AMENDED AND RESTATED EQUIPMENT LEASE AGREEMENTEquipment Lease Agreement |
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ALLIANCE RESOURCE PARTNER | Virginia Electric and Power Company | Mettiki Coal, LLC. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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EXHIBIT 10.4
Portions of this exhibit indicated by “******” have been omitted pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934, as
amended, and the omitted material has been separately filed with the Securities and
Exchange Commission.
AMENDED AND RESTATED EQUIPMENT LEASE AGREEMENT
(Existing Truck Unloading Facility)
THIS AMENDED AND RESTATED EQUIPMENT LEASE AGREEMENT (“Agreement”) is made on the 22nd day of June, 2005 effective as of the 1st day of January, 2007 (the “Effective Date”), by and between Virginia Electric and Power Company, a Virginia public service corporation with its principal office located in Richmond, Virginia, trading in the Commonwealth of Virginia as “Virginia Power” and in the State of North Carolina as “North Carolina Power” (hereinafter referred to as “Virginia Power”), and Mettiki Coal, LLC, a Delaware limited liability company which has its principal office located in Tulsa, Oklahoma and which is the successor entity to Mettiki Coal Corporation (hereinafter referred to as “Mettiki”). Virginia Power and Mettiki sometimes are referred to hereinafter individually as a “party” and collectively as the “parties.”
RECITALS
WHEREAS, pursuant to the terms of that certain Lease Agreement effective January 15, 1996 (the “Existing Premises Lease Agreement”), Mettiki is the lessee of certain real estate (the “Premises”) owned by Virginia Power and located at Virginia Power’s Mt. Storm Power Station (the “Station”) located in Mt. Storm, West Virginia; and
WHEREAS, Virginia Power and Mettiki are parties to that certain Equipment Lease Agreement, effective as of January 15, 1996 (the “Existing Equipment Lease”), pursuant to which Mettiki leases to Virginia Power that certain truck unloading facility located on the Premises (the “Existing Truck Unloading Facility”); and
WHEREAS, the term of the Existing Equipment Lease is coterminous with the Existing Premises Lease Agreement; and
WHEREAS, subject to the terms and conditions of the Existing Premises Lease Agreement, the term of the Existing Premises Lease Agreement will expire at 11:59 p.m. on December 31, 2006 (the “Existing Premises Lease Expiration Time”); and
WHEREAS, Alliance Coal, LLC, a Delaware limited liability company and the parent entity of Mettiki (“Alliance Coal”), and Virginia Power have entered into that certain Agreement for the Supply of Coal dated of even date (the “Coal Supply Agreement”); and
WHEREAS, pursuant to the Coal Supply Agreement, the parties hereto have entered into that certain Amended and Restated Lease Agreement dated of even date (the “Amended and Restated Premises Lease Agreement”) pursuant to which the initial term of the Existing Premises Lease Agreement will be extended on, and subject to, the terms and conditions of the Amended and Restated Premises Lease Agreement; and
WHEREAS, subject to and the conditions set forth herein, Virginia Power and Mettiki also desire to extend the initial term of the Existing Equipment Lease after the Existing Premises Lease Expiration Time; and
NOW, THEREFORE, in consideration of the above Recitals, which are incorporated herein, and for and in consideration of the mutual covenants and agreements set forth below, the parties agree as follows:
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Ownership and Title. |
a. During the term of this Agreement, the Existing Truck Unloading Facility shall remain the property of the Mettiki subject to any valid lien of Virginia Power. Upon expiration or termination of this Agreement, the Existing Truck Unloading Facility shall become the property of Virginia Power in accordance with the terms of the Coal Supply Agreement and the Amended and Restated Premises Lease Agreement.
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Lease and Operation of Existing Truck Unloading Facility. |
a. Subject to the terms and conditions hereof, Mettiki will rent and lease to Virginia Power, and Virginia Power will rent and lease from Mettiki, the Existing Truck Unloading Facility during the term hereof. Unless otherwise agreed to by the parties, the Existing Truck Unloading Facility shall be used and operated only for the purpose of unloading coal to be delivered to the Station pursuant to the Coal Supply Agreement, and no other purpose.
b. Virginia Power shall lease the Existing Truck Unloading Facility on an “as is” basis and Mettiki shall not be obligated to make any alterations or improvements thereto prior to or after commencement of this Agreement.
c. Virginia Power’s right to use and operate the Existing Truck Unloading Facility as permitted herein may only be exercised by (i) Virginia Power and its employees, and (ii) Virginia Power agents, contractors, and subcontractors who have been approved in writing by Mettiki, such approval not to be unreasonably withheld, delayed or conditioned.
d. This Agreement shall in no way assign, encumber, lease, sublease or set over either party’s estate, interests or rights under the Existing Premises Lease Agreement or the Amended and Restated Premises Lease Agreement, as appropriate.
e. Mettiki shall operate the Existing Truck Unloading Facility as contemplated by the parties in the Coal Supply Agreement and the Ancillary Services Agreement attached as Attachment 1 to the Coal Supply Agreement.
f. Virginia Power shall be responsible for all direct costs and expenses to repair damage to the Existing Truck Unloading Facility caused by the negligence or intentional acts or omission(s) of Virginia Power and its affiliates and their respective employees, agents, contractor’s or subcontractors.
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Term Of Lease. |
The term of this Agreement shall be coterminous with the term of the Amended and Restated Premises Lease Agreement.
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Termination. |
Notwithstanding any other provision of this Agreement to the contrary, this Agreement shall automatically terminate upon the expiration, cancellation, or termination of the Coal Supply Agreement or the Amended and Restated Premises Lease Agreement.
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Rental and Fee. |
Virginia Power agrees to pay to Mettiki a fixed rental fee of $****** per month (the “Fixed Monthly Fee”) for the lease to Virginia Power of the Existing Truck Unloading Facility through ******. The Fixed Monthly Fee shall be payable on the first day of each month during the term hereof commencing on the Effective Date. The invoicing and payment of the Fixed Monthly Fee will be effected in accordance with Article 6 of the Coal Supply Agreement. After ******, and continuing through the remaining term hereof, the Fixed Monthly Fee shall be zero.
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Default. |
Any default under this Agreement will constitute a default under the Coal Supply Agreement.
Except as otherwise provided herein, if Mettiki materially fails to comply with any of the provisions of this Agreement, and shall fail within thirty (30) days after written notice from Virginia Power to correct such noncompliance, Virginia Power may terminate this Agreement by giving written notice of termination to Mettiki. Such termination shall be effective as specified in the termination notice but not earlier than one (1) business day following Mettiki’s receipt of such notice. If Virginia Power terminates this Agreement for Mettiki’s default pursuant to this paragraph, Alliance Coal shall be deemed to be in material breach of the Coal Supply Agreement as of the date of such termination of this Agreement and Virginia Power may with respect to the Coal Supply Agreement exercise all remedies available to it at law, in equity or under the Coal Supply Agreement, including Virginia Power’s operation of the Existing Truck Unloading Facility as provided in the Coal Supply Agreement. Termination pursuant to the provisions of this paragraph shall not constitute a waiver of any other right or remedy Virginia Power may have under this Agreement.
Except as otherwise provided herein, if Virginia Power materially fails to comply with any of the provisions of this Agreement, and shall fail within thirty (30) days after written notice from Mettiki to correct such noncompliance, Mettiki may terminate this Agreement by giving written notice of termination to Virginia Power. Such termination shall be effective as specified in the termination notice but not earlier than one (1)
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business day following Virginia Power’s receipt of such notice. If Mettiki terminates this Agreement for Virginia Power’s default pursuant to this paragraph Mettiki may exercise all remedies available to it at law, in equity or under the Coal Supply Agreement. Termination pursuant to the provisions of this paragraph shall not constitute a waiver of any other right or remedy Mettiki may have under this Agreement.
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Virginia Power’s Agent. |
By written notice to Mettiki, Virginia Power may designate an agent for the purposes of administering this Agreement on its behalf.
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Limitation of Liability. |
Article 10 of the Coal Supply Agreement is hereby incorporated into this Agreement. In addition, except as expressly otherwise provided in this Agreement or the Coal Supply Agreement, Virginia Power shall not be liable to Mettiki for injury or death of persons or damage to property arising on account of any latent or patent defects






