exv10w11






Exhibit 10.11




CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS ([...***...]), HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF
1934, AS AMENDED.




A G R E E M E N T




          This Agreement (“Agreement”) is entered into as of July 21, 2008 by Tampa Electric Company
(“Tampa Electric”), a Florida corporation having its principal place of business at 702 N Franklin
Street, Tampa, Florida, and United Maritime Group, LLC (“United”), U.S. United Barge Line, LLC
(“United Barge”), U.S. United Ocean Services, LLC (“United Ocean”), each a Florida limited
liability company having its principal place of business at 702 N Franklin Street, Tampa, Florida
and U.S. United Bulk Terminal, LLC (“United Terminal”), a Louisiana limited liability company
having its principal place of business at 14537 Highway 15, Davant, Louisiana.




RECITALS




          A. Tampa Electric, for a six year period beginning January 1, 2009, desires to obtain reliable
and safe transportation and storage for coal and other solid fuel that it will use at its Big Bend
station and Polk station (Unit 1) power generating plants, from places and ports located within the
United States (and, principally, from places and ports located on the Mississippi River and its
tributaries) and elsewhere to its Big Bend marine cargo terminal located near Tampa, Florida.




          B. United, United Barge, United Terminal and United Ocean own, operate or otherwise control a
fleet of barges, a storage and trans-loading terminal along the Mississippi River located at
Davant, Louisiana and a fleet of ocean-going vessels, all of which are capable of providing the
resources necessary to deliver safely, timely and reliably the coal and other solid fuel in the
quantities, and upon the schedule, sufficient to satisfy the transportation and storage
requirements of Tampa Electric under this Agreement.




          C. Tampa Electric desires to enter into a partial requirements contract with United, United
Barge, United Terminal and United Ocean to obtain transportation, storage and






 









 







other services and United, United Barge, United Terminal and United Ocean desire to provide
such transportation, storage and other services, as set forth in this Agreement.




          NOW THEREFORE, in consideration of the foregoing, the mutual promises and covenants contained
in this Agreement and other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Tampa Electric and United, United Barge, United Terminal and United Ocean
agree as follows:




     1. DEFINITIONS



          The following terms shall have the meanings set forth below:




          “Applicable Waterways” means the Mississippi, Illinois, Ohio, Tennessee, Green, Big Sandy,
Kanawha, Kaskaskia and Monongahela Rivers and their navigable tributaries.




          “Bankrupt” or “Bankruptcy” means with respect to any entity:




          (1) is dissolved, wound-up or liquidated (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or fails or admits in writing its
inability generally to pay its debts as they become due; (3) makes a general assignment,
arrangement or composition for the benefit of its creditors; (4) institutes or has instituted
against it, a proceeding seeking a judgment of insolvency or bankruptcy or any similar relief under
any bankruptcy or insolvency law or other similar law affecting creditors’ rights, or a petition is
presented for its winding-up or liquidation, and such proceeding or petition results in a judgment
of insolvency or bankruptcy or the entry of an order for relief or the making of an order for its
winding-up or liquidation which is not dismissed, discharged, stayed or restrained in each case
within sixty (60) days of the institution or presentation thereof; (5) seeks or becomes subject to
the appointment of an administrator, provisional liquidator, conservator, receiver, trustee,
custodian or other similar official for it or for all or substantially all its assets and the same
has not been dismissed, discharged or stayed within sixty (60) days after such appointment; (6) has
a secured party take possession of all or substantially all its assets or has a distress,
execution, attachment, sequestration or other legal process levied, enforced or sued on or against
all or substantially all its assets and such secured party maintains possession, or any such
process is not dismissed, discharged, stayed or restrained, in each case within thirty (30) days
thereafter.







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          “Bankruptcy Code” means Title 11 of the United States Code, 11 U.S.C. §101 et seq. entitled
“Bankruptcy,” as now or hereafter in effect, or any successor statute.




          “Barge Loading Date” has the meaning set forth in Section 3.4.




          “Big Bend Terminal” means the marine terminal, at Tampa Electric’s Big Bend power generating
station, at which United’s barges and vessels will be discharged.




          “Business Day” means each Day on which banks are open for business in Tampa, Florida that is
not a Saturday, Sunday or a Federal Reserve Holiday.




          “Cargo” means dry bulk fuel commodities such as coal and petroleum coke.




          “Completed Ton” has the meaning set forth in Section 2.1.1.




          “Constructive Placement” means, as to a barge on the Applicable Waterways, that the barge has
been positioned at a river dock or terminal (including, but not limited to, the UBT Terminal), and
all required steps have been taken to make the barge available for loading or discharge, whether or
not such barge is actually at its berth.




          “Daily Report” has the meaning set forth in Section 3.7.1.




          “Day” means a day of 24 hours commencing at 00:00 hours and ending at 23:59 hours.




          “Dispute Resolution” means the procedures set forth in Section 14.




          “Domestic Ocean Service” has the meaning set forth in Section 2.1.1.




          “Environmental Laws” means any and all past, present and future municipal, state, provincial,
federal, national and international law, statute, treaty, directive, decision, judgment, award,
regulation, decree, rule, code of practice, guidance, order, direction, consent, authorization,
permit, or similar requirement, approval, or standard of the relevant jurisdiction concerning
environmental, natural resources, health or safety matters (including, but not limited to, the
clean-up standards and practices for Hazardous Materials) in buildings, equipment, soil,
sub-surface strata, air, indoor air, surface water, ground water, seas or rivers.







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          “Excess Ocean Quantity” has the meaning set forth in Section 5.3.6(ii).




          “Excess River Quantity” has the meaning set forth in Section 3.3.6(ii).




          “FAS Cargo” has the meaning set forth in Section 2.1.3.




          “FIO” means “free in and out” which, in the context of this Agreement, means that, except for
loading and discharging at the UBT Terminal, the costs of loading and discharging are not to be
borne by United, while customary port charges such as line handling, tug boats and dockage are to
be for United’s account.




          “First Notice” has the meaning set forth in Section 3.6.




          “Force Majeure” has the meaning set forth in Section 12.1.




          “Foreign Ocean Service” has the meaning set forth in Section 2.1.1.




          “Free Time” means the period of time to make and keep the barge on the Applicable Waterways or
the vessel available for loading or discharging before demurrage or despatch begins to accrue
pursuant to the terms of this Agreement.




          “Hazardous Materials” shall mean any and all dangerous substances, hazardous substances, toxic
substances, radioactive substances, hazardous wastes, special wastes, controlled wastes, oils,
petroleum and petroleum products, hazardous chemicals, pollutants, contaminants, including, without
limitation, any material, the exposure to or the possession, presence, use, management, handling,
generation, manufacture, production, storage, treatment, release, threatened release, discharge,
disposal, transportation, remediation, cleanup, abatement or removal of which is prohibited,
controlled or regulated in any manner under any Environmental Law, and any other materials which
may be harmful to human health or the environment and which are or may be at any time during the
term of this Agreement regulated or controlled under any Environmental Law in any of the
jurisdictions in which the business has been or is being operated.







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          “Interest Rate” means, with respect to any payment, the interest rate applicable to true-up
adjustments under the retail fuel clause as authorized by the Florida Public Service Commission
applicable on the date a payment is made.




          “Laytime” means the period of time used by the barge or vessel in making itself available to
load or discharge that, subject to the terms of this Agreement, counts in determining whether
demurrage or despatch has been incurred.




          “Letter(s) of Credit” shall mean one or more irrevocable, transferable standby letters of
credit issued by a U.S. commercial bank or a foreign bank with a U.S. branch with such bank having
a credit rating of at least A- from S&P or A3 from Moody’s, in a form substantially similar to
Attachment K. Costs of a Letter of Credit shall be borne by the applicant for such Letter of
Credit.




          “Letter of Credit Default” has the meaning set forth in Section 22.1.




          “Month” means a calendar month.




          “Moody’s” means Moody’s Investor Services, Inc. or its successor.




          “Notice of Readiness” means a notice by United to Tampa Electric or its designated agent that
a vessel providing Trans-Gulf Ocean Service, Domestic Ocean Service or Foreign Ocean Service has
arrived at the port or berth, as the case may be, and is ready to load or discharge subject to the
terms and conditions of this Agreement and the rules of the applicable terminal.




          “Ocean Forecast” has the meaning set forth in Section 5.3.1.




          “Ocean Shortfall Payment” has the meaning set forth in Section 2.2.1.




          “Ocean Update” has the meaning set forth in Section 5.3.2(i).




          “Operating Entities” has the meaning set forth in Section 22.




          “Operational Dispute” has the meaning set forth in Section 14.2.2.







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          “Planned Maintenance Periods” has the meaning set forth in Section 5.3.1(ii).




          “Prior Agreement” has the meaning set forth in Section 2.2.4(i).




          “Rates” has the meaning set forth in Section 7.




          “River Deficit” has the meaning set forth in section 3.3.5.




          “River Forecast” has the meaning set forth in Section 3.3.1.




          “River Service” has the meaning set forth in Section 2.1.1.




          “River Shortfall Payment” has the meaning set forth in Section 2.2.1.




          “River Update” has the meaning set forth in Section 3.3.2(i).




          “S&P” means Standard & Poor’s Rating group (a division of McGraw Hill Inc.) or its successor.




          “Second Notice” has the meaning set forth in Section 3.6.




          “Service Segment” has the meaning set forth in Section 2.1.1.




          “Shortfall Payments” has the meaning set forth in Section 2.2.1.




          “Tampa Electric” means Tampa Electric Company.




          “Tampa Electric Indemnitee” has the meaning set forth in Section 16.1.




          “Term” has the meaning set forth in Section 10.




          “Terminaling Service” has the meaning set forth in Section 2.1.1.




          “Terminaling Shortfall Payment” has the meaning set forth in Section 2.2.1.




          “Ton” and “Tonnage” means or refers to a short ton of 2000 pounds avoirdupois.




          “Trans-Gulf Ocean Service” has the meaning set forth in Section 2.1.1.







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          “UBT Rules” has the meaning set forth in section 4.12.




          “UBT Terminal” means the storage and trans-loading facility at Davant, Louisiana owned,
operated or otherwise controlled by United.




          “United” means United Maritime Group, LLC.




          “United Barge” means U.S. United Barge Line, LLC.




          “United Ocean” means U.S. United Ocean Services, LLC.




          “United Terminal” means U.S. United Bulk Terminal, LLC.




          “Vessel Loading Date” has the meaning set forth in section 5.4(iv).




          “Weekly Report” has the meaning set forth in Section 3.7.2.




          “Year” means a calendar year beginning at 00:00 hours on January 1 and ending at 23:59 hours
on December 31.



Unless the context otherwise requires: (1) Words singular and plural in number shall be deemed to
include both singular and plural and pronouns having masculine or feminine gender shall be deemed
to include both masculine and feminine. (2) Any reference in this Agreement to any entity includes
its successors and permitted assigns and, in the case of any government agency, any entity
succeeding to its functions and capacities. (3) A reference to a specific time for the
performance of an obligation is a reference to that time in the place where that obligation will be
performed. (4) A reference to the words “hereof,” “herein,” and “hereunder” refer to this
Agreement as a whole and not to any particular provision of this Agreement. (5) If any payment
hereunder would occur on a Day which is not a Business Day, then such payment, unless otherwise
expressly provided for herein, shall occur on the next following Business Day. (6) All uses of
“include” or “including” shall be deemed to be followed by “without limitation.” (7) All
references to a law, rule, or regulation mean that law, rule, or regulation as amended, modified,
or supplemented, if applicable. (8) Any definition of one part of speech of a word, such as
definition of the noun form of that word, shall have a comparable meaning when used as a different
part of speech, such as the verb form of that word and other grammatical forms of






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defined words or phrases, if initially capitalized, have corresponding meanings. (8) Words not
otherwise defined herein that have well-known and generally accepted technical or trade meanings
are used herein in accordance with such recognized meanings. In the event of a conflict or
inconsistency between this Agreement and any Attachment, the provisions of this Agreement shall
take precedence.




     2. SERVICES AND CARGO OFFERINGS



     2.1 Service Requirements



     2.1.1 Service Segments; Completed Tons



          Subject to the terms, conditions and limitations set forth in this Agreement, United shall
provide the following services (each a “Service Segment”):




          “River Service” — placement of barges for loading Cargo at locations designated by Tampa
Electric on the Applicable Waterways, transportation of the Cargo to, and the placement of the
barges at, the UBT Terminal, and other services to be provided by United in connection with such
transportation and berthing as set forth in this Agreement.




          “Terminaling Service” — discharging of Cargo delivered to the UBT Terminal, storage, handling
and blending thereof at the UBT Terminal, together with other services to be provided at the UBT
Terminal, and loading Cargo on board vessels for transportation to Big Bend Terminal as set forth
in this Agreement. The performance of similar services by United described in this paragraph at
other terminals or places shall be included in the term “Terminaling Service.”




          “Trans-Gulf Ocean Service” — placement of vessels at the UBT Terminal for loading Cargo FIO,
transportation thereof to the Big Bend Terminal, and other services to be provided in connection
with such transportation as set forth in this Agreement.




          “Domestic Ocean Service” — placement of vessels at any United States location (other than the
UBT Terminal) for loading Cargo FIO, transportation thereof to the UBT Terminal or Big Bend
Terminal, and other services to be provided in connection with such transportation as set forth in
this Agreement.







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          “Foreign Ocean Service” — placement of vessels at any foreign location outside the United
States for loading of Cargo FIO, transportation thereof to the UBT Terminal or the Big Bend
Terminal, and other services to be provided in connection with such transportation as set forth in
this Agreement.




          Each of the Service Segments requires certain actions be completed by United throughout the
Term for these services to be considered executed or completed. In any Month during the Term, (i)
the River Service is considered as completed as to each Ton of Cargo aboard a barge upon
Constructive Placement of such barge for unloading by United at the UBT Terminal, (ii) the
Terminaling Service and the Trans-Gulf Ocean Service are considered as completed as to each Ton of
Cargo upon complete discharge of the vessel at the Big Bend Terminal or other terminal if so
directed by Tampa Electric, and (iii) Foreign Ocean Service or Domestic Ocean Service are
considered as completed as to each Ton of Cargo upon the giving of a valid Notice of Readiness of a
vessel for unloading by United at the UBT Terminal or upon complete discharge at the Big Bend
Terminal or other terminal, if so directed by Tampa Electric. Each Ton of Cargo for which the
River Service, the Terminaling Service and the Trans-Gulf Ocean Service has been completed shall be
a “Completed Ton”. United may invoice Tampa Electric pursuant to Section 7 only for Completed
Tons. For the avoidance of doubt, Cargo that remains at the UBT Terminal or has not yet been
completely discharged at the Big Bend Terminal or other terminal, if so directed by Tampa Electric,
shall not be considered as “Completed Tons,” except for the River Service.




     2.1.2 United’s Service Requirements



          (i) United enters into this Agreement as a principal (and not as an agent) and, subject to the
terms, conditions and limitations set forth in this Agreement, shall provide transportation,
storage and other services described in this Agreement for all the Service Segments described in
Section 2.1.1 above, and perform its other obligations under this Agreement. Each of United Barge,
United Terminal and United Ocean is entering into this Agreement as a party and, with United, also
is responsible for performing the obligations (i) set forth in the applicable Service Segment
during the Term of this Agreement: United Barge as to River Service, United Terminal as to the
Terminaling Service and United Ocean as to the Trans-Gulf Ocean Service, the Domestic Ocean Service
and, if agreed, the Foreign Ocean Service, and






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(ii) as otherwise set forth in this Agreement, all subject to the terms, conditions and
limitations set forth in this Agreement. In the provisions of this Agreement, that are specific to
a particular Service Segment, the term “United” shall include United Maritime Group, LLC and the
relevant United entity. For example, as to Section 3, the term “United” shall include both United
Maritime Group, LLC and United Barge. In the provisions of this Agreement that are not Service
Segment specific, the term “United” shall include United Maritime Group, LLC, United Barge, United
Terminal and United Ocean. For example (and without limiting the generality of the foregoing
statement), as to Sections 14 and 17, all four entities, United Maritime Group, LLC, United Barge,
United Terminal and United Ocean, are bound to arbitrate pursuant to Section 14.2.1 and all shall
have the limits of liability set forth in Section 17.




          (ii) Except as provided in this Agreement, Tampa Electric shall provide all Cargo requiring
domestic waterborne transportation to United and, as applicable, to United Barge, United Terminal
and United Ocean. United shall transport, store and provide such other services as are described
in this Agreement for all such Cargo.




     2.1.3 Applicable Waterways FAS Cargo



          Tampa Electric may provide for domestic transportation by another Applicable Waterway carrier
up to [...***...] Tons, plus one per cent (1%), of Cargo per Year originating at the Lone Eagle or
Cora Docks (such Cargo shall be called “FAS Cargo”). If, under the contract with the Cargo
supplier or the other carrier, a quantity of Cargo is carried forward to the next contract year,
Tampa Electric has the right to provide the quantity that is carried forward to the next year to
the other carrier, in addition to the [...***...] Tons of Cargo, plus one per cent (1%).
Notwithstanding Tampa Electric’s carry-forward right or the one per cent (1%) margin, Tampa
Electric shall not provide to another carrier more than [...***...] Tons of FAS Cargo during the
Term of this Agreement, except as set forth in this Agreement, e.g., pursuant to Sections 2.1.4,
3.3.5(i) and 12.2.




     2.1.4 Additional Applicable Waterways Cargo



          If, in any Year during the Term, Tampa Electric requires Cargo transportation on the
Applicable Waterways in excess of (i) [...***...] Tons in 2009, [...***...] Tons in 2010 or
[...***...] in each of the Years 2011 through 2014, plus (ii) the FAS Cargo, then Tampa Electric






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shall have the right, but not the obligation, to transport up to twenty percent (20%) of the
excess with another Applicable Waterways carrier (or carriers), which amounts shall be deemed FAS
Cargo for all purposes hereunder, except for the quantity and origin limitations in Section 2.1.3 above. Tampa Electric shall provide eighty percent (80%), and may provide up to one
hundred percent (100%), of the excess to United and United agrees to transport such Cargo at the
Rates specified in this Agreement.




     2.1.5 Completed Tons Cap



          Tampa Electric shall not be obliged to provide Cargo to United, nor shall United be obligated
to provide services to Tampa Electric, in any Year during the Term hereof for Cargo in excess of
[...***...] Completed Tons in any Service Segment.




     2.1.6 Domestic Ocean Service



          Tampa Electric is obligated to provide and United is obligated to carry Cargo in the Domestic
Ocean Service. Any Ton of Cargo provided by Tampa Electric in any Year for Domestic Ocean Service
and transported by United during such Year, shall be deemed a Completed Ton for the Trans-Gulf
Ocean Service.




     2.1.7 Foreign Ocean Service



          Tampa Electric is not obligated to provide and United is not obligated to carry Cargo in
Foreign Ocean Service, but Tampa Electric and United may do so upon mutual written agreement. Any
Ton of Cargo provided by Tampa Electric in any Year for Foreign Ocean Service and transported by
United during such Year, shall be deemed a Completed Ton for the Trans-Gulf Ocean Service.




     2.1.8
Domestic Non-Waterborne Cargo



          Nothing in this Agreement will be construed to restrict or limit in any way the right of Tampa
Electric to utilize rail, truck or other domestic non-water-borne means of transporting Cargo.




     2.2 Tampa Electric’s Failure to Provide Cargo



     2.2.1 Minimum Quantities



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          Subject to Tampa Electric’s carry-forward right under Section 2.2.3 below and the adjustments
set forth in Section 2.2.4 below, to the extent Tampa Electric fails, for reasons other than Force
Majeure or United’s act or omission or as otherwise permitted under this Agreement, to provide
Cargo in the quantities set forth below, then Tampa Electric shall pay United a “River Shortfall
Payment,” a “Terminaling Shortfall Payment” or an “Ocean Shortfall Payment,” as applicable
(together referred to as the “Shortfall Payments”):




          (i) Tampa Electric shall provide, in the River Service, at least [...***...] Completed Tons
in Year 2009, at least [...***...] Completed Tons in Year 2010 and at least [...***...] Completed
Tons in each of the Years 2011 through 2014.




          (ii) Tampa Electric shall provide, in the Terminaling Service, at least [...***...] Completed
Tons in Year 2009, at least [...***...] Completed Tons in Year 2010 and at least [...***...]
Completed Tons in each of the Years 2011 through 2014.




          (iii) Tampa Electric shall provide, in the Trans-Gulf Ocean Service, at least [...***...]
Completed Tons in Year 2009, at least [...***...] Completed Tons in Year 2010 and at least
[...***...] Completed Tons for each of the Years 2011 through 2014.




          In determining the number of Completed Tons for the purpose of this Section 2.2, there shall
be included as Completed Tons those quantities of Cargo, which under various provisions in this
Agreement, are deemed Completed Tons. See, e.g., without limitation, Sections 2.1.1, 2.1.6, 2.1.7,
2.2.4, 3.3.5(i), 5.3.5(i), 7.1 and 12.2.




     2.2.2 Shortfall Payments



          The rates for Shortfall Payments shall be as follows:




          (i) The River Shortfall Payment for all of 2009 shall be $[...***...] per Ton. For 2010-2014,
the River Shortfall Payment shall be increased or reduced in accordance with the adjustment
provisions set forth in Attachment J.




          (ii) The Terminaling Shortfall Payment for all of 2009 shall be $[...***...] per Ton. For
2010-2014, the Terminaling Shortfall Payment shall be increased or reduced in accordance with the
adjustment provisions set forth in Attachment J.







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          (iii) The Ocean Shortfall Payment for all of 2009 shall be $[...***...] per Ton. For
2010-2014, the Ocean Shortfall Payment shall be increased or reduced in accordance with the
adjustment provisions set forth in Attachment J.




          United’s right to Shortfall Payments under this paragraph shall be United’s sole and exclusive
remedy for Tampa Electric’s failure to provide to United the quantity of Cargo set forth in Section
2.2.1.




     2.2.3 Carry Forward Rights



          If, during a Year, Tampa Electric fails to provide the quantities of Cargo, as set forth in
Section 2.2.1 and is not excused by Force Majeure, United’s act or omission or otherwise is excused
from doing so under the terms of this Agreement, Tampa Electric shall have the right, but not the
obligation, to make up the shortfall for each of the River Service, Terminaling Service and
Trans-Gulf Service by providing such shortfall during the following Year, provided such
carry-forward rights shall be limited to (i) seven and one half per cent (7.5%) for Year 2009 and
(ii) five per cent (5.0%) for each of Years 2010 through 2013. There shall be no carry-forward
right for Year 2014, the last Year of the Agreement Term. Tampa Electric shall not have to make
any Shortfall Payments for Tons carried forward under this Section 2.2.3. United shall invoice the
quantities of Cargo carried forward under this Section 2.2.3 at the Rates in effect at the time at
which the quantities become Completed Tons under Section 2.1.1.




     2.2.4 Adjustments



          There are two adjustments that are to be made in calculating the Completed Tons in Years 2009
and 2014:




          (i) As to Year 2009, Completed Tons shall be increased by adding any Cargo Tons tendered by
Tampa Electric in each service segment under the Amended and Restated Transportation Storage and
Transfer Agreement dated as of July 1, 2005 (and expiring on December 31, 2008) (“Prior Agreement”)
that become Completed Tons after December 31, 2008. Tampa Electric shall compensate United for its
services in connection with such quantities at the applicable Rates specified in this Agreement.







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          (ii) If the Term of this Agreement is not extended past December 31, 2014, the number of
Completed Tons for Year 2014 shall be increased as of midnight on December 31, 2014 as follows:




          a) In determining whether a River Shortfall Payment is due, by including the Tons of Cargo
which are on board the river barges on the Applicable Waterways, at the UBT Terminal or at another
terminal pursuant to Section 4.11.




          b) In determining whether a Terminaling Shortfall Payment is due, by including the Tons of
Cargo which are on board the vessels in the Trans-Gulf Ocean Service that are bound for the UBT
Terminal or to another terminal pursuant to Section 4.11.




          c) In determining whether an Ocean Shortfall Payment is due, by including the Tons of Cargo
which are on board the vessels in the Trans-Gulf Ocean Service, Domestic Ocean Service or the
Foreign Ocean Service that are bound for Big Bend Terminal.




          Notwithstanding the inclusion of certain Tons as Completed Tons in 2014, as described in this
paragraph, Tampa Electric shall compensate United for its services in connection with those certain
Tons at the applicable Rates in effect and, as escalated, for the first calendar quarter of 2015
only as and when they become Completed Tons pursuant to Section 2.1.1.




     2.2.5 Settlement of Shortfall Payments



          Within thirty (30) Days following the end of each Year during the Term, United shall submit a
statement showing the number of Completed Tons in each Service Segment for that Year and indicating
whether any Shortfall Payments are due in that Year. United shall provide Tampa Electric with a
proposed calculation with sufficient detail and documentation to enable Tampa Electric to review
and independently verify such amount(s). Such calculation shall presume that Tampa Electric will
carry forward the amounts of Cargo in the manner set forth in Section 2.2.3 above necessary to
minimize or eliminate any Shortfall Payments, unless Tampa Electric, within thirty (30) Days of
receipt of United’s proposed calculation, notifies United that it wishes to carry forward a lesser
amount. If United’s calculation shows that any Shortfall Payments are due from Tampa Electric,
United, in addition, will provide an invoice for






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such amount(s) to Tampa Electric. Tampa Electric shall pay any undisputed amount within
thirty (30) Days following the receipt of such invoice calculation and supporting documents. Tampa
Electric and United shall make good faith efforts to reconcile any disputed amount, or refer the
dispute(s) to Dispute Resolution pursuant to Section 14 with any payment ultimately due to be paid
together with interest at the Interest Rate.




     3. RIVER SERVICE



          United agrees to provide sufficient river towboats and hopper barges for transporting the
Cargo as required by Tampa Electric under this Agreement from ports or places on the Applicable
Waterways to the UBT Terminal (the towboats and barges presently within United’s control are listed
in Attachment B).




     3.1 Towboat and Barge Fleet



          United warrants that it owns one hundred percent (100%) of the ownership interests of United
Barge. United Barge owns, controls or operates a fleet of river towboats and hopper barges, which
United warrants is sufficient in kind and quantity to permit United to meet the transportation
requirements of Tampa Electric and to satisfy its obligations, as set forth in this Agreement.
United shall cause United Barge to meet United’s obligations to Tampa Electric as set forth in this
Agreement for the Term of this Agreement.




     3.2 Representations and Warranties



          United and United Barge, at the inception of this Agreement and throughout its Term, warrant
that the river towboats and hopper barges owned, operated or otherwise controlled by United Barge
are and shall be suitable for the intended trade and, together with their equipment, shall be
clean, free of debris and foreign material and in good running order and repair, ordinary wear and
tear excepted, with all required eligibility, certificates, inspections and regulatory approvals
necessary for carriage of Cargo in the River Service.




     3.3 River Scheduling



     3.3.1 River Forecast



          No later than on October 1 of each Year, Tampa Electric shall notify United of the estimated
quantity of Cargo that Tampa Electric plans to provide to United in the River Service during each
Month in the succeeding Year (“River Forecast”). Those Monthly estimates will be






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ratable, that is, fairly evenly spread over the Year, except those Monthly estimates may take
into account seasonal variations in Tampa Electric’s Cargo needs and certain other expected events,
such as but not limited to, planned generating plant outages and planned inventory needs at the
generating plants prior to hurricane season. All of those Monthly estimates shall be within a
range equal to fifteen per cent (15%) higher or lower than the average of the twelve Monthly
estimates contained in the River Forecast. With the River Forecast, Tampa Electric shall provide
United with the then known information or its best estimate, for each Month, as to the Applicable
Waterways loading terminals, Cargo quantities and Cargo suppliers.




     3.3.2 River Forecast Updates



          (i) Each Month of the Year beginning in November of the Year prior to the Year in question,
Tampa Electric shall update the River Forecast (“River Update”). The River Update shall specify
the quantity of cargo, without limitation, for each remaining Month in the Year in question. For
the avoidance of doubt, the River Update for each of November, December and January shall include
Tampa Electric’s estimate of the cargo quantity for each of the twelve Months for the Year in
question.




          (ii) Tampa Electric shall give the River Update to United no later than the first Business Day
of each Month. From time to time, Tampa Electric, for sound commercial reasons, shall have the
right to amend the River Update, provided notice of such amendment is given to United on or before
the fifteenth (15th) day of the Month in question. Such amendment will relate back to
the first of the Month and will be deemed as given on that first day.




          (iii) With each River Update, Tampa Electric shall provide United with the then known
information or its best estimate, for each Month during the remainder of the Year, as to the
Applicable Waterways loading terminals, Cargo quantities, Cargo suppliers and the Tampa Electric
Cargo contract numbers.




          (iv) In view of, and without prejudice to, their reciprocal obligations under this Section 3,
Tampa Electric and United acknowledge their intent to communicate frequently and in a timely manner
as to their evolving commercial needs and transportation capacities and as to other relevant facts
and circumstances.







16









 








     3.3.3 Tampa Electric’s Obligation to Provide Cargo



          For each Month beginning in January, 2009, Tampa Electric shall provide to United the quantity
of Cargo for that Month as set forth in the River Update that Tampa Electric had issued two Months
earlier, plus or minus ten per cent (10%). For example, in January, 2009, Tampa Electric shall
provide the quantity as set forth in the River Update for January, 2009, as revised no later than
on November 1, 2008, ± ten per cent (10%); in February, Tampa Electric shall provide the quantity
set forth in the River Update, as revised no later than on December 1, ± ten per cent (10%), and so
on.




     3.3.4 United’s Obligation to Make Available Barges



          United shall use its best commercial efforts to make available barges to carry the Cargo
quantities provided by Tampa Electric. Each Month, United shall be obliged to make available
barges to carry at least ninety per cent (90%) of the Cargo quantity specified by Tampa Electric in
the River Update that Tampa Electric had issued two Months earlier, on the condition that Tampa
Electric provides a Cargo quantity for that Month that is equal to or is greater than ninety
per cent (90%) of the Cargo quantity specified in its River Update issued two Months earlier. If,
however, Tampa Electric provides Cargo in an amount that is less than ninety per cent (90%) of the
quantity that it specified in the River Update that it issued two Months earlier, United shall use
its best commercial efforts to carry the quantity provided by Tampa Electric and is obliged to
provide barges for at least ninety-five per cent (95%) of the quantity provided by Tampa Electric.
The following are examples of United’s obligations under this Section 3.3.4: as example (a), if
Tampa Electric, in its December River Update, specified a quantity of 360,000 Tons for February and
provided 360,000 Tons in February, United would be obliged to provide barges, in February, for at
least ninety per cent (90%) of that quantity, i.e., at least for 324,000 Tons. As example (b), if,
in the River Update for December, Tampa Electric specified a quantity of 360,000 Tons for February
and provided a quantity of 340,000 Tons in February, United would be obliged to provide barges for
at least 324,000 Tons. As example (c), if, in the River Update for December, Tampa Electric
specified a quantity of 360,000 tons for February and provided a quantity of 300,000 Tons in
February, United would be obliged to provide barges for at least ninety-five per cent (95%) of
300,000 Tons, i.e., at least 285,000 Tons.







17









 








     3.3.5 United’s Failure to Perform



          (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force
Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations
under this Agreement, fails to meet its obligations to Tampa Electric under Section 3.3.4 above,
Tampa Electric shall have the right, but not the obligation (declarable no later than three (3)
Business Days into the next Month) to elect one of the following remedies as to the River Deficit
(the difference between the total minimum Cargo quantities for which United was obliged to provide
barges for the two Months in question and, if a lesser amount, the total Cargo quantity for which
barges are made available by United during those two Months shall be referred to as the “River
Deficit”):




          a) Tampa Electric may increase the minimum quantity for which United is required to provide
barges for the next Month by part or all of the River Deficit (the quantity so forwarded into the
next Month shall be specified by Tampa Electric in its notice given pursuant to this Section
3.3.5). For example, if the River Deficit is 20,000 Tons for January and February and United’s
obligation was to provide barges for March a minimum of 324,000 Tons, Tampa Electric could increase
United’s obligation by up to 20,000 Tons for March, or




          b) For each of October, November or December of any Year, Tampa Electric may deduct all or
part of the River Deficit from the applicable annual minimum quantity of Completed Tons set forth
in Section 2.2.1(i). For example, if the River Deficit was 20,000 Tons for August and September of
2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up to
20,000 Tons, or




          c) Tampa Electric may divert part or all of the River Deficit to another carrier and if the
amount by which the total cost of transporting the River Deficit exceeds the applicable Rates set
forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation
cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the
third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in
arranging for such carriage. The Tons of River Deficit that are carried by the third-party carrier
shall be deemed “Completed Tons” for the purpose of calculating the River Shortfall under Section
2.2.







18









 








          (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its
rights under subsection (i) above but can seek, instead and at any time, to enforce its common law
or contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s
decision not to exercise its rights under subsection (i) above shall not prejudice its rights to
such remedies in any way whatsoever.




     3.3.6 Tampa Electric’s Immediate Additional Requirements



          (i) If Tampa Electric specifies in its River Update a Cargo quantity in a Month which is
significantly higher or lower than the quantity specified for that Month in Tampa Electric’s River
Forecast, United is obliged to provide barges for at least ninety per cent (90%) of that
significantly higher or lower Cargo quantity provided that the River Update was given to United at
least two Months in advance of the Month in question. For example, if Tampa Electric specifies
360,000 for February in its River Forecast and then specifies 420,000 for February in its December
1 River Update, United is obliged to provide barges for ninety per cent (90%) of 420,000 Tons in
February.




          (ii) If for either or both of the first two months of a River Update (as in the example in
paragraph [i] above, for a River Update given on December 1 those Months would be for December and
January), Tampa Electric specifies a Cargo quantity which exceeds one hundred and ten per cent
(110%) of the Cargo quantity (the Cargo quantity in excess of one hundred ten per cent [110%] shall
be referred to as the “Excess River Quantity”) for either or both of those Months as set forth in
the applicable River Update(s), United shall notify Tampa Electric, within five (5) Business Days
of receipt of the River Update, whether it is willing to provide barges for that Excess River
Quantity at the applicable Rate(s).




          a) If United agrees to provide the necessary barges at the applicable Rate within the five (5)
Business Day period for the full amount of the Excess River Quantity, the minimum Cargo quantity
for which it is obliged to provide barges for the Month in question shall be increased by the full
amount of the Excess River Quantity.




          b) If United declines to accept the entire Excess River Quantity but offers to accept a lesser
amount, Tampa Electric, in good faith, shall consider whether to accept United’s offer in light of,
among other things, the freight rate, the Cargo quantity and the delivery dates






19









 







contained in United’s offer and the terms offered by other carriers. If Tampa Electric
accepts United’s offer, the minimum Cargo quantity for which United is obliged to provide barges
for the Month in question shall be increased by the mutually agreed incremental amount. As to the
remaining quantity, that is, the quantity that United declined to accept, Tampa Electric shall be
free to provide that quantity to another carrier at its own expense. If Tampa Electric refuses
United’s offer to accept a lesser amount, Tampa Electric shall be free to provide the full amount
of the Excess River Quantity to another carrier at its own expense.




          c) If United declines to carry any of the Excess River Quantity at the applicable Rate(s) or
fails to reply within five (5) Business Days, Tampa Electric shall be free to provide the Excess
River Quantity to another carrier at its own expense.




          Tons carried with such other carrier(s) under this Section 3.3.6(ii) shall not count as
Completed Tons in calculating whether Tampa Electric owes United a River Shortfall Payment under
Section 2.2 above. Tampa Electric’s right to provide Cargo to other carriers under this paragraph
shall be limited to a quantity up to and including two hundred and fifty thousand (250,000) Tons of
Cargo per Year.




     3.4 Barge Loading



          To meet its obligations under Section 3.3 above, United shall arrange for an appropriate
number of barges to be available for loading at each Cargo loading facility on the date specified
by the Cargo supplier (“Barge Loading Date”). Tampa Electric shall cause its Cargo suppliers to
coordinate with United in advance so as to provide for the scheduling of barge placement. United,
free of expense to Tampa Electric, shall coordinate the planning and scheduling of the barge
loading with the Cargo supplier, all within the monthly schedule set by Tampa Electric. The Cargo
loading facility operator, acting as agent of Tampa Electric, may reject any barge which it
reasonably believes to be unacceptable for loading. The loading of a barge by a Tampa Electric
designated Cargo loading facility operator shall constitute acceptance of the barge by Tampa
Electric.







20









 








     3.5 Carriage of Cargo to UBT Terminal



          United, at its sole risk and expense, shall carry the Cargo, safely and timely, from the
loading port or place on the Applicable Waterways to the UBT Terminal where it shall Constructively
Place the barges for discharge.




     3.6 Rail Detention, etc.



          For rail Cargo scheduled in a River Update which is proceeding to a terminal loading facility,
Tampa Electric agrees to cause a departure notice and estimated arrival time at the terminal
loading facility to be given to United within one (1) hour of the departure of a loaded train from
a rail origin point (“First Notice”). Tampa Electric agrees to cause a notice of arrival at the
nearest city to the terminal loading facility (e.g., Centralia, Illinois for the Cook Coal
Terminal), and an estimated arrival time at the terminal loading facility to be given to United as
promptly as reasonable following the loaded train’s arrival at the nearest city to the terminal
(“Second Notice”). United shall be liable for any detention, release and hold charges levied by
the railroad on Tampa Electric as the direct result of delayed Constructive Placement of five (5)
or more hours after the actual or constructive placement of the train. Should Tampa Electric fail
to provide the First Notice and Second Notice, United shall be liable only for such charges levied
as the direct result of barge Constructive Placement twenty four (24) hours or more after notice by
electronic mail by Tampa Electric of the actual or Constructive Placement of the train.




     3.7 Barge Cargo Transportation Report



     3.7.1 Daily Report



          United shall provide to Tampa Electric each Day by 1500 hours a daily report in a form
reasonably satisfactory to Tampa Electric (“Daily Report”). To the extent that United has the
information, the Daily Report shall include the following: a list of all barges having Cargo on
board that were loaded on the previous day, and as to each such barge: (a) the number (or name) of
each barge, (b) the number of Tons of Cargo on board, (c) the type of Cargo on board, (d) the Tampa
Electric Cargo contract number, (e) the date the Cargo was loaded and (f) once the information
becomes available, the name of the line boat that will move the barge to the UBT Terminal.







21









 








     3.7.2 Weekly Report



          United shall provide to Tampa Electric, before 5:00 p.m. (in Tampa) on each Monday, a report
in a form reasonably satisfactory to Tampa Electric (“Weekly Report”). The Weekly Report shall
include the barge loadings for the period from the first day of the Month through the Sunday before
the Monday on which United provides the Weekly Report, and include (a) the number (or name) of each
barge having Cargo on board, (b) the number of Tons of Cargo on board, (c) the type of Cargo on
board, (d) the Tampa Electric Cargo contract number, (e) the loading location of barge, (f) the
date the Cargo was loaded, (g) the location of barges, (h) the estimated time of arrival at the UBT
Terminal (or if the Cargo is at the UBT Terminal, the number of Days during which the barge has
been at the UBT Terminal).




     3.8 Free Time, Laytime, Demurrage/Despatch



          Tampa Electric and United shall coordinate the scheduling of Cargoes so as to minimize used
Laytime and demurrage.




     3.8.1 Free Time



          For the calculation of demurrage and despatch at the loading ports or places on the Applicable
Waterways, each barge shall be allowed four (4) Days of Free Time.




     3.8.2 Running of Laytime



          If the Constructive Placement of the barge at the loading place or port occurs on the Barge
Loading Date, Laytime shall commence running upon the Constructive Placement of the barge. If the
Constructive Placement of the barge occurs prior to the Barge Loading Date, Laytime shall begin
running, at the earlier of, 0700 hours on the Barge Loading Date or 0700 hours following the time
at which loading commences (if loading commences prior to 0700 hours, then Laytime begins running
at 0700 hours on that day; if loading commences after 0700 hours Laytime begins running on the
following day at 0700 hours). If the Constructive Placement of the barge occurs after the Barge
Loading Date, Laytime shall begin running at 0700 hours following the time at which loading
commences. Laytime shall end at 0700 hours after the time at which the loading of the barge has
been ended. For the avoidance of doubt, there are to be no partial laydays or days on demurrage
and the minimum used Laytime for a barge which loads at any place or port on the Applicable
Waterways is to be one (1) Day.







22









 








     3.8.3 Exceptions to Laytime and Demurrage



          Laytime and demurrage shall not run, and time shall not count, for delay caused by the barge
or by United. Laytime shall be interrupted or, if Laytime has not begun to run, Laytime shall not
start, if the delay is caused by Force Majeure. If a Force Majeure occurs after a barge goes on
demurrage and the demurrage is prolonged due to Force Majeure, the demurrage so caused by Force
Majeure shall be computed at one-half of the applicable demurrage rate. Once Constructive
Placement of a barge occurs, if United removes a barge for any reason (including Force Majeure),
Laytime (and, if applicable, demurrage) shall be reset to zero when Constructive Placement of the
barge re-occurs, or when Constructive Placement of a replacement barge occurs. If the barge is
removed at the request of Tampa Electric or its agent, Laytime and, if applicable, demurrage shall
continue to run and end in accordance with Section 3.8.2 above.




     3.8.4 Demurrage/Despatch



          If used Laytime exceeds the allowed Free Time, then the excess shall count as demurrage Days.
If the allowed Free Time exceeds the used Laytime, then the excess shall be count as despatch Days.




     3.8.5 Payment of Demurrage



          Tampa Electric and United agree to settle any demurrage payment due from Tampa Electric on a
calendar quarterly basis. In computing the amount of demurrage due, if any, Tampa Electric and
United shall credit the number of Days of despatch experienced by the barges during the quarter
against the number of Days of demurrage. If the completion of loading of a barge falls outside of
the quarter in question, the barge will be included in the subsequent quarter. If the number of
demurrage Days exceeds the number of despatch Days, Tampa Electric shall pay United at the rate of
[...***...] ($[...***...]) per barge per Day of demurrage, as adjusted by the terms of Attachment
J. If the number of Days of despatch exceeds the number of Days of demurrage, neither of Tampa
Electric nor United shall make a payment to the other. Within thirty (30) Days following the end
of each calendar quarter, United shall determine any net demurrage payment or net despatch credit
and shall provide Tampa Electric with an invoice and a proposed calculation with sufficient detail
and documentation to enable Tampa Electric to review and independently verify such amount. Tampa
Electric shall pay any undisputed amount






23









 







of demurrage within thirty (30) Days following the date on which such invoice, calculation and
supporting documents are received by Tampa Electric. Tampa Electric and United shall make good
faith efforts to reconcile any disputed amount, or refer the same to Dispute Resolution pursuant to
Section 14, with any payment ultimately due to be paid together with interest at the Interest Rate.




     3.8.6 No Laytime/Demurrage at UBT Terminal



          Tampa Electric shall not be responsible for any delay in discharging the barges in the River
Service at the UBT Terminal. Laytime as to such barges shall not run and demurrage shall not be
incurred.




     3.9 Sub-Contracting



          United, at no cost to Tampa Electric, shall have the right to charter or otherwise contract
river towboats and/or barges so that it can meet its obligations to Tampa Electric under this
Agreement, provided that such river towboats and barges meet the warranties set forth in Section
3.2 above and that United continues to remain responsible for the performance of all the chartered
or contracted towboats or barges.




     3.10 Other Obligations



     3.10.1 United’s Additional Obligations



          In addition to the rights and obligations of Tampa Electric and United set forth above, United
agrees:




          (i) All services necessary to provide the River Service, such as but not limited to towing,
tug assists, fleeting and switching of the barges, shall be at no additional charge or cost to
Tampa Electric.




          (ii) United, at its sole option, shall hold part-loaded barges to facilitate rail Cargo
discharge at load ports, without charging for any required “extra switches” to and from the loading
dock to complete the loading process, free of expense and demurrage to Tampa Electric.




          (iii) Cleaning of the barges used by United, including any related shifting or fleeting
charges, shall be free of cost to Tampa Electric.







24









 








          (iv) United shall dispatch the number of barges appropriate for carriage of each quantity of
Cargo scheduled by Tampa Electric, depending upon seasonal draft limitations and shall impose no
minimum loading quantities for the barges. Part-loading of a barge is permissible at no cost to
Tampa Electric, provided the terminal operator complies with United’s loading instructions so as
not to underload barges such as to require more barges than are reasonably necessary to transport a
designated quantity of Cargo.




     3.10.2 Cargo Spontaneous Combustion



          If the Cargo while on board the barge in the River Service spontaneously combusts, Tampa
Electric shall indemnify and hold United and any of their subcontractors harmless (i) from any
damage or loss resulting from the claims of third-party or (ii) for damage or loss to the barge
carrying the coal that spontaneously combusts, which results from the fire in the coal, provided
that the damage or loss does not arise out of United’s negligence or willful misconduct.




     4. TERMINALING SERVICE



          United warrants that it shall provide the employees, facilities and equipment at the UBT
Terminal necessary for the safe, efficient and prompt unloading, sampling, storing, blending,
compacting, grooming, loading and other services for the number of Tons of Cargo required by Tampa
Electric per Year under this Agreement.




     4.1 UBT Terminal Facilities and Equipment



          United owns one hundred percent (100%) of the ownership interests of United Terminal. United
Terminal owns and operates the UBT Terminal including the equipment listed on Attachment C. United
warrants that the UBT Terminal has the resources and the personnel to perform its obligations to
Tampa Electric under this Agreement. United shall cause United Bulk to meet United’s obligations
to Tampa Electric with respect to the UBT Terminal during the Term of this Agreement.







25









 








     4.1.1 Representations and Warranties



          United and United Terminal, at the time of this Agreement and throughout its Term, warrant
that: (i) the UBT Terminal and all its facilities and equipment are and shall remain in compliance
with all applicable laws, including Environmental Laws, regulations, approvals and permits issued
by regulatory authorities, (ii) to their knowledge, there exists no circumstance or condition that
presently or with the passage of time would constitute any violation of any applicable laws,
including Environmental Laws, regulations and permits issued by regulatory authorities, (iii) the
storage piles and the equipment referred to in this Section 4.1, which are used for the Cargo at
the UBT Terminal, shall be well maintained and shall continue to be well maintained and in good
running order and repair, ordinary wear and tear excepted. Any repairs required for the UBT
Terminal or facilities and equipment to maintain the warranted condition shall be properly
accomplished as quickly as reasonably possible. United and United Terminal further represents and
warrants that it has expertise in handling and storing Cargo and has, and shall continue to have,
during the Term of this Agreement, all the necessary licenses and permits to properly conduct
transfer operations.




     4.1.2 UBT Terminal Storage Piles



          United agrees to provide to Tampa Electric up to a maximum of eight (8) separate storage piles
with a maximum total storage capacity in any Year of twenty-five per cent (25%) of the Ocean
Forecast for that Year. United warrants that each storage pile shall have a soil cement base which
shall permit the safe and segregated storage of the Cargo. United shall keep the type of Cargo on
each storage pile strictly segregated to prevent the commingling of different types of Cargo and to
prevent the commingling of each type of Cargo with other cargoes at the UBT Terminal.




     4.2 UBT Terminal Water Depth



          United shall maintain, or cause to be maintained, adequate water depth at the UBT Terminal to
accommodate vessels, towboats and barges at maximum draft to transit the Southwest Pass channel.







26









 








     4.3 Unloading During Terminaling Service



          Upon arrival of the laden barges or vessels at the UBT Terminal, United shall begin
discharging the Cargo or the FAS Cargo as soon as possible for storage or, if permitted by Tampa
Electric, into a vessel for on-carriage to Big Bend Terminal. United shall discharge the Cargo
from the ocean-going vessels at the rate of 8,000 metric tons per Day. United shall pile, compact,
store and otherwise handle the Cargo in a manner consistent with good industry practice.




     4.4 Loading During Terminaling Service



          United shall load the vessels, free of risk and expense to Tampa Electric, with Cargo to the
maximum appropriate draft on a continuous 24 hours a Day, seven days a week basis, except for
holidays observed at the UBT Terminal. The following recognized holidays (other than Christmas)
are to mean the consecutive 24 hour period commencing on 0700 hours on such Day and ending at 0700
hours on the next working Day:




	 	 	 
	Mardi Gras Day:

	 	Tuesday before Ash Wednesday
	 
	 	 
	Independence Day:

	 	July 4
	 
	 	 
	Thanksgiving Day:

	 	Fourth Thursday of November
	 
	 	 
	Christmas Day:

	 	(the consecutive 24 hours commencing on 1900 hours
December 24 and ending 1900 hours December 25)





United shall trim the vessels in accordance with standard practices for safe transport. For
non-United vessels the UBT Terminal shall load at the rate of 15,000 metric tons per twenty four
(24) hour Day. With respect to any vessels that are loaded at the UBT Terminal:




          (i) United shall be responsible and liable for any stevedore damage,




          (ii) United shall inspect, and verify, that, prior to loading, the holds are clean, free of
water and debris and other foreign matter,




          (iii) Except as so limited by the vessel’s hold configuration, Tampa Electric may cause United
to load as many types of Cargo on board a vessel as it wishes,




          (iv) United shall not charge demurrage, and







27









 








          (v) United shall use, at all times, magnetic separators when loading Cargo, except when
otherwise approved, in advance, by Tampa Electric.




          Tampa Electric shall instruct United as what Cargo type is to be loaded on each vessel
destined for the Big Bend Terminal. At any time prior to the start of loading of a vessel’s hold,
Tampa Electric, at no cost to it, shall have the right to change the Cargo type, provided that
(i) the substitute Cargo is available in the required quantity at the UBT Terminal and (ii) that,
as the result of the change, the vessel would not be unduly delayed in departing from the UBT
Terminal.




     4.5 UBT Terminal FAS Cargo



          United agrees to pay the demurrage charged to Tampa Electric by any other carrier with respect
to each barge carrying FAS Cargo arriving at the UBT Terminal for discharge, as determined and
agreed in good faith by the carrier and Tampa Electric, provided that Tampa Electric has (i) a four
(4) Day quarterly “averaging agreement” with such other barge carrier similar to that contained in
Section 3.8.5 above and (ii) provided United with the necessary handling instructions. If there is
no four (4) Day “averaging agreement” with the other barge carrier similar to that contained in
Section 3.8.5, Tampa Electric shall prepare a quarterly statement as if such a four (4) Day
“averaging agreement” were in place and such quarterly statement shall be acceptable to United for
the purpose of this paragraph. The demurrage rate shall be at the hourly demurrage rate as set
forth in the agreement between the carrier and Tampa Electric, or at the daily rate of $[...***...]
per barge, whichever is lower. United agrees to pay such amount within thirty (30) Days of the
receipt of the demurrage invoice and supporting documents from Tampa Electric.




     4.6 UBT Terminal Blending



          Upon request, United shall blend Cargo to the ratios specified by Tampa Electric, in
accordance with blending specifications provided by Tampa Electric and as per past practices or
industry standards and free of expense to Tampa Electric. United shall make no additional charge
for pile maintenance, compaction, grooming and management due to weather.







28









 








     4.7 UBT Terminal Dust Suppression.



          United shall apply dust suppression surfactant on each shipment of Cargo at the UBT Terminal
upon the reasonable request of Tampa Electric. The cost of the dust suppression surfactant
materials shall be invoiced as a separate item on United’s invoices to Tampa Electric, and shall
be charged at $[...***...] per Cargo Ton, which amount Tampa Electric agrees to pay. United shall
not invoice, and Tampa Electric shall not be responsible to pay, for the surfactant materials used
to suppress dust on coal and other products located at the UBT Terminal other than the Cargo owned
or otherwise controlled by Tampa Electric.




     4.8 UBT Terminal Inventory.



     4.8.1 Minimum Quantity on Site



          Tampa Electric shall use commercially reasonable efforts to keep at the UBT Terminal a
quantity of active Cargo equal to about four per cent (4%) of the sum of the twelve Months’ Cargo
quantities contained in that Year’s Ocean Forecast. For the purpose of calculating the appropriate
inventory quantity, the Cargo quantities on board Constructively Placed river barges at the UBT
Terminal are to be included. It is understood, and agreed, that (i) nothing contained in this
paragraph shall impair Tampa Electric’s ability to utilize such Cargo if, in Tampa Electric’s sole
discretion, some or all of it is needed at Big Bend Terminal and (ii) during the last quarter of
2014, if this Agreement is not extended, Tampa Electric shall be entitled to reduce the inventory
at the UBT Terminal on a roughly ratable basis below the four per cent (4%) level in anticipation
of the expiration of this Agreement.




     4.8.2 Measurement of Inventory Quantities



          United shall maintain inventory records for each pile of Cargo at the UBT Terminal. The
quantity of Cargo added to pile inventories shall be based on Tampa Electric’s weights determined
at river origin points. The quantity of Cargo subtracted from pile inventories shall be based on
Tampa Electric’s weights determined at the Big Bend Terminal. United, at no cost to Tampa
Electric, shall groom and dress each pile of Tampa Electric’s Cargo in anticipation of aerial
surveys being conducted. Tampa Electric, at its cost, shall arrange for aerial surveys to be
performed semi-annually, at about February 1 and August 1 of each Year. If the results of the
aerial survey show a quantity that differs from the book inventory quantity by more than three






29









 







per cent (3%), Tampa Electric shall instruct United to adjust the book quantity to conform to
the quantity shown by the aerial survey. Otherwise, the inventory book quantity is to be affirmed.
If the aerial survey shows a Cargo quantity that is more than three per cent (3%) higher or lower
than the book inventory, United shall cooperate fully with Tampa Electric in investigating and
determining the reason(s) for the discrepancy, including, but not limited to providing reasonably
requested documents and information.




     4.8.3 Cargo Documentation on Non-United Barges or Vessels



          For each shipment of Cargo transported with a carrier other than United to the UBT Terminal,
Tampa Electric shall cause appropriate Cargo documentation to be provided to UBT Terminal.




     4.9 UBT Terminal Cargo Storage Report



          United shall provide to Tampa Electric each weekday by 1500 hours (in Tampa) a report via
electronic mail as to the Cargo at the UBT Terminal. That daily report also shall include (a) the
number (or name) of each barge, (b) the quantity and type of Cargo on board each such barge,
(c) the Tampa Electric Cargo contract number for each type of such Cargo on board each such barge,
(d) the date on which each barge was Constructively Placed or otherwise arrived at UBT Terminal,
(e) the date of discharge of each barge that carried Cargo to the UBT Terminal, (f) the quantity
and type of Cargo discharged from barges into one or more stockpiles, (g) the quantity and type of
Cargo loaded directly to vessels, and (h) the quantity and type of Cargo in each storage pile and
the identity of such stockpiles.




     4.10 UBT Terminal Cargo Sampling



          United shall provide sampling equipment and facilities, in good working order, which meet the
conditions of ASTM Standard D2234, to Tampa Electric, or its designated agent. United shall
provide access to the UBT Terminal and to the automatic sampling equipment and otherwise shall
cooperate with the contractors retained by Tampa Electric that may sample and test each type of
Cargo that is discharged from the barges at the UBT Terminal or that is loaded on board all vessels
in the Trans-Gulf Ocean Service. Laboratory services, if required, shall be provided by an
independent third-party contractor. Should Tampa Electric elect to obtain such services, Tampa
Electric shall pay the contractor directly for such services.







30









 








     4.11 UBT Terminal Sub-Contracting



          United may sub-contract storage space or transfer operations at another facility so that it
can meet its obligations to Tampa Electric under this Agreement, provided: (i) it obtains
Tampa Electric’s prior written approval, which shall not be unreasonably withheld, conditioned or
delayed, (ii) the storage space so obtained has suitable storage piles with a proper base material
so as to permit the safe and segregated storage of the Cargo, (iii) the storage facility or
transfer operator for such storage space is capable of performing and agrees to perform all the
services required by United under this Section 4, including but not limited to ASTM sampling, and
(iv) United continues to remain fully responsible for the performance of the other storage
facility.




     4.12 UBT Terminal Rules



          The UBT Terminal Rules and Regulations (the “UBT Rules”), and annexed to this Agreement as
Attachment D, shall not apply, directly or indirectly, to Tampa Electric under this Agreement
(notwithstanding that Tampa Electric may be qualified as a “User” or a “Vessel Party” under the UBT
Rules).




          Tampa Electric acknowledges, however, that United may apply the UBT Rules to third-party
carriers who carry Cargo to the UBT Terminal in, for example, the carriage of FAS Cargo and the
carriage of Cargo in the Domestic Ocean Service or the Foreign Ocean Service. United shall invoice
the third-party carriers directly for the relevant charges and acknowledges that Tampa Electric
shall have no liability, directly or indirectly, for such charges. Except as required by
applicable law or governmental regulation, United shall make no changes to the UBT Rules, as they
apply to third-party carriers of Cargo to the UBT Terminal, without obtaining Tampa Electric’s
consent.




     5. OCEAN SERVICES – TRANS-GULF; DOMESTIC; FOREIGN



          United shall provide a sufficient number of ocean-going vessels for transporting the Cargo
requirements of Tampa Electric under this Agreement.




     5.1 Ocean-Going Vessels



          United warrants that it owns one hundred percent (100%) of the ownership interests of United
Ocean. United Ocean owns, controls or operates a fleet of ocean-going






31









 







vessels, as more fully described in Attachment E. United warrants that this fleet is
sufficient in type and quantity to permit United to perform its obligations under this Agreement.
United shall cause United Ocean to meet United’s obligations as set forth in this Agreement for the
Term of this Agreement.




     5.2 Representations and Warranties



          United and United Ocean, at the inception of this Agreement and throughout its Term, warrant
that the vessels owned, operated or otherwise controlled by United Ocean are seaworthy, are
suitable for the intended trade and together with their equipment, are clean, free of debris and
foreign matter and in good running order and repair, ordinary wear and tear excepted, with all
required eligibility, certificates, inspections and regulatory approvals necessary for carriage of
Cargo in the Service Segments provided for in this Agreement.




     5.3 Ocean Scheduling



     5.3.1 Ocean Forecast; Planned Maintenance Periods



          (i) No later than on October 1 of each Year, Tampa Electric shall notify United of the
estimated quantity of Cargo that Tampa Electric plans to provide to United during each Month in the
succeeding Year (“Ocean Forecast”). Those Monthly estimates will be ratable, that is, fairly
evenly spread over the Year, except those Monthly estimates may take into account seasonal
variations in Tampa Electric’s Cargo needs and certain other expected events, such as but not
limited to, planned generating plant outages and planned inventory needs at the generating plants
prior to hurricane season. All of those Monthly estimates shall be within a range equal to fifteen
per cent (15%) higher or lower than the average of the twelve Monthly estimates contained in the
Ocean Forecast.




          (ii) With the Ocean Forecast, Tampa Electric shall include the scheduled planned maintenance
periods which Tampa Electric shall have the right to declare and which shall not exceed (3) periods
of up to and including four (4) consecutive Days with no fewer than thirty (30) Days between
periods (the “Planned Maintenance Periods”). Tampa Electric shall use its best commercial efforts
to schedule the Planned Maintenance Periods during Months in which lesser Cargo quantities are
scheduled for delivery.







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     5.3.2 Ocean Forecast Updates



          (i) Each Month of the Year beginning in November of the Year prior to the Year in question,
Tampa Electric shall update the Ocean Forecast (“Ocean Update”). The Ocean Update shall specify
the quantity of Cargo, without limitation, for each remaining Month in the Year in question. For
the avoidance of doubt, the Ocean Update for each of November, December and January shall include
Tampa Electric’s estimate of the Cargo quantity for each of the twelve Months for the Year in
question.




          (ii) Tampa Electric shall give the Ocean Update to United no later than the first Business Day
of each Month. From time to time, Tampa Electric, for sound commercial reasons, shall have the
right to amend the Ocean Update, provided notice of such amendment is given to United by the
fifteenth (15th) day of the Month in question. Such amendment will relate back to the
first of the Month and will be deemed as given on that first day.




          (iii) In view of, and without prejudice to, their reciprocal obligations under this Section 5,
Tampa Electric and United acknowledge their intent to communicate frequently and in a timely manner
as to their evolving commercial needs and transportation capacities and as to other relevant facts
and circumstances.




     5.3.3 Tampa Electric’s Obligation to Provide Cargo



          For each Month beginning in January, 2009, Tampa Electric shall provide to United the quantity
of Cargo for that Month as set forth in the Ocean Update that Tampa Electric had issued two Months
earlier, plus or minus ten per cent (10%). For example, in January, 2009, Tampa Electric shall
provide the quantity as set forth in the Ocean Update for January, 2009 as revised no later than on
November 1, 2008, ± ten per cent (10%); in February, Tampa Electric shall provide the quantity set
forth in the Ocean Update, as revised no later than on December 1, ± ten per cent (10%), and so on.







33









 








     5.3.4 United’s Obligation to Carry Cargo



          United shall use its best commercial efforts to carry the Cargo quantities provided by Tampa
Electric. Each Month, United shall be obliged to carry at least ninety per cent (90%) of the Cargo
quantity specified by Tampa Electric in the Ocean Update that Tampa Electric had issued two Months
earlier, on the condition that Tampa Electric provides a Cargo quantity for that Month that is
equal to or is greater than ninety per cent (90%) of the Cargo quantity specified in its Ocean
Update issued two Months earlier. If, however, Tampa Electric provides Cargo in an amount that is
less than ninety per cent (90%) of the quantity that it specified in the Ocean Update that it
issued two Months earlier, United shall use its best efforts to carry the quantity provided by
Tampa Electric and is obliged to carry at least ninety-five per cent (95%) of the quantity provided
by Tampa Electric. The following are examples of United’s obligations under this Section 5.3.4:
as example (a), if Tampa Electric in its December Ocean Update specified a quantity of 360,000 Tons
for February and provided 360,000 Tons in February, United would be obliged to carry, in February,
at least ninety per cent (90%) of that quantity, i.e., at least for 324,000 Tons. As example (b),
if in the Ocean Update for December, Tampa Electric specified a quantity of 360,000 Tons for
February and provided a quantity of 340,000 Tons in February, United would be obliged to carry at
least 324,000 Tons. As example (c), if in the Ocean Update for December, Tampa Electric specified
a quantity of 360,000 tons for February and provided a quantity of 300,000 Tons in February, United
would be obliged to carry at least ninety-five per cent (95%) of 300,000 Tons, i.e., at least
285,000 Tons.




     5.3.5 United’s Failure to Perform



          (i) If for any two consecutive Month period, United, except to the extent caused by (x) Force
Majeure excusing United’s performance, (y) any failure of Tampa Electric to perform its obligations
under this Agreement, fails to meet its obligations to Tampa Electric under Section 5.3.4 above,
Tampa Electric shall have the right, but not the obligation (declarable no later than three (3)
Business Days into the next Month) to elect one of the following remedies as to the Ocean Deficit
(the difference between the total minimum Cargo quantities for which United was obliged to carry
for the two Months in question and, if a lesser amount, the total Cargo quantity carried by United
during those two Months shall be referred to as the “Ocean Deficit”):







34









 








          a) Tampa Electric may increase the minimum quantity for which United is required to carry for
the next Month by part or all of the Ocean Deficit (the quantity so forwarded into the next Month
shall be specified by Tampa Electric in its notice given pursuant to this Section 5.3.5). For
example, if the Ocean Deficit is 20,000 Tons for January and February and United’s obligation was
to carry a minimum of 324,000 Tons in March, Tampa Electric could increase United’s obligation by
up to 20,000 Tons for March, or




          b) For each of October, November or December of any Year, Tampa Electric may deduct all or
part of the Ocean Deficit from the applicable annual minimum quantity of Completed Tons set forth
in Section 2.2.1(iii). For example, if the Ocean Deficit was 20,000 Tons for August and September
of 2009, Tampa Electric could reduce the minimum quantity for 2009, i.e., [...***...] Tons, by up
to 20,000 Tons, or




          c) Tampa Electric may divert part or all of the Ocean Deficit to another carrier and if the
amount by which the total cost of transporting the Ocean Deficit exceeds the applicable Rates set
forth in the Agreement, United shall pay such excess to Tampa Electric. The total transportation
cost shall be the result of a good faith, arms’ length agreement between Tampa Electric and the
third-party carrier and shall include the reasonable expenses incurred by Tampa Electric in
arranging for such carriage. The Tons of Ocean Deficit that are carried by the third-party carrier
shall be deemed “Completed Tons” for the purpose of calculating the Ocean Shortfall under Section
2.2.




          (ii) Tampa Electric, in its sole discretion, is under no obligation to exercise any of its
rights under subsection (i) above but can seek, instead at any time, to enforce its common law or
contractual remedies provided by the applicable law or under this Agreement. Tampa Electric’s
decision not to exercise its rights under subsection (i) above shall not prejudice its rights to
such remedies in any way whatsoever.




     5.3.6 Tampa Electric’s Immediate Additional Requirements



          (i) If Tampa Electric specifies in its Ocean Update a Cargo quantity in a Month which is
significantly higher or lower than the quantity specified for that Month in its Ocean Forecast,
United is obliged to carry at least ninety per cent (90%) of that significantly higher or lower
Cargo quantity, provided that the Ocean Update was given to United at least two






35









 







Months in advance of the Month in question. For example, if Tampa Electric specifies 360,000
for February in its Ocean Forecast and then specifies 420,000 for February in its December 1 Ocean
Update, United is obliged to provide barges for ninety per cent (90%) of 420,000 Tons in February.




          (ii) If for either or both of the first two months of a Ocean Update (as in the example in
paragraph [i] above for an Ocean Update given on December 1, those Months would be for December and
January), Tampa Electric specifies a Cargo quantity which exceeds one hundred and ten per cent
(110%) of the Cargo quantity ( the Cargo quantity in excess of one hundred ten per cent[110%] shall
be referred to as the “Excess Ocean Quantity”) for either or both of those Months as set forth in
the applicable Ocean Update, United shall notify Tampa Electric, within five (5) Business Days of
receipt of the Ocean Update, whether it is willing to carry that Excess Ocean Quantity at the
applicable Rate(s).




          a) If United agrees to carry, within the five (5) Business Day period, the full amount of the
Excess Ocean Quantity at the applicable Rate(s), the minimum Cargo quantity for which it is obliged
to carry for the Month in question shall be increased by the full amount of the Excess Ocean
Quantity.




          b) If United declines to take the entire Excess Ocean Quantity but offers to take a lesser
amount, Tampa Electric in good faith, shall consider whether to accept United’s offer in light of,
among other things, the freight rate, the Cargo quantity and the delivery dates contained in
United’s offer and the terms offered by other carriers. If Tampa Electric accepts United’s offer,
the minimum Cargo quantity for which United is obliged to carry for the Month in question shall be
increased by the mutually agreed incremental amount. As to the remaining quantity, that is, the
quantity that United declined to take, Tampa Electric shall be free to provide that quantity to
another carrier at its own expense. If Tampa Electric refuses United’s offer to take a lesser
amount, Tampa Electric shall be free to provide the full amount of the Excess Ocean Quantity to
another carrier at its own expense.




          c) If United declines to carry any of the Excess Ocean Quantity at the applicable Rate(s) or
fails to reply within five (5) Business Days, Tampa Electric shall be free to provide the Excess
Ocean Quantity to another carrier at its own expense.







36









 








          (iii) Tons carried with such other carrier(s) under this Section 5.3.6(ii) shall not count as
Completed Tons in calculating whether Tampa Electric owes United a Ocean Shortfall Payment under
Section 2.2 above. Tampa Electric’s right to provide Cargo to other carriers under this paragraph
shall be limited to a quantity up to and including two hundred and fifty thousand (250,000) Tons of
Cargo per Year.




     5.4 Vessel Scheduling



          (i) In accordance with Section 5.3, United, at 1200 hours, in Tampa, on the second Thursday of
each month beginning on December 11, 2008, shall notify Tampa Electric of the vessel’s name,
expected loading date(s), expected departure date from the UBT Terminal and expected arrival date
at Big Bend Terminal for each vessel that will be utilized during the next Month. United shall use
its best commercial efforts to arrange for the vessel departures from the UBT Terminal to be
ratable, that is fairly evenly spread over the course of the Month.




          (ii) No later than noon on Thursday of each week, United shall confirm to Tampa Electric the
vessel’s name, the updated expected loading date, the updated estimated departure date and updated
expected arrival date at Big Bend Terminal for each vessel that United will utilize during the next
week. United shall use its best commercial efforts to arrange for the vessel departures from the
UBT Terminal to be ratable, that is, fairly evenly spread over the course of the Month. As to the
ratable requirements in this paragraph (i) and (ii), United, for the avoidance of doubt,
acknowledges that scheduling the departure of a vessel to meet United’s commercial needs, unrelated
to its obligations under this Agreement, would be an insufficient justification for the scheduling
of an unratable departure.




          (iii) United shall schedule only liftings that are specified by Tampa Electric consistent with
Section 5.3 above or as otherwise agreed by Tampa Electric and United. If United wishes to
schedule a lifting not so specified or otherwise agreed, United must obtain Tampa Electric’s prior
approval, which approval may be denied, withheld or conditioned for any reason whatsoever.




          (iv) For the avoidance of doubt, nothing contained in paragraph (iii) above shall limit
United’s ability to substitute one vessel for another provided the substitute vessel’s cargo
carrying capacity is within a range of ninety to one hundred and ten per cent (90 – 110%)






37









 







of the original vessel’s cargo carrying capacity. Otherwise, United must seek Tampa
Electric’s prior approval to substitute a vessel for one already nominated under paragraphs (i) and
(ii) above, which approval shall not be unreasonably withheld, conditional or delayed.




          (v) With respect to Domestic Ocean Service Cargo, Tampa Electric shall notify United, (a) at
least thirty (30) Days prior to the estimated date for the commencement of loading a Cargo at a
port or place on the U.S. Gulf coast and (b) at least sixty (60) Days prior to the estimated date
for the commencement of loading of a Cargo at a non-U.S. Gulf coast port or place, as to the
identity of port or place of loading, the quantity of Cargo, the date of Cargo availability
(“Vessel Loading Date”) and an other special terms or conditions for loading of such Cargo. United
shall arrange for a vessel capable of loading and carrying the quantity of Cargo specified by Tampa
Electric to be available for loading at the port or place nominated by Tampa Electric on the Vessel
Loading Date. Within ten (10) days after receipt of Tampa Electric’s notice, United shall notify
Tampa Electric of the vessel’s name and its expected arrival date at the loading port and then at
Big Bend Terminal. Unless the Rate is specified in this Agreement, Tampa Electric and United shall
agree to an applicable rate within ten (10) Days of Tampa Electric’s notice. In determining
whether United has met its performance obligation under Section 5.3.4 above, the Tons loaded by
United in the Domestic Ocean Service during the Month(s) in question shall count.




     5.5 Carriage of Cargo to Big Bend Terminal



          After loading of the vessel at the UBT Terminal or any other port or place, United, at its
sole risk and expense, shall carry the Cargo, safely and timely, from the UBT Terminal or other
port or place to Big Bend Terminal.




     5.6 Notices by United



          United shall provide prompt written notice to Tampa Electric upon the departure of a vessel
from the UBT Terminal and United, or the vessel, shall provide a written notice to Tampa Electric
at 2400 hours and 1200 hours of each day thereafter until the vessel arrives at the Big Bend
Terminal. That notice shall include the vessel’s position, its speed and its expected time and
date of arrival at the Big Bend Terminal. United shall provide prompt written notice to Tampa
Electric two hours before the vessel is due to arrive at Egmont Key.







38









 








     5.7 Discharging and Stevedoring Damage



     5.7.1 Discharge at Big Bend Terminal



          (i) United’s vessels that call at Big Bend Terminal will be in a condition to be safely
discharged and cleaned, in accordance with industry standards. Tampa Electric shall discharge the
vessels at Big Bend Terminal at its risk and expense. United, however, shall be responsible for
any damage or injury caused by a vessel, its officers or crew to Big Bend Terminal, its employees
(including employees of independent contractors) and its equipment. Such damage or injury at Big
Bend Terminal shall be reported to United’s responsible shore-side personnel within seven (7) Days,
failing which United shall not be responsible for the cost of repairs or for any other expenses.




          (ii) Tampa Electric shall unload the vessels on a continuous twenty-four hours a Day, seven
days a week basis except for the following holidays:





	 	•	 	New Year’s Day (commencing at 1900 hours on December 31st and ending at
1900 hours on January 1st)
	 
	 	•	 	Memorial Day (commencing at 0700 hours and ending at 1900 hours)
	 
	 	•	 	Independence Day (commencing at 0700 hours and ending at 1900 hours)
	 
	 	•	 	Thanksgiving (commencing at 0700 hours on such Day and ending on 0700 hours on the
following day)
	 
	 	•	 	Christmas (commencing at 1900 hours on December 24th and ending on 1900
hours on December 25th)





          If a vessel arrives at Egmont Key not later than twenty (20) hours prior to the commencement
of the holiday, as described above, Tampa Electric, notwithstanding the holiday, shall discharge
the vessel if the berth is immediately available.




     5.7.2 Stevedore Damage



          Tampa Electric shall be responsible for damage (beyond ordinary wear and tear) to any part of
the vessel caused by stevedores, employees of Tampa Electric or its independent






39









 








contractors at Big Bend Terminal or at a loading facility other than the UBT Terminal. Tampa
Electric, however, shall not be responsible for damage resulting from insufficient cargo hold
strength or insufficient plate thickness, which damage could not reasonably be expected to be
avoided by a prudent operator of a front-end loader, clam-shell or continuous bucket unloader.
Such damage shall be notified, in writing, as soon as reasonably possible by the Master to Tampa
Electric or their agents and to their stevedores (and no later than the time of the vessel’s
departure from the berth), failing which, Tampa Electric shall not be responsible for the cost of
repair or any other expenses. The Master shall endeavor to obtain the stevedores’ written
acknowledgement of responsibility. Tampa Electric is obliged to pay for the reasonable costs of
repairing such damage and all additional expenses reasonably incurred by United that result from
such damage and any time lost shall count as used Laytime added to the used Laytime for the
vessel’s call at Big Bend Terminal during which the damage occurred. United shall give ample
notice to Tampa Electric of the time and place of the vessel repairs so that Tampa Electric can
have its representative present during the repairs. Repairs to the vessel will occur at the berth
at Big Bend Terminal only if the vessel cannot safely be moved, as confirmed by the Class surveyor
or as mutually agreed by Tampa Electric and United. If repairs do occur at the berth at Big Bend
Terminal, United agrees to accomplish the repairs as quickly as possible. United’s rights under
this paragraph shall be its sole and exclusive remedy for damage to the vessel caused by
stevedores, employees of Tampa Electric or its independent contractor at Big Bend Terminal or at a
loading facility other than the UBT Terminal.




     5.8
Free Time and Laytime at the Load Port or Place in the Domestic
Ocean Service



          Laytime shall not run while a vessel is at the UBT Terminal while in the Trans-Gulf Ocean
Service. Laytime, however, shall run while a vessel is at a port or place, other than the UBT
Terminal, while in the Domestic Ocean Service or the Foreign Ocean Service, in accordance with
Section 5.8.2 below. Used Laytime at such load port or place will be added to the used Laytime at
Big Bend Terminal in determining whether demurrage or despatch has been incurred for the voyage in
question. Tampa Electric and United shall coordinate the scheduling of Domestic Ocean Service
Cargo and Foreign Ocean Service Cargo so as to minimize used Laytime.







40









 








     5.8.1 Free Time



          For the calculation of demurrage and despatch, each vessel shall be allowed a period of time,
specified in days, hours and minutes equal to the quantity of Cargo loaded on board the vessel
divided by 20,000 short tons.




     5.8.2 Running of Laytime



          Laytime shall commence after the vessel, in all respects ready to load, gives a valid Notice
of Readiness at the port or place nominated by Tampa Electric, whether day or night, whether or not
a berth is available and whether or not during usual business hours, provided that the Notice of
Readiness is not given before, or after, the Vessel Loading Date. If the Notice of Readiness is
given prior to the Vessel Loading Date, Laytime shall begin running at the earlier of 0001 hours on
the Vessel Loading Date or upon the commencement of loading. If the Notice of Readiness is given
after the Vessel Loading Date, Laytime shall begin running upon the commencement of loading.
Laytime shall end upon the completion of loading.




     5.8.3 Exceptions to Laytime and Demurrage



          (i) Laytime and demurrage shall not run for delay caused by the vessel or by United.




          (ii) Laytime shall be interrupted or, if Laytime has not commenced, Laytime shall not start,
if the delay is caused by Force Majeure. If a Force Majeure occurs after a vessel goes on
demurrage and the demurrage is prolonged due to Force Majeure, the demurrage so caused by Force
Majeure shall be calculated at one-half of the applicable demurrage rate.




          (iii) Laytime or demurrage shall not run, and time shall not count, while the vessel is
shifting from the anchorage to the berth, or while waiting for tide, pilots or tugs.




          (iv) Laytime shall not commence if, upon the arrival of the vessel at Egmont Key, the berth is
unavailable due to its actual or pending occupancy by another United vessel, unless the prior
vessel in the berth was delayed due to the actions or omissions of Tampa Electric.







41









 








          (v) Laytime shall not commence if the vessel arrives at Egmont Key within twenty (20) hours
before the beginning of, or during, a Planned Maintenance Period in which Tampa Electric cannot
discharge the vessel by the usual means.




          (vi) If, after giving its Notice of Readiness, the vessel is found not to be ready to
discharge, the time lost until the vessel is, in all respects, ready to discharge, shall not count
as used laytime or as time on demurrage.




          (vii) Time used in opening the vessel’s hatches before the commencement of discharge and in
closing the vessel’s hatches upon the completion of discharge shall not count as used laytime or as
time on demurrage.




          (viii) Stoppages to discharging due to the vessel’s requirements shall not count as used
laytime or as time on demurrage.




          (ix) Delay due to holidays, as set forth in the Big Bend Terminal Rules and Regulations which
are annexed as Attachment G, shall not count as used laytime or as time on demurrage.




     5.9 Free Time, Laytime, Demurrage and Despatch at Big Bend Terminal



          Tampa Electric and United shall coordinate the scheduling of cargoes so as to minimize used
Laytime or demurrage.




     5.9.1 Free Time



          For the calculation of demurrage and despatch at Big Bend Terminal, each vessel listed on
Attachment E shall be allowed a period of time, specified in days, hours and minutes, equal to the
quantity of cargo loaded on board the vessel divided by one thousand, one hundred Tons (1,100). An
additional two hours will be added to allowed Laytime when cleaning the non-self unloaders,
including the “Gayle Eustace.” An additional four hours will be added to allowed Laytime when
cleaning the self-unloaders (i.e., “Mary Turner” and Diana T”). The free time for each vessel not
listed on Attachment E shall be agreed in advance of its arrival at Big Bend Terminal.







42









 








     5.9.2 Running of Laytime



          Laytime shall commence running after the vessel, in all respects, ready to discharge, gives a
valid Notice of Readiness at Egmont Key, near Tampa, whether day or night, whether or not a berth
is available and whether or not during usual business hours. Laytime shall end when the vessel has
completed discharging or, if cleaning is requested by United, the vessel’s holds are in a
broom-swept condition as per past practices.




     5.9.3 Exceptions to Laytime and Demurrage



          (i) Laytime and demurrage shall not run for delay caused by the vessel or by United.




          (ii) Laytime shall be interrupted or, if Laytime has not commenced, Laytime shall not start,
if the delay is caused by Force Majeure. If a Force Majeure occurs after a vessel goes on
demurrage and the demurrage is prolonged due to Force Majeure, the demurrage so caused by Force
Majeure shall be calculated at one-half of the applicable demurrage rate.




          (iii) Laytime or demurrage shall not run, and time shall not count, while the vessel is
shifting from the anchorage to the berth, or while waiting for tide, pilots or tugs.




          (iv) Laytime shall not commence if, upon the arrival of the vessel at Egmont Key, the berth is
unavailable due to its actual or pending occupancy by another United vessel, unless the prior
vessel in the berth was delayed due to the actions or omissions of Tampa Electric.




          (v) Laytime shall not commence if the vessel arrives at Egmont Key within twenty (20) hours
before the beginning of, or during, a Planned Maintenance Period in which Tampa Electric cannot
discharge the vessel by the usual means.




          (vi) If, after giving its Notice of Readiness, the vessel is found not to be ready to
discharge, the time lost until the vessel is, in all respects, ready to discharge, shall not count
as used laytime or as time on demurrage.







43









 








          (vii) Time used in opening the vessel’s hatches before the commencement of discharge and in
closing the vessel’s hatches upon the completion of discharge shall not count as used laytime or as
time on demurrage.




          (viii) Stoppages to discharging due to the vessel’s requirements shall not count as used
laytime or as time on demurrage.




          (ix) Delay due to holidays, as set forth in the Big Bend Terminal Rules and Regulations which
are annexed as Attachment G, shall not count as used laytime or as time on demurrage.




     5.9.4 Demurrage and Despatch



          If used Laytime exceeds the allowed Free Time then the excess time shall count as demurrage.
If the allowed Free Time exceeds the used Laytime, then the excess shall count as despatch.




     5.9.5 Demurrage Process



          Tampa Electric shall provide United with a statement of facts for the loading port (if the
loading port or place was other than at the UBT Terminal) and for Big Bend Terminal within five (5)
Business Days from the date of completion of discharge of a vessel at Big Bend Terminal. United
shall within ten (10) Business Days provide Tampa Electric with a proposed calculation of demurrage
or despatch accrued on that vessel. Tampa Electric and United shall attempt to agree to demurrage
or despatch on a particular vessel voyage within twenty (20) Business Days of the date of
completion of the vessel’s discharge.




     5.9.6 Payment of Demurrage/Despatch



          Tampa Electric and United agree to settle any demurrage or despatch with respect to Trans-Gulf
Ocean Service, Domestic Ocean Service and Foreign Ocean Service on a calendar quarterly basis at
the daily rate set forth in Attachment F (or pro rata). Demurrage and despatch shall be subject to
adjustment in accordance with the relevant provisions of Attachment J. In computing the amount of
demurrage, if any, Tampa Electric and United shall credit the dollar amount of despatch earned
during the calendar quarter against the dollar amount of the demurrage. If the dollar amount of
demurrage exceeds the dollar amount of despatch, Tampa






44









 







Electric shall pay United. If the dollar amount of the despatch exceeds the dollar amount of
demurrage, no payment shall be due or payable to Tampa Electric and there shall be no carry-forward
of the despatch. Within thirty (30) Days following the end of each calendar quarter, United shall
determine any net demurrage payment or net despatch credit and provide a proposed calculation with
sufficient detail and documentation to enable Tampa Electric to review and independently verify
such amount. Tampa Electric shall pay any undisputed amount of demurrage within thirty (30) Days
following the date on which such calculation and supporting documentation was received by Tampa
Electric. Tampa Electric and United shall make a good faith effort to reconcile any disputed
amounts, or refer the same to the Dispute Resolution provision, with any payment ultimately due to
be paid together with interest at the Interest Rate.




     5.10 Water Depth at Big Bend Terminal



          For the purposes of this Agreement, Tampa Electric shall maintain, or cause to be maintained,
adequate water depth at its Big Bend Terminal channel, turning basin and berth to accommodate
vessels on an even keel to a maximum draft of thirty three (33) feet draft at mean low water. In
the event that United is able to show that there is inadequate water depth to accommodate a vessel
with a draft of thirty-three (33) feet draft (even keel) at mean low water, then Tampa Electric
shall pay to United an amount equal to the difference (i) between the quantity of coal or other
Cargo which could have been carried by the vessel at a draft of thirty-three feet and (ii) if a
lesser quantity, the quantity of coal or other Cargo which was carried by the vessel, multiplied by
the applicable Rate, always provided that United was ready, willing and able to load on board that
vessel fully with coal or the other Cargo. Any such Cargo quantities not carried, and for which
additional payments are due from Tampa Electric under this paragraph, shall count as Completed Tons
as of the date of the completion of discharge of the vessel in question.




     5.10.1 Safe Berth



          Tampa Electric warrants that, so long as a vessel does not exceed the following dimensions,
such vessel can safely proceed to, lie at, and depart from the berth and remain safely afloat at
the berth at any stage of the tide.







45









 








          Length Over All – 650 feet




          Beam – 85 feet




          Draft – 33 feet




          The tug/barge units “Janis Guzzle” and “Marie Flood,” even though they exceed those
dimensions, may call at Big Bend Terminal. From time to time, United may request permission for a
vessel in advance of its use under this Agreement, the dimensions of which exceed those specified
above, to call at Big Bend Terminal. In such case, Tampa Electric must give its prior approval to
permit the vessel to call at Big Bend Terminal, which approval may be withheld for a good reason.




     5.11 Vessel Chartering



          United, at no cost to Tampa Electric, shall have the right to charter vessels so that United
may meet its obligations to Tampa Electric under this Agreement, provided that (i) Tampa
Electric, in advance, shall approve in writing the vessel(s) that United plans to charter, which
approval shall not be unreasonably withheld, conditioned or delayed, (ii) the substitute vessel(s)
meets the representations and warranties set forth in Section 5.2 above and the dimension
limitations set forth in Section 5.10 above (if Tampa Electric provides its approval under this
Section 5.11, United need not obtain Tampa Electric’s approval under Section 5.10 if such approval
otherwise would be required under Section 5.10) and (iii) United shall continue to remain fully
responsible for the performance of the substituted vessel(s).




     5.12 Tampa Electric Terminal Rules and Regulations



          United agrees to abide by, and be bound by, the “Terminal Rules and Regulations” issued by
Tampa Electric for its Big Bend Terminal, as attached hereto (Attachment G ), except for: (i) the
provisions in Attachment G that have been deleted, as indicated by strikethroughs, and (ii) any
other provision therein that conflicts with the terms of this Agreement. Except as required by
applicable law or governmental regulation, any changes to the Terminal Rules and Regulations, shall
not be binding on United unless United gives its consent.







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     6. GENERAL SERVICE PROVISIONS



     6.1 Right of Inspection



          At its own expense, at any time during regular business hours, and upon at least three (3)
Business Days’ notice, Tampa Electric shall have the right to inspect and review (or to have its
representatives inspect and review) any part of United’s Cargo operations, equipment and facilities
by which Cargo handled under this Agreement is transported, unloaded, stored, sampled and loaded,
including, but not limited to, vessels, tugs, barges, records of operations, transportation and
transfer equipment and procedures, analytical procedures, storage piles, sampling equipment,
loading/unloading docks and all other equipment used to handle or transport Cargo for Tampa
Electric.




     6.2 Risk of Loss



          United shall bear the risk and liability for loss to Cargo while it is in its possession as
more specifically set forth below:




          (i) United shall have the risk and liability for loss of River Service Cargo during the
continuous period commencing when the Cargo is loaded into United’s barges at places and ports on
the Applicable Waterways and terminating when United secures the loaded vessel at Big Bend
Terminal, including the time the Cargo is stored at the UBT Terminal.




          (ii) United shall have the risk and liability for loss of FAS Cargo during the continuous
period commencing when the barge carrying FAS Cargo arrives at the UBT Terminal and custody of the
barge is transferred to United and terminating when United secures the loaded vessel into which the
FAS Cargo was loaded at Big Bend Terminal, including the time that the Cargo is stored at the UBT
Terminal.




          (iii) United shall have the risk of loss and liability for loss of Domestic Ocean Service Cargo
and Foreign Ocean Service Cargo during the continuous period commencing when the Cargo is loaded
onto the vessel and terminating when United secures the loaded vessel at the berth at Big Bend
Terminal.




          United shall not be responsible for a reduction of Cargo inventory in its custody which is due
to shrinkage to the extent normally accepted as reasonable within the industry. In






47









 







the event of a dispute concerning liability for shrinkage, such dispute shall be resolved
according to Dispute Resolution, Section 14.




          United shall report promptly to Tampa Electric any of United’s barges which are leaking and in
danger of sinking. United shall bear the risk of loss of Cargo which cannot be unloaded from such
barge and the costs of transporting such Cargo, if not lost, to the UBT Terminal. If a barge sinks
and part or all of the Cargo is unrecoverable, such unrecoverable Cargo shall count as Completed
Tons in calculating whether Tampa Electric owes United a River Shortfall Payment, a Terminaling
Shortfall Payment and a Ocean Shortfall Payment under Section 2.2 above.




     6.3 Weights and Weighing



          The weights for purposes of application of Rates, and computing losses, under this Agreement
shall be provided by Tampa Electric and shall be based on the following:




          (i) Rail — Official rail weights from certified scales;




          (ii) Barges and FAS Cargoes — Official origin weight as determined for each loading point and
consistent with each Tampa Electric solid fuel supply agreement; and




          (iii) Vessels — Tampa Electric’s destination scale weights or, if the Tampa Electric
destination scales are not properly functioning or are otherwise unavailable, draft vessel weights
upon unloading. Upon United’s request, Tampa Electric shall provide United with scale calibration
certifications for its Big Bend Terminal scale.




          (iv) United shall have no responsibility to determine or verify any weights provided by Tampa
Electric and shall rely on such weights to demonstrate compliance with Tampa Electric’s
requirements under this Agreement; provided, however, that United shall have the right to
dispute such weights if, upon visual inspection, there appears to be a material deviation in the
weights provided by Tampa Electric and the tonnage in the barge(s), in storage at the UBT Terminal
or in the vessel(s). Such dispute shall be resolved according to Dispute Resolution, Section 14.







48









 








     6.4 Cargo Moisture



     6.4.1 Moisture Minimization



          United agrees to use all commercially reasonable measures to minimize the ingress of rain
water and other moisture into the Cargo. Without limiting the generality of the foregoing, United
agrees to take the following steps:




          (i) to discharge laden barges at the UBT Terminal as promptly as possible after their arrival,
provided that, Tampa Electric may, by notice to United, prioritize the order in which laden barges
are discharged at the UBT Terminal, in order to minimize Cargo moisture, such that barges might not
necessarily be discharged in the order in which they arrived at the UBT Terminal;




          (ii) to follow the instructions of Tampa Electric as to whether vessels at the UBT Terminal
are to be loaded from the Cargo on the ground or from the Cargo on arrived barges;




          (iii) to keep the hatches closed on a vessel carrying Cargo from the UBT Terminal to the Big
Bend Terminal until the vessel is tied to the berth at Big Bend Terminal, provided that United may
open the hatches on a vessel carrying Cargo prior to arrival at its berth if rain is not forecast;




          (iv) United shall promptly notify Tampa Electric of Cargo at the UBT Terminal which is
scheduled to be loaded on board a vessel which may have excess moisture so that Tampa Electric can
determine means to eliminate or reduce the excess moisture before or during loading.




     6.4.2 Remedies



          If, in the reasonable judgment of Tampa Electric, the Cargo, upon the vessel’s arrival at its
berth at Big Bend Station, contains an excessive amount of moisture, Tampa Electric shall have the
following rights:




          (i) to adjust the used Laytime or time on demurrage to reflect the time used by Tampa Electric
to takes steps to remove the excess moisture in the Cargo, and







49









 








          (ii) to recover from United the expenses that Tampa Electric reasonably incurs in reducing the
excessive moisture or as a result of the excessive moisture (including, without limitation,
cleaning the dock and the conveyor belts).




          Tampa Electric shall not have the remedies set forth above in the event that (a) United
fulfilled its obligations under Section 6.4.1, or (b) Tampa Electric instructed United to transport
to the Big Bend Terminal Cargo that had not been put to ground at the UBT Terminal.




          The remedies described in this Section 6.4.2 are available to Tampa Electric only as to Cargo
loaded at the UBT Terminal or at another facility as directed by United.




     6.5 Additional Terms



          (i) This Agreement consists of a storage contract and a private contract of affreightment and
is not to be construed as a bareboat, demise or time charter, nor is it to be construed as a
contract of common carriage.




          (ii) United is aware that it is carrying Cargo but shall make no independent inquiry as to the
quantity, quality or condition of the Cargo.




          (iii) Tampa Electric may avail itself of United’s services under this Agreement with respect
to Cargo owned by entities other than itself, provided that Tampa Electric plans to use that Cargo
in its own power generating plants.




          (iv) Nothing in this Agreement shall operate, limit or deprive United or Tampa Electric of any
statutory protection or exemption from or limitation of liability. Because United may require
third-parties to assist it in the performance of the services United is required to perform under
this Agreement, it is agreed that any third person employed by United shall be entitled to all
rights, immunities, exemptions and limitations of liability that are afforded United under this
Agreement and offered under any law of the United States.




          (v) Tampa Electric, at its sole cost and expense, shall obtain and provide all certificates,
clearances, permits, surveys, inspection reports and all other documents required under applicable
governmental regulations to lawfully load the Cargo other than at UBT Terminal. Barges in the
River Service shall move at the convenience of United, either as a single






50









 







unit or with one or more other barge units. United is not bound to transport the Cargo by any
particular craft or in time for any particular market. United shall have the right to shift or
interchange the tow from one to another towing vessel as it, in its sole discretion, may find
convenient, expedient or necessary. United shall have the right to transfer the Cargo from the
barge into which the Cargo was originally loaded to one or more other barges and United shall have
the right to tie off the tow at any point and for any purpose.




          (vi) The loading of barges or vessels for which Tampa Electric is responsible to load shall be
accomplished by Tampa Electric or its agents at its sole expense and risk (except at the UBT
Terminal). Tampa Electric shall comply with United’s reasonable instructions regarding the height
and weight of load, draft and other reasonable instructions as United may deem desirable for safe
transportation, and Tampa Electric shall distribute Cargo to allow an even draft. If not so
loaded, then Tampa Electric shall, at its expense, cause such corrections to be made as necessary
to meet United’s requirements, in which event any delay to the barge or vessel shall be subject to
the running of laytime or, if on demurrage, the running of demurrage. Any additional cost or
expense or loss or damage incurred by United at the berth as a result of improper loading shall be
for the account of Tampa Electric. Once the barge or vessel is loaded and leaves the berth, United
assumes all risk of loss or damage to the Cargo and the barge for any reason whatsoever including
but not limited to improper loading. Where covered barges are ordered, cover-handling costs will
be for Tampa Electric’s account.




          (vii) In the event of navigational hazards, lock outages or river or channel closures that in
United’s sole, but reasonable, discretion, would impede the safe or timely delivery of Cargo to
destination, United shall give written notice to Tampa Electric, which notice shall contain a
description of the problem and its expected duration. Tampa Electric shall instruct United as to
where United is to deliver the Cargo which instructions United shall follow. If Tampa Electric has
not provided instructions to United within five (5) business Days of Tampa Electric’s receipt of
United’s notice, United shall be free to deliver the Cargo at a suitable alternative terminal or
safe berth of United’s choosing.







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     7. RATES, ADJUSTMENTS



          Tampa Electric agrees to pay freight charges at the rates on a per Ton basis (“Rates”) for
Completed Tons for the River Service, the Terminaling Service and the Trans-Gulf Ocean Service or
the other Service Segments performed by United under this Agreement. The Rates set forth below
shall include all costs and expenses for United’s operation and maintenance of its fleet and other
equipment, including but not limited to cost of crew, personnel and administrative charges, fuel
and consumables, maintenance and repair, spare parts, insurance, as well as charges for dockage,
line handling (except at Big Bend Terminal where Tampa Electric provides line handling), barge
fleeting, barge shifting, on and off tug service for landing barge tows and tug service for loading
vessels, and all other costs of any nature whatsoever except as expressly set forth herein.
Subject to adjustment as set forth in Section 7.4, Rates shall be as follows:




     7.1 River Service, Terminaling Service, Trans-Gulf Ocean Services



          Tampa Electric agrees to pay United at the rates per Ton specified in Attachment A for the
River Service, the Terminaling Service and the Trans-Gulf Ocean Service.




     7.2 FAS Cargoes



          For the purpose of determining the quantity of FAS Cargo, it will be conclusively presumed
that the quantity of FAS Cargo for Terminaling Service and for the Trans-Gulf Ocean Service in any
Month shall be equal to the quantity of FAS Cargo that Tampa Electric provides in such Month for
Terminaling Services. For the purpose of determining the applicable Rate, such FAS Cargo shall
count as Completed Tons in the Month following the Month in which the FAS Cargo is Constructively
Placed at UBT Terminal.




     7.3 Domestic Ocean Service Cargoes



          Tampa Electric agrees to pay the rate per ton specified in Attachment H for Domestic Ocean
Service.




     7.4 Adjustment



          The rates for the services provided by United in connection with the Cargoes and the FAS
Cargoes, set forth above, are to be adjusted as set forth below.







52









 








     7.4.1 Fuel Component Adjustment



          The methodology of computing the Fuel Component Adjustment is set forth in Attachment I. The
first adjustment shall be calculated, and shall have effect, on January 1, 2009 and adjustments
shall be calculated Monthly.




     7.4.2 Variable Component Adjustment



          The methodology of computing the Base Variable Component Adjustment is set forth in Attachment
J. The first adjustment shall be calculated, and shall have effect, on April 1, 2009. When the
new Rates become effective on January 1, 2010, the first Variable Base Component Adjustment shall
be calculated, and shall have effect, on April 1, 2010. However, if the escalation indices in
Attachment J during the period from September 1, 2008 through August 31, 2009, have increased by
greater than five per cent (5%), the Base Variable Component of each Rate for 2010 – 2014 shall be
increased by the percentage increase in excess of the five per cent (5%), effective January 1,
2010.




     7.4.3 Fixed Component



          There shall be no adjustment to the Base Fixed Component.




     7.4.4 Submissions, Consideration of Rate Adjustments



          (i) United shall submit all rate adjustments, calculations and supporting data in as much
detail as is reasonably required to establish the amount of the adjustments no later than (a) by
the end of the next Month in the case of the Fuel Component Adjustment or (b) by the end of the
first month of the next quarter in the case of a quarterly adjustment. Tampa Electric shall
approve or reject the proposed rate adjustments within twenty (20) Days after receipt of reasonably
sufficient data. Such approval shall not be unreasonably withheld, conditioned or delayed by Tampa
Electric.




          (ii) Acceptance of any rate adjustment on the part of Tampa Electric does not constitute a
waiver of Tampa Electric’s right to audit under the provisions of Section 9 of this Agreement or to
correct any overpayment or underpayment that might be determined by such audit.







53









 








          (iii) Tampa Electric and United agree to negotiate in good faith any disputed rate
adjustments, but such negotiations shall not affect United’s obligation to provide services as
described herein, nor shall they affect Tampa Electric’s obligation to pay for the undisputed
portion of such services.




          (iv) Should Tampa Electric and United be unable to agree within ninety (90) Days after receipt
of United’s submission, they shall resolve their disputes by resort to the Dispute Resolution
provision, Section 14 of this Agreement.




     7.5 Change of Law, Taxes or Regulations



          (i) In the event any unit of government or port authority having jurisdiction over United or
its activities, after the date of this Agreement, imposes any new laws, rules or regulations or
modifies any existing laws, rules, regulations or imposes a new fee or tax or increases or
decreases any existing fee or tax (including without limitation any user charge or toll, imposed,
levied or collected from United for its use of the Mississippi and Ohio Rivers or their tributaries
or of the locks and dams in said river systems but excluding taxes on gross receipts or net
income), imposed during the course of performance of the services rendered hereunder, the effect of
which will increase or decrease the cost of performance by United hereunder, the then current
rate(s) shall be adjusted upward or downward to reflect such increase or decrease, effective the
date such increase or decrease is incurred by United.




          (ii) If the amount(s) of any adjustment(s) of the Rates then in effect, due to the operation
of paragraph (i) above, causes the Rate in any Service Segment to increase by twenty-five per cent
(25%) or more, in the aggregate, during the Term of this Agreement, Tampa Electric shall be
entitled, by written notice to United, to limit such upward adjustment to twenty-five per cent
(25%), in which case United shall be entitled to terminate this Agreement by notice to Tampa
Electric not later than twenty (20) Days after receipt of such notice to limit. If the amount of
any downward adjustment(s), due to the operation of paragraph (i) above, causes a Rate in any
Service Segment to decrease by twenty-five per cent (25%) or more, in the aggregate, during the
Term of this Agreement, United shall be entitled, by written notice to Tampa Electric, to limit
such downward adjustment to twenty-five per cent (25%), in which case






54









 







Tampa Electric shall be entitled to terminate this Agreement by notice to United not later
than twenty (20) Days after receipt of such notice to limit.




     8. PAYMENT



     8.1 Application of Rates



          In determining the applicable Rate for River Service, Trans-Gulf Ocean Service, Domestic Ocean
Service or Foreign Ocean Service, the Rate in effect on the Day the applicable Service Segment is
completed pursuant to Section 2.1.1 shall apply.




     8.2 Invoice and Payment



     8.2.1 Contents of Invoices



          All invoices or credit memoranda issued hereunder are to specify the date of the shipment to
which the invoice or credit memorandum pertains, the applicable Rate, the quantity of Cargo, the
type of Cargo, the identity of the loading dock and such other information as is reasonably
requested by Tampa Electric to enable Tampa Electric to verify the billing or credit amount.




     8.2.2 Invoicing



          United shall prepare and mail an invoice to Tampa Electric immediately following the 15th Day
of each Month for all services rendered hereunder from the first of the prior Month through the end
of the prior Month inclusive.




     8.2.3 Invoicing Error Corrections



          If it is determined that an error occurred in the preparation of any invoice, United agrees to
issue a corrected invoice or credit memorandum, as applicable, within ten (10) Days after
determination or notification of the error.




     8.2.4 Invoicing Mailing Address



          Tampa Electric shall advise United in writing of the proper address (or any changes) to which
billing invoices should be mailed. Until further notice, United shall mail invoices to:







55









 







Tampa Electric Company

Accounts Payable

P.O. Box 3285

Tampa, FL 33601




     8.2.5 Payment of Undisputed Invoices and Credit Memoranda



          Unless stated otherwise in this Agreement, Tampa Electric shall, within fifteen (15) calendar
Days of receipt of any invoice pertaining to services rendered under this Agreement, pay to United
the full net amount of said invoice; provided, however, that if Tampa Electric shall in
good faith dispute any portion of any invoice, then only the undisputed portion of such invoice
need be paid within the fifteen (15) Day period. Payment shall be treated as made when the same is
either (1) transferred by wire to United’s account and/or bank as United from time to time may
designate in writing or (2) deposited in the U.S. mail, postage prepaid, and properly addressed as
follows:



United Maritime Group, LLC

P.O. Box 22048

Tampa, Florida 33622-2048

Attention: Controller



As to amounts of five thousand dollars ($5,000) or less due to Tampa Electric, United may issue a
credit memorandum to Tampa Electric to be applied against outstanding invoices for services
rendered. If requested by Tampa Electric, United, in lieu thereof, shall make direct cash payments
to Tampa Electric. For amounts over five thousand dollars ($5,000) due to Tampa Electric, United
shall make direct cash payments to Tampa Electric. A payment shall be treated as made when the
same is either (1) transferred by wire to Tampa Electric’s account and/or bank as Tampa Electric
may from time to time designate in writing or (2) deposited in the U.S. mail, postage prepaid, and
properly addressed as follows:



Tampa Electric Company

P.O. Box 3285

Tampa, Florida 33601

Attention: Vice President – Controller



All payments shall be made in immediately available funds.







56









 









     8.2.6 Payment of Disputed Invoices and Price Revisions



          If Tampa Electric disputes United’s invoices or price revisions, in whole or part, Tampa
Electric shall make payment of any amount due United which is not in dispute. In the event that
settlement cannot be reached within ninety (90) Days after United’s issuance of the disputed
invoice, either Tampa Electric or United may refer to the provisions of the Dispute Resolution
provision, Section 14 of this Agreement.




     9. BOOKS, RECORDS AND AUDITS



     9.1 Maintaining Books and Records



          (i) United shall maintain books and records of all payments, price adjustments, credits,
debits, weights and supporting documentation establishing the bases for the price and all similar
data related to the performance under this Agreement, in order that all provisions of this
Agreement can be adequately administered and United’s performance under this Agreement can be
adequately verified. In so doing, United shall use accounting methods and practices in accordance
with generally accepted accounting principles, consistently applied. Such books and records are to
be retained for a minimum of five (5) Years from the last day on which this Agreement is in effect,
unless there is an ongoing Tampa Electric audit or dispute involving such books and records at the
end of the five (5) Years, in which case such books and records shall be retained until such audit
is completed or dispute is resolved. In addition, United shall itemize for Tampa Electric all data
pertaining to price adjustments requested under Section 7.4 of this Agreement and United
shall make its books and records available to Tampa Electric at any reasonable time so that Tampa
Electric can document any change, revision or adjustment to the various prices specified herein.
United shall submit additional information which Tampa Electric may request which is reasonably
available from United’s records and pertinent to the adjustment to be made.




          (ii) Tampa Electric shall maintain records, operational documentation and similar data
relating to its performance under this Agreement. Such records are to be retained for a minimum of
five (5) Years from the last day on which this Agreement is in effect, unless there is an ongoing
audit or dispute involving such records at the end of the five (5) Year period. In such event,
Tampa Electric shall maintain such records until such audit is completed or such dispute is
resolved.







57









 








     9.2 Right to Audit and Request Audit



          (i) Upon written request, United shall make available for Tampa Electric’s audit and
information copies of all appropriate books and records which United makes or has made in
connection with the ordinary course of business as the same relates to the performance of this
Agreement.




          (ii) Tampa Electric, on thirty (30) Days’ notice, but no more frequently than once a year, may
examine through its agents, employees or any independent auditor, the books and records related to
the performance of this Agreement of United, United Barge, United Bulk and United Ocean.




          (iii) United may, on thirty (30) Days’ prior written notice, but no more frequently than once
a year, examine through its agents, employees or any independent auditor reasonably satisfactory to
Tampa Electric, the books and records related to Tampa Electric’s performance of this Agreement.




          (iv) At the conclusion of each such audit provided for herein, the auditing party shall
provide the other party with the findings and detailed supporting documentation of said audit.




          (v) If the results of any audit disclose that an error has occurred and as a result an
underpayment or overpayment by either Tampa Electric or United has been made during the period of
time intervening since the most recent such audit, or since Cargo deliveries commenced under this
Agreement, if no previous such audit has been made, the amount thereof shall promptly be paid to
the party to whom it is owed by the other party, together with interest at the Interest Rate, and
the Rate or charge shall be adjusted accordingly, if applicable.




          (vi) Tampa Electric and United agree to cooperate fully in any audit and make their books and
records related to this Agreement available for audit. The cost of retaining auditors to perform
any audit shall be borne by the entity requesting same.




          (vii) The provisions of this Section shall not limit, in an way, the right of Tampa Electric
(a) to inspect and review United’s operations as set forth in Section 6.1 and (b) to






58









 







inspect and review the books and records of United on discrete issues as such issues, from
time to time, arise.




          (viii) All information obtained by one from another and any summaries or abstracts prepared
with respect thereto shall be subject to the confidentiality provisions of Section 21.4.




     10. TERM



          The term of this Agreement (the “Term”) shall commence on January 1, 2009 and, unless earlier
terminated pursuant to the terms of this Agreement, shall end on December 31, 2014.




     11. TERMINATION



     11.1 United’s Events of Default



          Each of the following occurrences shall be considered an Event of Default by United:




          (i) Any representation or warranty made by United in this Agreement shall prove to be
incorrect in any material respect as of the date of this Agreement.




          (ii) United shall commit a material breach of this Agreement.




          (iii) United, except to the extent caused by Force Majeure or caused by a failure by Tampa
Electric to meet its obligations under this Agreement or by Tampa Electric’s act or omission, fails
to provide barges in the River Service for, or to carry in the Ocean Service, at least two-thirds
(2/3) of the total quantity of Cargo provided by Tampa Electric, in accordance with this Agreement,
during any period of three (3) consecutive Months.




     11.2 Tampa Electric’s Events of Default



          Each of the following occurrences shall be considered an Event of Default by Tampa Electric:




          (i) Any representation or warranty made by Tampa Electric in this Agreement shall prove to be
incorrect in any material respect as of the date of this Agreement.







59









 








          (ii) Tampa Electric shall fail to pay, when due, any invoice submitted by United under Section
8 but only if the undisputed amount of such invoice exceeds one million dollars ($1,000,000).




          (iii) Tampa Electric shall commit a material beach of this Agreement.




          (iv) Tampa Electric, except to the extent caused by Force Majeure or by a failure by United to
meet its obligations under this Agreement or by United’s act or omission, fails to provide
two-third (2/3) of the total quantity of Cargo, in accordance with this Agreement, during any
period of three (3) consecutive Months.




     11.3 Termination Procedure



          (i) If the Event of Default is as described in Section 11.1(i) or Section 11.1(iii) or Section
11.2(i) or Section 11.2(iv), the aggrieved party has the right to terminate this Agreement by
providing an unconditional notice of termination to the defaulting party within thirty (30) days of
becoming aware of the materially incorrect representation or warranty, failing which the Event of
Default shall be deemed as having been waived by the aggrieved party.




          (ii) Upon the occurrence of any other Event of Default by the defaulting party, the aggrieved
party shall have the right to give notice to the defaulting party, which notice shall (a) state
that an Event of Default has occurred, (b) describe briefly the circumstances giving rise to the
occurrence of the Event of Default and (c) state that, unless the Event of Default is cured within
thirty (30) days, the aggrieved party may exercise its right to terminate this Agreement. If, at
the end of the thirty (30) day period, the defaulting party has not cured the Event of Default, the
aggrieved party shall have the right, but not the obligation, to terminate this Agreement by
providing an unconditional notice of termination to the defaulting party within fifteen (15) days
of the expiration of the thirty (30) day cure period. If the aggrieved party fails to give an
unconditional notice of termination to the defaulting party within that fifteen (15) day period,
and the Event of Default continues to be uncured, the aggrieved party must serve a new notice and
provide a new thirty (30) day cure period in order to be able to exercise its right to terminate
under this Agreement.







60









 








          (iii) In determining whether defaulting party has committed an Event of Default under Sections
11.1(iii) and 11.2(iv), Tampa Electric and United shall count (i) the number of Tons of Cargo for
which barges are Constructively Placed at Applicable Waterways ports and places upon the lapse of
the relevant three Month period, (ii) the number of Tons of Cargo that have been discharged either
at the UBT Terminal or at Big Bend Terminal during the relevant three (3) Month period, (iii) the
number of Tons of Cargo on board the river barges and the vessels upon the lapse of the relevant
three (3) Month period and (iv) any number of Tons permitted to be counted as Completed Tons by the
defaulting Party during the relevant three (3) month under the terms of this Agreement (with no Ton
of Cargo counting more than once).




     11.4 Insolvency



          Tampa Electric and United each has the right, but not the obligation, to immediately terminate
this Agreement without any further obligation or liability: (i) in the event that the other
becomes insolvent or is unable to pay its debts as they become due, or (ii) in the event that the
other shall declare or be forced into bankruptcy, receivership, reorganization, dissolution,
liquidation or similar proceedings. In addition, Tampa Electric has the right, but not the
obligation, to immediately terminate the applicable Service Segment if any of United Barge, UBT
Terminal or United Ocean becomes insolvent, is unable to pay its debts as they become due or
declares or is forced into bankruptcy, receivership, reorganization, dissolution, liquidation or
similar proceedings.




     11.5 Letter of Credit Default



          Tampa Electric may terminate this Agreement upon the occurrence of a Letter of Credit Default
if the Letter of Credit Default is not cured within seven (7) Business days after notice to United.




     12. FORCE MAJEURE



     12.1 Definition



          The term “Force Majeure” for purposes of this Agreement means any event which is beyond the
reasonable control of and occurs without fault or negligence of the entity asserting the Force
Majeure, including, but not limited to: an act of God; an act of the public enemy; acts or
threatened acts of terrorism; fire; flood; low or high water; river lock(s) failure or






61









 







shutdown; ice; washout; explosion or other serious casualty; unusually severe weather (which
at Big Bend Terminal will include, without limitation, lightning and also winds in excess of 30 mph
which delay discharging); preparation for unusually severe weather; war (whether declared or not);
warlike circumstances; mobilization; revolution; riot or civil commotion; legal intervention;
regulations or order of any governmental authority; strike; lockout or other labor disputes (labor
disputes may be resolved solely at the discretion of the entity having the difficulty); or
breakdowns of or damage to plant, equipment or facilities (including barge and vessel loading and
unloading facilities, equipment, facilities and equipment used in storage, transfer and unloading
of Cargo and including breakdowns of, or damage to, power plant or terminal equipment so as to
prevent the receiving, unloading, handling or burning of Cargo in significant quantities or the
receiving and storing of Cargo at the power plant locations), the failure, inability or delay of
one or more of Tampa Electric’s suppliers or the transporters of such suppliers to make Cargo
available for delivery to Tampa Electric pursuant to this Agreement, or pursuant to a commitment
between the supplier(s) and Tampa Electric. Increased costs or general change in market
conditions, however, severe or unforeseeable, shall not constitute Force Majeure.




     12.2 Notice And Relief Under Force Majeure



          If, because of Force Majeure, either Tampa Electric or United is unable to carry out its
duties, obligations and responsibilities to the other under this Agreement or Tampa Electric is
unable to tender, provide, deliver, store, accept or consume Cargo to be transported by United,
then the obligations of both Tampa Electric and United under this Agreement shall be totally
excused to the extent, but only to the extent, made necessary by such Force Majeure and only during
its continuance, provided, that the entity asserting Force Majeure (i) gives prompt notice of the
event of Force Majeure, with sufficient details of the circumstances to inform the other of the
situation, (ii) thereafter, takes appropriate actions to eliminate or minimize the effects of such
Force Majeure, (iii) provides regular reports to the other as to its actions to eliminate or
minimize the effects of the Force Majeure and the expected duration of the Force Majeure and (iv)
gives prompt notice when the period of disability caused by the Force Majeure has ended. Neither
Tampa Electric or United shall be liable to the other for loss, damage or equipment detention
caused by such Force Majeure. During a disability period caused by Force Majeure which affects the
ability of either Tampa Electric or United to ship, carry or receive the minimum annual quantities
as set forth in Section 2, the minimum annual quantities as set forth






62









 







in Section 2 shall be reduced pro rata by an amount equal to the number of Tons not shipped
during the Force Majeure period. If, however, United declares a Force Majeure and, thereby, is
unable to carry Cargo quantities that were to be provided by Tampa Electric, then Tampa Electric
shall have the right but not the obligation to carry such Cargo quantities at its own cost and
such quantities so carried shall count as Completed Tons. If a Force Majeure period continues for
longer than one hundred eighty (180) Days, the party not claiming Force Majeure shall have the
right, but not the obligation, to terminate this Agreement by providing notice to the one claiming
a Force Majeure.




     13. ASSIGNMENT



          Neither this Agreement nor any right, title or interest in or to this Agreement may be
assigned or transferred by either party either by operation of law or otherwise without the prior
written consent of the other, which consent shall not be unreasonably withheld, conditioned or
delayed. The assignor shall remain fully responsible for the performance of the assignee and the
assignor, as a condition of such assignment, shall obtain the assignee’s agreement, in writing, to
be bound by the terms of this Agreement. This prohibition on assignment shall not preclude United
from sub-chartering or subcontracting or entering into a charter or contract arrangement with one
or more third parties to provide a portion of the transportation, transfer or storage services
covered by this Agreement, subject to the terms of this Agreement.




     14. APPLICABLE LAW, DISPUTE RESOLUTION



     14.1 Choice of Law



          This Agreement shall be construed and interpreted and the rights and liabilities of the
parties determined in accordance with the general maritime law of the United States, to the extent
applicable, and otherwise in accordance with the laws of the State of Florida.




     14.2 Designation of Forum



     14.2.1 Arbitration



          For the resolution of an Operational Dispute, as defined below, the matter in dispute shall be
referred to three persons at New York, one to be appointed by Tampa Electric and the other to be
appointed by United and the third by the two so chosen. Their decision or that of any two of them
shall be final. For the purpose of enforcing any award, this agreement






63









 







may be made a rule of the Court. The proceedings shall be conducted in accordance with the
Rules of the Society of Maritime Arbitrators, Inc. The persons appointed to serve as arbitrators
shall be commercial men or women.




     14.2.2 “Operational Dispute “ Defined



          An “Operational Dispute” is a claim for which the amount in dispute is less than five million
dollars ($5,000,000) which relates, in any way, to the operation of the tow boats, barges, UBT
Terminal and the vessels in any Service Segment and the record keeping, invoicing, paying and
insuring of those services and activities. Without limiting the generality of the foregoing, the
following claims are to be considered Operational Disputes: a claim for demurrage or despatch, a
claim for breach of a safe berth or port warranty, a claim involving cargo loss or damage,
including what constitutes permissible shrinkage, a claim that a Rate adjustment is mis-stated and
a claim for one or more Shortfall Payments and a claim arising out of Section 6.4. Tampa Electric
and United intend that the term “Operational Dispute” be defined expansively so that disputes, if
any, will be resolved, for the most part, before arbitrators in accordance with this Section 14.




     14.2.3 Court of Law



          All other disputes shall be resolved by bringing a legal action or proceeding in the United
States District Court for the Middle District of Florida or, if that court does not have
jurisdiction, in any court of the State of Florida sitting in Tampa, and each party to this
Agreement submits to the jurisdiction of such courts. It is expressly agreed and understood that
any dispute involving an allegation by one party that the other party wrongly terminated this
Agreement shall be resolved by a court of law in accordance with this paragraph.




     14.3 Waiver of Rights to Contest Jurisdiction



          Each party to this Agreement waives, to the fullest extent permitted by law,




          (i) any objection which it may now or later have to the laying of venue of any legal action or
proceeding arising out of or relating to this Agreement brought in the United States District Court
for the Middle District of Florida or, if that court does not have jurisdiction, in any court of
the State of Florida sitting in Tampa; and







64









 








          (ii) any claim that any action or proceeding brought in any such court has been brought in an
inconvenient forum.




     14.4 Waiver of Jury Trial



          Tampa Electric and United, to the extent permitted by law, knowingly, voluntarily and
intentionally, each waives its right to a trial by jury in any action or legal proceeding arising
out of or relating to this Agreement and the transactions it contemplates. This waiver applies to
any action or legal proceeding, whether sounding in contract, tort or otherwise.




     14.5 Dispute Resolution



          In the event of any dispute under this Agreement (other than Operational Disputes), Tampa
Electric and United agree to first attempt to resolve their dispute through non-binding mediation
before a mutually agreed mediator. If the dispute has not been resolved by mediation within three
(3) months of the date on which the dispute arose, either Tampa Electric or United may proceed to
court to resolve the dispute.




     14.6 Fees, Expenses, and Attorneys Fees



          The fees and expenses involved in the Dispute Resolution process, with the exception of
respective counsel, shall be equally shared by Tampa Electric and United, unless the decision and
resolution of the controversy or dispute shall specify some other apportionment of those fees and
expenses. At the conclusion of said Dispute Resolution procedure, the prevailing side shall be
entitled to recover its reasonable attorneys’ fees from the losing side, unless otherwise agreed to
by Tampa Electric and United.




     14.7 Performance of Obligations During Dispute Resolution



          Unless otherwise agreed in writing by Tampa Electric and United or unless this Agreement is
terminated pursuant to Section 11 of this Agreement, performance of their respective obligations
under this Agreement shall be continued in full during the Dispute Resolution process, except for
any obligation claimed excused due to an event of Force Majeure. Final settlement of any dispute
need not be made until the final decision has been rendered in the Dispute Resolution process.







65









 








     15. INSURANCE



          Tampa Electric and United shall carry the insurance coverage, with endorsements, for the Term
of this Agreement, all as set forth in Attachment M.




     16. INDEMNIFICATION; LIMITATION OF LIABILITY



     16.1 Indemnity of Tampa Electric



          United expressly agrees to indemnify Tampa Electric and its officers, directors, and employees
(each a “Tampa Electric Indemnitee”) and hold them harmless from and against any and all
third-party claims (including claims of employees of either Tampa Electric or United or of
employees of their respective contractors) for personal injury, death or property damage and any
other losses, damages, charges or expenses, including reasonable attorneys’ fees, which arise out
of, in connection with or by reason of the performance of the work and services covered by this
Agreement or by reason of any barge or vessel used in the performance of this Agreement, except to
the extent arising out of or in connection with the negligence or willful misconduct of Tampa
Electric, its officers, directors, employees or contractors.




     16.2 Defense of Tampa Electric



          United further agrees to undertake, at its own expense, the defense of any action which may be
brought against any Tampa Electric Indemnitee claiming damages which are alleged to have arisen out
of, by reason of or in connection with the performance of the work and services under this
Agreement or in connection with any barge or vessel. United agrees that this obligation to
indemnify and defend any Tampa Electric Indemnitee shall extend to and include liability for
damages resulting from the personal injury or death of an employee of United regardless of whether
United has paid the employee under the provisions of the Worker’s Compensation Laws of the State of
Florida or Louisiana or other similar Federal or State legislation for the protection of employees.




     16.3 Indemnity of United



          Tampa Electric expressly agrees to indemnify United, United Ocean and its officers, directors,
and employees (each a “United Indemnitee”) and hold them harmless from and against any and all
third-party claims (including claims of employees of either Tampa Electric or United or of
employees of their respective contractors) for personal injury, death or






66









 







property damage and any other losses, damages, charges or expenses, including reasonable
attorneys’ fees, which arise out of, in connection with or by reason of the unloading of Cargo at
Big Bend Terminal by Tampa Electric pursuant to this Agreement, except to the extent arising out of
or in connection with the negligence or willful misconduct of United, United Ocean, their employees
or subcontractors or by reason of any barge or vessel.




     16.4 Defense of United



          Tampa Electric agrees to undertake at its own expense the defense of any action which may be
brought against any United Indemnitee claiming damages which are alleged to have arisen out of, by
reason of or in connection with the unloading of Cargo at Big Bend Terminal by Tampa Electric
pursuant to this Agreement. Tampa Electric agrees that this obligation to indemnify and defend any
United Indemnitee shall extend to and include liability for damages resulting from the personal
injury or death of an employee of Tampa Electric regardless of whether Tampa Electric has paid the
employee under the provisions of the Worker’s Compensation Laws of the State of Florida or
Louisiana or other similar Federal or State legislation for the protection of employees.




     17. LIMITS OF LIABILITY



          (i) Notwithstanding any provision of this Agreement (and except as set forth in paragraph (ii)
below), under no circumstances shall either Tampa Electric or United be liable to the other (i) for
any punitive, exemplary or other special damages arising under or relating to this Agreement or the
subject matter, (ii) for any indirect or consequential or incidental damages (including without
limitation loss of use, income, profits or anticipated profits, business or business opportunity,
savings, data, or business reputation) arising under or relating to this Agreement or the subject
matter of this Agreement, regardless or whether such damages are based in contract, breach of
warranty, tort, negligence or any other theory, and regardless of whether such entity has been
advised of, knew of, or should have known of the possibility of such damages. Nothing contained in
this Section shall be construed to limit either Tampa Electric’s or United’s duty to indemnify,
defend or hold harmless, under Section 16.




          (ii) If incidental damages in an occurrence or series of related occurrences exceed two
hundred and fifty thousand dollars ($250,000), the party suffering such damage can






67









 







recover those incidental damages (including the two hundred fifty thousand dollars [$250,000]
threshold amount) but in such case, the party’s recovery of incidental damages shall be limited to
a dollar amount equal to the total dollar amount of its actual damages. Each party’s total
recovery of incidental damages shall be limited to two million five hundred thousand dollars
($2,500,000) over the Term of this Agreement.




     18. REPRESENTATIONS AND WARRANTIES



     18.1 United’s Representations and Warranties



          United hereby represents and warrants to Tampa Electric that the statements made in Section
3.2, Section 4.1.1 and Section 5.2, and the statements contained in this Section 18.1 are correct
and complete in all material respects as of the date of this Agreement.




     18.1.1 Organization



          United is a limited liability company validly existing and in good standing under the laws of
the State of Florida.




     18.1.2 Authorization



          United has the power (including corporate power) and authority to execute and deliver this
Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of United enforceable in accordance with its terms and conditions
subject to bankruptcy, insolvency and other laws affecting creditors rights and remedies generally,
and subject, as to enforceability, to general principles of equity.




     18.1.3 Non-Contravention



          Neither the execution and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government, governmental
agency, or court to which United is subject or any provision of its certificate of formation.







68









 








     18.1.4 Proceedings



          There is no pending or, to United’s knowledge, threatened, proceeding that challenges or that
may have the effect of preventing, delaying, making illegal or otherwise interfering with, the
performance or consummation of this Agreement or any of the transactions contemplated hereby.




     18.1.5 Compliance With Third-Party Agreements



          United, and the Operating Entities, each is in full compliance in all material respects with
all of its contractual provisions or loan covenants in any agreement with any lender or other
third-party.




     18.2 Tampa Electric’s Representations and Warranties



          Tampa Electric hereby represents and warrants to United that the statements contained in this
Section 18.2 are correct and complete in all material respects as of the date of this Agreement.




     18.2.1 Organization



          Tampa Electric is a corporation validly existing and in good standing under the laws of the
State of Florida.




     18.2.2 Authorization



          Tampa Electric has the power (including corporate power) and authority to execute and deliver
this Agreement and to perform its obligations hereunder. This Agreement constitutes the valid and
legally binding obligation of Tampa Electric enforceable in accordance with its terms and
conditions subject to bankruptcy, insolvency and other laws affecting creditors rights and remedies
generally, and subject, as to enforceability, to general principles of equity.




          18.2.3 Non-Contravention




          Neither the execution and delivery of this Agreement, nor the consummation of the transactions
contemplated hereby, will violate any constitution, statute, regulation, rule, injunction,
judgment, order, decree, ruling, charge, or other restriction of any government,






69









 







governmental agency, or court to which Tampa Electric is subject or any provision of its
articles of incorporation or bylaws.




     18.2.4 Proceedings



          There is no pending or, to Tampa Electric’s knowledge, threatened, proceeding that challenges
or that may have the effect of preventing, delaying, making illegal or otherwise interfering with,
the performance or consummation of this Agreement or any of the transactions contemplated hereby.




     19. COMPLIANCE WITH LAWS



          United shall at all times comply and remain in compliance with (a) all applicable laws,
regulations, rules, orders, permits, authorizations or obligatory policies of each federal, state
or local Governmental Authority, including all Environmental Laws and (b) each international treaty
or convention applicable to United’s vessels, terminals or operations. At any time United becomes
aware of any actual or impending violation of any such law, regulation, rule, order, permit,
authorization or policy, treaty or convention, United shall promptly take such steps, at United’s
cost and expense, to prevent, rectify and mitigate such circumstances, and shall take all steps
necessary prevent any impairment of United’s services under the Agreement associated with or
resulting from such circumstances. United shall give Tampa Electric prompt notice of any such
circumstances that may foreseeably lead to any material impairment of service, and shall advise
Tampa Electric of United’s intended actions to prevent any such impairment. United agrees to
indemnify Tampa Electric for any loss or damages, including attorneys’ fees, arising out of or
resulting from United’s failure to comply with this Section 19.




     20. REGULATORY REVIEW



          In connection with the possible review of this Agreement by the Florida Public Service
Commission or any other governmental body, United agrees to cooperate fully with Tampa Electric and
to provide documents and information requested by Tampa Electric including but not limited to the
subjects of market rates, customer information and commodity volumes, provided the production of
such documents or the divulging of such information is not expressly prohibited by agreements under
which United produced or received those documents or that that information is not a customer
proprietary or customer trade secret.







70









 








     21. MISCELLANEOUS



     21.1 Notice



          Any notice, required under Sections 6.5(vii), 11, 12 (only as to a Force Majeure that is
expected to last more than 24 hours), 14, 22 and 23 of this Agreement shall be in writing and shall
be deemed to have been sufficiently given if delivered in person, transmitted by telecopy, or
dispatched in the U.S. mails, postage prepaid for mailing by first-class, certified or registered
mail, return receipt requested and addressed as follows:



Tampa Electric Company

702 North Franklin Street

Tampa, Florida 33602

Attention: Director, Wholesale Marketing & Fuels Department

Telecopy: (813) 228-1545



United Maritime Group, LLC

P.O. Box 22048

Tampa FL 33622-2048

Attention: Vice President — Controller

Telecopy: (813) 273-0248



Either Tampa Electric or United may change the above addressee by notice to the other. Notices and
other communications shall be deemed effective only upon actual receipt.




     21.2 Successors and Assigns



          The terms, conditions, rights and obligations hereunder shall be binding on their successors
and permitted assigns.




     21.3 Superseded Agreements



          This Agreement exclusively and completely states the legal rights and obligations with respect
to the subject matter hereof and supersedes all other agreements, oral or written.




     21.4 Confidentiality



          United and Tampa Electric agree to keep the terms and conditions of this Agreement and all
information secured from each other as a result of this Agreement in strict confidence and not to
divulge or to permit their respective directors, officers or employees, agents, contractors or
representatives voluntarily to divulge such terms, conditions and information, or any part thereof,
to third parties without the prior written consent of the other.






71









 







Such disclosure as has been or could have been legally compelled shall not violate this
Section 20.4 but the entity making such disclosure shall be obligated to do what is reasonably
possible to limit the effects of such disclosure by requiring that such third party maintain the
confidentiality of such information. The entity required to make such a disclosure shall notify
the other prior to making such disclosure. The obligations contained in this Section shall survive
the termination of this Agreement regardless of the cause or reason for termination.




          United acknowledges that Tampa Electric may be required to make such disclosure to the Florida
Public Service Commission, Federal Energy Regulatory Commission and to the Securities Exchange
Commission. Such disclosure shall not require prior notice to United but Tampa Electric shall make
a reasonable effort to make such disclosure subject to a confidentiality agreement or order.




     21.5 Specific Performance



          Each of Tampa Electric and United acknowledge that the other would be damaged irreparably in
the event any of the provisions of this Agreement are not performed in accordance with their
specific terms or are otherwise breached. Accordingly, each of Tampa Electric and United agree that
the other shall be entitled to an injunction or injunctions to prevent breaches of the provisions
of this Agreement and to enforce specifically this Agreement and its terms and provisions pursuant
to Section 14.2 above.




     21.6 No Third-Party Beneficiary



          No third party shall have or claim any benefit from the provisions of this Agreement except
and to the extent expressly so provided.




     21.7 Savings Clause



          If any section, subsection, paragraph or provision of this Agreement shall be declared invalid
by any court of competent jurisdiction, then such judicial determination shall not affect the
remaining sections, subsections, paragraphs or provisions of this Agreement, and each such other
section, subsection, paragraph or provision shall remain in full force and effect.







72









 








     22. CHANGE OF CONTROL; SALE OF ASSETS



          Tampa Electric is entering into this Agreement on the basis that, as of the date of this
Agreement, United owns one hundred per cent (100%) of the ownership interests of each of United
Barge, United Bulk and United Ocean (individually an “Operating Entity” and collectively the
“Operating Entities”). As such, United acknowledges that it has the legal and commercial ability
to cause each Operating Entity to perform all its obligations, and fulfill all its promises,
contained in and contemplated by this Agreement. As Tampa Electric and United wish to ensure that
each of the Operating Entities will continue to perform during the Term of this Agreement, Tampa
Electric, United and the Operating Entities agree to the provisions of Section 22.1 and Section
22.2 hereof.




     22.1 Change of Control



          If United should sell or transfer a majority of membership interests having voting control of
one or more of the Operating Entities to any third party which shall not be an affiliate of United,
United, as a condition of such sale or transfer, shall require the purchaser or transferee to
agree, in writing, in form satisfactory to Tampa Electric, to cause the Operating Entity to affirm
its obligation to perform all the terms and conditions under this Agreement for which it is
ultimately responsible during the Term of this Agreement. Promptly after the signing of an
agreement containing such a provision, United shall supply a copy of that agreement to Tampa
Electric. In furtherance of this provision, each Operating Entity is executing this Agreement so
as to bind itself to perform the terms and conditions for which it is responsible under this
Agreement, i.e., United Barge shall perform the River Service, United Bulk shall perform the
Terminaling Service and United Ocean shall perform the Trans-Gulf Ocean Service, the Domestic Ocean
Service and the Foreign Ocean Service.




          United and the Operating Entity in question, prior to the date on which the sale or transfer
of a majority of membership interests having voting control of each of the Operating Entities is to
take effect, as a second condition of such sale or transfer, also shall jointly and severally be
obliged to deliver to Tampa Electric a Letter of Credit in the stated
amount of six million dollars
($6,000,000). Draws under this Agreement shall be governed by the terms and conditions of
Attachment L. United shall cause the Letter of Credit to remain in effect or be replaced with a
substitute Letter of Credit in the amount of six million dollars
($6,000,000) remaining in






73









 







effect until March 31, 2015 or three (3) months after this Agreement is terminated if earlier
terminated. Each Letter of Credit shall be substantially in the form attached as Exhibit K, with
such modification as Tampa Electric and United may agree. For avoidance of doubt, if a majority of
membership interests having voting control of all three Operating Entities are sold or otherwise
transferred whether together or singly, there shall be established three separate Letters of Credit
each in the amount of six million dollars ($6,000,000) and each securing the performance of one
of the Operating Entities. Similarly, if a majority of membership interests having voting control
of two Operating Entities are sold or otherwise transferred, there shall be established two
separate Letters of Credit.




          With respect to an outstanding Letter of Credit, the occurrence of any of the following events
shall constitute a Letter of Credit Default: (i) the issuer of such Letter of Credit shall fail to
maintain a Credit Rating of at least “A-” by S&P or “A3” by Moody’s, (ii) the issuer of the Letter
of Credit shall fail to comply with or perform its obligations under such Letter of Credit if such
failure shall be continuing after the lapse of any applicable grace period; (iii) the issuer of
such Letter of Credit shall disaffirm, disclaim, repudiate or reject, in whole or in part, or
challenge the validity of, such Letter of Credit; or (iv) such Letter of Credit shall expire or
terminate, or shall fail or cease to be in full force and effect at any time during the term of any
transaction under this Agreement provided, however, that no Letter of Credit Default shall occur in
any event with respect to a Letter of Credit after the time such Letter of Credit is required to be
canceled or returned in accordance with the terms of this Agreement.




     22.2 Sale of Assets



          Each of United Barge, United Bulk and United Ocean, during the Term of this Agreement, shall
not sell or otherwise transfer assets the sale or transfer of which would significantly impair its
ability to perform its obligations under this Agreement in a safe and timely manner unless, at
substantially the same time, it purchases or otherwise arranges for the use of similar assets that
will permit it to continue to provide uninterrupted performance under this Agreement.







74









 








     23. CONDITION PRECEDENT



          Either of Tampa Electric and United may terminate this Agreement by notice to the other if the
boards of directors of both Tampa Electric and United do not approve this Agreement by August 1,
2008.




          IN WITNESS WHEREOF, each of the entities set forth below hereto have caused this Agreement to
be executed by its duly authorized representative.




	 	 	 
	Witness for Tampa Electric
	 	Tampa Electric Company
	 
	 	 
	/s/ R. Bruce Christmas
	 	/s/ C.R. Black
	 

	 	 
	Date: 7-21-08

	 	C.R. Black, President
	 

	 	Date: 7-21-08
	 
	 	 
	Witness for United Maritime

	 	United Maritime Group, LLC
	 
	 	 
	/s/ Clifford Johnson
	 	/s/ Sal Litrico
	 

	 	 
	Date: 7-21-08

	 	Sal Litrico, Chief Executive Officer
	 

	 	Date: 7-21-08
	 
	 	 
	Witness for United Barge

	 	U.S. United Barge Line, LLC
	 
	 	 
	/s/ Clifford Johnson
	 	/s/ Sal Litrico
	 

	 	 
	Date: 7-21-08

	 	Sal Litrico, Chief Executive Officer
	 

	 	Date: 7-21-08






75









 






	 	 	 
	Witness for United Bulk

	 	U.S. United Bulk Terminal, LLC
	 
	 	 
	/s/ Clifford Johnson
	 	/s/ Sal Litrico
	 

	 	 
	Date: 7-21-08

	 	Sal Litrico, Chief Executive Officer
	 

	 	Date: 7-21-08
	 
	 	 
	Witness for United Ocean

	 	U.S. United Ocean Services, LLC
	 
	 	 
	/s/ Clifford Johnson
	 	/s/ Sal Litrico
	 

	 	 
	Date: 7-21-08

	 	Sal Litrico, Chief Executive Officer
	 

	 	Date: 7-21-08







76











 





EXECUTION COPY – 07-21-08


Attachments





	A.	 	Base Rates and Base Rate Components for Trans-Gulf Ocean Service, Terminaling Service and
River Service
	 
	B.	 	U.S. United Barge Line, LLC Towboat and Barge Fleet
	 
	C.	 	U.S. United Bulk Terminal, LLC Equipment Description
	 
	D.	 	U.S. United Bulk Terminal, LLC Terminal Rules and Regulations Davant Terminal
	 
	E.	 	U.S. United Ocean Services, LLC Vessel Fleet
	 
	F.	 	Demurrage and Despatch Rates (Trans-Gulf Ocean Service, Domestic Ocean Service and Foreign
Ocean Service)
	 
	G.	 	Tampa Electric Company Terminal Rules and Regulations Big Bend Terminal
	 
	H.	 	Domestic Ocean Service Rates
	 
	I.	 	Methodology for Fuel Component Adjustment
	 
	J.	 	Methodologies for Variable Component Adjustment (Section 7.3.2), Shortfall Payment Adjustment
(Section 2.2.2), and Demurrage Rate Adjustment (Sections 3.8.5 and 5.9.6)
	 
	K	 	Form of Letter of Credit
	 
	L.	 	Terms and Conditions for Draw Under Letter of Credit
	 
	M.	 	List of Required Insurances




 









 











Attachment A




Base Rates and Base Rate Components for

Trans-Gulf Ocean Service,

Terminaling Service and

River Service


For Domestic Ocean Service Base Rates and Base Rate Components, see Attachment H




 









 







UNITED MARITIME GROUP



BASE RATES AND BASE RATE COMPONENTS FOR TRANS-GULF OCEAN SERVICE, TERMINALING SERVICE AND RIVER SERVICE TO TAMPA ELECTRIC FOR 2009 THROUGH 2014



UNITED OCEAN SERVICES & UNITED BULK TERMINAL




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	2009-2014	 
	TRANS-GULF OCEAN SERVICE & TERMINALING SERVICE (FAS CARGOES)
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	 	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	 	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	 	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 	 	 
	UNITED OCEAN SERVICES
	 	 	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	TRANS-GULF OCEAN SERVICE (OTHER CARGOES)
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	UNITED BULK TERMINAL
	 	 	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	TERMINALING SERVICE (OTHER CARGOES)
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	UNITED BARGE LINE
	 	 	 	 	 	 	 	 
	RIVER SERVICE
	 	 	[...***...]	 	 	 	[...***...]	 
	OHIO RIVER
	 	 	 	 	 	 	 	 
	HANNIBAL POOL
	 	 	 	 	 	 	 	 
	Miles 84.4 TO 126.4
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	CANNELTON POOL
	 	 	 	 	 	 	 	 
	Miles 606.8 TO 720.7
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 





i









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	2009-2014	 
	NEWBURGH POOL
	 	 	 	 	 	 	 	 
	Miles 720.7 TO 761
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	UNIONTOWN POOL
	 	 	 	 	 	 	 	 
	Miles 761.0 TO 846.0
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	SMITHLAND POOL
	 	 	 	 	 	 	 	 
	Miles 846.0 TO 918.4
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 52 POOL
	 	 	 	 	 	 	 	 
	Miles 918.4 TO 938.9
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 53 POOL
	 	 	 	 	 	 	 	 
	Miles 938.9 TO 962.6
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	BELOW LOCK 53
	 	 	 	 	 	 	 	 
	Miles 962.6 TO 981
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 





ii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	2009-2014	 
	GREEN RIVER
	 	 	 	 	 	 	 	 
	BELOW LOCK 1
	 	 	 	 	 	 	 	 
	Miles 0.0 TO 9.1
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 1 POOL
	 	 	 	 	 	 	 	 
	Miles 9.2 TO 62.8
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 2 POOL
	 	 	 	 	 	 	 	 
	Miles 62.8 TO 109
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	TENNESSEE RIVER
	 	 	 	 	 	 	 	 
	BELOW KY LOCK
	 	 	 	 	 	 	 	 
	Miles 0.0 TO 22.4
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	GRT TERMINAL
	 	 	 	 	 	 	 	 
	Mile 22.7
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	UPPER MISSISSIPPI RIVER
	 	 	 	 	 	 	 	 
	CORA OR CHESTER
	 	 	 	 	 	 	 	 
	Miles 98.5 TO 105
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 





iii









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	2009-2014	 
	LOWER MISSISSIPPI RIVER
	 	 	 	 	 	 	 	 
	VALERO REFINERY
	 	 	 	 	 	 	 	 
	Mile 127
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	MONOGAHELA RIVER
	 	 	 	 	 	 	 	 
	BELOW LOCK 2
	 	 	 	 	 	 	 	 
	Miles 0.0 TO 11.2
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 2 POOL
	 	 	 	 	 	 	 	 
	Miles 11.2 TO 23.8
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 3 POOL
	 	 	 	 	 	 	 	 
	Miles 23.8 TO 41.5
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 4 POOL
	 	 	 	 	 	 	 	 
	Miles 41.5 TO 61.2
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	MAXWELL POOL
	 	 	 	 	 	 	 	 
	Miles 61.2 TO 85.0
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 





iv









 






	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	2009-2014	 
	LOCK 7 POOL
	 	 	 	 	 	 	 	 
	Miles 85.0 TO 90.8
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	LOCK 8 POOL
	 	 	 	 	 	 	 	 
	Miles 90.8 TO 102
	 	 	 	 	 	 	 	 
	BASE FUEL COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE VARIABLE COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	BASE FIXED COMPONENT
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 
	 
	 	 	[...***...]	 	 	 	[...***...]	 
	 
	 	 	 	 	 	 





v









 






Attachment B




U.S. United Barge Line, LLC

Towboat and Barge Fleet



 









 






UNITED BARGE LINE, LLC




OPEN HOPPER

BARGE FLEETS



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BARGE	 	 	 	NUMBER OF	 	YEAR	 	AGE IN	 	 	 	COVER
	BARGE NUMBERS	 	BARGE TYPE	 	CONFIGURATION	 	SIZE	 	BARGES	 	BUILT	 	YEARS	 	OWNERSHIP	 	TYPE
	UBL 1 – UBL 50

	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	200' x 35' x 13'
	 	50
	 	2008
	 	0
	 	LEASED
	 	N/A
	TBL 82 – TBL 131
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	200' x 35' x 13'
	 	50
	 	2007
	 	1
	 	LEASED
	 	N/A
	TBL 28 – TBL 81
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	200' x 35' x 13'
	 	54
	 	2006
	 	2
	 	LEASED
	 	N/A
	MST 562 – MST 580
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	200' x 35' x 12'
	 	2
	 	1998
	 	10
	 	OWNED
	 	N/A
	MST 773B – MST 780B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 13'
	 	8
	 	1998
	 	10
	 	OWNED
	 	N/A
	MM 9701B – MM 9725B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 14'
	 	24
	 	1997
	 	11
	 	OWNED
	 	N/A
	MST 1096B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 14'
	 	1
	 	1997
	 	11
	 	OWNED
	 	N/A
	MM 9601B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 14'
	 	1
	 	1996
	 	12
	 	OWNED
	 	N/A
	MM 9611B – MM 9635B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 14'
	 	25
	 	1996
	 	12
	 	OWNED
	 	N/A
	MM 9641 – MM 9650
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	200' x 35' x 14'
	 	10
	 	1996
	 	12
	 	OWNED
	 	N/A
	MST 740B – MST 753B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	2
	 	1996
	 	12
	 	OWNED
	 	N/A
	MST 769B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	1
	 	1996
	 	12
	 	OWNED
	 	N/A
	MM 1401B – MM 1407B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 14'
	 	7
	 	1994
	 	14
	 	OWNED
	 	N/A
	MST 900 – MST 907
	 	SUPER JUMBO OPEN HOPPER
	 	RAKE
	 	260' x 52.5' x 12'
	 	8
	 	1993
	 	15
	 	OWNED
	 	N/A
	MST 908B – MST 915B
	 	SUPER JUMBO OPEN HOPPER
	 	BOX
	 	260' x 52.5' x 12'
	 	8
	 	1993
	 	15
	 	OWNED
	 	N/A
	MST 718B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	1
	 	1992
	 	16
	 	OWNED
	 	N/A
	MST 700B – MST 709B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	10
	 	1990
	 	18
	 	OWNED
	 	N/A
	MST 600B – MST 639B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	195' x 35' x 12.5'
	 	13
	 	1989
	 	19
	 	OWNED
	 	N/A
	MST 501 – MST 550
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 11'
	 	49
	 	1985
	 	23
	 	LEASED
	 	N/A
	MST 446 – MST 460
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	15
	 	1983
	 	25
	 	OWNED
	 	N/A
	SJ 101 – SJ 192
	 	SUPER JUMBO OPEN HOPPER
	 	RAKE
	 	260' x 52.5' x 12'
	 	8
	 	1983
	 	25
	 	OWNED
	 	N/A
	MST 416 – MST 444
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 11'
	 	29
	 	1982
	 	26
	 	OWNED
	 	N/A
	MST 184 – MST 193
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	8
	 	1981
	 	27
	 	OWNED
	 	N/A
	MST 390 -MST 394
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	5
	 	1981
	 	27
	 	OWNED
	 	N/A
	MST 401 – MST 415
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 11'
	 	12
	 	1981
	 	27
	 	OWNED
	 	N/A






- i -









 








	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	BARGE	 	 	 	NUMBER OF	 	YEAR	 	AGE IN	 	 	 	COVER
	BARGE NUMBERS	 	BARGE TYPE	 	CONFIGURATION	 	SIZE	 	BARGES	 	BUILT	 	YEARS	 	OWNERSHIP	 	TYPE
	MST 640B – MST 659B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	18
	 	1981
	 	27
	 	OWNED
	 	N/A
	SEI 2011B – SEI 2019B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	8
	 	1981
	 	27
	 	OWNED
	 	N/A
	MST 486B – MST 500B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	15
	 	1981
	 	27
	 	OWNED
	 	N/A
	ABC 751 – ABC 798
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	19
	 	1980
	 	28
	 	OWNED
	 	N/A
	MAC 235B – MAC 236B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	2
	 	1980
	 	28
	 	OWNED
	 	N/A
	MAC 605
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1980
	 	28
	 	OWNED
	 	N/A
	MAC 608
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 1002 – MST 1022
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	2
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 180
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 181
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	195' x 35' x 12'
	 	1
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 182 – MST 183
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	2
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 386 – MST 389
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	4
	 	1980
	 	28
	 	OWNED
	 	N/A
	STL 10
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1980
	 	28
	 	OWNED
	 	N/A
	MST 166 – MST 179
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	14
	 	1979
	 	29
	 	OWNED
	 	N/A
	MST 382 -MST 385
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	3
	 	1979
	 	29
	 	OWNED
	 	N/A
	STL 5
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1979
	 	29
	 	OWNED
	 	N/A
	STL 31
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1979
	 	29
	 	OWNED
	 	N/A
	MST 483B – MST 484B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	2
	 	1978
	 	30
	 	OWNED
	 	N/A
	MST 371 – MST 381
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	9
	 	1977
	 	31
	 	OWNED
	 	N/A
	MST 165 – MST 166
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	1
	 	1976
	 	32
	 	OWNED
	 	N/A
	MST 485B
	 	JUMBO OPEN HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	1
	 	1976
	 	32
	 	OWNED
	 	N/A
	MST 306 – MST 360
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 11'
	 	1
	 	1971
	 	37
	 	OWNED
	 	N/A
	MST 363 – MST 370
	 	JUMBO OPEN HOPPERS
	 	RAKE
	 	195' x 35' x 12'
	 	6
	 	1971
	 	37
	 	OWNED
	 	N/A
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	NUMBER OF OPEN HOPPERS IN FLEETS	 	515	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





- ii -









 







UNITED BARGE LINE, LLC




COVERED HOPPER BARGE FLEET



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	NUMBER	 	 	 	 	 	 	 	 
	BARGE	 	 	 	BARGE	 	 	 	OF	 	YEAR	 	AGE IN	 	 	 	 
	NUMBERS	 	BARGE TYPE	 	CONFIGURATION	 	SIZE	 	BARGES	 	BUILT	 	YEARS	 	OWNERSHIP	 	COVER TYPE
	MST 1 – MST 10
	 	JUMBO COVERED HOPPERS
	 	RAKE
	 	200' x 35' x 13'
	 	10
	 	2002
	 	6
	 	OWNED
	 	FIBERGLASS
	MST 816 – MST 865
	 	JUMBO COVERED HOPPERS
	 	RAKE
	 	200' x 35' x 14'
	 	50
	 	2001
	 	7
	 	OWNED
	 	FIBERGLASS
	MST 551 – MST 556
	 	JUMBO COVERED HOPPERS
	 	RAKE
	 	200' x 35' x 14'
	 	6
	 	1998
	 	10
	 	OWNED
	 	FIBERGLASS
	MST 557 – MST 582
	 	JUMBO COVERED HOPPERS
	 	RAKE
	 	200' x 35' x 12'
	 	24
	 	1998
	 	10
	 	LEASED
	 	FIBERGLASS
	MST 725B – MST 772B
	 	JUMBO COVERED HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	44
	 	1996
	 	12
	 	OWNED
	 	FIBERGLASS
	MST 710B – MST 724B
	 	JUMBO COVERED HOPPERS
	 	BOX
	 	200' x 35' x 12'
	 	14
	 	1992
	 	16
	 	OWNED
	 	FIBERGLASS
	TBL 11 – TBL 27
	 	JUMBO COVERED HOPPERS
	 	RAKE
	 	200' x 35' x 12'
	 	17
	 	2002
	 	6
	 	OWNED
	 	FIBERGLASS
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	NUMBER OF COVERED HOPPERS IN FLEET	 	165	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 





UNITED BARGE LINE, LLC




TOWBOAT DESCRIPTION



	 	 	 	 	 	 	 	 	 
	 	 	YEAR	 	 	 	 	 	 
	TOWBOAT	 	BUILT	 	HORSEPOWER	 	TOWING CAPABILITIES	 	OTHER CONSIDERATIONS
	M/V MICHELLE O'NEILL
	 	1965
	 	9,000
	 	35 BARGES ON THE LOWER MISSISSIPPI
RIVER
	 	NASHVILLE BRIDGE, 180' x 50', TRIPLE SCREW
	M/V MARTHA LYNN
	 	1966
	 	”
	 	”
	 	”
	M/V GIRLIE KNIGHT
	 	1969
	 	”
	 	”
	 	GULFPORT SHIPBUILDING, 180' x 50', TRIPLE
SCREW
	M/V ELEANOR GORDON
	 	1972
	 	”
	 	”
	 	NASHVILLE BRIDGE, 195' x 54', TRIPLE SCREW
	M/V ABBY S
	 	1983
	 	6,800
	 	30 BARGES ON THE LOWER MISSISSIPPI
RIVER
	 	ST LOUIS SHIP, 170' x 45', TWIN SCREW






- iii -









 







	 	 	 	 	 	 	 	 	 
	 	 	YEAR	 	 	 	 	 	 
	TOWBOAT	 	BUILT	 	HORSEPOWER	 	TOWING CAPABILITIES	 	OTHER CONSIDERATIONS
	M/V SAM LITRICO
	 	1984
	 	”
	 	”
	 	”
	M/V PAULA G
	 	1975
	 	9,000
	 	35 BARGES ON THE LOWER MISSISSIPPI
RIVER
	 	JEFFBOAT, 180' x 52', TRIPLE SCREW
	M/V JENNY S
	 	1966
	 	”
	 	”
	 	NASHVILLE BRIDGE, 180' x 50', TRIPLE SCREW
	M/V BEA BLACK
	 	1973
	 	6,000
	 	15 BARGES ON OHIO AND UPPER
MISSISSIPPI RIVERS OR 25 BARGES ON
THE LOWER MISSISSIPPI RIVER
	 	ST LOUIS SHIP, 138' x 44', TWIN SCREW
	M/V TERRI C
	 	1968
	 	”
	 	15 BARGES ON OHIO AND UPPER
MISSISSIPPI RIVERS OR 25 BARGES ON
THE LOWER MISSISSIPPI RIVER
	 	ST LOUIS SHIP, 150' x 44', TWIN SCREW
	M/V PAMELA H
	 	1985
	 	2,800
	 	15 BARGES ON OHIO AND UPPER
MISSISSIPPI RIVERS
	 	QUALITY SHIPYARD, 130' x 33' 8", TWIN
SCREW
	M/V SYLVIA H
	 	”
	 	”
	 	”
	 	”
	M/V ANNE B
	 	1975
	 	4,200
	 	”
	 	HALTER MARINE SERVICES, 130' x 35', TWIN
SCREW
	M/V MARTHA MAC
	 	1964
	 	3,200
	 	”
	 	NASHVILLE BRIDGE, 165' x 35', TWIN SCREW






- iv -









 






Attachment C




U.S. United Bulk Terminal, LLC

Equipment Description



 









 






United Bulk Terminal

Equipment Description




	 	 	 	 	 	 	 
	Bulk Material Handling Equipment	 	Mobile Equipment	 	 	 	 
	Dravo CBU (Unit 4)
	 	Large Dozers	 	 	 	 
	A Conveyor
	 	     Cat D10	 	 	4	 
	B Conveyor
	 	     Cat D6	 	 	1	 
	C Conveyor
	 	 	 	 	 	 
	E Conveyor
	 	Large Payloaders	 	 	 	 
	G conveyor
	 	     Cat 988	 	 	1	 
	 
	 	     Cat 966	 	 	3	 
	 
	 	 	 	 	 	 
	Dravo Stacker/Reclaimer (Unit 5)
	 	 	 	 	 	 
	K Conveyor (Boom Conveyor)
	 	Small Payloaders	 	 	 	 
	JL Conveyor
	 	     Cat 938	 	 	4	 
	JR Conveyor
	 	     Cat 924	 	 	4	 
	 
	 	     Cat 914	 	 	1	 
	 
	 	 	 	 	 	 
	F Boom Stationary Loader
	 	 	 	 	 	 
	F-1 Conveyor
	 	Utility Payloaders	 	 	 	 
	F-2 Conveyor
	 	     Volvo L50	 	 	3	 
	 
	 	 	 	 	 	 
	Dravo Grab Bucket Unloader (Dravo Crane — Unit 11)
	 	Excavator	 	 	 	 
	 
	 	     Cat 315C	 	 	1	 
	IHI Shiploader (Unit 20)
	 	     Cat 322C	 	 	1	 
	IHI Boom Conveyor
	 	 	 	 	 	 
	 
	 	Rough Terrain Cranes	 	 	 	 
	Krupp Stacker/Reclaimer (Unit 23)
	 	     Grove 533E	 	 	1	 
	Krupp Boom Conveyor
	 	     Grpve 745	 	 	1	 
	Krupp Elevating Conveyor (Krupp EL Conv)
	 	 	 	 	 	 
	 
	 	Misc.	 	 	 	 
	FMC CBU (Unit 21)
	 	     Vacuum Truck	 	 	1	 
	 
	 	     8 Cu Yd Dump Truck	 	 	1	 
	No 1 Dock
	 	     2880 Gal Fuel Truck	 	 	1	 
	C-2 Conveyor
	 	     Bobcats	 	 	8	 
	C-6 Conveyor
	 	     Manlifts	 	 	3	 
	 
	 	     Floating Lift Crane	 	 	1	 
	 
	 	 	 	 	 	 
	No 2 Dock
	 	 	 	 	 	 
	T Conveyor
	 	 	 	 	 	 
	U Conveyor
	 	 	 	 	 	 
	C-4 Conveyor
	 	 	 	 	 	 
	C-5 Conveyor
	 	 	 	 	 	 
	Upper Surge Bin
	 	 	 	 	 	 
	Upper Surge Bin Stationary Conveyor
	 	 	 	 	 	 
	Upper Surge Bin Shuttle Conveyor
	 	 	 	 	 	 






- i -









 






	 	 	 	 	 	 	 
	Bulk Material Handling Equipment	 	Mobile Equipment	 	 	 	 
	Lower Surge Bin
	 	 	 	 	 	 
	Lower Surge Bin Stationary Conveyor
	 	 	 	 	 	 
	Lower Surge Bin Shuttle Conveyor
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	D Conveyor
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	C-1 Conveyor
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Midstreamer Manitowoc 4600 Crane
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	E Conveyor
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	Portable Blending Conveyors
	 	 	 	 	 	 






- ii -









 






Attachment D




U.S. United Bulk Terminal, LLC Terminal Rules and Regulations Davant Terminal



 









 










TERMINAL RULES AND REGULATIONS



U. S. UNITED BULK TERMINAL, LLC



14537 HIGHWAY 15



DAVANT, LOUISIANA 70040







EFFECTIVE: AUGUST 1, 2008



 









 






Table of Contents




	 	 	 	 	 	 	 	 	 
	SUBJECT	 	ITEM NO.	 	PAGE NO.
	 
	General Rules and Regulations
	 	 	 	 	 	 	 	 
	Use of
Terminal
	 	 	1	 	 	 	1	 
	Amendments
	 	 	2	 	 	 	1	 
	Interpretation
	 	 	3	 	 	 	1	 
	Local Authority
	 	 	4	 	 	 	1	 
	Hours of Operation
	 	 	5	 	 	 	1	 
	Safety and Security
	 	 	6	 	 	 	1	 
	Compliance with Laws and Regulations
	 	 	7	 	 	 	2	 
	Responsibility for Vessel or Cargo Damage, Personal Injury or
Death, Demurrage Delays or Loss of Dispatch and Pollution
	 	 	8	 	 	 	2	 
	Remedies for Enforcement of Terminal Rules and Regulations
	 	 	9	 	 	 	3	 
	Safe Berth
	 	 	10	 	 	 	4	 
	Entirety of Agreement
	 	 	11	 	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	Vessel Filing
	 	 	 	 	 	 	 	 
	Nomination and Filing
	 	 	12	 	 	 	4	 
	Notice of Readiness
	 	 	13	 	 	 	5	 
	Agreement to be Bound
	 	 	14	 	 	 	5	 
	Certification for Filing
	 	 	15	 	 	 	5	 
	Closest Available Anchorage
	 	 	16	 	 	 	6	 
	Berth Assignment
	 	 	17	 	 	 	6	 
	Refiling
	 	 	18	 	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	Loading and Unloading
	 	 	 	 	 	 	 	 
	Berthing and Safety Equipment
	 	 	19	 	 	 	7	 
	Line Handling
	 	 	20	 	 	 	7	 
	Vacating Berth
	 	 	21	 	 	 	7	 
	Vessel Rotation
	 	 	22	 	 	 	7	 
	Continuous Readiness
	 	 	23	 	 	 	7	 
	Vacating Berth Upon Completion of Loading/Unloading
	 	 	24	 	 	 	7	 
	Weather Conditions
	 	 	25	 	 	 	8	 
	Use of Tugs
	 	 	26	 	 	 	8	 
	Mooring of River Barges
	 	 	27	 	 	 	8	 
	River Barge Release
	 	 	28	 	 	 	9	 
	Stowage
	 	 	29	 	 	 	9	 
	Suitability of Cargo and Vessels
	 	 	30	 	 	 	9	 
	Vessel Suitability
	 	 	31	 	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	Additional Services, Rates and Charges
	 	 	 	 	 	 	 	 
	Charges
	 	 	32	 	 	 	11	 
	Ground Storage of Cargo
	 	 	33	 	 	 	11	 
	Dockage
	 	 	34	 	 	 	11	 
	River Barge Fleeting and Shifting Charges
	 	 	35	 	 	 	12	 
	River Barge Cover Handling
	 	 	36	 	 	 	12	 
	Discharging Stacked Cover River Barges
	 	 	37	 	 	 	12	 
	Water
	 	 	38	 	 	 	12	 
	Bunkers
	 	 	39	 	 	 	12	 






 









 







	 	 	 	 	 	 	 	 	 
	SUBJECT	 	ITEM NO.	 	PAGE NO.
	 
	Repairs
	 	 	40	 	 	 	12	 
	Sampling
	 	 	41	 	 	 	12	 
	Visitors and Vessel Provisions
	 	 	42	 	 	 	12	 
	Special Contracts
	 	 	43	 	 	 	13	 
	Liens
	 	 	44	 	 	 	13	 
	Demurrage
	 	 	45	 	 	 	13	 
	 
	 	 	 	 	 	 	 	 
	Definitions and Notes
	 	 	 	 	 	 	 	 
	 
	Vessel
	 	 	46	 	 	 	13	 
	Ocean Vessel
	 	 	47	 	 	 	13	 
	Cargo
	 	 	48	 	 	 	13	 
	Terminal
	 	 	49	 	 	 	13	 
	Holidays
	 	 	50	 	 	 	13	 
	Berth
	 	 	51	 	 	 	13	 
	User or Users
	 	 	52	 	 	 	13	 
	Vessel Party
	 	 	53	 	 	 	13	 
	Storage
	 	 	54	 	 	 	13	 
	Terminal Fleet
	 	 	55	 	 	 	13	 
	Loading and Unloading
	 	 	56	 	 	 	13	 
	Visitors
	 	 	57	 	 	 	14	 
	 
	 	 	 	 	 	 	 	 
	Exhibits
	 	 	 	 	 	 	 	 
	Fee Schedule
	 	 	 	 	 	Appendix “A”
	Contacts
	 	 	 	 	 	Appendix “B”
	Notice to vacate Berth
	 	 	 	 	 	 	 	 
	Berth Application
	 	 	 	 	 	Exhibit “1”






 









 





U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 1



GENERAL RULES AND REGULATIONS





	1.	 	USE OF TERMINAL. Use of the U.S. United Bulk Terminal, LLC (sometimes hereinafter “United
Bulk Terminal” or “Terminal”) Terminal facilities and services covered by these Terminal Rules
and Regulations shall constitute evidence of an agreement on the part of all Users of the
Terminal to be covered by all the rules and regulations stated herein. Notwithstanding
anything to the contrary herein, the rights of any User to utilize the Terminal facilities
shall be subject to the prior approval of United Bulk Terminal
	 
	2.	 	AMENDMENTS. Amendments to these Terminal Rules and Regulations may be issued from time to
time to cover changes. These Terminal Rules and Regulations are subject to change without
notice.
	 
	3.	 	INTERPRETATION. United Bulk Terminal shall be the sole judge as to the interpretation of
these Terminal Rules and Regulations.
	 
	4.	 	LOCAL AUTHORITY. The Terminal is within the jurisdiction of the Plaquemines Parish Port
Harbor and Terminal District and Users of the Terminal are subject to the applicable rules
fees issued by the Plaquemines Parish Port Harbor and Terminal District.
	 
	5.	 	HOURS OF OPERATION. The Terminal operates 24 hours a day, every day throughout the year
except for Holidays.
	 
	6.	 	SAFETY AND SECURITY. All Vessels are to furnish at all times while in Berth, safe
ingress
and egress.
	 
	 	 	When a Vessel is berthing at any of the Terminal facilities, the Master shall be solely
responsible for the safety of the Vessel and her crew. Any Vessel in berth shall at all
times maintain appropriate officers and crew aboard the Vessel in order to maintain an alert
watch and respond to emergencies.






	 	a.	 	The engineering plant and vessel trim must be maintained in a state of readiness to
respond to emergency situations and to avoid delays in vacating the berth.
	 
	 	b.	 	Guards must be installed to prevent deballested water from contacting personnel,
equipment or the dock.
	 
	 	c.	 	All personnel shall wear life jackets, hard hats and all generally accepted safety
equipment or gear on docks at all times. Vessel crew members shall adhere to this
requirement when on the dock and when transiting the conveyor walkway system to and from
the docks. Hazardous materials, substances or wastes, and cargoes which are of a highly
inflammable, radioactive, explosive, noxious or dangerous nature, or reactive to personnel,
will not be provided with any service of any kind except under advance arrangement with
United Bulk Terminal accompanied by full disclosure of the hazardous characteristics, risks
and special handling requirements of such cargo and in such case negotiated rates and
charges shall be applied. It is the responsibility of the shipper or other person tendering
cargo to the Terminal (1) to fully disclose in writing and in advance all of the cargo’s
characteristics, risks and special requirements applicable to its safe loading, unloading,
handling and storage in bulk and (2) to obtain all necessary special permits or permissions
required by the Captain of the Port, U.S.C.G., and/or other state or federal authorities in
connection with the loading, unloading, handling and/or storage at United Bulk Terminal.




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 2





	 	d.	 	Simultaneous with the submission of the Berth Application, Users of Terminal facilities
shall provide United Bulk Terminal with Material Safety Data Sheets on all commodities
handled for their account.






	 	 	In compliance with United States Coast Guard, Department of Homeland Security directives, 33
CFR 105, United Bulk Terminal has developed a Facility Security Plan (FSP). According to
United Bulk Terminal’s FSP, certain areas of the Terminal’s landside facilities and all of
United Bulk Terminal’s berths and fleets are considered restricted areas. Any unauthorized
entry into restricted areas is considered a “Breech of Security” and the proper authorities
will be notified. Anyone or anything entering into the Terminal is subject to screening,
inspection and/or search according to the Terminal’s FSP. Failure to consent will result in
denial or revocation of authorization to enter.
	 
	7.	 	COMPLIANCE WITH LAWS AND REGULATIONS. Prior to coming into the Berth, all Vessels shall have
fully complied with all applicable U.S. Coast Guard regulations and all applicable local,
state and federal laws and regulations in effect while the Vessel is in Berth at the Terminal.
In no event shall Loading or Unloading of an Ocean Vessel, as the case may be, occur until
such time as such Ocean Vessel has been cleared by U.S. Customs. If any Vessel fails to
comply with all such laws and regulations, the Terminal may order the Vessel to vacate the
Berth. If the Vessel does not vacate the Berth when so ordered, the Vessel will be subject
to, in addition to the liquidated damages provided for in Item 21, all costs (including, but
not limited to attorneys’ fees) and expenses in connection with the moving of the Vessel,
which costs and expenses (and liquidated damages) shall be for the account of and the full
risk of the Vessel and the Vessel Party.
	 
	8.	 	RESPONSIBILITY FOR VESSEL OR CARGO DAMAGE, PERSONAL INJURY OR DEATH, DEMURRAGE DELAYS OR LOSS
OF DISPATCH, AND POLLUTION. United Bulk Terminal shall not be responsible for marine loss or
damage to Cargo or to the river barges, ships or other Vessels utilizing the Terminal
facilities including, but not limited to, damage to: (1) Vessel gear, equipment or
structures due to the Cargo being discharged and (2) Vessel parts or Cargo arising
by reason of concealed or inadequately protected fastenings, attachments, covers and Vessel
parts projecting into the Cargo and/or due to Vessel configuration. United Bulk Terminal will
receive, load, unload, transfer, handle, store or deliver Cargo in accordance with these
Terminal Rules and Regulations. In furnishing any services, or performing any acts hereunder,
United Bulk Terminal shall not be responsible for any demurrage or other damages for delay or
loss of despatch time or any other damages incurred by any Vessel or Vessel Party or their
Cargo for any cause.
	 
	 	 	The Vessel Party shall have the duty to be fully familiar with the environmental rules and
regulations and laws in respect to the type and levels of all discharge allowed in United
States rivers, coastal waters and air and for fully abiding by said rules, regulations and
laws. The Terminal will report any observed act which is suspected to be a violation of any
such obligation, rule, regulation or law to the appropriate governmental authority.
	 
	 	 	The loading and/or unloading of the cargo shall be under the continuous direction and sole
responsibility of the Master or authorized representative. The loading/unloading plan
should be such that the Vessel is maintained in trim and the engine is in a condition that
it could leave the dock on short notice (less than 20 minutes).
	 
	 	 	All Vessels and Users of the Terminal hereby agree to indemnify, defend and hold harmless
United Bulk Terminal and all persons, firms or other entities which may manage, own or
control the operations of said Terminal, and their officers, directors, agents, insurers,
and Vessels (the “ U. S. United Indemnitees”) from and against any and all claims, actions,
damages, liability or expense, including court costs and attorney’s fees, in connection with
the loss of life, or bodily injury, involving anyone, including Visitors, and damage,
contamination or




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 3





	 	 	loss of property, including the User’s Cargo, incident to or resulting from their use of the
Terminal facilities.
	 
	 	 	Vessels shall not violate any air emission standards in the vicinity of United Bulk Terminal
facilities.
	 
	 	 	Additionally, such obligation of Vessels and Users to indemnify, defend and hold harmless
the U. S. United Indemnitees shall include, but not be limited to, loss, penalty, fine,
clean-up costs, natural resource damage, remediation costs, removal costs, demurrage,
administrative costs and any and all other costs and liabilities that arise directly or
indirectly from pollution caused by (a) Vessel Party or other master or crew of the Vessel,
whether in loading and unloading Cargo, or in the operation or management of the Vessel; or
(b) a spill of the Cargo, fuel or any other pollutant of the Vessel or of any other party at
any time while said Cargo, fuel, or pollutant is on board the Vessel or when said Cargo,
fuel, or pollutant is within the care, custody or control of Vessel Party or those for whom
Vessel Party is responsible except where such damages, losses, costs or liability are caused
by the sole negligence of Terminal. In the event of a pollution event arising directly or
indirectly out of services being performed at the Terminal, Vessel Party shall, and shall
cause its representatives and insurers, to immediately:






	 	(a)	 	Notify all local, state and federal authorities having jurisdiction of the pollution
event.
	 
	 	(b)	 	Notify Terminal of all details of the pollution event.
	 
	 	(c)	 	Take all steps to eliminate the cause and/or source of the pollution.
	 
	 	(d)	 	Take all steps to clean up the pollution.
	 
	 	(e)	 	Take all steps required by law to restore the environment.
	 
	 	(f)	 	Take all steps to mitigate damages of Vessel Party, Terminal and third parties.
	 
	 	(g)	 	Promptly pay, and pay for, all fines, damages and losses of their parties, to the
extent required by law, and for all costs and expenses of cleanup.
	 
	 	(h)	 	If necessary, advance or pay monies and funds required to be paid to the appropriate
regulatory agencies.
	 
	 	(i)	 	Consult with Terminal and keep Terminal constantly informed of all steps taken and
contemplated to comply with provisions of this paragraph.
	 
	 	(j)	 	Cooperate with Terminal in issuing statements to government authorities and media
representatives.






	 	 	Whether or not Vessel Party has complied with the provisions of the foregoing, Terminal may,
but shall not be required to, take over and manage all prevention, cleanup and restoration
activities, all without derogation or diminution of Vessel Party’s obligations under these
Terminal Rules and Regulations, and with full reservation to Terminal of all rights against
the Vessel, Vessel Party or its insurers for reimbursement of costs, expenses and attorneys’
fees. In such event, Vessel Party shall, and shall cause its insurers and any
subcontractors, to make available to Terminal all Vessels, personnel and equipment used or
planned to be used in such prevention, cleanup and restoration efforts, all at the sole
expense of Vessel Party.
	 
	 	 	In the event Terminal takes over and manages such prevention, cleanup and restoration
efforts, such action shall not be deemed a waiver, or constitute an estoppel by Terminal or
an admission of fault or responsibility on the part of Terminal. Terminal may, but is not
required to, utilize its own and contracted personnel, vessels and equipment in such
prevention, cleanup and restoration efforts, and may, at its discretion, allocate such
resources as it, in its sole discretion, deems appropriate.
	 
	9.	 	REMEDIES FOR ENFORCEMENT OF TERMINAL RULES AND REGULATIONS. United Bulk Terminal shall have
all remedies available to it at law, in equity or under maritime law to enforce these Terminal
Rules and Regulations, including, but not limited to canceling a Vessel’s filing or ordering a
Vessel from Berth. United Bulk Terminal shall also have all remedies available at law, in
equity or under maritime law to collect liquidated damages including but not limited to a
maritime lien against the Vessel for such charges. In the event of any legal proceedings to
enforce any provision of these Terminal Rules and Regulations,




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 4





	 	 	United Bulk Terminal shall be entitled to recover its expenses incurred in such proceedings,
including attorney’s fees in any trial court and on any appeal.
	 
	10.	 	SAFE BERTH. The master of the Ocean Vessel shall be solely responsible for determining if
the depth of water (at any tide or river stage) is sufficient for the Vessel, the Terminal
having no responsibility therefor and the Terminal shall not be deemed to warrant the safety
of public channels, fairways, approaches thereto, anchorages or other publicly-maintained
areas either inside or outside the port area where any Vessel may operate. Furthermore, the
Terminal shall not be deemed to warrant the safety of any of the Berth’s docks or midstream
facilities, including the Terminal’s mooring buoys.
	 
	11.	 	ENTIRETY OF AGREEMENT. In the event of a conflict between these Terminal Rules and
Regulations and any other agreement concerning the Vessel or the Cargo, the terms and
conditions of these Terminal Rules and Regulations shall control. Notwithstanding the
foregoing, in the event of a conflict between these Terminal Rules and Regulations and any
written agreement concerning the Vessel or the Cargo that is between Terminal and any of its
customers (e.g. Bulk Cargo Transfer and Storage Agreement) (“Customer Contract”), the terms
and conditions of the Customer Contract shall control. In case any portion of any provision
or any one or more of the provisions contained in these Terminal Rules and Regulations should
be held or determined invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining portion of any such provision and the other remaining
provisions or underlying rights and obligations referred to herein shall not in any way be
affected, modified, or impaired thereby.





VESSEL FILING





	12.	 	NOMINATION AND FILING.
	 
	 	 	A. NOMINATION. Nomination of the Ocean Vessel shall be furnished to the Terminal by
facsimile transmittal to (504) 333-7400 or e-mail (UBTraffic@united-mar.com) to Terminal
between 7:30 a.m. and 4:00 p.m. Mondays thru Fridays, exclusive of Holidays as defined
herein and Saturdays and Sundays not earlier than thirty (30) days and not later than
fourteen (14) days prior to the ETA of the Ocean Vessel.
	 
	 	 	Shipper is to provide Terminal, in writing, a ten (10) day laycan spread latest thirty (30)
days prior to the date of the first day of the ten (10) day laycan spread. No later than
fourteen (14) days from the date of the first day of the original ten (10) day laycan
spread, Shipper is to identify in writing to Terminal a four (4) day load window within such
original ten (10) day laycan spread. In each case mentioned above, the written approval of
the Terminal shall be required relative to the ten (10) day laycan and the four (4) day load
window within the original ten (10) day laycan.
	 
	 	 	Acceptance by Terminal of a Nomination of a Vessel shall be evidenced by Terminal’s
confirmation by facsimile or e-mail transmittal to the Vessel Party.
	 
	 	 	B. FILING. All Ocean Vessels, their owners, operators, charterers or agents, intending to
utilize the facilities and services of the Terminal shall file by facsimile transmittal to
(504) 333-7400 or e-mail (UBTraffic@united-mar.com) to Terminal with an executed original to
follow by U.S. Mail, a Berth Application for an ETA with United Bulk Terminal between 7:30
a.m. and 4:00 p.m. Mondays through Fridays, exclusive of Holidays, as defined herein and
Saturdays and Sundays, not later than five (5) days prior to the ETA of the Ocean Vessel.
	 
	 	 	Acceptance by Terminal of a Berth Application shall be evidenced by Terminal’s issuance to
the Vessel Party of a Berth Application Acceptance. Any Ocean Vessel arriving and
submitting a Notice of Readiness, as defined below, prior to the date booked will be worked
at




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 5





	 	 	the discretion of the Terminal; otherwise, the Ocean Vessel shall wait for the period set
forth in the Berth Application Acceptance. Ocean Vessels arriving or submitting a Notice of
Readiness after the ETA set forth in the Berth Application Acceptance similarly will be
worked at the discretion of the Terminal.
	 
	 	 	With respect to river barges, the Vessel Party shall provide the following information not
later than seven (7) days prior to the ETA of the river barges, listing with respect to each
such river barge the individual barge numbers, tonnage, loading drafts, name of carrier, ETA
and the type of Cargo carried or to be carried, which report shall be subsequently updated
on the Monday of each week until such river barges are received into the Terminal Fleet.
All Users and their river barges utilizing the facilities and services of the facilities and
services of the Terminal shall be subject to and shall abide by the terms and conditions of
the Terminal Rules and Regulations.
	 
	13.	 	NOTICE OF READINESS. In the case of an Ocean Vessel to be loaded, issuance of the Notice of
Readiness shall mean that the Ocean Vessel has obtained all requisite governmental approvals,
inspections and clearances, including, but not limited to, those required by the U.S. Customs
Service and the Immigration and Naturalization Service, and is located at the Berth or Closest
Available Anchorage (as defined in Item 16 below), and is ready and suitable in all respects
to receive the Cargo in all holds to be loaded and that the User has determined that the Cargo
is in a condition satisfactory to the Vessel Party and all regulatory authorities for
shipment. User specifically acknowledges that varying temperatures, moisture and weight
changes and spontaneous combustion constitute inherent problems associated with the handling
of coal, petroleum coke and other Cargo. Prior to Loading or Unloading, User’s surveyor shall
determine that the temperature, moisture and condition of the Cargo is satisfactory.
	 
	14.	 	AGREEMENT TO BE BOUND. The issuance by the Terminal of the Berth Application Acceptance, or
the berthing of any Ocean Vessel at the Terminal, shall constitute a contract between United
Bulk Terminal and the Ocean Vessel, her owners, operator(s), charterer(s) and agent(s) and any
other Vessel Party (jointly and severally) to abide by the provisions of, and to be liable for
the charges of whatsoever kind or nature in these Terminal Rules and Regulations.
	 
	15.	 	CERTIFICATION FOR FILING. In the case of an Ocean Vessel, the following certificates,
documents must be presented to file for a Berth at the Terminal. Facsimile transmissions,
alone, will not be accepted.






	 	1.	 	Original Berth Application (the “Berth Application”) signed by authorized
representatives of the Vessel Party.
	 
	 	2.	 	A copy of the Notice of Readiness executed by authorized representatives of the Vessel
Party.
	 
	 	3.	 	International tonnage certificate.
	 
	 	4.	 	A proposed stowage plan which includes Cargo cubic capacity for any Ocean Vessel to be
loaded and Loading sequence or the actual plan for Cargo to be unloaded including the
Unloading sequence.
	 
	 	5.	 	Additionally, should it be necessary for Vessel personnel to leave the Vessel or
Visitors, including Vessel agent, to board the Vessel, twenty-four (24) hours prior written
notification to Terminal must be provided and include: a list of the (a) name, (b) address,
(c) telephone number and (d) reason for visit of each Visitor to the Vessel and Vessel
Personnel leaving the Vessel. Each Visitor must have a form of identification acceptable
to Terminal. Said list shall be supplemented as needed and furnished in advance of the
visit to the Terminal in writing between 9:00 a.m. and 4:00 p.m. Mondays through Fridays
and between 9:00 a.m. and 12:00 noon Saturdays, all exclusive of Holidays as defined
herein, and Sundays (the “Visitor List”).




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 6





	 	 	Any Vessel personnel leaving the ship shall be required to furnish the Terminal with a
Crewman’s Landing Permit – Form I-95 issued by the U.S. Immigration & Naturalization Service
and a picture identification card.
	 
	16.	 	CLOSEST AVAILABLE ANCHORAGE. Ocean Vessels filing a Berth Application to utilize the
Terminal facilities normally will be required to anchor at Davant Anchorage (Mile 53.5-54.5
LDB), or the closest available anchorage to Davant, Louisiana.
	 
	 	 	Vessel Party acknowledges that any Vessel arriving at the Terminal with cargo on its deck
may constitute a hazardous and unsafe condition. Vessel Party agrees that if notified of
such condition, it shall be the sole responsibility of Vessel Party to clean and remove any
such product which renders the deck of any such Vessel hazardous to the safety of any
person. Should Vessel Party fail to promptly clean and remove product from the deck of any
such Vessel, the Terminal reserves the right, but not the obligation, to clean and remove
the product from the Vessel’s deck, which service will be solely for the account of the
Vessel Party.
	 
	 	 	Vessel Party shall coordinate and be solely responsible for all required inspections for
cleanliness and compliance with all local, state and federal laws and regulations relative
to the fitness of the Vessel.
	 
	 	 	Whenever a Notice of Readiness has been issued, the Ocean Vessel shall be prepared to come
to Berth and commence Loading or Unloading operations, as the case may be, upon three (3)
hours notice. Upon assignment to a Berth, the Ocean Vessel shall remain prepared and be
properly crewed to promptly carry out Cargo transfer operations within or between Terminal’s
Berths, and undock and vacate the Berth on order of the Terminal twenty (24) hours a day,
seven (7) days a week with any crew overtime being at the sole cost and expense of the Ocean
Vessel. For purposes of these Terminal Rules and Regulations, “promptly” shall mean within
thirty (30) minutes of notice being tendered by the Terminal.
	 
	 	 	In the event that the Ocean Vessel fails to comply with these requirements and another Ocean
Vessel, although filed later, Terminal management may, in its sole discretion, and without
liability to anyone, bypass the subject Ocean Vessel. If the Ocean Vessel is ordered to
Berth and a delay in delivery of the Ocean Vessel to Berth occurs in excess of three (3)
hours from the time that the Ocean Vessel was ordered to Berth due to circumstances or
conditions within the control or due to the fault of the Ocean Vessel, its owner(s),
operator(s), charterer(s), agent(s) or employee(s), the Ocean Vessel, its owner(s),
operator(s), the Ocean Vessel, its owner(s), operator(s), charterer(s) and agent(s) shall be
responsible, jointly and severally, for a dead Berth charge of $5,000 for each hour or
fraction thereof until the Ocean Vessel is moored in Berth, regardless of intervening
circumstances of any nature, which charge shall be assessed as liquidated damages.
	 
	17.	 	BERTH ASSIGNMENT. Terminal operations may be scheduled at Terminal’s Berths and in any
combination thereof. Prior to the issuance of the particular Berth assignment, the Vessel
Party must provide a guaranty acceptable to the Terminal regarding payment of Dockage fees as
provided for in Appendix “A.”
	 
	18.	 	REFILING. If any Ocean Vessel, that has filed at Terminal, is ordered to Berth by Terminal
management and is unable or refuses to accept a Berth, due to any reason whatsoever, or
otherwise fails to comply with these Terminal Rules and Regulations, the Terminal management
may, at its sole discretion cancel its original filing. If filing is cancelled, the Ocean
Vessel must refile and will be assigned a rotation in the Terminal lineup based on the new
filing time.




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 7




LOADING AND UNLOADING





	19.	 	BERTHING AND SAFETY EQUIPMENT. Upon berthing, the Ocean Vessel shall immediately and at all
times provide adequate lighting, equipment and appropriate officers and crew aboard to permit
Loading or Unloading, as the case may be, of Cargo at any time of the day or night, including
Saturdays, Sundays and Holidays. All Ocean Vessel officers and crews shall wear life jackets,
safety glasses and hard hats while on the Terminal docks and when transiting the conveyor
walkway system to and from the docks.
	 
	20.	 	LINE HANDLING. The master and crew of every Vessel will provide assistance in handling lines
and operating deck machinery. An English-speaking deck officer must be available to ensure
timely response to directions of any representatives of the Terminal relative to handling of
lines. Terminal representatives will position lines on the shoreside. Line handling for
docking and undocking of Ocean Vessels in Berth and at the buoys, shall be assessed at the
rate provided in Appendix “A”.
	 
	21.	 	VACATING BERTH. Whenever an Ocean Vessel is unable or refuses to load or unload, or shift
within or between anchorage sites, mid-stream transfer facilities, berths or docks, the
Terminal management may order the Ocean Vessel to vacate the Berth after notice to vacate is
delivered to the Ocean Vessel’s master or agent. If an Ocean Vessel refuses or fails to
vacate the Berth when ordered to vacate, United Bulk Terminal shall be entitled to charge and
recover from Ocean Vessel and Vessel Party as liquidated damages the sum of $5,000.00 per hour
for each hour or fraction thereof of each calendar day from one hour after delivery of the
notice to vacate that the Ocean Vessel remains in Berth, regardless of any intervening
circumstances of any nature.
	 
	 	 	Furthermore, United Bulk Terminal reserves the right to order, at its sole discretion, any
Ocean Vessel to vacate the Berth. Should the Ocean Vessel fail to vacate the Berth when so
ordered, a charge of $5,000 per hour, for each hour or fraction thereof that the Ocean
Vessel remains in Berth, shall be assessed against the Ocean Vessel and Vessel Party as
liquidated damages, which charge of $5,000 per hour shall be assessed for each hour or
fraction thereof of each calendar day from one hour after delivery of the notice to vacate
until the Ocean Vessel vacates the Berth, regardless of intervening circumstances. If the
Ocean Vessel does not vacate the Berth when so ordered, the Ocean Vessel will be subject to,
in addition to the liquidated damages above, all costs, including but not limited to,
attorney fees and expenses in connection with the moving of the Ocean Vessel, which costs
and expenses (and liquidated damages) shall be for the account of and the full risk of the
Ocean Vessel and Vessel Party.
	 
	22.	 	VESSEL ROTATION. The Terminal management may alter the turn of Ocean Vessels to be loaded or
unloaded, when, in its sole judgment, it is in the best interest of Terminal operations.
	 
	23.	 	CONTINUOUS READINESS. Assignment of Berth under these Terminal Rules and Regulations is
predicated upon Ocean Vessel’s continuous readiness twenty-four (24) hours a day, seven (7)
days a week to receive or discharge Cargo at Terminal’s full normal rate, throughout the
entire time in Berth and compliance with the directions of Terminal management, including
shifting within or between anchorage sites or Berths. Any delay in Loading or Unloading by
the Ocean Vessel or refusal to follow directions of Terminal management, including an order to
vacate the Berth, shall subject the Ocean Vessel and Vessel Party to a charge of $5,000 for
each hour or fraction thereof of delay which shall be assessed as liquidated damages
regardless of intervening circumstances of any nature.
	 
	24.	 	VACATING BERTH UPON COMPLETION OF LOADING/UNLOADING. Ocean Vessel shall vacate the Berth
within one (1) hour of completion of Loading or Unloading. If an Ocean Vessel refuses or
fails to vacate the Berth when ordered to vacate, United Bulk Terminal shall




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 8





	 	 	be entitled to charge and recover as liquidated damages from the Ocean Vessel and Vessel
Party, the sum of $5,000 per hour for each hour or fraction thereof from one hour after
receipt of the notice to vacate until vacation of the Berth occurs regardless of any
intervening circumstances of any nature. If the Ocean Vessel does not timely vacate the
Berth, the Ocean Vessel will be subject to, in addition to the liquidated damages above, to
all costs (including but not limited to attorney fees) and expenses in connection with the
moving of the Ocean Vessel, which costs and expenses (and liquidated damages) shall be for
the account of and the full risk of the Ocean Vessel and the Vessel Party.
	 
	25.	 	WEATHER CONDITIONS. When, in the Terminal management’s opinion, weather conditions threaten
the safety of any moored or fleeted Vessel and/or the structural integrity of the Terminal
facilities, transfer operations will be suspended and any Vessel moored or fleeted at the
Berth shall vacate the Berth immediately when requested by the Terminal management to do so
and until such time as weather conditions permit it to return (irrespective of whether the
order by Terminal to vacate the Berth precedes any similar order to vacate issued by the
Plaquemines Parish Port Harbor and Terminal District). If any Vessel does not leave the Berth
within three (3) hours of being ordered to do so, all costs (including but not limited to
attorney fees) and expenses in connection with the moving of the Vessel and mooring or
fleeting of same, as the case may be, shall be for the account of and at the full risk of the
Vessel and Vessel Party. In no event shall Terminal have any responsibility for any Vessel,
including but not limited to the cost of moving a Vessel that is ordered to vacate the Berth
for any reason provided in these Terminal Rules and Regulations. Any damage to the Terminal
facilities or other equipment shall be the responsibility of the Vessel Party and Vessel. Any
Vessel calling at the Terminal shall be subject to the written guidelines and procedures
relative to hurricanes adopted by Terminal.
	 
	26.	 	USE OF TUGS. When an Ocean Vessel is entering or leaving the Berth, United Bulk Terminal
shall provide tugs, the cost of which shall be at the sole expense of and for the account of
the Vessel and the Vessel Party without refund or credit against any charges due and owing the
Terminal. If, in the opinion of the Terminal management, the weather or other conditions so
warrant, each Ocean Vessel upon entering and leaving or lying at Berth (including shifting
within the Berth) may be required to make use of additional tugs, depending on the size of the
Ocean Vessel, which additional tugs shall be at the sole risk and expense of the Vessel and
the Vessel Party. A one hour waiting period from the call-out time is allowed. Any additional
time will be invoiced at the current standby rate. If called out and not used, the current
reporting fee will apply. Charges for towage services will be assessed to the Vessel by United
Bulk Terminal.
	 
	27.	 	MOORING OF BARGES. United Bulk Terminal operates a closed fleet. All Vessel Parties shall
obtain the prior approval of United Bulk Terminal before their Vessels enter United Bulk
Terminal’s fleet/berth/docks/buoys. No less than 24 hours advance notice of the foregoing
shall be provided by Vessel Parties to United Bulk Terminal’s Traffic Manager. If such
approval by United Bulk Terminal is granted, all Vessels, Visitors, personnel, and passengers
are required to comply with United Bulk Terminal’s prescribed safety rules and personal
protective equipment requirements and follow United Bulk Terminal’s Facility Security Plan.
United Bulk Terminal reserves the right to levy a user fee. Any User delivering river barges
to the Terminal shall be responsible for mooring the barges in accordance with these Terminal
Rules and Regulations and any other regulations promulgated by the Plaquemines Parish Port,
Harbor and Terminal District and United States Coast Guard.
	 
	 	 	A river barge moored to another river barge, a mooring or spar barge, a vessel, a wharf, or
a pier, will be secured as near as practicable to each abutting corner of the river barge
being moored by:






	 	(a)	 	Four part wire rope of at least 7/8” diameter with an eye at each end of the rope
passed around the timberhead, cavel or button.




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 9





	 	(b)	 	A mooring line of natural or synthetic fiber that has at least 75 percent of the
breaking strength of four part 7/8” diameter wire rope; or
	 
	 	(c)	 	Fixed rigging that is equivalent to four part 7/8” diameter wire rope.






	 	 	Any river barges arriving at the Terminal without lines, wire or stationary rigging meeting
the requirements set forth above will not be accepted by the Terminal until such time as
proper equipment is furnished. Upon arrival or departure from the Terminal, all Vessels are
required to contact the Terminal harbor boats. The Terminal harbor boat operator in
attendance shall have the right, although not the obligation, to determine if the river
barges have been properly secured by the Vessel Party.
	 
	 	 	Vessel Party acknowledges that any River Barge arriving at the Terminal with cargo on its
deck may constitute a hazardous and unsafe condition. Vessel Party agrees that if notified
of such condition, it shall be the sole responsibility of Vessel Party to clean and remove
any such product which renders the deck of any such River Barge hazardous to the safety of
any person. Should Vessel Party fail to promptly clean and remove product from the deck of
any such River Barge, the Terminal reserves the right, but not the obligation, to clean and
remove the product from the River Barge’s deck, which service will be solely for the account
of the Vessel Party.
	 
	 	 	Vessel Party shall coordinate and be solely responsible for all required inspections for
cleanliness and compliance with all local, state and federal laws and regulations relative
to the fitness of the River Barge.
	 
	28.	 	BARGE RELEASE. Once Loading or Unloading of a river barge has been completed, as determined
by Terminal personnel, the river barge must be picked up within seventy-two hours of
Terminal’s facsimile transmittal of notice to the Vessel Party that the river barge must be
removed. In the event that a river barge is not removed within the time limit, Terminal
management may, at its sole election, arrange either to have the river barge shifted to a
commercial barge fleet or fleeted at the Terminal, to the extent that fleeting space is
available, at the sole risk and expense of the Vessel Party. If the Vessel Party has been
instructed to pick up its river barges and removal of the river barges is not accomplished
within seventy-two hours, an additional charge above the normal fleeting will be assessed.
The fee will be assessed until the river barges are removed in accordance with the fee
provided in Appendix “A”.
	 
	29.	 	STOWAGE. The Vessel Party shall be solely responsible for the stowage of the Cargo. Cargo
shall be stowed within the Vessel only in areas where grabs and equipment spouts can reach,
subject to Vessel design capability. Dozer work shall be provided to the Vessel Party at an
additional charge agreed upon by the Terminal and Vessel Party prior to the Vessel coming into
Berth. In any event, the loading sequence plan shall not exceed two (2) pass loadings and two
(2) hold trims. United Bulk Terminal will allow each Vessel two (2) draft checks which are
not to exceed a period of 30 minutes each. Any Vessel exceeding the allotted time for draft
checks will also be assessed the detention fee of $5,000 per hour.
	 
	 	 	Any Vessel which is required to shift/warp within the berth will be responsible for any/all
expenses pertaining to shifting/warping including, but not limited to, line handling, pilot,
tug(s).
	 
	30.	 	SUITABILITY OF CARGO. Users acknowledge that Terminal only provides transfer facilities and
outside ground storage of the Cargo at the Terminal. The Terminal reserves the right, without
any responsibility for any loss, damage, or demurrage that may arise, to refuse any Cargo
because in the sole discretion of the Terminal, such Cargo is unmerchantable or in unfit
condition for Loading, Unloading, Storage, transfer or handling; or because of lack of space,
facilities or equipment, or for any other reason based on the sole judgment of the Terminal.
The Terminal shall not be responsible for any loss, damage or delay caused by varying
temperatures, moisture and weight changes and/or spontaneous combustion of Cargo, frost,




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 10





	 	 	heating, flood, the elements, evaporation, natural shrinkage, wastage or decay or from
insufficient notification, or from war, insurrection, Acts of God, or acts or failure to act
of any Governmental entity, or for any consequences arising therefrom, or from concealed
damage, leakage, variation in weights, or for losses in weights whether occurring while
Cargo is in Storage or during Loading, Unloading or while otherwise being handled, or for
failure to detect or remedy same.
	 
	31.	 	VESSEL SUITABILITY. The Terminal reserves the right to refuse any Vessel considered
unseaworthy due to damage, distribution of load, draft or lack of freeboard, lists or such
other reason for which Terminal deems the Vessel not suitable for handling at the Terminal.
The Vessel Party, at all times, shall remain responsible for the seaworthy condition of the
Vessel. The berthing of any Ocean Vessel or delivery of any river barge to the Terminal shall
constitute a warranty by the Vessel Party to United Bulk Terminal that there are no latent
defects in the Ocean Vessel or river barge and that same is capable of either being loaded
with the Cargo to be loaded by the Terminal or to be unloaded by the Terminal using the
equipment normally employed by the Terminal. In no event shall the Terminal be responsible
for the seaworthiness, maintenance, repair or service of Ocean Vessels coming into the Berth
of the Terminal or river barges delivered to the Terminal, such responsibility being that of
the Vessel Party. Notwithstanding the foregoing, should any Vessel develop any leaks, cracks
or other conditions which, in the sole judgment of the Terminal, may result in damage to the
Vessel and/or its Cargo, Vessel Party agrees to take whatever steps are necessary to protect
the Vessel and/or its Cargo. Furthermore, in the event that any river barge develops any
leaks, cracks, or other similar conditions, such river barge, at the election of Terminal, may
remain in the Terminal Fleet subject to the agreement by the Vessel Party to provide a
stand-by harbor tug for the duration of the river barge’s stay at the Terminal for the purpose
of tending to the river barge, the cost of which harbor tug shall be at the sole expense of
the Vessel Party. In the event that the Terminal assists any river barge that is sinking or
damaged as a result of any leaks, cracks or other similar conditions, the actual costs of such
assistance shall be borne solely by the Vessel Party and Terminal shall have no responsibility
for loss or damage to a river barge or Cargo occurring as a result of Terminal providing such
assistance. In no event shall Terminal have any responsibility for inspecting any river barge
nor shall Terminal have any liability if loss or damage to a river barge or Cargo occurs as a
result of Terminal’s failure to reject a river barge that has leaks, cracks or similar
conditions, whether or not such conditions are latent or patent.
	 
	 	 	Notwithstanding anything to the contrary herein, the Terminal is a private terminal facility
and is not a “marine terminal operator” as defined by the Shipping Act of 1984, as amended.
Common carriers by water (such as liners), as defined by the Shipping Act of 1984, as
amended, will not be accepted for Loading or Unloading at the Terminal. 46 U.S.C. App.
Section 1702 (6) defines a common carrier as “a person holding itself out to the general
public to provide transportation by water of passengers or cargo between the United States
and a foreign country... except that the term does not include... ocean transportation
by...ocean tramp....” Only Vessels engaged in private or contract carriage pursuant to
private commercial arrangements will be accepted by the Terminal.
	 
	 	 	The standard Ocean Vessel acceptable for Loading is a gearless, bulk carrier, 950 LOA, 140’
beam which can ballast to achieve an air draft of 56’ at river stage of 0’ at Davant,
Louisiana for Loading under traveling ship loader and 46’ at a river stage of 0’ for Loading
at Terminal’s stationary loader at Davant, Louisiana. The standard Ocean Vessel for
Unloading is a gearless, bulk carrier, 750’ LOA, 105’ beam which can ballast to achieve an
air draft of 57’ at a river stage of 0’. Requests for exceptions to the foregoing shall be
made at the time of Vessel filing and shall be subject to the sole discretion of the
Terminal.




 









 











U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 11



ADDITIONAL SERVICES, RATES AND CHARGES





	32.	 	CHARGES. United Bulk Terminal shall invoice all customers on inbound tons, whenever
the initial handling of the Cargo occurs, e.g. (1) Cargo unloaded from a river
barge direct to (a) storage at the Terminal facilities, or (b) an Ocean
Vessel, (2) Cargo unloaded from an Ocean Vessel direct to (a) storage
at the Terminal facilities or (b) another Vessel including a river barge,
(3) Cargo unloaded from an Ocean Vessel direct to another Vessel including a
river barge, etc. United Bulk Terminal shall render invoices for services provided
hereunder upon completion of said services and the User agrees to pay said invoices within
thirty (30) days from date of invoice. Any invoice that remains unpaid after thirty (30)
days from date of invoice shall earn interest, compounded at one and one-half interest
(1-1/2%) percent per month or portion thereof or the maximum legal interest rate allowed
under Louisiana law to the extent that a rate of one and one-half (1-1/2%) percent per
month violates Louisiana laws. Any pending or alleged claims against United Bulk Terminal
will not be allowed as an offset against outstanding or accrued charges until such claims
have been allowed or legally established.
	 
	 	 	The number of tons of Cargo to be invoiced by the Terminal shall be certified by a
representative of the National Cargo Bureau or a mutually agreed surveyor who shall perform
a displacement survey to determine the tonnage transferred either by barge or vessel. Such
displacement survey shall be performed at the sole cost and expense of the User and it is
agreed that copies of the certificate shall be concurrently submitted to the User and United
Bulk Terminal
	 
	33.	 	GROUND STORAGE OF CARGO. Terminal agrees to provide outside ground storage at the rate provided for in Appendix “A. Terminal shall not be responsible for
spontaneous combustion or other damage to any stored Cargo. Upon request by the User, tractor work to shape, compact or periodically rearrange any stockpile in which
the User’s Cargo is stored will be provided, subject to such terms and conditions as mutually agreed upon by the Terminal and User. User agrees that the Terminal may
groom Cargo stored at the Terminal periodically to prevent spontaneous combustion. If a condition of spontaneous Combustion or a significant
rise in temperature should occur, User assumes full responsibility for all costs and damages thereby resulting; the responsibility of the Terminal being to promptly notify
User of any such condition observed by Terminal and User being responsible to promptly advise and direct Terminal regarding the appropriate action necessary to extinguish
any fires. If User fails to respond to such notice by Terminal or fails to promptly advise and direct Terminal, then Terminal, at the sole cost and expense of User, may, but
is not obligated, to take appropriate action to extinguish any fires caused thereby.
	 
	 	 	Terminal shall not be responsible for loss or contamination or damage to, or destruction of any Cargo in its care, custody or control, whether in Storage or elsewhere.
Furthermore, Terminal shall not be responsible for loss of calorific content or loss of weight of any Cargo transferred or stored at the Terminal. User specifically acknowledges
that normal variances in the measurement of quantity and weight of cargo shipped in bulk exists and that the weights of Cargo determined by the National Cargo Bureau or
a mutually agreed surveyor on behalf of User shall be used only for invoice purposes by the Terminal.
	 
	 	 	In no event shall the use of the Terminal Storage facilities be construed as a lease or sublease agreement between the Terminal and User.
	 
	34.	 	DOCKAGE. Dockage fees calculated on the basis stated in Appendix “A” shall be assessed any
Vessel berthed at the Terminal or at any Terminal buoy system.




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 12





	 	 	Prior to berthing, the Vessel Party will be required to deposit with United Bulk Terminal an
amount sufficient to cover all estimated charges due, including dockage, tug assistance,
line handling, crewboat services, facility security fee, facility user fees and any other
supplemental fees levied by governmental agencies. United Bulk Terminal reserves the right
to postpone cargo operations until the full requested deposit has been received. Additional
deposits may be required during the loading in the event actual charges incurred exceed any
deposit(s) received. Cessation of operations will occur if actual charges incurred exceed
total deposit(s) received.
	 
	35.	 	RIVER BARGE FLEETING AND SHIFTING CHARGES. River barges fleeted or shifted at the Terminal
shall be charged for the service by U. S. United Inland Services at the rate provided in
Appendix “A”.
	 
	36.	 	RIVER BARGE COVER HANDLING. Any river barges requiring Terminal assistance in handling river
barge covers shall be charged for the service at the rate provided in Appendix “A”.
	 
	37.	 	DISCHARGING STACKED COVER RIVER BARGES. Any stacked cover river barges shall be discharged
at the rate provided in Appendix “A”.
	 
	38.	 	WATER. Water flow and access to water mains is limited. Arrangements for water shall be made
with Terminal in advance of berthing the Vessel. Water, when available, will be furnished at
the charge provided in Appendix “A”. Prior approval and coordination by Terminal management
shall be required for water delivered by river barge.
	 
	39.	 	BUNKERS. Absent the prior approval of the Terminal no bunkers, diesel fuel or oils, may be
received by Ocean Vessels in Berth. To the extent, taking of bunkers hinders Terminal
operations, the actual cost associated with any delay will be billed to the Vessel Party.
	 
	40.	 	REPAIRS. Once the Notice of Readiness has been tendered, no repairs that would impede the
movement of the Vessel or that would interfere with Cargo transfer operations or affect safety
shall be undertaken.
	 
	41.	 	SAMPLING. Automatic mechanical sampling services are provided by an independent third party
contractor and are available to the User at the Terminal at the sole cost and expense of the
User.
	 
	42.	 	VISITORS AND DELIVERY OF VESSEL PROVISIONS. Absent the prior written consent of United Bulk
Terminal, no Visitor or Visitors, including, but not limited to any User, crew members,
shipper, river transportation operator, launch service operator, master, owner, charterer,
operator or agent, shall be allowed access to any of the Terminal facilities, docks or buoys
while any Vessel is moored or berthed at any such United Bulk Terminal facility, dock or buoy.
The Terminal reserves the right to deny access to any Visitor or Visitors whom the Terminal,
in its sole discretion, deems may result in injury, damage or loss to persons or property at
the Terminal. Every person entering the Terminal facilities must sign in with the Terminal
office before proceeding to any Vessel or Terminal building and shall furnish Terminal with
identification acceptable to Terminal. Any person or vehicle that enters the Terminal
facilities shall be subject to a search. Such Visitors, subject to the prior approval of the
Terminal, may arrange for outside transportation for pickup and delivery at the Terminal.
Approved Visitors may gain access to Vessels berthed at Berth No. 1 via United Bulk Terminal’s
crewboat service. Such access, however, shall require that the Visitor furnish twenty-four
(24) hours prior written notification to the Terminal office of same. All Visitors must wear
protective equipment, hard hats, safety glasses and life jackets. Delivery of provisions or
stores to any Vessels berthed at the Terminal shall require the prior approval of the Terminal
subject to a determination by the Terminal whether such activities will interfere with Cargo
operations or Vessel arrivals, departures or shifting. The Vessel agent must be present when
provisions are to be brought on to a Vessel. Any Visitor shall execute such releases and




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 13





	 	 	indemnity agreements as required by Terminal as a condition to being allowed access to the
Terminal facilities.
	 
	43.	 	SPECIAL CONTRACTS. Charges for services or items not specifically provided for in these
Terminal Rules and Regulations shall be assessed pursuant to a separate contract with
Terminal.
	 
	44.	 	LIENS. All lawful charges made by or due to the Terminal shall constitute a lien in favor of
the Terminal upon the Cargo and against any Vessel for such charges to the full extent
permitted by law.
	 
	45.	 	DEMURRAGE. United Bulk Terminal shall not be responsible for any demurrage under any
circumstances whatsoever.





DEFINITIONS AND NOTES





	46.	 	VESSEL. The term “Vessel” or “Vessels” shall include any river barge, ocean-going barge, or
Ocean Vessel.
	 
	47.	 	OCEAN VESSEL. The term “Ocean Vessel” shall mean any Vessel, other than a river barge, that
utilizes the services and facilities of the Terminal for the Loading, Unloading, Storage,
handling or transfer of Cargo.
	 
	48.	 	CARGO. The term “Cargo” shall include, but not be limited to, coal, petroleum coke, furnace
coke, fertilizer, grain, steel related scrap products and other dry cargo.
	 
	49.	 	TERMINAL. The term “Terminal” means the United Bulk Terminal Terminal at Mile 55, AHP left
descending bank, Lower Mississippi River, near Davant, Louisiana.
	 
	50.	 	HOLIDAYS. The term “Holidays” includes Mardi Gras, Independence Day, Thanksgiving Day,
Christmas Day and the United Bulk Terminal Anniversary Picnic, the dates of which are
published yearly. All guarantees are exclusive of Holidays.
	 
	51.	 	BERTH. The term “Berth” or “Berths” means Terminal’s docks and mid-stream transfer
facilities including the Terminal’s mooring buoys.
	 
	52.	 	USER OR USERS. The terms “User” or “Users” shall include Vessel Party and all individuals or
business entities, including all Ocean Vessels, river barges, trucks, railroad cars or other
means of conveyance and/or equipment used by said individuals or business entities, which
utilize the services and/or facilities of the Terminal.
	 
	53.	 	VESSEL PARTY. The term “Vessel Party” or “Vessel Parties” means any party or parties either
owning, nominating or contracting with the Vessel including, but not limited to, its agent(s),
owner(s), operator(s) and/or charterer(s).
	 
	54.	 	STORAGE. The term “Storage” shall mean the service of providing facilities for the outside
storing of inbound or outbound Cargo.
	 
	55.	 	TERMINAL FLEET. The term “Terminal Fleet” shall mean the United Bulk Terminal river barge
upper and lower fleets at the Terminal.
	 
	56.	 	LOADING AND UNLOADING. The terms “Loading” and “Unloading” shall mean the service of Loading
or Unloading Cargo, as the case may be, between any place at the Terminal and railroad cars,
trucks, Vessels, river barges or any other means of conveyance to or from the Terminal.




 









 










U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 14





	57.	 	VISITORS. The terms “Visitors” or “Visitor” mean any individual or entity listed in the
Visitor List and any other individual or entity that seeks access to the Terminal facilities
or any Vessel berthed there, including, but not limited to, any surveyor.




 









 












APPENDIX “A”




DOCKAGE: Rates as per the schedule below per gross registered ton shall be assessed for each
twenty-four (24) hour period and prorated on twelve (12) hour periods after the first
twenty-four (24) hour period. Time shall commence upon berthing and shall end at the Vessel’s
departure from the berth. The minimum dockage to be paid shall be $7,500. Vessel Party
shall indicate the gross registered tonnage (Lloyd’s) of the Vessel in the Berth Application.
The daily dockage fee shall be calculated based on the dockage rate/GRT equivalent to the
daily demurrage rate shown in the chart below.



          Proportional Vessel Dockage




	 	 	 
	Demurrage Rate/Day	 	Dockage Rate/GRT/Day
	30,000-39,999

	 	0.36
	40,000-49,999
	 	0.48
	50,000-59,999
	 	0.60
	60,000-69,999
	 	0.72
	70,000-79,999
	 	0.84
	80,000-89,999
	 	0.96
	90,000-99,999
	 	1.08
	100,000-109,999
	 	1.20
	110,000-119,999
	 	1.32
	120,000-129,999
	 	1.44
	130,000-139,999
	 	1.56
	140,000-149,999
	 	1.68
	Every 10,000 Additional
	 	0.12 Additional






	 	 	 
	SECURITY FEES:

	 	$800 per Vessel for each day or part of a day.
	 
	 	 
	RIVER BARGE FLEETING:

	 	$55.00 / day for Dry Cargo, Open Hopper and Deck – Up to 200’ x 35’
	 

	 	$85.00 / day for Dry Cargo, Open Hopper and Deck – Over 200’ x 35’
	 
	 	 
	RIVER BARGE SHIFTING:

	 	$325.00 per barge – each for Tug Service In charge and shift to dock
	 
	 	 
	RIVER BARGE COVER 

HANDLING:

	 	$1,000.00 U.S. Dollars per barge each way stack/spread
	 
	 	 
	DISCHARGING STACKED 

     COVER BARGES:

	 	$550.00 U.S. Dollars per barge
	 
	 	 
	GROUND STORAGE OF 

CARGO:

	 	A rate to be mutually agreed upon in writing prior to transfer of the Cargo for
Storage.
	 
	 	 
	LINE HANDLING SHALL BE CHARGED AS FOLLOWS:
	 
	Main Docks or Buoys:

	 	$3,000.00 U.S. Dollars





ADDITIONAL FLEETING CHARGE FOR FAILURE TO TIMELY REMOVE RIVER BARGES
FROM TERMINAL FLEET IN 

     ACCORDANCE WITH ITEM 28:  $105.00 U.S. Dollars per barge per day.






 









 








U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page 2




	 	 	 
	Water:

	 	$20.00 U.S. Dollars per Short Ton
	 
	 	 
	ASSIST TUGS:

	 	United Bulk Terminal will provide all assist tugs for docking/undocking, shifting and holding
operations. The cost of these services will be as follows:






	 	 	 	 	 
	1)

	 	Docking/Undocking
	 	$2,700 per tug plus
	 

	 	Tonnage Charge
	 	$18.00 per 1,000 GRT plus
	 

	 	Fuel Surcharge *
	 	1% for every $0.05 over $3.00/gal.
	2)

	 	Shifting
	 	$800 per hour per tug
	3)

	 	Holding
	 	$800 per hour per tug
	4)

	 	Delays (Tug Stand-by)
	 	$800 per hour per tug
	5)

	 	Reporting of tugs
	 	$2,000 per tug
	6)

	 	Buoy Charge
	 	$500 per tug








 




			
	*	 	The fuel surcharge will be based on the lowest quoted fuel price on the
1st and 15th of each month and will be adjusted on those dates.




 









 











APPENDIX “B”









14537 HWY 15

Davant, Louisiana, 70040




Dispatchers (24 hrs)

504-333-7400 — Main line

504-333-7334 —  Fax

504-784-1263 —  Cell

UBTraffic@united-mar.com




	 	 	 
	Cornel Smith

	 	Allen Newman
	Traffic Manager (7Am to 4 Pm, Mon – Fri.)

	 	Traffic Manager (7Am to 4 Pm, Mon – Fri.)
	504-333-7311 — Office

	 	504-333-7360 — Office
	504-333-7334 — Fax

	 	504-333-7334 — Fax
	504-784-1130 — Cell

	 	504-416-9279 — Cell
	cornel.smith@united-mar.com

	 	allen.newman@united-mar.com






Jimmy Pentney

Operations Manager (7Am to 4 Pm, Mon – Fri.)

504-333-7323 —  Office

504-333-7334 —  Fax

504-234-6280 —  Cell

Jimmy.Pentney@united-mar.com




Don Assavedo (United Marine Services)

Fleet Manager (7Am to 5 Pm, Mon – Fri.)

618-309-0052

TMSdavant@vci.net

Responsible for fleet, barges & related activities




 









 










NOTICE TO VACATE BERTH



TO: Master or Agent — M/V                                          (the “Vessel”)




     On behalf of United Bulk Terminal, you are hereby instructed and ordered to vacate the Berth
at which your Vessel presently is located. In accordance with the terms and conditions of the U.
S. United Bulk Terminal Rules and Regulations of which you are in receipt, the failure of the
Vessel to vacate the Berth when so ordered shall subject the Vessel and her owner, operator,
charterer and agent to a charge of $5,000 per hour, as liquidated damages, for each hour or
fraction thereof of each calendar day from one hour after delivery of this Notice to Vacate Berth,
until the Vessel vacates the Berth, regardless of intervening circumstances. In addition to the
liquidated damages above, all costs and expenses, including, but not limited to, attorneys fees and
expenses in connection with the moving of the Vessel shall be for the account of and full risk of
the Vessel and her owner, operator, charterer and agent.



	 	 	 	 	 
	 	 	U. S. United BULK TERMINAL, L.L.C.
	 
	 	 	 	 
	 

	 	Name:	 	 
	 

	 	 	 	 
	 

	 	Title:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	Delivery to Master of Notice to Vacate Berth
	DATE:
	 	 	 	 
	TIME:

	 	 

	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	Acknowledgment of receipt of Notice to Vacate Berth
on behalf of
	M/V
	 	 	 	 
	Name:

	 	 

	 	 
	Title:

	 	 

	 	 
	 

	 	 

	 	 






 









 








			
	14537 Highway 15	 	 
	Davant, Louisiana 70040	 	 
	Facsimile (504) 333-7400	 	 
	E-mail: UBTraffic@united-mar.com
	 	EXHIBIT “1”






BERTH APPLICATION



Application is hereby made by facsimile or e-mail, with an executed original to follow by U.S.
Mail at the addresses below, this                      day of                                         ,               
       for assignment and use of
the terminal facilities at U. S. United Bulk Terminal, L.L.C. for the M/V                                          on
or about                                         ,                      for loading/discharge in accordance with the United Bulk Terminal
Rules and Regulations made a part hereof and attached hereto as Exhibit “A”.



PARTICULARS OF VESSEL (if known, otherwise to be provided not less than 72 hours prior to
Vessel coming to the Berth):




          Vessel: M/V                                                             



          Gross Registered Tons:                     Length:                     Breadth:                    




          Maximum
Depth Loaded:                                          Air Draft:  
                    
            


APPLICANT AGREES:





	 	1.	 	Application for berth is hereby made on behalf of Vessel, its agent(s), owner(s) and/or
operator(s) and/or charterer(s) and that payment of applicable charges for said Vessel will
be made to United Bulk Terminal as required in the United Bulk Terminal Rules and
Regulations.
	 
	 	2.	 	Has in its possession a current copy of the United Bulk Terminal Rules and Regulations
and stipulates that the Vessel, its agent(s), owner(s) and/or operator(s) and/or
charterer(s) are bound by and agree to abide by all provisions of the United Bulk Terminal
Rules and Regulations.
	 
	 	3.	 	Berthing tug(s), shifting tug(s) and disembarking tug(s), will be arranged prior to the
Vessel coming to the Berth and, to the extent required beyond those normally furnished by
United Bulk Terminal, shifting tug(s) also will be arranged prior to the Vessel coming to
the Berth.
	 
	 	4.	 	Warrants that the Vessel shall fully comply with all applicable U.S. Coast Guard
regulations and local, state and federal environmental laws and regulations in effect as of
the date Vessel gives the Notice of Readiness.
	 
	 	5.	 	Will furnish United Bulk Terminal with the International Tonnage Certificate and the
proposed stowage plan, including cargo capacity, for Cargo to be loaded or actual stowage
plan for Cargo to be unloaded, prior to the Vessel coming to the Berth.
	 
	 	6.	 	Will furnish United Bulk Terminal with Notice of Readiness signed by the charterer or
his agent, prior to commencement of Loading or Unloading.
	 
	 	7.	 	Warrants that the Vessel does not constitute a “common carrier” within the meaning of
46 U.S.C. App. 1702(6) and 46 U.S.C. 801 and is a private or contract carrier.




- i -









 











U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page ii





	 	8.	 	WARRANTS THAT HE/SHE HAS AUTHORITY TO EXECUTE THIS BERTH APPLICATION ON BEHALF OF
THE VESSEL, ITS AGENT(S), OWNER(S) AND/OR OPERATOR(S) AND/OR CHARTERER(S); THAT APPLICANT
HAS RECEIVED, READ AND UNDERSTANDS THE PROVISIONS OF THE United BULK TERMINAL RULES AND
REGULATIONS AND IS EMPOWERED TO BIND THE VESSEL, ITS AGENT(S), OWNER(S) AND/OR OPERATOR(S)
AND/OR CHARTERER(S) TO THE TERMS OF THE United BULK TERMINAL RULES AND REGULATIONS AND THE
BERTH APPLICATION.





	 	 	 
	 

	 	 
	 

	 	REQUESTED BY:
	 
	 	 
	 

	 	 
	 

	 	AUTHORIZED SIGNATURE
	 
	 	 
	 

	 	 
	 

	 	TITLE
	 
	 	 
	 

	 	 
	 

	 	DATE






 









 






Attachment E




U.S. United Ocean Services, LLC

Vessel Fleet



 









 




U. S. United Bulk Terminal, L.L.C. Terminal Rules and Regulations — Page i




United Ocean Services, LLC

Vessel Fleet




Tugs / Barges




	 	 	 
	Tug / Barge	 	United States Coast Guard Number
	Debbie Rankin / Diana T
	 	567374 / 567400
	Beverly Anderson / Mary Turner
	 	646729 / 646730
	Barbara Kessel / Gayle Eustace
	 	583310 / 587045
	Lisa W / Barbara Vaught
	 	571437 / 504456
	Sharon DeHart / Doris Guenther
	 	545118 / 691889
	Betty Wood / Pat Cantrell
	 	544994 / 667454
	Naida Ramil / Peggy Palmer
	 	1020314 / 641530
	Janis Guzzle / Marie Flood
	 	608018 / 545015






Ships




	 	 	 
	Ship	 	United States Coast Guard Number
	Tina Litrico
	 	547000
	Mary Ann Hudson
	 	634621
	Sheila McDevitt
	 	1108140






-i-









 






Attachment F




Demurrage and Despatch Rates

(Trans-Gulf Ocean Service, Domestic Ocean Service and Foreign Ocean Service)



[...***...]




 











 





Demurrage and Despatch Rates

(Trans-Gulf Ocean Service, Domestic Ocean Service and Foreign Ocean Service)




	 	 	 	 	 
	Vessel Name	 	Demurrage rate	 	Despatch Rate
	 
	Barbara Vaught

	 	[...***...]
	 	[...***...]
	Doris Guenther

	 	[...***...]
	 	[...***...]
	Diana T

	 	[...***...]
	 	[...***...]
	Gayle Eustace

	 	[...***...]
	 	[...***...]
	Pat Cantrell

	 	[...***...]
	 	[...***...]
	Peggy Palmer

	 	[...***...]
	 	[...***...]
	Mary Turner

	 	[...***...]
	 	[...***...]
	Marie Flood

	 	[...***...]
	 	[...***...]
	Tina Litrico

	 	[...***...]
	 	[...***...]
	Mary Ann Hudson

	 	[...***...]
	 	[...***...]
	Sheila McDevitt

	 	[...***...]
	 	[...***...]





For vessels not listed, demurrage and despatch rates shall be consistent with the above, adjusted
for actual vessel capacity.



All Rates subject to CPI / PPI adjustments as provided in Attachment J.









-i-









 









Attachment G



Tampa Electric Company

Terminal Rules and Regulations

Big Bend Terminal




 









 





TERMINAL RULES AND REGULATIONS




TAMPA ELECTRIC COMPANY




BIG BEND TERMINAL



 









 






Table of Contents




	 	 	 	 	 	 	 	 	 
	SUBJECT	 	ITEM NO.	 	PAGE NO.
	 
	General
	 	 	 	 	 	 	 	 
	Rules and Regulations; Use of Terminal
	 	 	1	 	 	 	1	 
	Consent to Terminal Rules
	 	 	2	 	 	 	1	 
	Local Authority
	 	 	3	 	 	 	1	 
	Hours of Operation
	 	 	4	 	 	 	1	 
	Terminal Condition & Access
	 	 	5	 	 	 	1	 
	Vessel Condition & Access
	 	 	6	 	 	 	2	 
	Compliance with Laws and Regulations
	 	 	7	 	 	 	2	 
	 
	 	 	 	 	 	 	 	 
	Terminal Documentation Requirements
	 	 	 	 	 	 	 	 
	Contract or Application
	 	 	8	 	 	 	3	 
	Nomination
	 	 	9	 	 	 	3	 
	Agreement to be Bound
	 	 	10	 	 	 	3	 
	Documentation for Discharge
	 	 	11	 	 	 	3	 
	Notice of Readiness
	 	 	12	 	 	 	3	 
	Early Arrivals
	 	 	13	 	 	 	4	 
	Closest Available Anchorage
	 	 	14	 	 	 	4	 
	Bypass of Berthing Order
	 	 	15	 	 	 	4	 
	Cancellation of Application Acceptance
	 	 	16	 	 	 	4	 
	 
	 	 	 	 	 	 	 	 
	Terminal Berth, Cargo Discharge, Departures
	 	 	 	 	 	 	 	 
	Safety
	 	 	17	 	 	 	4	 
	Use of Tugs
	 	 	18	 	 	 	4	 
	Line Handling
	 	 	19	 	 	 	4	 
	Stowage
	 	 	20	 	 	 	5	 
	Suitability of Cargo
	 	 	21	 	 	 	5	 
	Vessel Rotation
	 	 	22	 	 	 	5	 
	Prohibition of Maintenance and Bunkering
	 	 	23	 	 	 	5	 
	Prohibition of Certain Dangerous Cargo (CDC) Onboard Vessels
	 	 	24	 	 	 	5	 
	Prohibition on Modifications/Improvements to the Terminal
	 	 	25	 	 	 	5	 
	Right of Inspection
	 	 	26	 	 	 	6	 
	Vessel Personnel Departures, Visitors Access and Provisions
	 	 	29	 	 	 	6	 
	 
	 	 	 	 	 	 	 	 
	Cargo Discharge; Departures
	 	 	 	 	 	 	 	 
	Berthing and Discharge
	 	 	28	 	 	 	7	 
	Weather Conditions
	 	 	29	 	 	 	7	 
	Vacating Berth
	 	 	30	 	 	 	7	 
	Vacating Berth Upon Completion of Discharge
	 	 	31	 	 	 	7	 
	 
	 	 	 	 	 	 	 	 
	Liabilities; Remedies
	 	 	 	 	 	 	 	 
	Damage to Terminal
	 	 	32	 	 	 	8	 
	Responsibility for Vessel or Cargo Damage, Demurrage,
Delays or Loss of Dispatch
	 	 	33	 	 	 	8	 
	Responsibility for Vessel or Cargo Damage, Personal Injury or
Death, Demurrage Delays or Loss of Dispatch, and Pollution
	 	 	34	 	 	 	8	 
	Remedies for Enforcement of Terminal Rules
	 	 	35	 	 	 	9	 
	Conflict Governance
	 	 	36	 	 	 	9	 






Page i









 







	 	 	 	 	 	 	 	 	 
	SUBJECT	 	ITEM NO.	 	PAGE NO.
	 
	Additional Services, Rates and Charges
	 	 	 	 	 	 	 	 
	Charges
	 	 	37	 	 	 	9	 
	Special Contracts
	 	 	38	 	 	 	9	 
	Liens
	 	 	39	 	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	Definitions and Notes
	 	 	 	 	 	 	 	 
	Vessel
	 	 	40	 	 	 	10	 
	Cargo
	 	 	41	 	 	 	10	 
	Terminal
	 	 	42	 	 	 	10	 
	Berth
	 	 	43	 	 	 	10	 
	Vessel Party
	 	 	44	 	 	 	10	 
	Unloading
	 	 	45	 	 	 	10	 
	Visitors
	 	 	46	 	 	 	10	 
	 
	 	 	 	 	 	 	 	 
	Exhibits
	 	 	 	 	 	 	 	 
	Terminal Application
	 	 	 	 	 	i











Page ii









 









GENERAL





	1.	 	RULES AND REGULATIONS; USE OF TERMINAL. Use of the Tampa Electric Company Big Bend Terminal
and its facilities (“Terminal”) and services are subject to these Tampa Electric
Company Big Bend Terminal Rules and Regulations (“Terminal Rules”). Notwithstanding
anything to the contrary herein, the rights of any carrier, their owner’s and agents, or other
users of the Terminal (“Vessel Party”) to utilize the Terminal and receive any
services shall be subject to the prior approval of Tampa Electric Company (“Tampa
Electric”). Amendments to these Terminal Rules may be issued from time to time. The
Terminal Rules are subject to change without notice. Tampa Electric shall be the sole judge
as to the interpretation of these Terminal Rules. In addition, Vessel Party and any persons
accessing the Terminal (e.g., vendors, employees, contractors and visitors) are required to
follow the Big Bend Power Station Rules (“Big Bend Rules”) as may be amended and
issued from time to time.






	2.	 	CONSENT TO TERMINAL RULES. The use of the Terminal shall constitute a consent by Vessel
Party to all of the terms and conditions of these Terminal Rules, and evidences an agreement
on the part of Vessel Party to pay all charges specified herein and be governed by these
Terminal Rules.






	3.	 	LOCAL AUTHORITY. The Terminal is within the jurisdiction of the Tampa Port Authority and
Vessel Parties are subject to the applicable rules.






	4.	 	HOURS OF OPERATION. Subject to a force majeure and any forced outage, the Terminal shall
operate 24 hours a day, every day throughout the year, except for planned maintenance periods
(to be scheduled from time to time and the following Holidays (“Holidays”). Any services
provided during a Holiday are subject to a surcharge as set forth in applicable rate
schedules.





Holidays




New Years Day (January 1) (7:00 PM Dec 31 to 7:00 PM Jan 1)




Memorial Day (7:00 AM to 7:00 PM)




Independence Day (July 4) (7:00 AM to 7:00 PM)




Labor Day





Thanksgiving (7:00 AM 4th Thursday in November to 7:00 AM next day)




Christmas (7:00 PM December 24 to 7:00 PM December 25)





	5.	 	TERMINAL CONDITION AND ACCESS. Tampa Electric makes no warranty (express or implied) as to
the fitness or suitability of the Terminal for any purpose whatsoever or as to safe berth or
anchorage. Tampa Electric does not warrant the safety of any of the
11. Terminal’s docks or
facilities including but not limited to the Terminal’s mooring buoys.
	 
	 	 	Tampa Electric does not warrant the safety of channels, approaches thereto, anchorages or
other areas either inside or outside the Terminal area where any Vessel may operate.
Furthermore, the Vessel Party shall be solely responsible for determining if the depth of
water (at any tide) is sufficient for the Vessel.
	 
	 	 	Each Vessel Party has an affirmative duty to inspect the Terminal and the appurtenances and
access thereto prior to its use and to report any damage thereto to Tampa Electric in
writing. Use of the Terminal constitutes an acceptance by Vessel Party of the Terminal in
its “as-is” condition.
	 
	 	 	Notwithstanding anything to the contrary herein, the Terminal is a private terminal facility
and is not a “marine terminal operator” as defined by the Shipping Act of 1984, as amended.
Common carriers by water (such as liners), as defined by the Shipping Act of 1984, as
amended, will not be accepted for Unloading at the Terminal. 46 U.S.C. App. Section 1702
(6) defines a common carrier as “a person holding itself out to the general public to
provide transportation by water of




 









 












	 	 	passengers or cargo between the United States and a foreign country... except that the term
does not include... ocean transportation by...ocean tramp....” Only Vessels engaged in
private or contract carriage pursuant to private commercial arrangements will be accepted by
the Terminal.
	 
	 	 	The standard Vessel acceptable for discharging of Cargo at the Terminal is a geared or
gearless, bulk carrier, 650’ LOA, 100’ beam (maximum) which can ballast to achieve an air
draft of 75’. Requests for exceptions to the foregoing shall be made at the time of the
Vessel Party filing and shall be subject to the sole discretion of Tampa Electric. Channel
and berth will accommodate vessel draft of up to 33’.
	 
	6.	 	VESSEL CONDITION AND ACCESS. The Vessel Party, at all times, shall remain responsible for
the seaworthy condition of the Vessel. Tampa Electric reserves the right to refuse any Vessel
considered un-seaworthy due to damage, distribution of load, draft or lack of freeboard, lists
or such other reason for which Tampa Electric deems the Vessel not suitable for handling at
the Terminal. The berthing or anchoring of any Vessel at the Terminal shall constitute a
warranty by the Vessel Party to Tampa Electric that there are no latent defects in the Vessel.
In the event the Vessel Party requests discharge services from Tampa Electric, such request
shall constitute a warranty by Vessel Party that such Vessel is capable of being unloaded by
the Terminal using the equipment normally employed by the Terminal. In no event shall Tampa
Electric be responsible for the seaworthiness, maintenance, repair or service of any Vessels
coming into the Terminal, such responsibility being that of the Vessel Party. Notwithstanding
the foregoing, should any Vessel develop any leaks, cracks or other conditions which, in the
sole judgment of Tampa Electric, may result in damage to the Vessel and/or its Cargo, Vessel
Party agrees to take whatever steps are necessary to protect the Vessel and/or its Cargo.
	 
	 	 	All Vessels are to furnish at all times while at the Terminal safe access onboard. The
Vessel Party acknowledges that any Vessel arriving at the Terminal with cargo on its deck
may constitute a hazardous and unsafe condition. The Vessel Party agrees that if notified
of such condition, it shall be the sole responsibility of the Vessel Party to clean and
remove any such cargo which renders the deck of any such Vessel hazardous to the safety of
any person. Should the Vessel Party fail to promptly clean and remove cargo from the deck
of any such Vessel, the Tampa Electric reserves the right, but not the obligation, to clean
and remove the cargo from the Vessel’s deck, the cost of which will be solely for the
account of the Vessel Party.
	 
	7.	 	COMPLIANCE WITH LAWS AND REGULATIONS. Prior to coming into the Terminal, each Vessel Party
shall certify to Tampa Electric that its Vessel complies with all applicable Federal, State
and Local laws as set forth by, but not limited to, the laws governed by United Sates Coast
Guard, the Florida Department of Environmental Protection, the Hillsborough Environmental
Protection Commission Protection, and the Tampa Port Authority. In no event shall unloading
of a Vessel occur until such time as a Vessel has been cleared by U.S. Customs and until Tampa
Electric has received from the Vessel Party its certification that the Vessel to be unloaded
is in compliance as discussed herein. The Vessel Party shall coordinate and be solely
responsible for all required inspections for cleanliness and compliance with all local, state
and federal laws and regulations relative to the fitness of the Vessel. Tampa Electric
reserves the right to request a copy of the Vessel Party’s response plan for any Vessel that
moors up to the Terminal.
	 
	 	 	If any Vessel fails to comply with all such laws and regulations, the Terminal may order the
Vessel to vacate the Terminal. If the Vessel does not vacate the Terminal when so ordered,
the Vessel will be subject to, in addition to the liquidated damages provided for in Item
30, all costs (including, but not limited to attorneys’ fees) and expenses in connection
with the moving of the Vessel, which costs and expenses (and liquidated damages) shall be
for the account of and the full risk of the Vessel and its Vessel Party.
	 
	 	 	The Vessel Party shall have the duty to be fully familiar with the environmental rules and
regulations and laws in respect to the type and levels of all discharge allowed in United
States coastal waters and air and for fully abiding by said rules, regulations and laws.
Tampa Electric will




Page 2









 








	 	 	report any observed act which is suspected to be a violation of any such obligation, rule,
regulation or law to the appropriate U.S. governmental and/or local and/or state authority.
All waste streams generated by the Vessel Party will be managed in accordance with all
Federal, State and local waste management laws. Disposal of these waste streams shall be
the sole responsibility of the Vessel Party.
	
TERMINAL DOCUMENTATION REQUIREMENTS



	 
	8.	 	CONTRACT OR APPLICATION. Prior to any use of the Terminal, a Vessel Party shall have entered
into an agreement regarding the use of the Terminal or services to be provided at berth,
signed by authorized representatives of each of the Vessel Party and Tampa Electric. The form
of such agreement may be in the form of a “Terminal Application” a copy of which is attached
to these Terminal Rules (“Application Form”) or a separate, negotiated agreement.
	 
	9.	 	NOMINATION. Prior to each entry of a vessel into the Terminal, a Vessel Party must submit to
Tampa Electric a nomination of the Vessel to be berthed and, if applicable, unloaded, at the
Terminal. Nominations of a Vessel to be discharged at the Terminal shall be transmitted to
Tampa Electric by facsimile to (813) 630-7107 between 7:30 a.m. and 4:00 p.m. Mondays thru
Fridays, exclusive of Holidays as defined herein and Saturdays and Sundays not earlier than
thirty (30) days and not later than fourteen (14) days prior to the estimated time of arrival
(“ETA”) of the Vessel. Acceptance by Tampa Electric of a Nomination of a Vessel shall
be evidenced by Tampa Electric confirmation by facsimile or e-mail transmittal to the Vessel
Party. The Vessel Party shall file an Application Form, which includes an ETA by facsimile
transmittal to (813) 630-7107 not later than five (5) days prior to the ETA of the Vessel.
	 
	10.	 	AGREEMENT TO BE BOUND. The issuance by the Terminal of an acceptance of the Application
Form, or the berthing (by Terminal employees) of any Vessel at the Terminal, shall constitute
a contract between Tampa Electric and the Vessel, her owners, operator(s), charterer(s) and
agent(s) and any other Vessel Party (jointly and severally) to abide by the provisions of, and
to be liable for the charges of whatsoever kind or nature in these Terminal Rules.
	 
	11.	 	DOCUMENTATION FOR DISCHARGE. The following certificates and documents must be on file with
Tampa Electric in order to receive services to discharge cargo at the Terminal:






	 	a.	 	A copy of the Notice of Readiness executed by authorized representatives of the
Vessel Party;
	 
	 	b.	 	The Vessel Bill of Lading; and
	 
	 	c.	 	If applicable, the stowage plan for the Cargo to be discharged including the
discharge sequence for the Cargo stowed.






	12.	 	NOTICE OF READINESS. In the case of a Vessel is to be discharged, issuance of the Notice of
Readiness by the Vessel Party shall mean that the Vessel Party has obtained all requisite
governmental approvals, inspections and clearances, including, but not limited to, those
required by the U.S. Customs Service and the Immigration and Naturalization Service, and the
Vessel is located at the Terminal and the Vessel is ready and suitable in all respects to have
Tampa Electric discharge the Cargo in all holds. Vessel Party specifically acknowledges that
varying temperatures, moisture and weight changes and spontaneous combustion constitute
inherent problems associated with the handling of coal, petroleum coke and other Cargo. Prior
to discharging, the Vessel Party’s shall determine that the temperature, moisture and
condition of the Cargo is satisfactory. Once a Notice of Readiness has been issued, the
Vessel shall be prepared to come to the Terminal berth and commence discharging operations
upon three (3) hours notice. Upon assignment to a Terminal berth, the Vessel shall remain
prepared and be





Page 3









 











	 	 	properly crewed twenty (24) hours a day, seven (7) days a week, with any crew overtime being
at the sole cost and expense of the Vessel Party, to promptly carry out Cargo discharge
operations and undock and vacate the Terminal berth on the order of Tampa Electric. For
purposes of these Terminal Rules, “promptly” shall mean within thirty (30) minutes of notice
being tendered by Tampa Electric. Once the Notice of Readiness has been tendered, only
maintenance that has been expressly approved by Tampa Electric and scheduled with the Dock
Supervisor shall be undertaken; provided that such maintenance activity would not (i) impede
the movement of the Vessel or (ii) interfere with Cargo transfer operations or (iii) affect
safety.
	 
	13.	 	EARLY ARRIVALS. Any Vessel arriving and submitting a Notice of Readiness prior to the date
booked will be worked at the discretion of Tampa Electric; otherwise, the Vessel shall wait
for the period set forth in the applicable Application Form. Vessels arriving or submitting a
Notice of Readiness after the ETA set forth in the Application Form similarly will be worked
at the discretion of Tampa Electric.
	 
	14.	 	CLOSEST AVAILABLE ANCHORAGE. The Vessel Party filing an Application Form to utilize the
Terminal may be required to anchor at the closest available anchorage to Tampa, Florida.
	 
	15.	 	BYPASS OF BERTHING ORDER. In the event that the Vessel Party fails to comply with these
requirements and another Vessel Party, although filed later, complies with these requirements,
Tampa Electric may, in its sole discretion, and without liability to anyone, bypass the
subject non-compliant Vessel.
	 
	16.	 	CANCELLATION OF APPLICATION ACCEPTANCE. If any Vessel Party, that has filed an Application
Form with the Terminal, is ordered to a Terminal berth or mooring by Tampa Electric and is
unable or refuses to accept the assigned Terminal Berth, due to any reason whatsoever, or
otherwise fails to comply with these Terminal Rules, Tampa Electric may, at its sole
discretion, cancel the acceptance of the Vessel Party’s Application Form. If Tampa Electric
acceptance is cancelled, the Vessel Party must re-file and will be assigned a rotation in the
Terminal lineup based on the new filing time.





TERMINAL BERTH, CARGO DISCHARGE, DEPARTURES





	17.	 	SAFETY. All Vessel personnel crews and any contractors engaged by or on behalf of Vessel
Party shall follow the safety requirements of the Terminal Rules, including wearing personal
protective equipment such as safety glasses, steel toed shoes and hard hats while on the
Terminal docks and when transiting the conveyor walkway system to and from the Terminal wharf.
The Vessel Party is soley responsible for insuring compliance by such third parties. Vessel
Party acknowledges that the Terminal processes multiple pieces of discharge equipment,
rotating machinery, conveyors and others systems and as such agrees to coordinate Vessel
officers and crew activities with Terminal representatives as a part of its effort to work
safely while at the Terminal.






	18.	 	USE OF TUGS. When a Vessel is entering or leaving the Terminal, the Vessel Party shall be
responsible for furnishing all necessary tugs. The cost of such tugs shall be at the sole
expense of and for the account of the Vessel and the Vessel Party without refund or credit
against any charges due and owing Tampa Electric. If, in the opinion of Tampa Electric the
weather or other conditions so warrant, each Vessel upon entering and leaving or lying at the
Terminal (including shifting within the Terminal) may be required to make use of additional
tugs, depending on the size of the Vessel, which additional tugs shall be at the sole risk and
expense of the Vessel and the Vessel Party.






	19.	 	LINE HANDLING. The master and crew of every Vessel will provide assistance in handling lines
and operating deck machinery. Vessel Party shall have an English-speaking deck office
available





Page 4









 













	 	 	to ensure timely response to directions of any representatives of the Terminal relative to
handling of lines. Terminal representatives will position lines on the shoreside. Line
handling for docking and undocking of Vessels at the Terminal berth and at the Terminal
buoys, shall be assessed at the rate provided in the attached rate schedule.
	 
	20.	 	STOWAGE. The Vessel Party shall be solely responsible for the stowage of the Cargo. Cargo
shall be stowed within the Vessel only in areas where equipment can reach, subject to Vessel
design capability.
	 
	21.	 	SUITABILITY OF CARGO. The Vessel Party acknowledge that Tampa Electric only provides
discharging facilities and outside ground storage of the Cargo at the Terminal. The Vessel
Party additionally acknowledges its responsibility as to the seaworthiness condition of the
Vessel and the mechanical integrity of the Vessel’s operating systems and equipment.
Deficiencies discovered during discharge by Tampa Electric and presented in writing to the
Vessel Party shall be corrected prior to the Vessel’s return to
the Terminal. Tampa Electric
reserves the right, without any responsibility for any loss, damage, or demurrage that may
arise, to refuse any Cargo because in the sole discretion of Tampa Electric, such Cargo is
un-merchantable or in unfit condition for unloading, storage, transfer or handling; or because
of lack of space, facilities or equipment, or for any other reason based on the sole judgment
of Tampa Electric. Tampa Electric shall not be responsible for any loss, damage or delay
caused by varying temperatures, moisture and weight changes and/or spontaneous combustion of
Cargo, frost, heating, flood, the elements, evaporation, natural shrinkage, wastage or decay
or from insufficient notification, or from war, insurrection, Acts of God, or acts or failure
to act of any Governmental entity, or for any consequences arising therefrom, or from
concealed damage, leakage (e.g., ballast into cargo), variation in weights, or for losses in
weights whether occurring while Cargo is unloaded or while otherwise being handled, or for
failure to detect or remedy same.
	 
	22.	 	VESSEL ROTATION. Generally, Terminal berths shall be assigned on a “first come, first
served” basis; however, to achieve prompt turnaround of vessels and maximize utilization of
the Terminal, Tampa Electric reserves the right to alter the turn of Vessels to be berthed
and/or discharged, when, in its sole judgment, it is in the best interest of Terminal
operations.
	 
	23.	 	PROHIBITION OF MAINTENANCE AND BUNKERING – WITHOUT THE ADVANCE EXPRESS WRITTEN CONSENT OF
TAMPA ELECTRIC, NO MAINTENANCE OR BUNKERING (INCLUDING, BUT NOT LIMITED TO, DIESEL FUEL OR
LUBRICATION FLUIDS) OF ANY VESSEL SHALL BE PERFORMED OR OTHERWISE UNDERTAKEN WHILE BERTHED OR
ANCHORED AT THE FACILITY. In the event that consent to any maintenance is granted, such
maintenance shall not create a danger an obstacle or a nuisance or other impediment(s) to the
use of the Terminal and all activity and schedule shall be coordinated with Tampa Electric.
The Vessel Party shall submit a written request to Tampa Electric that shall include at a
minimum a description of the planned maintenance activities, the equipment resources required
to perform such maintenance, a request for permission to allow any contractors access to the
Terminal and the Vessel, a safety plan for the planned maintenance and a schedule for the
planned maintenance.
	 
	24.	 	PROHIBITION OF CERTAIN DANGEROUS CARGO (CDC) ONBOARD VESSELS - THERE SHALL BE NO CERTAIN
DANGEROUS CARGO (as defined by 33 CFR 160.204) ON A VESSEL IN THE TERMINAL.
	 
	25.	 	PROHIBITION ON MODIFICATIONS / IMPROVEMENTS TO THE TERMINAL – The Vessel Party shall make no
alterations or improvements to the Terminal or install any fixtures on the Terminal without
first obtaining the written approval of Tampa Electric. To the extent such alterations or
improvements are made, the alterations and improvements shall become part of the Terminal and
the property of Tampa Electric free of any encumbrances and Vessel Party shall be responsible
for ensuring that such ownership of the alterations and improvements vests in Tampa Electric
free of any encumbrances. Tampa Electric and Vessel Party agree that this shall not be





Page 5









 






	 	 	construed so as to place the Vessel Party in possession of the Terminal or to abridge the
right of Tampa Electric as owner of the Facility in any respect.
	 
	26.	 	RIGHT OF INSPECTION. Tampa Electric, by and through its duly authorized officers, agents and
representatives, shall have the right to go upon and inspect Vessels berthed or moored at the
Terminal. Additionally, the Vessel Party shall comply with requests by regulatory and law
enforcement agencies to go upon and inspect Vessels berthed or moored at the Terminal. The
Vessel Party shall notify and coordinate such inspections with Tampa Electric.






	27.	 	VESSEL PERSONNEL DEPARTURES, VISITORS ACCESS AND PROVISIONS. Should it be necessary for
Vessel personnel to leave the Vessel or for Visitors to board the Vessel, the Vessel Party
shall provide forty-eight (48) hours prior written notification to Tampa Electric by facsimile
transmittal to (813) 630-7107 or to such other number as Tampa Electric may direct the Vessel
Party. The Vessel Party’s request must be provided and include: a list of the (a) name, (b)
address, (c) telephone number and (d) reason for the visit of each Visitor to the Vessel and /
or the reason for the Vessel personnel departure from the Vessel. Tampa Electric retains the
right to refuse the requested access to the Terminal. Tampa Electric shall require each
Visitor or Vessel personnel allowed to enter and leave the Terminal to be escorted by means as
determined by Tampa Electric. At a minimum, each Visitor must have a form of identification
acceptable to Tampa Electric and must comply with the Terminal Rules. The list shall be
supplemented as needed and furnished in advance of the visit to the Terminal in writing
between 9:00 a.m. and 4:00 p.m. Mondays through Fridays and between 9:00 a.m. and 12:00 noon
Saturdays, all exclusive of Holidays as defined herein, and Sundays. Any Vessel personnel
leaving the ship shall be required to furnish the Tampa Electric with a Crewman’s Landing
Permit – Form I-95 issued by the U.S. Immigration & Naturalization Service and a picture
identification card.






	 	 	Tampa Electric reserves the right to deny or limit access to the Terminal to any Visitor or
Visitors whom Tampa Electric, in its sole discretion, deems may result in injury, damage or
loss to persons or property at the Terminal. Every person entering the Terminal must sign
in with the Terminal office before proceeding to any Vessel or Terminal building and shall
furnish Tampa Electric with identification acceptable to Tampa Electric. Any person or
vehicle that enters the Terminal shall be subject to a search. The Vessel Party assumes all
responsibility and accountability to assure Vessel personnel, Vessel service providers,
Vessel subcontractors and Visitors abide by these Terminal Rules. All vehicles allowed
shall travel only at posted speed limits, obey all traffic signs and follow all traffic
rules, without exception. At no time is it permissible for the Vessel Party, Vessel officers
and crew, the Vessel Party’s contractors or service providers or the Vessel Party’s Visitors
to drive or park a vehicle on the Terminal dock. The Vessel Party shall coordinate all
activities involving motorized vehicles with Terminal representatives. Visitors and Vessel
officers and crew, subject to the prior approval of the Tampa Electric, may arrange for
outside transportation for pickup and delivery at the Terminal. All Visitors and Vessel
personnel must wear protective equipment, hard hats, safety glasses, and steel toed shoes at
all times while on Terminal property; in certain instances, Tampa Electric may instruct
Visitors and Vessel personnel to wear life jackets. Any Visitor shall execute such releases
and indemnity agreements as required by Tampa Electric as a condition to being allowed
access to the Terminal facilities. Vehicle parking at the Terminal is limited and is
subject to prior approval of and coordination with Tampa Electric.






	 	 	Delivery of provisions or stores to any Vessel at the Terminal shall require the prior
approval of and coordination with Tampa Electric subject to a determination by Tampa
Electric whether such activities will interfere with discharge operations or Vessel
arrivals, departures, security or vessel positioning and or shifting. The Vessel’s agent
must be present when provisions are to be brought on to a Vessel. Tampa Electric retains
the right to refuse the requested access to the Terminal.




Page 6









 











CARGO DISCHARGE; DEPARTURES





	28.	 	BERTHING AND DISCHARGE. Upon berthing at the Terminal, the Vessel shall immediately and at
all times provide adequate lighting, equipment and appropriate officers and crew aboard to
permit Cargo discharging, as the case may be, at any time of the day or night, including
Saturdays, Sundays and Holidays. Prior to discharge, the Vessel shall secure Cargo hatches,
gantry and any other equipment located on the Vessels upper deck that may interfere with the
discharge. At all times during discharge and while at the Terminal, the Vessel officers and
crew aboard shall assist Terminal representatives in keeping the Vessel trimmed to minimize
hog and sag. The Vessel officers and crew shall minimize activities and equipment movement
that may interfere with discharge activities. Additionally, the Vessel shall minimize
over-pressurizing and or overfilling the Vessel’s ballast tank. Unless otherwise pre-approved
and coordinated with Tampa Electric, Vessel Party shall not be allowed to lay a Vessel
outboard of a Vessel being discharged at the Terminal.






	29.	 	WEATHER CONDITIONS. When, in Tampa Electric’s sole opinion, weather conditions threaten the
safety of any moored or berthed Vessel and/or the structural integrity of the Terminal,
transfer operations will be suspended and any Vessel moored or berthed at the Terminal shall
vacate the Terminal immediately when requested by Tampa Electric to do so and until such time
as weather conditions permit it to return (irrespective of whether the order by Tampa Electric
vacate the Terminal precedes any similar order to vacate issued by the Tampa Port Authority).
If any Vessel does not leave the Berth within four (4) hours of being ordered to do so, all
costs (including but not limited to attorney fees) and expenses in connection with the moving
of the Vessel and mooring or berthing of same, as the case may be, shall be for the account of
and at the full risk of the Vessel and Vessel Party. In no event shall Tampa Electric have
any responsibility for any Vessel, including but not limited to the cost of moving a Vessel
that is ordered to vacate the Terminal for any reason provided in the Terminal Rules. Any
damage to the Terminal or other equipment shall be the responsibility of the Vessel Party and
Vessel. Any Vessel calling at the Terminal shall be subject to the written guidelines and
procedures relative to hurricanes adopted by Tampa Electric, a copy of which has been provided
to the Vessel Party.






	30.	 	VACATING BERTH. Whenever a Vessel is unable or refuses to unload, or shift within or between
anchorage sites, berths or docks, Tampa Electric may order the Vessel to vacate the Terminal
after notice to vacate is delivered to the Vessel’s master or the Vessel Party. If Vessel
refuses or fails to vacate the Berth when ordered to vacate, Tampa Electric shall be entitled
to charge and recover from the Vessel Party as liquidated damages the sum of $5,000.00 per
hour for each hour or fraction thereof of each calendar day from one hour after delivery of
the notice to vacate that the Vessel remains at the Terminal, regardless of any intervening
circumstances of any nature. Additionally, if the Vessel Party does not timely vacate the
Terminal, the Vessel Party will be subject to, in addition to the liquidated damages above, to
all costs (including but not limited to attorney fees) and expenses in connection with the
moving of the Vessel Party, which costs and expenses (and liquidated damages) shall be for the
account of and the full risk of the Vessel Party.






	31.	 	VACATING BERTH UPON COMPLETION OF DISCHARGE. The Vessel Party shall vacate the Terminal
within four (4) hours of completion of discharging and, if applicable, cleaning of the
Vessel. If Vessel Party refuses or fails to vacate the Terminal when ordered to vacate,
Tampa Electric shall be entitled to charge and recover as liquidated damages from the Vessel
Party, the sum of $5,000 per hour for each hour or fraction thereof from one hour after
receipt of the notice to vacate until vacation of the Berth occurs regardless of any
intervening circumstances of any nature. If the Vessel Party does not timely vacate the
Terminal, the Vessel Party will be subject to, in addition to the liquidated damages above, to
all costs (including but not limited to attorney fees) and expenses in connection with the
moving of the Vessel Party, which costs and expenses (and liquidated damages) shall be for the
account of and the full risk of the Vessel Party.




Page 7









 











LIABILITIES; REMEDIES





	32.	 	DAMAGE TO TERMINAL. In the event any damage is caused to the Terminal property, the Vessel
Party shall be responsible and shall be liable for any and all damage occurring to Terminal
property and the expense of the repair or replacement of the Terminal property to the extent
caused by the Vessel Party’s acts or omission in its use of the Terminal.






	33.	 	RESPONSIBILITY FOR VESSEL OR CARGO DAMAGE, DEMURRAGE, DELAYS OR LOSS OF DISPATCH.
Irrespective of any fault or negligence of Tampa Electric, Tampa Electric shall not be
responsible for marine loss or damage to a Vessel berthed or moored at the Terminal or cargo
carried on any such vessel nor shall Tampa Electric be responsible for any demurrage or other
damages for delay or loss of dispatch time or any other damages incurred by any such Vessel
for any cause whatsoever; provided, however, Tampa Electric will be liable for damage to a
Vessel directly resulting from the gross negligence or willful misconduct of Tampa Electric
employees or subcontractors in the performance of services.






	34.	 	RESPONSIBILITY FOR VESSEL OR CARGO DAMAGE, PERSONAL INJURY OR DEATH, DEMURRAGE DELAYS OR LOSS
OF DISPATCH, AND POLLUTION. Tampa Electric will receive, discharge, transfer, and handle
Cargo in accordance with the Terminal Rules and industry standard practices. Tampa Electric
shall not be responsible for marine loss or damage to Cargo. The Vessel Party hereby agree to
indemnify, defend and hold harmless Tampa Electric and all persons, firms or other entities
which may manage, own or control the operations of said Terminal, and their officers,
directors, agents, insurers, and vessels (the “TEC Indemnitees”) from and against any
and all claims, actions, damages, liability or expense, including court costs and attorney’s
fees, in connection with the loss of life or bodily injury involving anyone, including the
Vessel Party’s contractors and invitees and damage, contamination or loss of property,
including the Vessel Party’s Cargo, incident to or resulting from the Vessel Party’s use of
the Terminal facilities.
	 
	 	 	Additionally, such obligation of Vessel Party to indemnify, defend and hold harmless the TEC
Indemnitees shall include, but not be limited to, losses, penalties, fines, clean-up costs,
natural resource damage, remediation costs, removal costs, demurrage, administrative costs
and any and all other costs and liabilities that arise directly or indirectly from pollution
caused by (a)the Vessel Party or other master or crew of the Vessel, in discharging Cargo,
or in the operation or management of the Vessel; or (b) a spill of the Cargo, fuel or any
other pollutant of the Vessel or of any other party at any time while said Cargo, fuel, or
pollutant is on board the Vessel or when said Cargo, fuel, or pollutant is within the care,
custody or control of Vessel Party or those for whom Vessel Party is responsible except
where such damages, losses, costs or liability are caused by the gross negligence of Tampa
Electric. In the event of a pollution spill arising directly or indirectly out of services
being performed at the Terminal, the Vessel Party shall, and shall cause its insurers, to
proceed at once to:






	 	(a)	 	Notify all local, state and federal authorities having jurisdiction of the pollution
event.
	 
	 	(b)	 	Notify Tampa Electric of all details of the pollution event.
	 
	 	(c)	 	Take all steps to eliminate the cause and/or source of the pollution.
	 
	 	(d)	 	Take all steps to clean up the pollution.
	 
	 	(e)	 	Take all steps required by law to restore the environment.
	 
	 	(f)	 	Take all steps to mitigate damages of the Vessel, Terminal and third
parties.
	 
	 	(g)	 	Promptly pay, and pay for, all fines, damages and losses of their
parties, to the extent required by law, and for all costs and expenses of cleanup.
	 
	 	(h)	 	If necessary, advance or pay monies and funds required to be paid to
the appropriate regulatory agencies.
	 
	 	(i)	 	Consult with Tampa Electric and keep Tampa Electric constantly informed
of all steps taken and contemplated to comply with provisions of this paragraph.




Page 8









 






	 	(j)	 	Cooperate with Tampa Electric in issuing statements to government
authorities and media representatives.






	 	 	Whether or not the Vessel Party has complied with the provisions of this paragraph, Tampa
Electric may, but shall not be required to, take over and manage all prevention, cleanup and
restoration activities, all without derogation or diminution of User’s obligations under
these Terminal Rules, and with full reservation to Tampa Electric of all rights against the
Vessel, User or its insurers for reimbursement of costs, expenses and attorneys’ fees. In
such event, User shall, and shall cause its insurers and any subcontractors, to make
available to Tampa Electric all vessels, personnel and equipment used or planned to be used
in such prevention, cleanup and restoration efforts, all at the sole expense of the Vessel
Party.
	 
	 	 	In the event Tampa Electric takes over and manages such prevention, cleanup and restoration
efforts, such action shall not be deemed a waiver, or constitute an estoppel by Tampa
Electric or an admission of fault or responsibility on the part of Tampa Electric. Tampa
Electric may, but is not required to, utilize its own and contracted personnel, vessels and
equipment in such prevention, cleanup and restoration efforts, and may, at its discretion,
allocate such resources as it, in its sole discretion, deems appropriate.
	 
	35.	 	REMEDIES FOR ENFORCEMENT OF TERMINAL RULES. Tampa Electric shall have all remedies available
to it at law, in equity or under maritime law to enforce these Terminal Rules including, but
not limited to, canceling a the Vessel Party’s filing or ordering a Vessel from Terminal.
Tampa Electric shall also have all remedies available at law, in equity or under maritime law
to collect liquidated damages including but not limited to a maritime lien against the Vessel
for such charges. In the event of any legal proceedings to enforce any provision of the
Terminal Rules, Tampa Electric shall be entitled to recover its expenses incurred in such
proceedings, including attorney’s fees in any trial court and on any appeal.
	 
	36.	 	CONFLICT GOVERNANCE. In the event of a conflict between these Terminal Rules and any written
agreement concerning the use of the Terminal (“Transportation Contract”), the terms and
conditions of the Transportation Contract shall control. In case any portion of any provision
or any one or more of the provisions contained in the Terminal Rules should be held or
determined invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining portion of any such provision and the other remaining
provisions or underlying rights and obligations referred to herein shall not in any way be
affected, modified, or impaired thereby.





ADDITIONAL SERVICES, RATES AND CHARGES





	37.	 	CHARGES. Tampa Electric shall render invoices for services provided hereunder upon
completion of said services and the User agrees to pay said invoices within thirty (30) days
from date of invoice. Any invoice that remains unpaid after thirty (30) days from date of
invoice shall earn interest, compounded at one and one-half interest (1-1/2%) percent per
month or the maximum legal interest rate allowed under Florida law, whichever is less. Any
pending or alleged claims against Tampa Electric will not be allowed as an offset against
outstanding or accrued charges until such claims have been allowed or legally established.






	38.	 	SPECIAL CONTRACTS. Charges for services or items not specifically provided for in these
Terminal Rules and Regulations shall be assessed pursuant to a separate contract with Tampa
Electric.






	39.	 	LIENS. All lawful charges made by or due to Tampa Electric shall constitute a lien in favor
of the Tampa Electric upon the Cargo and against any Vessel for such charges to the full
extent permitted by law.




Page 9









 











          1. DEFINITIONS





	40.	 	VESSEL. The term “Vessel” or “Vessels” shall include any ocean-going barge, or Ocean Vessel.






	41.	 	CARGO. The term “Cargo” shall include, but not be limited to, coal and petroleum coke.






	42.	 	TERMINAL. The term “Terminal” means the Tampa Electric Company, Big Bend Terminal, located
on the east coast of Tampa Bay near the city of Tampa, Florida.






	43.	 	BERTH. The term “Berth” or “Berths” means Terminal’s dock.






	44.	 	VESSEL PARTY. The term “Vessel Party” or “Vessel Parties” means any party or parties either
owning, nominating or contracting with the Vessel including, but not limited to, its agent(s),
owner(s), operator(s) and/or charterer(s).






	45.	 	UNLOADING. The term “Unloading” shall mean the service of Unloading Cargo between Vessels or
any other means of conveyance to the Terminal and any place at the Terminal.






	46.	 	VISITORS. The terms “Visitors” or “Visitor” mean any individual or entity listed in the
Visitor List and any other individual or entity that seeks access to the Terminal facilities
or any Vessel berthed there, including, but not limited to, any surveyor.










Page 10









 















NOTICE TO VACATE TERMINAL




TO: Master or Agent — M/V                                         
 (the “Vessel”)



On behalf of Tampa Electric Company, you are hereby instructed and ordered to vacate the Berth at
which your vessel presently is located in the Tampa Electric Company Big Bend Terminal. In
accordance with the terms and conditions of the Tampa Electric Company Big Bend Terminal Rules and
Regulations of which you are in receipt, the failure of the Vessel to vacate the Berth when so
ordered shall subject the Vessel and her owner, operator, charterer and agent to a charge of $5,000
per hour, as liquidated damages, for each hour or fraction thereof of each calendar day from one
hour after delivery of this Notice to Vacate the Terminal, until the Vessel vacates the Terminal,
regardless of intervening circumstances. In addition to the liquidated damages above, all costs
and expenses, including, but not limited to, attorneys fees and expenses in connection with the
moving of the Vessel shall be for the account of and full risk of the Vessel and her owner,
operator, charterer and agent.




	 	 	 	 	 
	TAMPA ELECTRIC COMPANY,	 	 
	 
	 	 	 	 
	Name:

	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Delivery to Master of Notice to Vacate the Terminal	 	 
	DATE:
	 	 	 	 
	 

	 	 	 	 
	TIME:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Acknowledgment of receipt of Notice to Vacate Terminal on behalf of	 	 
	M/V
	 	 	 	 
	 

	 	 	 	 
	Name:
	 	 	 	 
	 

	 	 	 	 
	Title:
	 	 	 	 
	 

	 	 	 	 







 









 










TERMINAL BERTH APPLICATION



Application is hereby made for use of the terminal facilities located at the Tampa Electric Company
Big Bend Terminal (“Terminal”) by the vessel described below (“Vessel”) for
berthing and discharging in accordance with the Tampa Electric Company Big Bend Terminal, Rules and
Regulations, Issued                     uly                     , 2007 (“Terminal Rules”).



PARTICULARS OF VESSEL (if known, otherwise to be provided not less than 72 hours prior to
Vessel’s arrival at the Terminal):




	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Vessel: M/V
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Gross Registered Tons:
	 	 	 	Length:
	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 
	 

	 	Breadth:
	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





	 	 	 	 	 	 	 	 	 	 	 
	 

	 	Maximum Depth Loaded:
	 	 	 	Air Draft:
	 	 	 	 
	 

	 	 	 	 
	 	 	 	 	 	 





APPLICANT AGREES:





	 	1.	 	Application for berth is hereby made on behalf of Vessel, its agent(s), owner(s) and/or
operator(s) and/or charterer(s) (collectively, “Vessel Party”) and that payment of
applicable charges for said Vessel will be made to Tampa Electric Company (“Tampa
Electric”) as required in the Terminal Rules.
	 
	 	2.	 	Applicant has in its possession a current copy of the Terminal Rules and stipulates
that the Vessel, its agent(s), owner(s) and/or operator(s) and/or charterer(s) are bound by
and agree to abide by all provisions of the Terminal Rules.
	 
	 	3.	 	Applicant warrants that the necessary berthing tug(s), shifting tug(s) and disembarking
tug(s), will be arranged prior to the Vessel coming to the Terminal.
	 
	 	4.	 	If not attached hereto, Applicant will furnish Tampa Electric with all documentation
required under the Terminal Rules prior to arrival at the Terminal.
	 
	 	5.	 	Applicant warrants that the Vessel does not constitute a “common carrier” within the
meaning of 46 U.S.C. App. 1702(6) and 46 U.S.C. 801 and is a private or contract carrier.
	 
	 	6.	 	THE UNDERSIGNED WARRANTS THAT S/HE HAS AUTHORITY TO EXECUTE THIS TERMINAL APPLICATION
ON BEHALF OF THE VESSEL, ITS AGENT(S), OWNER(S) AND/OR OPERATOR(S) AND/OR CHARTERER(S);
THAT APPLICANT HAS RECEIVED, READ AND UNDERSTANDS THE PROVISIONS OF THE TERMINAL, RULES AND
IS EMPOWERED TO BIND THE VESSEL, ITS AGENT(S), OWNER(S) AND/OR OPERATOR(S) AND/OR
CHARTERER(S) TO THE TERMS OF THE TERMINAL RULES AND THE TERMINAL APPLICATION.





	 	 	 	 	 
	 

	 	 	 	 
	DATE

	 	 
	 	REQUESTED BY:
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	AUTHORIZED SIGNATURE
	 
	 	 	 	 
	 

	 	 	 	 
	 

	 	 	 	TITLE






	 	 	 	 	 
	APPLICANT CONTACT INFORMATION:	 	 
	 
	 	 	 	 
	Phone:
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Fax
	 	 	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	E-mail
	 	 	 	 
	 

	 	 	 	 










i









 








Attachment H




Domestic Ocean Service Rates









 









 








Domestic Ocean Service Rates



Domestic Ocean Service to Big Bend Terminal from Various Origins




	 	 	 	 	 
	 	 	2009	 	2010 - 2014
	PASCAGOULA
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	MOBILE
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	BEAUMONT
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	CORPUS CHRISTI
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	PORT ARTHUR
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	BALTIMORE
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 
	 	 	 	 
	HAMPTON ROADS / NORFOLK
	 	 	 	 
	BASE FUEL COMPONENT

	 	[...***...]
	 	[...***...]
	BASE VARIABLE COMPONENT

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 
	 

	 	[...***...]
	 	[...***...]
	 

	 	 
	 	 





-i-









 






All Domestic Ocean Service rates:


Subject to fuel and CPI / PPI adjustments


A Guaranteed load rate of 20,000 short tons per day sshinc fiost (no turn time)


Rates are based upon use of vessels capable of loading 33,000 tons +/- 10% United’s option



Service from Domestic Ocean Service Ports not listed above to Big Bend Terminal, and all Service to
UBT Terminal, shall be calculated using distance tables and the rates established above









-ii-









 








Attachment I



Methodology for Fuel Component Adjustment



[...***...]






 









 








Methodology for Fuel Component Adjustment




Attachment J



Methodologies for Variable Component Adjustment (Section 7.3.2), Shortfall Payment Adjustment
(Section 2.2.2), and Demurrage Rate Adjustment (Sections 3.8.5 and 5.9.6)




[...***...]






 









 








Form of Letter of Credit




Issuing Bank Name:

Issuing Bank Address:




Date:




IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER:




BENEFICIARY:

Tampa Electric Company

702 North Franklin Street P-7

Tampa, Florida 33602

Attn: Bob Kenison

Telephone No.: 813.228.4228

Telecopy No.: 813.228.4621




Dear Beneficiary:



At the request of and for the account of (Account Party name and address), (the “Account Party”)
we, (Issuing bank), hereby establish in your favor this irrevocable standby letter of credit no.
xxxxx (the “Letter of Credit”) in the amount of United States Dollars xxxxx and 00/100 **US$xxxxx
(hereinafter, as reduced from time to time in accordance with the provisions hereof, the “Stated
Amount”), effective immediately.



This Letter of Credit shall expire on (insert month) **, 200*, and it may be extended as provided
in the next sentence, (the “Expiration Date”). Notwithstanding the stated expiration date contained
herein, it is a condition of this Letter of Credit that it shall be automatically extended without
amendment on our part for one year from the expiry date hereof, or any future expiration date, but
in no event to a date later than March 31, 2015, unless at least sixty (60) days prior to any such
expiration date we shall notify you by registered mail or overnight courier that we elect not to
renew this Letter of Credit. Such notification must be received by you at least sixty (60) days
prior to the expiration date in effect at the time of such notification. Upon your receipt of said
notice, you may draw the full amount of this Letter of Credit hereunder upon presentation of your
drawing certificate form referencing this Letter of Credit No. ___. Funds under this Letter of
Credit will be made available to you by payment against presentation of your draft accompanied by a
completed, dated and signed drawing certificate reading as follows:







 









 








QUOTE:



FORM OF DRAWING CERTIFICATE



Date:





	To:	 	 Issuing Bank


Issuing Bank Address
	 
	 	 	Re: Your Letter of Credit No. xxxxx
	 
	 	 	“The undersigned is an authorized representative of xxxxx, the Beneficiary of (Issuing Bank)
(the “Bank”) Irrevocable Standby Letter of Credit number xxxxx (the “Letter of Credit”), and
the Beneficiary hereby certifies with respect to the accompanying draft that:
	 
	[Select applicable paragraph]
	 
	 	 	A) An Event of Default or Termination Event, as defined in the xxxxx agreement dated xxxxx
between the Account Party and the Beneficiary (as the same may be amended, the “Agreement”),
has occurred and is continuing (beyond the time allowed for any related notice or grace
periods or both under said Agreement), or
	 
	 	 	B) The Bank has notified the Beneficiary at least sixty (60) days prior to the expiration
date of the Letter of Credit that it has elected not to renew the Letter of Credit, and any
replacement security required under the terms of the Agreement has not been provided to the
Beneficiary not later than fifteen (15) days prior to the date of expiration of the Letter
of Credit.
	 
	 	 	Wherefore, the amount of this drawing, which is US$(amount to be inserted), represents an
amount which is due and payable under the Agreement.
	 
	 	 	Please wire proceeds to us pursuant to the following instructions: ___.
	 
	 	 	In witness whereof, the Beneficiary has executed and delivered this certificate.
	 
	 	 	Beneficiary Name
	 
	 	 	By:                                                             
	 
	 	 	Name:                                                             
	 
	 	 	Title:                                                             










 









 






	 	 	FORM OF DRAFT
	 
	 	 	[LOCATION]
	 
	 	 	[DATE]
	 
	 	 	Pay at sight to the order of Tampa Electric Company by wire transfer of federal funds the
amount of United States Dollars xxxxx and 00/100 (US$ xxxxx), to the [] Account, Account No.
xxxxx at                                         , drawn under [Issuing Bank Name] Irrevocable Standby Letter of
Credit No. xxxxx.
	 
	 	 	[Tampa Electric Company]
	 
	 	 	By:                                                             
	 
	 	 	Name:                                                             
	 
	 	 	Title:                                                             




END QUOTE



All drawing certificates and drafts under this Letter of Credit must be presented to (Issuing Bank
name and address).



If your draft accompanied by a completed drawing certificate is presented by you hereunder at or
prior to 10:00 AM, New York City time, on a Business Day (as defined below), and provided that such
draft and drawing certificate conform to the terms and conditions hereof, payment shall be made to
you, in the amount specified in your draft, in immediately available funds not later than 3:00 PM,
New York City time, on the next Business Day following the date of presentation. If your draft
accompanied by a completed drawing certificate is presented by you hereunder after 10:00 AM, New
York City time, on a Business Day, and provided that such draft and drawing certificate conform to
the terms and conditions hereof, payment shall be made to you, in the amount specified in your
draft, in immediately available funds not later than 3:00 PM, New York City time, on the second
Business Day following the date of presentation.



If a draft or a drawing certificate presented by you hereunder does not in any instance conform to
the terms and conditions of this Letter of Credit, we shall give you due notice that the demand for
payment was not effected in accordance with the terms and conditions of this Letter of Credit,
stating the reasons therefor and that we will, upon your instructions, hold any document(s) at your
disposal, or return the same to you. Upon being notified that draft or a drawing certificate was
not in conformity with this Letter of Credit, you may attempt to correct any such non-conformity to
the extent that you are entitled to do so.



Partial or multiple drawings are permitted hereunder. If a partial drawing is presented and paid,
the original Letter of Credit will be endorsed and returned to you. If your drawing exhausts the
Stated Amount, we will retain the Letter of Credit.






 









 







Communications with respect to this Letter of Credit shall be in writing and shall be addressed to
(Issuing Bank name and address) specifically referring to Letter of Credit No. xxxxx, therein.



As used herein “Business Day” shall mean any day other than Saturday, Sunday, or any other day on
which banking instructions in New York, New York are authorized or required by law or executive
order to be closed.



This Letter of Credit sets forth in full our undertaking and such undertaking shall not in any way
be modified, amended, amplified or limited by reference to any document, instrument or agreement
referred to herein, and any such reference shall not be deemed to incorporate herein by reference
any document, instrument or agreement.



Except as expressly stated herein, this Letter of Credit is issued subject to the International
Standby Practices, International Chamber Commerce Publication no. 590 (The “ISP98”) which is
incorporated into the text of this Letter of Credit by reference. As to matters not covered by the
ISP 98, this Letter of Credit shall be governed by and construed in accordance with the law of the
State of New York, including Article 5 of the Uniform Commercial Code as in effect in that state.




	 	 	 
	Issuing Bank
	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	xxxxx

Authorized Signature

	 	xxxxx

Authorized Signature










 









 








Attachment L




Terms and Conditions for Draw Under Letter of Credit









 









 








Terms and Conditions for Draw Under Letter of Credit




          Draws on the Letter(s) of Credit by Tampa Electric shall be accomplished under the following
terms and conditions:




          1. Reinstatement of Letter(s) of Credit




          In the event Tampa Electric shall make any draw against any Letter of Credit in accordance
with this Agreement during any period in which such Letter of Credit is required to be in effect,
United shall, within five (5) Business Days, cause the Letter of Credit to be reinstated in the
full amount of six million dollars ($6,000,000), or cause a supplemental Letter of Credit to be
provided for the benefit of Tampa Electric, such that the total credit available shall at all times
be not less than six million dollars ($6,000,000). In any instance in which Tampa Electric has drawn
against a Letter of Credit, but has not applied such cash against its claim, and is holding such
cash in the manner provided in Paragraph 3 of these Terms and Conditions, the amount of such cash
being held by Tampa Electric shall be deemed to satisfy a portion of United’s obligation to
maintain the Letter of Credit, and United shall not be required to supplement, reinstate or replace
the Letter of Credit as to such amount.




          2. Draws




          a) Tampa Electric, in its sole discretion, shall be entitled to make a draw or draws upon a
Letter of Credit for a portion of or for the full face amount of such Letter of Credit for actual
damages Tampa Electric claims to have suffered due to United’s breach of this Agreement upon the
occurrence of an Event of Default with respect to United under this Agreement (whether or not Tampa
Electric elects to exercise remedies under this Agreement in connection therewith); provided that
such draw shall be made only in the amount or amounts that are claimed by Tampa Electric as actual
damages; and provided further that if such Event of Default is continuing and additional amounts
are claimed by Tampa Electric as actual damages hereunder, Tampa Electric may make additional draws
in regard to such amounts.




          b) Tampa Electric, in its sole discretion, shall be entitled to make a draw or draws upon a
Letter of Credit upon the occurrence of any of the following events for a portion of or the full
face amount of such Letter of Credit:




          (i) immediately upon United becoming Bankrupt as defined herein;




          (ii) at any time within fifteen (15) days prior to the date of expiration of a Letter of
Credit, if Tampa Electric has not received a renewal or replacement Letter of Credit in an amount
equal to six million dollars ($6,000,000) required pursuant to this Agreement and in the form required
hereunder.




          Each draw shall be substantially in the form annexed to this Attachment (other than amount).







 









 








          3. Application of Proceeds of Draws




          In the event that Tampa Electric at any time receives proceeds of any Letter of Credit, title
in such proceeds shall vest in Tampa Electric. Tampa Electric shall utilize such proceeds to
satisfy Tampa Electric’s actual claims against United in accordance with this Paragraph 3. Amounts
claimed by Tampa Electric against United and the use of Letter of Credit proceeds therefor, shall
not be affected by any rulings in any Bankruptcy proceeding or similar proceeding, including but
not limited to any stay or discharge of United’s obligations to Tampa Electric under this
Agreement, the intent of the Parties being that this Section shall operate as if no Bankruptcy had
occurred, and Tampa Electric shall be entitled to draw and realize the proceeds of the Letter of
Credit to satisfy such actual claims, notwithstanding any stay or discharge of United’s obligations
to Tampa Electric under this Agreement.




          Amounts drawn under the Letter of Credit pursuant to Paragraph 2(ii), above, shall be promptly
applied to satisfaction of Tampa Electric’s actual damages against United. Amounts drawn under the
Letter of Credit pursuant to Paragraph 2(i) or (iii), above, and not immediately applied to satisfy
Tampa Electric’s actual damages against United, shall accrue interest at the Interest Rate, and
shall be promptly applied to Tampa Electric’s future claims for actual damages against United as
and when they arise.




          If prior to the application of funds drawn under the Letter of Credit a Letter of Credit
ceases to be required under this Agreement, and United is not then in default of any obligation
under this Agreement, Tampa Electric shall promptly remit such funds to United, with accrued
interest at the Interest Rate. Following the satisfaction in full of all Tampa Electric’s claims
for actual damages against United under this Agreement, and after giving effect to the exercise of
any set-off rights, upon the earlier of March 31, 2015 or three months after termination of this
Agreement, Tampa Electric shall transfer to United any surplus Letter of Credit proceeds then held,
without interest, provided that if such amounts are not transferred to United within five (5)
Business Days after the foregoing due date, such amount shall be returned with interest at the
Interest Rate from such due date until the date returned.




          With respect to those amounts drawn pursuant to this Agreement that are not used to satisfy
the claims of Tampa Electric against United, and notwithstanding Section 9-2071 of the Florida
Uniform Commercial Code, Tampa Electric shall have the right to sell, pledge, rehypothecate,
assign, invest, use, commingle or otherwise dispose of, or otherwise use in its business any such
funds it holds, free of any claim or right of any nature whatsoever of United, including any equity
or right of redemption by United. Such funds shall accrue interest at the Interest Rate. Tampa
Electric may hold amounts drawn under the Letter of Credit pursuant to Paragraph 2(i), above, until
a final determination has been made by a court of competent jurisdiction that any amounts paid with
respect to United’s obligations to Tampa Electric prior to United becoming bankrupt are not subject
to being recovered from Tampa Electric pursuant to Sections 544, 547, 549 or 550 of the Bankruptcy
Code (or pursuant to any successor provisions of law) in any proceeding instituted under the
Bankruptcy Code, or any comparable provision of any applicable state bankruptcy or creditors’
rights law, by or against United. If such a final determination is made, Tampa Electric shall pay
United the funds drawn under the Letter of Credit, and actual interest earnings thereon, net of any
amounts that have been applied in regard to amounts claimed by Tampa Electric for actual damages
against United. If such court






 









 







determines that the bankruptcy trustee or debtor-in-possession is entitled to recover from
Tampa Electric, Tampa Electric shall retain from the funds drawn under the Letter of Credit and any
interest earnings thereon an amount equal to the amount of such recovery, and any excess shall be
paid to United. If Tampa Electric is holding amounts drawn under the Letter of Credit pursuant to
Paragraph 2(i) or (iii) above, and the senior unsecured bond rating of Tampa Electric shall fall
below BBB- with Standard & Poor’s and Baa3 with Moody’s Investors Service, Tampa Electric shall
transfer all such amounts drawn to a segregated, safekeeping or custody account.









 









 








Attachment M




List of Required Insurances









 









 








List of Required Insurances



United Insurance Requirements.



United shall carry the following insurance coverage at their sole expense for the entire term of
this agreement and extensions or renewals thereof:



1) Hull insurance subject to not less than the terms and conditions of the 1953 Taylor Form (Rev.
70) or its equivalent. Policy shall be endorsed to provide a waiver of subrogation in favor of
Tampa Electric to the extent of risk and obligations assumed under this contract.



2) Protection and Indemnity insurance including Contractual Liability, Collision/Tower’s Liability,
Crew Coverage and Pollution Buy-Back Endorsement subject to the terms and conditions of not less
than the P&I SP-23 (Revised 1/56) form.



3) Vessel Pollution insurance subject to not less than the full limits and conditions available
through the Water Quality Insurance Syndicate or its equivalent.



4) Marine General Liability Insurance including but not limited to Broad Form Contractual
Liability, Premises, Personal Injury, Death or Property Damage, Products/Completed Operations
Liability, Landing Owner’s/Wharf owner’s Liability, Stevedores Liability, Terminal Operators
Liability and Ship Repairer’s Liability as required to provide coverage for the goods and/or
vessels in United’s care, custody and control. Policy shall be endorsed to include Tampa Electric
as an additional insured and shall provide a waiver of subrogation in favor of Tampa Electric to
the extent of risk and obligations assumed by United under this contract.



5) Workers’ Compensation Insurance (including Long shore and Harbor Workers’ Compensation) to the
statutory limits as required by law and Employers’ Liability Insurance in an amount not less than
$1,000,000.00. If not provided elsewhere within the program, coverage shall also include Maritime
Employer’s Liability applicable to all employees of United. Policy shall be endorsed to provide a
waiver of subrogation in favor of Tampa Electric to the extent of risk and obligations assumed by
United under this contract.



6) Automobile Liability Insurance covering all owned, non-owned and hired automobiles used by
United under this agreement. Tampa Electric shall be included as an additional insured and
provided a waiver of subrogation.



7) Excess Liability insurance including Excess Protection and Indemnity, Excess Tower’s, Excess
Collision, Excess Pollution insurance, Excess Marine General Liability and Marine Liabilities,
Excess Employer’s Liability and Excess Automobile Liability subject to a limit of liability of not
less than One Hundred Million Dollars ($100,000,000) any one accident or occurrence. The specified
limit of liability may be in any combination of primary and excess insurance.







i









 







8) All deductibles and/or self-insured retentions for all of the required insurance coverages shall
be for United’s account with said deductible not to exceed one million dollars ($1,000,000).



9) With respect to the coverage specified in 2) and 7) above, the policies shall be endorsed to
provide:




     a) Tampa Electric shall be named as an additional insured with a full waiver of subrogation
and the Protection and Indemnity coverage shall provide a waiver of any limitation of liability
policy provision which would reduce the amount of recovery Tampa Electric would otherwise be
legally entitled to the extent of risk and obligations assumed by United under this contract.



     b) Tampa Electric shall be provided with not less than thirty (30) days prior written notice
of cancellation or material change of the policy, except ten (10) days prior written notice shall
be given in the event of non-payment of premium.



     c) The coverage afforded by this policy shall be primary to any other insurance carried by
Tampa Electric.


10) United shall bear the risk of loss of the Cargo as set forth in Section 6.2. The value
of any such loss of Cargo shall equal the invoice value of the Cargo plus earned freight for such
Cargo due at the time of loss. United shall provide ocean marine, inland marine, and all risk
property insurance coverage to the full value required herein, as described above, and on all such
insurance, United shall name Tampa Electric as an additional insured, provide a waiver of
subrogation and named Tampa Electric as a loss payee as their interest may appear. All deductibles
shall be for United’s account with said deductible not to exceed one million dollars ($1,000,000).



11) Notwithstanding anything to the contrary contained herein, it is hereby understood and agreed
that the obligation of any party (“First Party”) to obtain coverage of the other party (“Second
Party”) as an additional insured under the First Party’s insurance, and the obligation of the
applicable carrier to provide such coverage, shall be expressly limited to the scope of liability,
if any, assumed by the First Party in any covenant to indemnify, hold harmless or defend the Second
Party.



12) Certificates of Insurance shall be furnished to Tampa Electric by United’s brokers or
underwriters promptly upon request and further, United shall be obliged to furnish acceptable
evidence of the continuity thereof for the duration of this agreement.



13) If United fails to procure and maintain the insurance as set forth above for the Term of this
Agreement, such failure shall be a material breach of this Agreement. In case of such breach, and
without limiting in any manner Tampa Electric’s remedies for this breach, United shall assume, be
responsible for and pay all liabilities, including liabilities to third parties, with respect to
loss, damage or related claims or expenses, as though the insurance, as set forth above, had been
procured and maintained.







ii









 







Tampa Electric Insurance Requirements



Subject to paragraph 9 below, Tampa Electric shall carry the following insurance coverage at their
sole expense for the entire term of this agreement and extensions or renewals thereof:



1) General Liability Insurance including but not limited to Broad Form Contractual
Liability, Premises, Personal Injury, Death or Property Damage, Products/Completed Operations



2) Landing Owner’s Liability, Stevedores Liability, and Ship Repairer’s Legal Liability
Insurance as required to provide coverage in connection with any services provided at Big Bend
Terminal by Tampa Electric pursuant to this Agreement Policy shall be endorsed to include United as
an additional insured and shall provide a waiver of subrogation in favor of United to the extent of
risk and obligations assumed by Tampa Electric under this contract.



3) Workers’ Compensation Insurance (including Long shore and Harbor Workers’ Compensation)
to the statutory limits as required by law and Employers’ Liability Insurance in an amount not less
than $1,000,000.00. If not provided elsewhere within the program, coverage shall also include
Maritime Employer’s Liability applicable to all employees of Tampa Electric. Policy shall contain
an alternate employer endorsement in favor of United and shall be endorsed to provide a waiver of
subrogation in favor of United to the extent of risk and obligations assumed by Tampa Electric
under this contract



4) Excess Liability insurance to a limit of liability of not less than One Hundred Million
Dollars ($100,000,000) any one accident or occurrence. The specified limit of liability may be in
any combination of primary and excess insurance.



5) All deductibles and/or self-insured retentions for all of the required insurance
coverages shall be for Tampa Electric’s account with said deductible and/or self-insured retentions
not to exceed one million dollars ($1,000,000)



6) With respect to the coverage specified in 1) and 4) above, the policies shall be
endorsed to provide:





	 	a)	 	United shall be named as an additional insured with a full waiver of subrogation
	 
	 	b)	 	United shall be provided with not less than thirty (30) days prior written notice of
cancellation or material change of the policy, except ten (10) days prior written notice
shall be given in the event of non-payment of premium.
	 
	 	c)	 	The coverage afforded by this policy shall be primary to any other insurance carried by
United.




7) Notwithstanding anything to the contrary contained herein, it is hereby understood and
agreed that the obligation of any party (“First Party”) to obtain coverage of the other party
(“Second Party”) as an additional insured under the First Party’s insurance, and the obligation of
the applicable carrier to provide such coverage, shall be expressly limited to the scope of






iii









 







liability, if any, assumed by the First Party in any covenant to indemnify, hold harmless or defend
the Second Party.



8) Certificates of Insurance shall be furnished to United by Tampa Electric’s brokers or
underwriters promptly upon request and further, Tampa Electric shall be obliged to furnish
acceptable evidence of the continuity thereof for the duration of this agreement.



9) Tampa Electric, at all times, has the right to self-insure for any of the risks set
forth above and thereby to dispense with the need to procure and maintain any or all of the
insurances set forth above. It is agreed that should Tampa Electric choose to self-insure in lieu
of procuring and maintaining any of those policies required above, then Tampa Electric shall be
deemed the insurer of United to the full extent of coverage which would have been provided to
United had those policies been procured and maintained.





iv