submerged by the Mississippi River consisting of 5.76
acres in the XX 0/0, Xxxxxxxxxx Xxxxxxx 00, X00X, X0X, 0xx P.M. described
by the following metes and bounds:
Beginning on the north line said NW 1/4, Frac. Sec. 30 at a point
1254.0 ft. (19 chains) east of the NW corner said NW 1/4, Frac. Sec. 30;
thence East, 305.5 ft. with the Section Line; thence S08deg39'E, 782.4
ft. parallel with the shore line and Burlington Northern Railroad; thence
West 446.6 ft. to the easterly right of way line of the Burlington
Northern Railroad and ordinary high water line of the Mississippi River;
thence Northerly, 106.3 ft. with said right of way line to the south line
of the X 0/0, XX 0/0, XX 1/4, said Frac. Sec. 30; thence East, 133.0 ft.
with said south line of the N 0/0, XX 0/0, XX 0/0, Xxxx. Sec. 30 to a
point located 150 ft. normally distant from the centerline tangent of the
Burlington Northern Railroad; thence N08deg39'W, 675.2 ft. parallel with
the railroad tangent and west shoreline of the Mississippi River to the
point of beginning. (INRC Leased Tract).
1. Easement over, across, and under that portion of real estate
conveyed to the Chicago, Burlington and Quincy Railroad in Deed Book 137,
page 380, dated September 21, 1964, and assigned by assignment dated
October 28, 1977 and filed for record October 28, 1977 in Deed Book 169
at page 375.
2. Easement rights granted from Xxxx Xxxx Fortune, a widow, to
Orba-Xxxxxxx Systems, Inc. by document dated October 31, 1977 and filed
for record October 31, 1977 in Deed Book 169 at Page 403 of the records
of Xxx County, Iowa; said Easement covering property legally described
as: That part of the Fractional Southwest Quarter (SW 1/4) of the
Southwest Quarter (SW 1/4) of Section 30 on Township 66 North, Range 4
West of the 5th P.M., lying Easterly of a line drawn parallel with and 25
feet Westerly of and normal to the Westerly right-of-way line of the
Burlington Northern Railroad, except that part thereof included within
said right-of-way.
Schedule 1.2
To Coal Transshipment Agreement
Design and Construction Factors Determining
Capacities of Facility and Ancillary Hardware
A. System 1 - Receiving/Stockpiling System
Components:
a. Unit Train Handling:
Car Dumper and Car Positions
b. Stocking - out Conveyor System:
Belt Feeders #1 and #2 and
Stocking - out Conveyor #1
Capacity:
Design Rate capacity of 3,000 tons of coal per hour (2,000 lbs.
per ton). Design rate is maximum instantaneous rate of
handling coal achieved at any time during operation of System.
B. System 2 - Reclaim/Barge Loading System
Components:
a. Storage Reclaim System:
Vibratory Feeders and Reclaim Conveyor #2
x. Xxxxx Loading System:
Barge Loading Shuttle Conveyor #3 and Shuttle
Traverse Drive
Capacity:
Design Rate capacity of 1,500 tons per hour (2,000 lbs. per
ton). Design rate is maximum instantaneous rate of handling
coal achieved at any time during operation of System.
C. System 3 - Storage
On-ground storage capacity of at least 150,000 tons of Amax
Coal Co. coal from its Belle Ayr Mine near Gillette, Wyoming
(average density) compacted with normal and usual means.
D. Ancillary Hardware
a. Operation assumes use of leased D9 Caterpillar Dozer and
988 Caterpillar Front-end Loader for all compaction,
storage and loading operations.
b. Basic minimal spare parts inventory to be located at site;
some spare parts to be available from inventory at other
similar facilities managed by Orba.
