EXHIBIT 10.15
SECURITY SIDE LETTER AGREEMENT
This Security Side Letter Agreement ("Agreement") is made and entered
into, effective as of the "Effective Date" as set forth at Section 5 herein, by
and between American Commercial Lines LLC ("ACL"), and its subsidiaries,
American Commercial Terminals LLC ("ACT") and American Commercial Barge Line LLC
("ACBL) and Louisiana Generating, LLC ("LG") and NRG New Roads Holdings LLC, a
Delaware limited liability company ("NRG").
RECITALS
WHEREAS, the Burlington Northern and Santa Fe Railway Company ("BNSF"),
ACBL, and ACT entered into a Memorandum of Understanding with NRG Power
Marketing Inc. ("NRGPM"), and BNSF and ACT entered into another Memorandum of
Understanding with NRGPM (collectively, "MOU"), each dated August 6, 2004, both
for the purpose of setting forth the major terms and conditions under which ACT
and BNSF will transport unit trains of coal from BNSF-served origins in the
Powder River Basin of Wyoming to ACT's Hall Street Terminal at St. Louis,
Missouri, for furtherance to the Big Cajun II facility near New Roads, Louisiana
(the "LG Power Plant") owned by LG, an affiliate of NRGPM; and
WHEREAS, NRGPM and LG are collectively referred to herein as the
"Affiliates"; and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and ACT (the "Transportation Contract") as provided therein; and
WHEREAS, ACL, ACBL and ACT (collectively referred to herein as "American")
and NRGPM also entered into that certain Additional Memorandum of Understanding
dated August 6, 2004 (the "AMOU") for the purpose of, among other things,
setting forth certain additional terms and conditions by which the performance
of ACT under the Transportation Contract would be assured; and
WHEREAS, pursuant to the AMOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a comprehensive "Side Letter Agreement," that
incorporate the provisions set forth in the "ACL/NRGPM Term Sheet" dated August
6, 2004 attached to the AMOU (the "Term Sheet"), as provided therein; and
WHEREAS, the parties have negotiated an Operations Side Letter Agreement
of even date herewith ("Operations Side Letter Agreement") setting forth certain
definitive terms and conditions of the Side Letter Agreement contemplated by the
AMOU; and
WHEREAS, the parties acknowledge and agree that they have negotiated, and
this Agreement, together with the Operations Side Letter Agreement, sets forth,
the definitive terms and conditions of the Side Letter Agreement contemplated by
the AMOU, all of which are to become binding upon the parties hereto if and when
a definitive Transportation Contract is entered into by all of the parties
thereto (including BNSF) as set forth above.
WHEREAS, the Transportation Contract and the following ancillary
agreements, as described herein: this Agreement, the DOT, the Lease, the
Terminal Option Agreement, the Barge and Tug Option Agreement, the Operations
Side Letter Agreement, the Intercreditor Agreement, the Conditional Assignment
of BNSF Lease, the Conditional Assignment of City of St. Louis Lease, and the
Conditional Assignment of Inter Carrier Agreement (collectively, the "Ancillary
Agreements"), form the basis for the coal transportation described above.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged by NRG and LG, the parties hereto hereby agree as follows.
AGREEMENT
1. RECITALS. The parties hereby incorporate the above Recitals as part of this
Agreement as if the same were fully set forth herein.
2. TRANSPORTATION CONTRACT/EFFECTIVE DATE. This Agreement does not obligate
American, NRG or any of its Affiliates to enter into and execute a final
Transportation Contract or any other agreement with each other, their respective
affiliates or any other parties. Each party recognizes that the parties may not
be able to agree to the terms and conditions of all definitive agreements called
for by the MOU and the Term Sheet, and that their efforts to finalize and
execute such definitive agreements may collapse without liability on the part of
any party.
This Agreement shall become binding upon and enforceable against the parties
hereto only in the event that a definitive Transportation Contract is entered
into by all parties (including BNSF) as set forth above on or before the
"Deadline Date", and is to become effective on the "Effective Date" (all as
further set forth in Section 5 below). If prior thereto, any party contemplated
to be a party to the Transportation Contract shall deliver notice to another
contemplated party thereto terminating any further negotiations with respect to
the Transportation Contract, then this Agreement shall expire and be deemed void
ab initio (excluding only the confidentiality provisions set forth at Section 9
below, which shall remain in effect).
3. DEFAULT/LIQUIDATION EVENT. In the event of a material uncured default by ACT
under the Transportation Contract and upon the occurrence of a Liquidation Event
(as defined in subparagraph F below) (collectively, a "Trigger Event"), then NRG
or its Affiliates, successor parties to the Transportation Contract or their
designees, may exercise any or all of the rights or remedies granted to NRG
and/or its Affiliates under the Ancillary Agreements (each as defined herein and
subject to the terms set forth therein and as more particularly described
below), for so long as any obligations of American under the Transportation
Contract or any of the Ancillary Agreements remain unsatisfied (except to the
extent as may be expressly set forth therein).
A. Upon the full and complete execution of the definitive
Transportation Contract, ACT shall grant to LG and NRG a recordable Deed of
Trust in the form attached hereto as Exhibit A ("DOT"), encumbering all the real
and personal property of ACT commonly referred to as the Hall Street Terminal in
the City of St. Louis, Missouri (the "Property"), to secure ACT's performance
under, and/or any final unappealed or non-appealable judgment damage claims
arising from ACT's breach of, the Transportation Contract or any of the
Ancillary Agreements. The DOT shall be senior to any liens or deeds of trust
encumbering the Property, including without limitation any lien or deed of trust
granted to the Collateral Agents (as defined in the Intercreditor Agreement)
pursuant to that certain Intercreditor and Subordination Agreement, in the form
attached hereto as Exhibit B ("Intercreditor Agreement"), establishing priority
of the DOT and covenant of non-interference by the Collateral Agents with NRG's
rights under the DOT, Lease, Terminal Option Agreement, Conditional Assignment
of BNSF Lease, Conditional Assignment of City of St. Louis Lease, or Conditional
Assignment of Inter Carrier Agreement.
B. Upon the full and complete execution of the Transportation
Contract, ACT and NRG, shall enter into a lease of the Property in the form
attached hereto as Exhibit C (the "Lease"). ACT shall use its reasonable best
faith efforts to obtain an order in the current chapter 11 case approving
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the grant of such Lease and making such Lease enforceable against any successor
to ACT including any trustee appointed in a chapter 7 case resulting from the
conversion of the existing chapter 11 case.
C. Upon the full and complete execution of the Transportation
Contract, ACT shall grant to NRG, an option (the "Terminal Option") to purchase
the Property. The terms of the Terminal Option shall be as set forth in that
certain Terminal Option Agreement (the "Terminal Option Agreement") attached
hereto as Exhibit D.
D. Upon the full and complete execution of the Transportation
Contract, ACL shall grant to NRG, a conditional option ("Barge Option") to
purchase not more than two hundred (200) barges ("Barges") and a conditional
option (the "Harbor Tugs and Barges Option") to purchase two tug boats (the
"Tugs") and three (3) "Harbor Barges" (as defined in the Barge Option
Agreement). The terms of the Barge Option and the Harbor Tugs and Barges Option
shall be as set forth in the Barge and Tug Option Agreement attached hereto as
Exhibit E (the "Barge Option Agreement").
E. For the purposes of determining the Net Appraised Fair Market
Value ("NAFMV"), the parties shall cause the Property, and the Barges and the
Tugs and Harbor Barges to be appraised according to the following procedures:
1. Selection of Appraisers. Within thirty (30) days after the date
of the Option Notice, each of the parties shall appoint an appraiser to
determine the market value of the Property or the Barges in accordance with this
Agreement, and shall give written notice of the appraiser so appointed to the
other party. Within thirty (30) days after the date that both parties have so
appointed an appraiser, the two appraisers so appointed shall appoint a third
appraiser to determine the NAFMV of the Property or the Barges in accordance
with this Agreement. If the two appraisers are unable to agree on a third
appraiser, either party may petition the St. Louis County Circuit Court for the
appointment of a third appraiser.
2. Qualifications of Appraisers. No appraiser shall be eligible for
appointment pursuant to this Agreement unless such appraiser (a) is actively
engaged in the business of appraising commercial real estate in the St. Louis,
Missouri metropolitan area, or commercial vessels and barges used on the
Mississippi River, as applicable, (b) has experience in appraising industrial
properties in the St. Louis, Missouri metropolitan area or commercial vessels
and barges used on the Mississippi River, as applicable, (c) is licensed by the
State of Missouri, (d) is a member of the Appraisal Institute (or successor
organization, or if no such organization exists, then from persons of similar
professional qualifications) with the designation "MAI," (e) is a practitioner
in good standing with no published censures or admonitions by either the State
of Missouri appraisal authorities or the Appraisal Institute (or any successor
organization), and (f) has no material financial or business interest in common
with either party. Each appraiser designated in accordance with this Section E.2
is referred to herein as an "Appraiser."
3. Instructions to Appraisers. The Appraisers shall be instructed as
follows:
(a) Each Appraiser shall be instructed to determine the NAFMV of the
Property, the Barges or the Tugs as a whole as of the date of the Trigger Event.
(b) No financing shall be considered by the Appraiser in determining
the NAFMV.
(c) The Appraisers shall independently and confidentially make their
separate estimates of NAFMV, and shall reveal their conclusions simultaneously
at a meeting together with ACT, ACL and NRG not later than ninety (90) days
after the engagement of the third
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Appraiser. Copies of each Appraiser's respective written report shall be given
to all parties at that meeting and not before.
(d) In determining the NAFMV, each Appraiser shall, upon request,
share with the other Appraisers pertinent factual market data relative to the
valuations (including, without limitation, facts relating to those properties
which the Appraiser independently determines are comparable to the Property or
Barges, as applicable), but in no event shall the Appraisers discuss or reveal
their respective value conclusions prior to the aforementioned meeting with ACT
or ACL, as applicable, and NRG.
(e) All appraisals shall be made according to the Uniform Standards
of Professional Appraisal Practice (USPAP) and each Appraiser's work product
shall be put forth in at least a summary report as defined by USPAP.
(f) The Appraisers shall consider themselves as working for both ACT
or ACL, as applicable, and NRG in determining the NAFMV and therefore the fees
charged by the Appraisers (including the fees of the persons assisting the
Appraisers) shall be shared equally between the parties.
4. Property/Barge Information. ACT, ACL and NRG intend that each
Appraiser base its evaluation on a common set of facts. To that end, ACT or ACL,
as applicable, shall provide each Appraiser with copies of all necessary and
available documents relating to the Barges, copies of all available plans,
surveys and drawings of the Property, and, to the extent applicable, and/or
reasonably available, copies of all Property leases, if any, and Property
expenses for the most recent four (4) calendar years. Any Appraiser may request
additional factual information from ACT or ACL, but any additional information
provided to one Appraiser shall be provided to all Appraisers. All information
provided to the Appraisers by ACT or ACL shall also be provided to NRG. NRG
shall have the right to audit, at its sole cost and expense during the appraisal
process and in a manner so as not to unreasonably or materially interfere with
any ongoing activities at the Property, any of the foregoing information
provided by ACT or ACL, and NRG may provide each Appraiser with the results of
any such audit. ACT and ACL shall coordinate a meeting to physically inspect of
the Property, which all the Appraisers and NRG shall attend, and ACT and ACL
shall otherwise allow the Appraisers reasonable access to the Property for
purposes of inspection and evaluation.
F. "Liquidation Event" is defined as the earliest to occur of: 1)
the filing by ACT, ACL or ACBL, of a motion to convert its current chapter 11
case (the "Bankruptcy Action") to a case under chapter 7 of the Bankruptcy Code,
2) the entry of an order converting the existing Bankruptcy Action to a case
under chapter 7, 3) the filing by ACT, ACL or ACBL or their successors in
interest of a petition to commence a case under chapter 7 after the close of the
current Bankruptcy Action, 4) the entry of an order for relief on an involuntary
chapter 7 petition filed by any third party with respect to ACT, ACL or ACBL or
their successors after the conclusion of the Bankruptcy Action, 5) the filing by
ACT, ACL or ACBL or any successors thereto of a chapter 11 plan or motion
seeking authority to reject the Transportation Contract or any of the Ancillary
Agreements or any uncured material default by ACT, ACL or ACBL under the
Transportation Contract or any of the Ancillary Agreements, 6) the appointment
of a Receiver, or assignment for the benefit of creditors, or 7) the sale of all
or substantially all of the assets of ACT, ACL or ACBL or other act that results
in the cessation of the business operations of ACT or ACBL or the inability of
ACT or ACL to perform the Transportation Contract.
G. Assignments of Leases and Agreement.
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1. Upon the full and complete execution of the Transportation
Contract, ACT and NRG shall enter into a Conditional Assignment and Assumption
of Lease (the "Conditional Assignment of BNSF Lease"), pursuant to which ACT
will make a conditional assignment of the lease with BNSF, as Landlord, under
that certain lease dated August 17, 1976, between ACT and BNSF, to NRG, which
assignment is conditioned upon the occurrence of a Trigger Event. The terms of
the Conditional Assignment of BNSF Lease shall be as set forth in that certain
Conditional Assignment of BNSF Lease, attached hereto as Exhibit F.
2. Upon the full and complete execution of the Transportation
Contract, ACT and NRG shall enter into a Conditional Assignment and Assumption
of Lease (the "Conditional Assignment of City of St. Louis Lease"), pursuant to
which ACT will make a conditional assignment of the lease with the City of St.
Louis, MO as Landlord, under that certain lease dated June 12, 1985, between
ACT's predecessor in interest and the City of St. Louis, MO, to NRG, which
assignment is conditioned upon the occurrence of a Trigger Event. The terms of
the Conditional Assignment of City of St. Louis Lease shall be substantially as
set forth in that certain Conditional Assignment of City of St. Louis Lease,
attached hereto as Exhibit G. ACT agrees to use its reasonable best efforts to
obtain the consent of the City of St. Louis to the Conditional Assignment of the
City of St. Louis Lease, but the parties specifically acknowledge and agree that
the final form thereof shall be subject to such changes as may be required by
the City of St. Louis.
3. Upon the full and complete execution of the Transportation
Contract, ACT and NRG shall enter into a Conditional Assignment of Inter Carrier
Agreement (the "Conditional Assignment of Inter Carrier Agreement"), pursuant to
which ACT will make a conditional assignment of the said agreement to NRG, which
assignment is conditioned upon the occurrence of a Trigger Event. The terms of
the Conditional Assignment of Inter Carrier Agreement shall be substantially as
set forth in that certain Assignment of Inter Carrier Agreement, attached hereto
as Exhibit H. ACT agrees to use its reasonable best efforts to obtain the
consent of BNSF to the Conditional Assignment of Inter Carrier Agreement, but
the parties specifically acknowledge and agree that the final form thereof shall
be subject to such changes as may be required by BNSF.
H. Notwithstanding any other provision herein, the foregoing
remedies shall not limit NRG's right to pursue any other remedy that may be
available to it at law or in equity.
4. SETOFF. NRG may set off any claimed damages of NRG or its Affiliates arising
under any of the Ancillary Agreements and the Transportation Contract with
respect to ACT, against the Purchase Price (as defined in the Terminal Option
Agreement), the Barge Purchase Price (as defined in the Barge and Tug Option
Agreement), or the Minimum Rent (as defined in the Lease). The foregoing shall
not in any way be deemed to limit or impair American's (or the Collateral
Agents', if any) ability to contest the validity or amount of any such claimed
damages. If the amount set off exceeds the amount of actual damages, if any,
ultimately proven or mutually agreed upon to be due and owing to NRG or its
Affiliates, then the amount of such excess, together with interest thereon
calculated from the date of such set-off until fully reimbursed, at an annual
interest rate (the "Default Rate") equal to the lesser of (i) the highest lawful
rate, or (ii) prime lending rate as may from time to time be published in The
Wall Street Journal under "Money Rates," plus three percent (3%), shall be
immediately due and owing to ACT by NRG or its Affiliates.
5. BANKRUPTCY ACTION APPROVALS. In addition to the foregoing, including the
covenant of non-interference by Collateral Agents, ACT and ACL shall each use
reasonable best efforts to obtain confirmation of its Plan of Reorganization
filed on September 10, 2004 and execute a final definitive Transportation
Contract and related Ancillary Agreements by not later than December 31, 2004
(the
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"Deadline Date"). Notwithstanding the entry of the Order Granting Motion for
Authority to Assume Contract and for Conditional Approval of New Agreement on
September 29, 2004, the Transportation Contract, and the Ancillary Agreements
contemplated hereunder shall not be effective until the later of (1) April 1,
2005; or (2) the effective date of the Plan of Reorganization, (whichever is the
last to occur being the "Effective Date"). The Plan of Reorganization shall
provide that existing Bondholder claims will be converted to equity in the
parent of the reorganized ACL.
6. CROSS GUARANTEE. ACBL and ACT each hereby cross guarantee each other's
obligations under the Transportation Contract and any of the Ancillary
Agreements.
7. PROPERTY PERMITS. During the term of the Agreement, ACT, or an appropriate
affiliate or designee, shall maintain all necessary permits and authorizations
to own and manage the Property in the manner in which it is currently operated
to the full extent necessary to allow for the continuing performance of ACT's
obligations under the Transportation Contract.
8. INDEMNITY. Reorganized ACT and ACBL (individually an "INDEMNITOR") hereby
agree to indemnify and hold harmless NRG, its Affiliates, employees, officers,
successor in interest and directors (the "INDEMNITEES"), from any and all
claims, suits, causes of action ("INDEMNITY CLAIM") of whatever character
brought or made against the Indemnitees, their subcontractors, affiliates,
agents, directors or employees, in connection with the Property or any other
matter with respect to the Transportation Contract or the Ancillary Agreements,
including, but not limited to, any issues related to the Environmental
Protection Agency's ("EPA") regulations or any EPA inspections of the Property.
Claims by Indemnitees for indemnification will not relieve NRG or its Affiliates
from meeting its obligations under the Transportation Contract unless and to the
extent the Indemnitor has failed to timely provide a defense to Indemnitees with
respect to an asserted Indemnity Claim or satisfied such an Indemnity Claim
promptly after it becomes the subject of a final unappealed or non-appealable
judgment. Notwithstanding the foregoing, such indemnification will not extend to
any such Indemnity Claims based upon the intentional wrongful acts of any of the
Indemnitees or their gross negligence. The obligations of this paragraph shall
survive the expiration or sooner termination of this Agreement, the
Transportation Contract, and the Ancillary Agreements.
9. CONFIDENTIALITY. This Agreement is confidential and shall not be disclosed by
any of the parties or their agents, affiliates, consultants or counsel to any
other party without the prior express written consent of American and NRG,
provided however, the parties agree that this Agreement may be attached to ACL's
proposed Plan of Reorganization with appropriate measures taken to attempt to
ensure confidentiality of the economic terms and conditions of this Agreement.
This provision shall survive the expiration or earlier termination of this
Agreement.
10. GOVERNING LAW. This Agreement shall be constructed and interpreted according
to the laws of the State of Missouri.
11. COMPUTATION OF TIME. In computing any period of time under this Agreement,
the day of the act, event or default from which the designated period time
begins to run will not be included. The last day of the period so computed will
be included, unless it is a Saturday, Sunday or legal holiday, and, if so, the
period will run until the end of the next day not a Saturday, Sunday or legal
holiday.
12. FORCE MAJEURE. Each party will be excused from performing any term of this
Agreement, if, and for so long as, such performance is prevented, delayed, or
hindered by reason of an event of "Force Majeure" as defined in the
Transportation Contract.
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13. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and the signature pages combined to form a fully-executed Agreement, provided
that each party hereto has executed a signature page. The fact that this
Agreement may have been executed at different times by different parties will
not affect its validity.
14. FACSIMILE SIGNATURES. The parties may transmit this Agreement between them
by facsimile machine. The parties intend that faxed signatures constitute
original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding. At the request of either
party, the parties will confirm facsimile transmitted signatures by signing an
original Agreement.
15. ENTIRE AGREEMENT. All prior negotiations and agreements between the parties
hereto are superseded by this Agreement, and except as may be set forth in the
Transportation Contract or the Ancillary Agreements, there are no
representations, warranties, understandings or agreements other than those
expressly set forth herein or in an Exhibit or schedule delivered pursuant
hereto.
16. EXPENSES OF PREVAILING PARTY. In the case of any legal or equitable action
taken by either party in connection with the default of the other party, the
prevailing party will be entitled to recover from the other party all costs and
reasonable legal fees incurred in connection therewith. A prevailing party is a
party who recovers at least three-quarters of its total claims in the action or
who is required to pay no more than one-quarter of the other party's total
claims in the action.
17. HEADINGS. The headings in the sections of this Agreement are inserted for
convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties.
18. INVALID PROVISIONS. If any provision in this Agreement is or becomes
invalid, illegal or unenforceable in any respect, the validity, legality or
enforceability of the remaining provisions of this Agreement and any other
application thereof will not in any way be affected or impaired thereby;
provided that if permitted by applicable law, any invalid, illegal, or
unenforceable provision may be considered in determining the intent of the
parties with respect to other provisions of this Agreement.
19. JOINT PREPARATION. This Agreement is to be deemed to have been prepared
jointly by the parties hereto, and any uncertainty or ambiguity existing herein,
if any, will not be interpreted against any party, but will be interpreted
according to the application of the rules of interpretation for arm's length
agreements.
20. NOTICES. A party may effect a valid notice pursuant to this Agreement only
by giving such notice in writing and delivering it, postage or charges prepaid,
in person, by certified mail, by overnight delivery service or by facsimile
transmission to the parties respective addresses set forth below:
American Commercial Terminals LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Attn: Director of Sales
Facsimile No. (000) 000-0000
NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile No. (000) 000-0000
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Louisiana Generating, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile No. (000) 000-0000
or to such substituted address or facsimile number as designated by notice to
the other party. Delivery by messenger will constitute personal delivery. Such
notice will be deemed effective two (2) days after properly mailed; one (1) day
after properly consigned to a national overnight delivery service maintaining
receipts; upon receipt of personal delivery; or, in the case of notice via
facsimile transmission, on the day the sender receives electronic confirmation
of delivery, provided that if the confirmation does not occur before 4 p.m.,
recipient's local time, on a business day, the notice will take effect on the
next business day.
21. REASONABLE COSTS, EXPENSES, AND FEES. The word "reasonable" will be deemed
to precede each reference to "costs", "expenses", "fees", or similar items for
which any party may seek reimbursement from any other party to this Agreement.
22. EXHIBITS. All exhibits and schedules referred to in this Agreement are
attached to and incorporated into this Agreement by reference.
23. BINDING EFFECT; AUTHORITY. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their successors and assigns. The persons
executing this Agreement on behalf of each party hereby represent and warrant to
the other party that such person has the full authority to enter into this
Agreement and such party is able to faithfully and timely perform each and every
term of this Agreement, without the necessity of the consent, joinder or
approval of any other party.
24. MODIFICATIONS. This Agreement may not be amended, modified or changed, nor
shall any waiver of any provision hereof be effective, except by an instrument
in writing and signed by the party against whom enforcement of any such waiver,
amendment, modification, change or discharge is sought.
(SIGNATURE PAGE TO FOLLOW)
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IN WITNESS WHEREOF, the parties have affixed their signatures hereto, as
of the date set forth below their signatures.
LOUISIANA GENERATING, LLC AMERICAN COMMERCIAL LINES LLC
By: /s/[ILLEGIBLE] By: /s/[ILLEGIBLE]
--------------- ---------------
Title: President Title: President
Date: 12-10-04 Date: 00-00-00
XXX XXX XXXXX XXXXXXXX LLC AMERICAN COMMERCIAL TERMINALS LLC
By: /s/[ILLEGIBLE] By: /s/[ILLEGIBLE]
--------------- ---------------
Title: President Title: President
Date: 12-10-04 Date: 12-10-04
AMERICAN COMMERCIAL BARGE LINES LLC
By: /s/[ILLEGIBLE]
--------------
Title: President
Date: 12-10-04
SIGNATURE PAGE TO SECURITY SIDE LETTER AGREEMENT
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EXHIBIT A
DEED OF TRUST
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SPACE ABOVE LINE RESERVED FOR RECORDER'S USE
1. TITLE OF DOCUMENT: DEED OF TRUST
2. DATE OF DOCUMENT: DECEMBER 10, 2004
3. GRANTOR(S): AMERICAN COMMERCIAL TERMINALS, LLC
4. GRANTEE(S): NRG NEW ROADS HOLDINGS LLC, AND
LOUISIANA GENERATING, LLC
5. STATUTORY MAILING ADDRESS(ES): GRANTOR: 0000 XXXX XXXXXX XXXXXX
XXXXXXXXXXXXXX, XX 00000
GRANTEE: NEW ROADS HOLDINGS LLC LOUISIANA GENERATING, LLC
000 XXXXX XXXXXX 000 XXXXX XXXXXX
XXX XXXXX, XX 00000 XXX XXXXX, XX 00000
6. LEGAL DESCRIPTION: SEE EXHIBIT A ANNEXED TO THE DOCUMENT.
7. REFERENCE(S) TO BOOK(S) AND PAGE(S): N/A
8. PREPARED BY AND FOLLOWING RECORDING RETURN TO: XXXXXX X. XXXXXX, ESQ.
XXXXXXXX XXXXXX LLP
ONE XX XXXX XXXXX
XX. XXXXX, XX 00000
DEED OF TRUST
THIS DEED OF TRUST, Made and entered into as of the 10th day of December,
2004, by and between AMERICAN COMMERCIAL TERMINALS, LLC, a Delaware limited
liability company, with an address as set forth on the cover page hereof
("GRANTOR"), and, XXXXXx X. XXXXXXXXXX, a resident of the County of St. Louis,
State of Missouri, with an address of c/o First American Title, 0000 Xxxxx
Xxxxxxxxx, Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000 ("TRUSTEE"), and NRG NEW ROADS
HOLDINGS LLC, A DELAWARE LIMITED LIABILITY COMPANY ("NRG"), having an address as
set forth on the cover page hereof, and LOUISIANA GENERATING, LLC, a Delaware
limited liability company ("LG"), having an address as set forth on the cover
page hereof (NRGPM and LG are collectively referred to herein as the "SECURED
PARTIES," and are each individually a "SECURED PARTY").
WITNESSETH, that said Grantor, for and in consideration of the obligations
and trust hereinafter described and created, and the sum of One Dollar ($1.00)
to said Grantor in hand paid by the said Trustee, the receipt of which is hereby
acknowledged, does by these presents GRANT, BARGAIN AND SELL, CONVEY AND CONFIRM
unto the said Trustee, the following described real and personal property (the
"PROPERTY") situated in the City of St. Louis, and State of Missouri, to-wit:
SEE EXHIBIT A ATTACHED HERETO AND INCORPORATED HEREIN TOGETHER WITH ALL OF
GRANTOR'S RIGHT, TITLE AND INTEREST TO ALL PERSONAL PROPERTY AND
IMPROVEMENTS THEREUPON LOCATED, COMMONLY KNOWN AS THE "HALL STREET
TERMINAL" AT 0000 XXXX XXXXXX, BUT SPECIFICALLY EXCLUDING ANY TUGS OR
BARGES.
TO HAVE AND TO HOLD the same, together with all appurtenances now or
hereafter to the same belonging, unto the said Trustee, and to its successor or
successors in this trust forever, and possession of said property is now
delivered unto the said Trustee IN TRUST, however, for the following purposes:
WHEREAS, the said Grantor, being justly obligated to perform certain
obligations under (I) that certain Transportation Contract, dated December 10,
2004, and entered into by and among LG, the Burlington Northern and Santa Fe
Railway Company ("BNSF") and Grantor (the "TRANSPORTATION CONTRACT"); (II) that
certain Lease dated December 10, 2004, and entered into by and between Grantor
as Landlord and NRG, as designee for NRGPM, as Tenant regarding the Property
(the "LEASE"); and; (III) that certain Security Side Letter Agreement, dated
December 10, 2004, and entered into by and between Grantor, American Commercial
Lines LLC ("ACL"), American Commercial Barge Line LLC ("ACBL") and Secured
Parties (the "SECURITY SIDE LETTER"); (IV) that certain Terminal Option
Agreement (as described in the Security Side Letter) dated December 10, 2004,
and entered into by and among Grantor and NRG, as designee for NRGPM, (the
"TERMINAL OPTION AGREEMENT,"); (V) that certain Operations Side Letter
Agreement, dated December 10, 2004, and entered into by and between Grantor and
LG (the "OPERATIONS SIDE LETTER,"); (VI) that certain Conditional Assignment of
BNSF Lease, dated December 10, 2004, and entered into by and between Grantor and
NRG (the "BNSF ASSIGNMENT"); (VII) that certain Conditional Assignment of City
of St. Louis Lease, dated December 10, 2004, and entered into by and
1
between Grantor and NRG (the "ST. LOUIS ASSIGNMENT"); and (VIII) that certain
Conditional Assignment of Inter Carrier Agreement, dated December 10, 2004, and
entered into by and between Grantor and NRG (the "INTERCARRIER ASSIGNMENT,"
collectively with the Transportation Contract, the Lease, the Security Side
Letter, the Terminal Option Agreement, the Operations Side Letter, the BNSF
Assignment, and the St. Louis Assignment, the "AGREEMENTS") for the benefit of
the Secured Parties, as applicable.
TO SECURE the performance of the Agreements and any final unappealed or
non-appealable judgment damage claims (collectively hereafter referred to as the
"OBLIGATIONS"), arising from any breach of the Agreements during the respective
terms thereof, by Grantor, ACBLor ACL thereunder (collectively, "AMERICAN"),
Grantor has executed this Deed of Trust, and has also agreed with said Secured
Parties and their permitted assigns, to cause all taxes and assessments, general
and special, to be paid whenever imposed upon said Property, and before becoming
delinquent; to cause all charges made by utility companies, whether public or
private, for electricity, gas, heat, water, or sewer, furnished or used in
connection with the Property, or any part thereof, to be paid and before
becoming delinquent; and also to keep the Property and the improvements upon
said Property constantly and satisfactorily insured, until the Obligations are
fully performed and/or the Agreements expire and terminate. All policies of
insurance required pursuant to this Deed of Trust shall (i) contain a standard
noncontributory mortgagee clause in favor of the Secured Parties, or name
Secured Parties as additional insureds, (ii) be maintained throughout the term
of this Deed of Trust without cost to Secured Parties (except as may be set
forth in and pursuant to the Lease), and (iii) be satisfactory in form and
substance to Secured Parties and shall be approved by Secured Parties as to
amounts, form, risk coverage, deductibles, loss payees and insureds, it being
specifically acknowledged and agreed to that Secured Parties have and do hereby
approve all such matters with respect to the insurance required to be maintained
by American pursuant to its financing agreements with XX Xxxxxx Xxxxx Bank NA
and Bank of New York. If Grantor receives from any insurer any written
notification or threat of any actions or proceedings regarding the
non-compliance or non-conformity of the Property with any insurance
requirements, Grantor shall give prompt notice thereof to Secured Parties. All
proceeds paid from any casualty under any policy shall be applied directly to
restoration or repair of the Property (the "RESTORATION") prior to any
foreclosure hereunder. Following the commencement of foreclosure proceedings,
all such proceeds may be paid directly to Trustee for the benefit of the Secured
Parties.
The Trustee may assign insurance policies to the purchaser at foreclosure
and Grantor shall not be entitled to unearned premiums. Grantor also agrees
promptly to pay when due all notes, and to perform all covenants, in any deed of
trust prior in lien to these presents. It shall be the privilege of said Secured
Parties and their permitted assigns, in case of default on the part of the said
Grantor to promptly pay all taxes, effect such insurance, remove mechanics'
liens and pay prior notes, as above herein provided, and in the event that the
said Secured Parties, their permitted assigns or legal representatives, or the
Trustee, or his successors in trust, shall expend any money to protect the title
or the possession of the Property, or for such taxes, insurance, mechanics'
liens, or notes, then all such money so expended shall be a new and additional
principal sum of money secured by this instrument, and shall be payable on
demand, and may be collected with interest thereon at the highest legal rate per
annum, from
2
the time of so expending the same. Failure to make such payment within fourteen
(14) days after Grantor's receipt of written demand to do so and supporting
documentation to establish payment thereof by or on behalf of Secured Party as
aforesaid shall be an Event of Default under this Deed of Trust and shall be
cause for foreclosure.
Said Grantor hereby covenants to (i) keep all the buildings now or
hereinafter on said Property, in good repair and condition, without any
liability of the Secured Parties to any person for damages, for failure to
repair; nor for any mechanics' liens therefor (except as NRG may be responsible
therefor under the terms of the Lease), (ii) upon damage to or destruction of
the Property or any part thereof by fire or other casualty, restore, repair,
replace or rebuild the Property that is damaged or destroyed to the condition
necessary to allow for the continuing performance by Grantor of its obligations
under the Transportation Contract, whether or not any insurance proceeds are
available or sufficient for such purpose; (iii) not commit waste or permit
impairment or deterioration of the Property which would prevent or materially
and adversely interfere with the continuing performance of Grantor's obligations
under the Transportation Contract; (iv) not cause or permit any alteration of
the design or structural character of any improvement now or hereafter erected
on the Property which would prevent or materially and adversely interfere with
the continuing performance of Grantor's obligations under the Transportation
Contract without Secured Parties' prior consent; (v) shall not remove from the
Property any of the fixtures and personal property included in the Property
which would prevent or materially and adversely interfere with the continuing
performance of Grantor's obligations under the Transportation Contract without
Secured Parties' prior consent; (vi) not initiate or acquiesce to a change in
the zoning classification of the Property which would present or materially and
adversely interfere with the continuing performance of Grantor's obligations
under the Transportation Contract without Secured Parties' prior consent; (vii)
comply with all present and future statutes, laws, rules, orders, regulations
and ordinances affecting the Property, any part thereof or the use or operation
thereof as necessary to allow for the continuing performance by Grantor of its
obligations under the Transportation Contract, and shall comply with all
obligations, covenants, conditions and restrictions applicable to Grantor which
are contained in any of the Agreements; (viii) keep in place all permits,
authorizations and licenses required for the operations of the Property as
necessary to allow for the continuing performance by Grantor of its obligations
under the Transportation Contract; and (ix) continue to operate the Property in
substantially the same manner as prior to the execution of this Deed of Trust,
as necessary to allow for the continuing performance by Grantor of its
obligations under the Transportation Contract.
Grantor represents, warrants and covenants to and with Secured Parties
that it is lawfully seized of Parcel 1 of the Property in fee simple, and has
good right and full power and authority under all applicable provisions of law
and under its organizational documents to execute this Deed of Trust and to
mortgage the Property; that the Property is free from all liens and security
interests and to the best of Seller's knowledge, encumbrances that would prevent
or materially and adversely interfere with the continuing performance of
Grantor's obligations under the Transportation Contract, except for those
previously approved by Secured Parties in writing as set forth in the
Intercreditor Agreement dated December 10, 2004; and subject thereto, that
Grantor will warrant and defend the title to the Property and the lien and
priority of this Deed of Trust against all contrary claims and demands of all
3
persons whomsoever, whether now existing or hereafter arising. The covenants and
warranties of this paragraph shall survive foreclosure of this Deed of Trust and
shall run with the land. Grantor shall not, without Secured Parties prior
consent, further create, incur or suffer to exist any lien, financial
encumbrance or charge on the Property or any part thereof, other than the liens
and financial encumbrances previously approved by Secured Parties in writing or
purchase money security interests hereafter created in connection with any
replacement or improvement of, or addition to, any portion of the Property
consisting of property other than realty as such portion of the Property
currently exists, in the normal course of Grantor's business operations. Any
contrary grant of encumbrance, not approved or permitted by the Secured Parties
as aforesaid, and not cured, bonded over or released within thirty (30) days
after Grantor's receipt of written demand to do so, is a default under this Deed
of Trust and shall be a cause for foreclosure.
Grantor further covenants and agrees that Grantor shall not cause or
permit the presence, use, generation, manufacture, production, processing,
installation, release, discharge, storage (including aboveground and underground
storage tanks for petroleum or petroleum products), treatment, handling,
transportation to, from or across the Property or disposal of any Hazardous
Materials (as defined below) (excepting as may currently be used or present at
the Property in connection with its current operations, and further excluding
the safe and lawful use and storage of small quantities of Hazardous Materials
customarily used in the operation and maintenance of comparable commercial
properties or for normal household purposes) on or under the Property, which in
any way materially and adversely affect the Property value, or which would
prevent or materially and adversely interfere with the continuing performance of
Grantor's obligations under the Transportation Contract. (The prohibited matters
described above are referred to collectively below as "PROHIBITED ACTIVITIES OR
CONDITIONS.")
Except with respect to matters which have been previously disclosed to
Secured Parties, including but not limited to the environmental reports
heretofore provided, Grantor represents and warrants that it has not at any time
caused or permitted any Prohibited Activities or Conditions and to the best of
its knowledge, no Prohibited Activities or Conditions exist or have existed on
or under the Property. Grantor shall not lease or allow the sublease of all or
any portion of the Property for residential use to any tenant or subtenant that,
in the ordinary course of its business, would cause, permit or exacerbate any
Prohibited Activities or Conditions, and all leases and subleases shall provide
that tenants and subtenants shall not cause, permit or exacerbate any Prohibited
Activities or Conditions.
Grantor represents that to the best of its knowledge, Grantor has not
received, and except with respect to matters which have been previously
disclosed to Secured Parties, including but not limited to the environmental
reports heretofore provided, has no knowledge of the issuance of, any claim,
citation or notice of any pending or threatened suits, proceedings, orders, or
governmental inquiries or opinions involving the Property that allege the
violation of any Hazardous Materials Law which has not been cured and which
would prevent or materially and adversely interfered with the continuing
performance of Grantor's obligations under the Transportation Contract
("GOVERNMENTAL ACTIONS").
Grantor shall promptly notify Secured Parties in writing of any of the
following: (i) the occurrence of any Prohibited Activity or Condition on the
Property; (ii) Grantor's actual knowledge of the presence on or under any
4
adjoining property of any Hazardous Materials which can reasonably be expected
to have a material adverse impact on the continuing performance of Grantor's
obligations under the Transportation Contract or the value of the Property,
discovery of any occurrence or condition on the Property or any adjoining real
property that could cause any restrictions on the ownership, occupancy,
transferability or use of the Property under Hazardous Materials Law; (iii) any
Governmental Action; and (iv) any claim made or threatened by any third party
against Grantor, Secured Parties, or the Property relating to loss or injury
resulting from any Hazardous Materials. Any such notice by Grantor shall not
relieve Grantor of, or result in a waiver of any obligation of Grantor under
this provision. Grantor shall cooperate with any governmental inquiry with
respect to the matters described in (i) through (iv) and shall comply with any
governmental or judicial order which arises from any alleged Prohibited
Activities or Conditions.
Grantor shall hold harmless, defend and indemnify Secured Parties and such
other "Indemnitees" (as defined in the Security Side Letter) with respect to the
foregoing, to the full extent set forth in the Security Side Letter.
The term "HAZARDOUS MATERIALS," for purposes of this provision, includes
petroleum and petroleum products, flammable explosives, radioactive materials
(excluding radioactive materials in smoke detectors), polychlorinated biphenyls,
lead, asbestos in any form that is or could become friable, hazardous waste,
toxic or hazardous substances or other related materials whether in the form of
a chemical, element, compound, solution, mixture or otherwise, including, but
not limited to, those materials defined as "hazardous substances," "extremely
hazardous substances," "hazardous chemicals," "hazardous materials," "toxic
substances," "solid waste," "toxic chemicals," "air pollutants," "toxic
pollutants," "hazardous wastes," "extremely hazardous waste," or "restricted
hazardous waste" by Hazardous Materials Law or regulated by Hazardous Materials
Law in any manner whatsoever, but specifically excludes any such materials, the
presence of which originated from the coal delivered to Grantor's Property on
behalf of or at the request of the Secured Parties (for which the Secured
Parties shall be solely responsible for and hold harmless, defend and indemnify
American against to the same extent as aforesaid).
The term "HAZARDOUS MATERIALS LAW," for the purposes of this provision,
means all federal, state, and local laws, ordinances and regulations and
standards, rules, policies and other binding governmental requirements and any
court judgments applicable to Grantor or to the Property relating to industrial
hygiene or to environmental or unsafe conditions or to human health including,
but not limited to, those relating to the generation, manufacture, storage,
handling, transportation, disposal, release, emission or discharge of Hazardous
Materials, those in connection with the construction, fuel supply, power
generation and transmission, waste disposal or any other operations or processes
relating to the Property, and those relating to the atmosphere, soil, surface
and ground water, wetlands, stream sediments and vegetation on, under, in or
about the Property.
This notice is provided pursuant to Section 432.045, X.X.Xx. As used
herein, "you" means American Commercial Terminals, LLC, "us" means NRG and LG
collectively, "borrower" means American Commercial Terminals, LLC, "creditor"
means NRG and LG collectively, and "this writing" means this Deed of Trust. ORAL
AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM
ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
5
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWER) AND US
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN
WRITING TO MODIFY IT.
This Deed of Trust is intended to be a security agreement pursuant to the
Uniform Commercial Code as enacted in the jurisdiction of the Property, as
amended from time to time (the "UCC"). Grantor hereby grants a security interest
in the Property to the extent that such Property may be subject to a security
interest pursuant to the UCC. For the purposes of the security agreement and
related financing statements, the "debtor" is Grantor, the "secured party" is
Secured Parties. Grantor hereby authorizes Secured Parties (and Secured Parties'
representatives and agents) to file financing statements (and amendments
thereto) relating to the Property, the form and substance of which shall be as
reasonably agreed to by all the parties hereto. Secured Parties shall pay all
costs of filing such financing statements and termination and any extensions,
renewals, amendments and releases thereof, and shall pay all reasonable costs
and expenses of any record searches for financing statements Secured Parties may
reasonably require. The form and substance of any financing statement filed with
respect to this Deed of Trust shall be as required by law and consistent with
the terms hereof. Grantor represents and warrants to Secured Parties that the
exact legal name of Grantor and Grantor's state of incorporation or organization
are as set forth in Grantor's records provided to Secured Parties and that its
chief executive office is located at the address first set forth above. Without
the prior written consent of Secured Parties (and except as otherwise permitted
above), Grantor shall not create or suffer to be created pursuant to the UCC any
other security interest in said items, including replacements and additions
thereto. Grantor shall also first notify Secured Parties if Grantor shall (i)
change its legal name; or (ii) change its state of organization; or (iii) change
the location of its chief executive office. Upon the occurrence and continuation
of a "Trigger Event" (as defined in the Security Side Letter), Secured Parties
shall (subject to the terms of the Intercreditor Agreement) have the remedies of
a secured party under the UCC and, at Secured Parties' option, may also invoke
the remedies provided in this Deed of Trust as to such items. Subject thereto,
in exercising any of said remedies, Secured Parties may proceed against the
items of real property and any items of personal property specified above as
part of the Property separately or together and in any order whatsoever, without
in any way affecting the availability of Secured Parties' remedies under the UCC
or of the remedies provided in this Deed of Trust. With respect to any term used
in this Deed of Trust that is defined in either (i) Article 9 of the UCC
("ARTICLE 9") as in force in the jurisdiction of the Property in which this Deed
of Trust was signed by the Grantor at the time that it was signed, or (ii)
Article 9 as in force at any relevant time in the jurisdiction in which a
financing statement for the Property is filed, the meaning to be ascribed
thereto with respect to any particular item of the property shall be that under
the more encompassing of the two definitions.
This Deed of Trust constitutes and is filed as a fixture filing under the
UCC covering the Property which now or in the future consists of goods
comprising part of the Property which are or are to become fixtures upon the
subject real estate. For the purposes of this fixture filing and the filing of
this Deed of Trust as a financing
6
statement, the "debtor" is Grantor, the "secured party" is Secured Parties, and
the real estate upon which the fixtures and/or other items are located is the
land described in Exhibit A. The Grantor's state of organization is as first
listed above.
Grantor hereby assigns and transfers to Trustee all of Grantor's right,
title and interest in and to all leases and rents from the Property, including
all present and future leases and rental agreements, for the purpose of securing
performance of the Obligations, this Deed of Trust and any other agreements at
any time securing the Obligations. This assignment may be enforced by Trustee at
any time during the existence of an Event of Default hereunder, without regard
to the adequacy of the security hereof or the solvency of Grantor, by any one or
more of the following methods: (i) the appointment of a receiver; (ii) Trustee's
taking possession of the Property; (iii) the obtaining of an injunction; and
(iv) any other method permitted by law. This assignment shall constitute a
perfected, absolute and present assignment; provided, however, that Grantor
shall have the right to collect the rents and to retain, use and enjoy the same
and all of the Property in all respects, unless and until an Event of Default
occurs hereunder. Receipt by Trustee of rents or other income shall not
constitute a waiver of any right that Trustee may enjoy under this Deed of Trust
or under the laws of the State of Missouri. There shall be no merger of the
leasehold estates, created by the leases, with the fee estate of the Property
without the prior written consent of Trustee.
Trustee shall not be obligated to perform or discharge any obligation,
duty or liability under any lease or under or by reason of this assignment, and
Grantor shall and does hereby agree to indemnify and to hold Trustee and Trustee
harmless from any liability, loss or damage that it might incur under any lease
or under or by reason of this assignment and from any claims and demands
whatsoever that may be asserted against it by reason of any alleged obligations
on Trustee's part. Unless otherwise specified by Trustee in writing, all future
leases for the use or occupancy of all or any part of the Property shall be
subordinate to the lien of this Deed of Trust. All rents or income derived from
the Property that are collected by Trustee, its agent or a receiver each month
shall be applied in Trustee's sole, but reasonable, discretion.
All proceeds or awards granted as the result of any eminent domain or
condemnation action prior to any foreclosure hereof shall be paid to and belong
solely to Grantor. Any such amounts paid or granted after the foreclosure hereof
shall be paid directly to Trustee for the benefit of the Secured Parties.
NOW, THEREFORE, if the said American entities shall well and truly perform
its obligations under the Agreements, or cause to be performed, unto the Secured
Parties, and shall well and truly keep and perform all and singular the several
covenants hereinbefore set forth, then this trust shall cease and be void, and
the property hereinbefore conveyed shall be released at the cost of the said
Grantor; but if the Obligations under the Agreements, or any part thereof, be
not so performed, according to the tenor of the same and subject to any
applicable notice and cure provisions, or if, there be any Trigger Event, as
described in the Security Side Letter Agreement referenced above, or if said
taxes, general and special, be not promptly paid when due, or if default be made
in due fulfillment of said covenants and Agreements, or any of them, all as
further set forth above, (individually an "EVENT OF DEFAULT"), then this
conveyance shall remain in force, and said Trustee, whether acting in person or
by attorney in fact, appointed by instrument in writing, or, in case of death or
absence from the
7
country or any other disability, or refusal to act, then said Trustee, may
proceed to sell the Property hereinbefore conveyed, or any part thereof, at
public vendue, or outcry, at the front door of Court House (or other customary
location for such sales), in said City of St. Louis and State of Missouri, to
the highest bidder for cash, first giving the notice required by the laws of
Missouri in respect to exercising power of sale under mortgages and deeds of
trust then in effect, and upon such sale shall execute a deed in fee simple of
Parcel 1 of the Property sold, together with such assignment of leasehold
interests with respect to the leasehold interests described herein as Parcel 2
and Parcel 3 of the Property, if any, as may be required by law to transfer the
same and consummate the foreclosure and power of sale transactions contemplated
hereby with respect to the entire Property, to the purchaser or purchasers
thereof, and shall receive the proceeds of such sale, out of which said Trustee
shall pay first, the cost and expense of executing this Trust, including lawful
compensation of said Trustee; and next, shall repay to any person or persons who
may or shall, under the covenants hereinbefore set forth, have advanced or paid
any money for taxes, mechanics' liens, insurance or prior notes, as above
provided, all sums so by said persons advanced and not already repaid, together
with interest thereon at the highest legal rate per annum from date of such
advance, until the day of payment; and, next, the amount unpaid on the then
existing Obligations, if any, secured hereby, together with the interest accrued
thereon, and next the amount due on junior encumbrances, and the balance to the
Grantor, or its assigns or legal representatives. Each time that it shall become
necessary to insert an advertisement for foreclosure and sale is not had, then
the Trustee shall be entitled to receive the sum of $150.00 for services and the
amount of all advertising charges from Grantor. The Trustee hereby lets said
Property to the said Grantor and assigns, until this instrument be released and
satisfied, or until a sale be made under the provisions of this Deed of Trust,
upon the following terms, to-wit: The said Grantor, and every and all persons
claiming or possessing such Property or any part thereof, shall pay rent
therefor during said term at one cent per month, payable upon demand, and shall
and will surrender peaceable possession of said Property, and any and every part
thereof sold under said provisions to said Trustee, or purchaser thereof under
such sale, within ten days after the date of such sale, and without notice or
demand therefor.
PROVIDED, HOWEVER, that nothing in this Deed shall be so construed as to
prevent the Secured Parties to have and to take every legal step and means to
enforce performance of American's obligations under the Agreements, without
having first caused the execution of the Trust herein created.
The said Trustee covenants faithfully to perform and fulfill the trusts
herein created, being liable, however, only for willful negligence or
misconduct. The Trustee may resign at any time by written instrument to that
effect delivered to the Secured Parties. The Secured Parties shall be entitled
to remove, at any time and from time to time, the Trustee or any subsequent
trustee hereunder for any or no reason. In case of the death, removal,
resignation, refusal to act or otherwise being unable to act of the Trustee
named as trustee hereunder, the Secured Parties shall be entitled to select and
appoint a successor trustee hereunder by an instrument duly executed,
acknowledged and recorded in the manner and form for conveyances of real estate
in the State where the real estate is located. Upon the execution and
acknowledgment of the appointment of a successor trustee, such successor trustee
shall succeed to the Trustee named as trustee hereunder and to all of the
rights, powers, duties, obligations and estate of said Trustee as trustee as if
specifically named herein, provided no defect or irregularity
8
in the resignation or removal of said Trustee or in the appointment of a
successor trustee or in the execution and recording of such instrument shall
affect the validity of said resignation, removal or appointment or any act or
thing done by such successor trustee pursuant thereto. It shall not be required
that any such appointment of a successor trustee be recorded prior to the
commencement of the publication of any notice of a trustee's sale. The recording
of an appointment of a successor trustee after publication of a trustee's sale
hereunder is hereby authorized, and any such recording shall not affect the
validity of any trustee's sale conducted thereafter. A Trustee shall not be
disqualified from acting as the trustee hereunder or from performing any of the
duties of the trustee, or from exercising the rights, powers and remedies herein
granted, by reason of the fact that trustee is an officer employee, stockholder
or subsidiary of either Secured Party, Grantor hereby expressly consenting to
the Trustee acting as a trustee hereunder irrespective of the fact that such
Trustee might be otherwise disqualified for any of the foregoing reasons, and
that any interest which Trustee or any successor trustee or any successor shall
have or may acquire in the Property encumbered hereby, shall neither interfere
with nor prevent such party from acting as trustee hereunder or from purchasing
said Property at said sale or sales, and all parties waive any objection to any
Trustee acting as trustee hereunder having or acquiring any such interest in the
Property encumbered hereby and continuing to act as trustee hereunder.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
9
IN WITNESS WHEREOF, the said Grantor has executed these presents as of the
day and year first above written.
GRANTOR
AMERICAN COMMERCIAL TERMINALS, LLC
By: _________________________
Printed Name:________________
Title:_______________________
TRUSTEE
By: _________________________
Printed Name:________________
Title:_______________________
SECURED PARTY
NRG NEW ROADS HOLDINGS, LLC
By: _________________________
[SEAL] Printed Name:________________
Title:_______________________
SECURED PARTY
LOUISIANA GENERATING, LLC
By: _________________________
Printed Name:________________
Title:_______________________
STATE OF ______________________)
) ss.
COUNTY OF _____________________)
On this ______ day of ____________, 200__, before me appeared
__________________________________, to me personally known, who, being by me
duly sworn, did say that he/she/they is/are the manager(s)/managing member(s) of
AMERICAN COMMERCIAL TERMINALS, LLC, a _____________ limited liability company,
and that said instrument was signed in behalf of said limited liability company,
and that said ________________________ acknowledged said instrument to be
his/her/their free act and deed and the free act and deed of said limited
liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
(SEAL) _________________________
Notary Public
My term expires _______________.
10
STATE OF ___________________)
)
COUNTY OF __________________)
On this _______ day of ____________, 200__, before me personally appeared
_____________________, to me personally known, who, being by me duly sworn, did
say that he is the Trustee of ______________________________, a ______________
corporation, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors; and
said ___________________________ acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
___________________________
Notary Public
My Commission Expires:
STATE OF __________________)
)
COUNTY OF _________________)
On this _______ day of ____________, 200__, before me personally appeared
_____________________, to me personally known, who, being by me duly sworn, did
say that he/SHE/THEY is/ARE THE MANAGER(S)/MANAGING MEMBER(S) OF NRG NEW ROADS
HOLDINGS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, and that said instrument
was signed IN behalf of said LIMITED LIABILITY COMPANY, AND THAT SAID
________________________ acknowledged said instrument to be HIS/HER/THEIR FREE
ACT AND DEED AND the free act and deed of said LIMITED LIABILITY COMPANY.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
__________________________
Notary Public
My Commission Expires:
11
STATE OF ____________________)
) ss.
COUNTY OF ___________________)
On this ______ day of ____________, 200__, before me appeared
__________________________________, to me personally known, who, being by me
duly sworn, did say that he/she/they is/are the manager(s)/managing member(s) of
LOUISIANA GENERATING, LLC, a Delaware limited liability company, and that said
instrument was signed in behalf of said limited liability company, and that said
________________________ acknowledged said instrument to be his/her/their free
act and deed and the free act and deed of said limited liability company.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
(SEAL) __________________________
Notary Public
My term expires _______________.
12
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LEGAL DESCRIPTION:
A tract of land being Part of Block 3470 of the City of St Louis,
Missouri, and described as follows:
Beginning at a point on the Northeastern line of Hall Street, 80.00
feet wide, at the most Western corner of property conveyed to All American
Redevelopment Corporation by deed recorded in Book 56M, Page 145 of the St.
Louis City Records; thence along the said Xxxxxxxxxxxx Xxxxxx xxxx Xxxxx 00
degrees 34 minutes 43 seconds West, 2049.40 feet to the most Southern corner of
property conveyed to Xxxxx'x Terminals Corporation by Deed recorded in Book
8845, Page 100 of the St. Louis City Records; thence along the Southeastern line
of said Xxxxx'x Terminals property and its direct prolongation Northeastwardly
North 55 degrees 54 minutes 09 seconds East, 883.61 feet to a point, said point
being radial distant Southwestwardly 15.00 feet from the centerline of Track #33
of the Burlington Northern Inc.; thence leaving said point and running
Southeastwardly and parallel to said track South 28 degrees 11 minutes 04
seconds East, 43.77 feet to a point of curve; thence continuing Southeastwardly
and parallel to said track along a curve to the left having a radius of 997.64
feet, an arc distance of 276.59 feet to a point of tangency; thence continuing
Southeastwardly and parallel to said track South 44 degrees 04 minutes 10
seconds East, 3013.65 feet to a point of curve; thence departing from said Track
#33 and running Southwardly along a curve to the right having a radius of 484.06
feet, an arc distance of 381.95 feet to a point of tangency, said curve being
radial distant Westwardly 15.00 feet from the centerline of Track #217 of the
Burlington Northern Inc.; thence continuing Southwardly and parallel to said
track South 1 degree 08 minutes 25 seconds West, 95.33 feet to a point of curve;
thence continuing Southwardly along a curve to the left having a radius of
500.05 feet, an arc distance of 259.11 feet to a point on the Northwestern line
of East Prairie Avenue, 60.00 feet wide; thence along said Northwestern line
South 55 degrees 52 minutes 02 seconds West, 248.70 feet to a point; thence
leaving said Northwestern line of East Prairie Avenue and running North 34
degrees 12 minutes 58 seconds West, 414.42 feet and South 55 degrees 52 minutes
02 seconds West, 131.26 feet to a point, said point being radial distant
Northeastwardly 15.00 feet from the centerline of Track #229 of the Burlington
Northern Inc.; thence leaving said point and running Northwestwardly and
parallel to said track along a curve to the left having a radius of 385.78 feet,
an arc distance of 16.75 feet (the chord bearing and length of which is North 49
degrees 52 minutes 44 seconds West, 16.75 feet) to a point of tangency; thence
continuing Northwestwardly and parallel to said Track North 51 degrees 07
minutes 23 seconds West, 37.38 feet to a point of
LEGAL DESCRIPTION CONTINUED:
curve; thence continuing Northwestwardly and parallel to said track along a
curve to the right having a radius of 518.77 feet, an arc distance of 153.44
feet to a point of tangency, said point also being perpendicular distant
Northeastwardly 15.00 feet from the center line of Track #228 of the Burlington
Northern Inc.; thence Northwestwardly and parallel to said track North 34
degrees 10 minutes 33 seconds West, 348.56 feet to a point of curve; thence
continuing Northwestwardly and parallel to said track along a curve to the right
having a radius of 432.40 feet an arc distance of 51.56 feet to a point of
tangency; thence Northwestwardly and parallel to said track North 27 degrees 20
minutes 40 seconds West, 31.58 feet to a point of curve; thence continuing
Northwestwardly and parallel to said track along a curve to the left having a
radius of 462.40 feet an arc distance of 55.69 feet to a point of tangency;
thence Northwestwardly and parallel to said track North 34 degrees 14 minutes 40
seconds West, 792.97 feet to a point of curve; thence continuing Northwestwardly
and parallel to said track along a curve to the right having a radius of 381.20
feet, an arc distance of 22.96 feet (the chord bearing and length of which is
North 32 degrees 31 minutes 09 seconds West, 22.95 feet) to a point on the
direct prolongation Northeastwardly of the Northwestern line of property
conveyed to All American Redevelopment Corporation, as aforementioned; thence
along the last mentioned line South 55 degrees 49 minutes 17 seconds West,
756.84 feet to the point of beginning and containing 69.445 acres, more or less.
EXCEPTING THEREFROM the following described tract of land:
Commencing at a point on the Northeastern line of Hall Street, 80.00 feet
wide, at the most Western corner of property conveyed to All American
Redevelopment Corporation by Deed recorded in Book 56M, Page 145 of the St.
Louis City Records; thence along the Northwestern line of the last mentioned
property and its direct prolongation Northeastwardly North 55 degrees 49 minutes
17 seconds East, 726.79 feet to a point, said point being radial distant 15.00
feet from the center line of Track #228 of the Burlington Northern Inc. and the
point of beginning of the herein described tract of land; thence leaving said
point and running Northwardly and parallel to said track along a curve to the
right having a radius of 411.20 feet, an arc distance of 341.37 feet (the chord
bearing and length of which is North 7 degrees 15 minutes 29 seconds West,
331.65 feet) to a point of tangency; thence Northeastwardly and parallel to said
LEGAL DESCRIPTION CONTINUED:
track North 16 degrees 31 minutes 30 seconds East, 56.66 feet to a point of
curve; thence Northwestwardly and parallel to said track along a curve to the
left having a radius of 381.20 feet, an arc distance of 403.15 feet to a point
of tangency, said point also being perpendicular distant Southwestwardly 15.00
feet from the center line of Track #33 of the Burlington Northern Inc.; thence
Southeastwardly and parallel to said track south 44 degrees 04 minutes 10
seconds East, 154.18 feet to a point; thence departing from said Track #33 and
running Southwardly along a curve to the right having a radius of 411.20 feet an
arc distance of 276.83 feet to a point of tangency, said curve being radial
distant Westwardly 15.00 feet from the center line of Track #228, as
aforementioned; thence Southwestwardly and parallel to said track south 16
degrees 31 minutes 30 seconds West, 56.66 feet to a point of curve; thence
Southeastwardly and parallel to said track along a curve to the left having a
radius of 381.20 feet an arc distance of 314.82 feet (the chord bearing and
length of which is South 7 degrees 08 minutes 04 seconds East, 305.95 feet) to a
point on the direct prolongation Northeastwardly of the Northwestern line of
property conveyed to All American Redevelopment Corporation, as aforementioned;
thence along the last mentioned line South 55 degrees 49 minutes 17 seconds
West, 30.05 feet to the point of beginning and containing 0.482 acre, more or
less.
EXHIBIT B
1. Easement granted to Metropolitan St. Louis Sewer District recorded in Book
8546 Page 428.
2. Rights reserved by the City of St. Louis to forever maintain, replace and
prepare all water pipes now existing in the streets and alleys vacated
under provisions of Ordinance Number 16017, of the City of St. Louis,
approved March 10, 1891.
3. Easement over a strip of land 60 feet wide in former Adelaide Street
granted to Shell Oil Company, Incorporated according to instrument dated
March 15, 1947 and recorded in Book 6610 Page 586, as amended by
instrument dated November 26, 1947 and recorded in Book 6667 Page 215. 4.
Easement granted to Metropolitan St. Louis Sewer District by Chicago,
Burlington & Quincy Railroad Company dated February 1, 1968 for a sewer
line across the Southerly 15 feet of the premises herein conveyed.
5. All other easements, if any, for sewer, water, gas, power and
communications line, and drainage ditches or otherwise that are of public
record or that may be discovered by an accurate engineering survey and by
visual inspection of the premises herein conveyed.
6. Reservation of easements and rights according to the instrument recorded
in Book 126M, Page 1277.
7. Easement to Union Electric Company recorded in Book 154M Page 863.
PARCEL 2: Grantor's leasehold interest pursuant to that certain Lease dated as
of August 17, 1976 between Burlington Northern, Inc., a Delaware corporation (as
"Landlord") and ACBL Western, Inc., a Delaware corporation and predecessor in
interest to Grantor (as "Tenant").
PARCEL 3: Grantor's leasehold interest pursuant to that certain Lease dated as
of June 12, 1985 between the City of St. Louis, Missouri (as "Landlord") and
Grantor (as "Tenant").
EXHIBIT B
INTERCREDITOR AND SUBORDINATION AGREEMENT
-11-
INTERCREDITOR AND SUBORDINATION AGREEMENT
(to be added upon execution by creditors)
EXHIBIT C
LEASE
-12-
LEASE
BY AND BETWEEN
AMERICAN COMMERCIAL TERMINALS LLC
("Landlord")
AND
NRG NEW ROADS HOLDINGS LLC
("Tenant")
LEASE
ARTICLE I Fundamental Lease Terms ............................................................... 1
ARTICLE II Premises .............................................................................. 2
ARTICLE III Term .................................................................................. 3
ARTICLE IV Rent and Other Tenant Contributions ................................................... 4
ARTICLE V Use of Premises ....................................................................... 6
ARTICLE VI Construction, Maintenance and Repairs ................................................. 7
ARTICLE VII Insurance ............................................................................. 9
ARTICLE VIII Fire and Other Casualty .............................................................. 11
ARTICLE IX Assignment and Subletting ............................................................ 11
ARTICLE X Default and Re-Entry ................................................................. 13
ARTICLE XI Reserved for Future Use .............................................................. 14
ARTICLE XII Eminent Domain ....................................................................... 14
ARTICLE XIII General Provisions ................................................................... 14
SIGNATURE PAGE
EXHIBIT A Legal Description/Site Plan of Premises
EXHIBIT B Work to be performed by Landlord
LEASE
This LEASE ("Lease") is made and entered into by and between the Landlord
and Tenant.
WITNESSETH:
ARTICLE I: FUNDAMENTAL LEASE TERMS
1.1 (a) DATE OF LEASE: December 10, 2004
(b) LANDLORD: American Commercial Terminals, LLC
Address: 0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxxxxxx, XX 00000
(c) TENANT: NRG New Roads Holdings LLC
Address: 000 Xxxxx Xxxxxx, Xxx Xxxxx, XX 00000
(d) PREMISES: Address: 000 Xxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx (as
shown on the attached site plan) (See Paragraph 2.2(g).)
(e) BASE TERM: From the Commencement Date to the date that the
Transportation Contract expires or is otherwise terminated.
(f) COMMENCEMENT DATE: The Commencement Date shall be the Effective
Date (as defined in the Side Letter Agreement).
(g) (1) MINIMUM RENT: The Minimum Rent for the period beginning on
the Commencement Date and prior to the Election Date (the "PRE-ELECTION MINIMUM
RENT") shall be $1.00 per year. The Minimum Rent following the Election Date
(the "POST-ELECTION MINIMUM RENT") shall be Six Hundred Eighty-Four Thousand
Dollars ($684,000) per year (or Fifty-Seven Thousand Dollars ($57,000) per
month), as adjusted on each subsequent Rent Adjustment Date pursuant to
Paragraph 1.1(g)(2). The Pre-Election Minimum Rent and the Post-Election Minimum
Rent are collectively referred to herein as "MINIMUM RENT."
(2) RENT ADJUSTMENT: Commencing on the first anniversary of
the Commencement Date, and each and every anniversary date thereafter throughout
the Term (hereinafter the "RENT ADJUSTMENT DATES") the Post-Election Minimum
Rent as provided in paragraph (l) above shall be increased (but in no event
decreased) so as to be equal to the Post-Election Minimum Rent during the month
immediately preceding the then applicable Rent Adjustment Date as multiplied by
a fraction, the numerator of which shall be the Consumer Price Index for that
calendar month which is forty-five (45) days prior to the then applicable Rent
Adjustment Date and the denominator of which shall be the Consumer Price Index
for that calendar month which is one (1) year and forty-five (45) days prior to
the Commencement Date, and (for all subsequent Rent Adjustment Dates) one (1)
year and forty-five (45) days prior to the then applicable Rent Adjustment Date.
The Consumer Price Index is hereby defined to be the index now known as the
"Consumer Price Index; All Urban Consumers; U.S. City Average; All Items;
1982-1984 = 100.0, "published by the Bureau of Labor Statistics, U.S. Department
of Labor. If such Index shall be discontinued or the computation and/or
components thereof shall be altered, then
1
Landlord shall select a replacement index published by government agency or
nationally recognized institution measuring the purchasing power of the United
State Dollar.
(3) For purposes of calculating the Post-Election Minimum Rent
which is to become due and owing as of and following the Election Date as set
forth in subparagraph (1) above, the parties shall cause the fair market
leasehold rental value of the Premises (without consideration of any otherwise
customary leasehold brokerage fees, tenant credit allowances, free rent periods
or other such concessions as otherwise might be customary or available in the
marketplace), to be appraised pursuant to the "NAFMV" procedures set forth in
Section 3.E. of the Security Side Letter Agreement. The parties recognize that
calculation of the initial amount of Post-Election Minimum Rent will not be
capable of being completed or determined as of the Election Date. Accordingly,
the parties further specifically acknowledge and agree that as a condition
thereto, Tenant shall be required to post the Rent Deposit as further set forth
at Paragraph 4.7 below.
(h) PERMITTED USE OF PREMISES: Loading, unloading and storage of
coal from PRB en route to Big Cajun II Facility as set forth in Transportation
Contract.
(i) BROKERS: None. (See Paragraph 13.20).
(j) SECURITY DEPOSIT: None (See Paragraph 4.7).
ARTICLE II: PREMISES
2.1 DESCRIPTION: Landlord hereby leases to Tenant, and Tenant leases and
accepts, subject to the terms and conditions of this Lease, the Premises.
2.2 DEFINITIONS:
(a) "ACL" means American Commercial Lines, LLC, a Delaware limited
liability company.
(b) "ANCILLARY AGREEMENTS" means, collectively, the agreements described
in the Security Side Letter Agreement as the "Ancillary Agreements."
(c) "ELECTION DATE" means the definition given to it in Paragraph 3.2
hereof.
(d) "LG" means Louisiana Generating, LLC, a Delaware limited liability
company.
(e) "NRGPM" means NRG Power Marketing Inc, a Delaware corporation.
(f) "PREMISES" means the land as shown on Exhibit A and any and all
structures thereon.
(g) "SECURITY SIDE LETTER AGREEMENT" means that certain Security Side
Letter Agreement by and among ACL, Landlord, American Commercial Barge Lines,
LLC, LG, and Tenant, dated December 10, 2004.
(h) "SUBORDINATION AGREEMENT" means that certain Intercreditor and
Subordination Agreement dated _____________, 2004 by and among the lenders under
the Tranche A Loan Agreement, the Tranche B Loan Agreement, LG, and Tenant.
(i) "TERM" means the Base Term and all extensions thereof, if any, as set
forth herein.
2
(j) "TRANCHE A LOAN AGREEMENT" means the Amended and Restated Loan
Agreement (Tranche A) dated as of ________________, 2004, among ACL and
Landlord, together with certain of their affiliates, JPMorgan Chase Bank, as
Administrative Agent, Security Trustee, and Collateral Agent, and the lenders
from time to time parties thereto, as it may be amended, modified, extended,
renewed, supplemented, and/or restated from time to time and at any time.
(k) "TRANCHE B LOAN AGREEMENT" means the Amended and Restated Loan
Agreement (Tranche B) dated as of ________________, 2004, among ACL and
Landlord, together with certain of their affiliates, Bank of New York, as
Administrative Agent, Security Trustee, and Collateral Agent, and the lenders
from time to time parties thereto, as it may be amended, modified, extended,
renewed, supplemented, and/or restated from time to time and at any time.
(l) "TRANSPORTATION CONTRACT" means that certain Transportation Contract
by and among the Burlington Northern and Santa Fe Railway Company, LG, and
Landlord, dated as of December 10, 2004.
(m) "TRIGGER EVENT" shall have the definition set forth in the Security
Side Letter Agreement.
2.3 QUIET ENJOYMENT. Subject to the terms and provisions of this Lease and
on payment of Rent and other sums due hereunder and compliance with all of the
terms and provisions of this Lease, Landlord warrants to Tenant that Tenant
shall lawfully, peaceable, and quietly have, hold, occupy, and enjoy the
Premises during the Term, without hindrance or ejection by Landlord or by any
persons claiming under Landlord.
ARTICLE III: TERM
3.1 BASE TERM: The Base Term shall begin on the Commencement Date. In the
event the Commencement Date shall be a day other than the first day of the
month, then the Base Term shall commence on such day, but the first Lease Year
shall end on the last day of the month in which the first anniversary of the
Commencement Date occurs and shall include the partial month from the
Commencement Date through the end of the calendar month in which the
Commencement Date occurs. Upon the written request of Landlord or Tenant, the
parties shall enter into a written memorandum setting forth the Commencement
Date and Lease expiration date in such form as shall be provided by Landlord.
3.2 POSSESSION: Prior to the occurrence of a Trigger Event, Tenant shall
not be permitted to occupy or possess the Premises. Upon the occurrence of a
Trigger Event, Tenant shall have the exclusive right to occupy and possess the
Premises, subject to the terms and conditions contained herein, without further
notice to Landlord; provided, however that such right shall be deemed
effectively exercised only if Tenant takes actual physical possession of the
Premises within ninety (90) days after such Trigger Event, and only if Tenant is
not in material default of the Transportation Contract at the time of such
exercise. The date that Tenant takes possession of the Premises pursuant to this
Paragraph 3.2 is the "ELECTION DATE." Tenant shall not, without the prior
written consent of Landlord, be permitted to install fixtures and equipment in
the Premises; provided that Tenant shall at all times be permitted (but shall
not be required, except to the extent required by law or by other express
provisions of this Lease) to repair or replace any existing fixtures or
equipment located in the Premises as of the time of Tenant's possession of the
Premises without Landlord's consent; and further provided that Tenant shall be
permitted (but shall not be required, except to the extent required by law or by
other express provisions of this Lease) to install fixtures and equipment in the
Premises that may be reasonably required for the
3
purposes of the parties set forth in the Transportation Contract. Any work done
by Tenant shall be done in such a manner as will not interfere with the
Landlord's remaining property or business operations adjacent to the Premises,
and Landlord shall have no liability or responsibility for loss of, or any
damage to fixtures, equipment or other property or work of Tenant so installed
or placed on the Premises.
ARTICLE IV: RENT AND OTHER TENANT CONTRIBUTIONS
4.1 MINIMUM RENT: Beginning on the Commencement Date and until the
Election Date, Tenant shall pay Landlord the Pre-Election Minimum Rent as
provided in Paragraph 1.1(g) above. On the first day of the month following the
Election Date, Tenant shall pay to Landlord the Post-Election Minimum Rent for
the fractional month in which the Election Date occurred on a per diem basis
(calculated on the basis of the number of days in such month) until the first
day of the calendar month next succeeding and shall also pay rent in advance for
the upcoming month. Thereafter, the Post-Election Minimum Rent shall be paid in
equal monthly installments in advance on the first day of each month during the
Term in lawful money of the United States, at the address set forth in the
Fundamental Lease Terms or at such other place as Landlord may designate in
writing from time to time. Notwithstanding anything to the contrary, Tenant
shall be permitted to hold back payments of rent in an amount equal to any
claimed damages by Tenant or its affiliates, but only to the extent and subject
to the terms set forth in Section 4 of the Security Side Letter Agreement and
such holdback shall not be deemed to be a default under this Lease. The
foregoing shall not in any way be deemed to limit or impair any ability to
contest the validity or amount of any such claimed damages.
4.2 LEASE YEAR: "Lease Year" shall mean the twelve (12) month period
beginning on the first day of the first full month immediately following the
Commencement Date, and each successive twelve (12) month period thereafter. If
the Commencement Date is on a day other than the first day of a calendar month,
the first Lease Year shall include the period from the Commencement Date through
the end of the calendar month in which the Commencement Date occurs.
4.3 PARTIAL YEAR: "Partial Year" shall mean any period beginning on the
first day of any Lease Year and ending, by reason of the expiration or
termination of this Lease, prior to the end of such Lease Year.
4.4 TAXES: (a) "Taxes" shall mean all real estate taxes and ad valorem
taxes and levies, including any and all general or special assessments which may
accrue or be levied or assessed by any lawful authority for each calendar year
during the Term, including those assessed against the land and/or buildings
comprising the Premises. Beginning with the Election Date and throughout the
balance of the Term, Tenant shall pay to Landlord all Taxes for the Premises;
provided, however that if either (i) Landlord shall have become insolvent, shall
have made an assignment for the benefit of, or "bulk sale" of assets to,
creditors, shall have made a transfer in fraud of creditors, applied for or
consented to the appointment of a receiver of itself or of the whole or any
substantial part of its property, or shall have filed a petition or filed an
answer under the federal bankruptcy laws, as now in effect or hereafter amended,
or any other applicable law or statute of the United States or any state
thereof; or (ii) a court of competent jurisdiction shall have entered an order,
judgment or decree adjudicating Landlord a bankrupt, or appointing a receiver of
Landlord, or of the whole or any substantial part of its property, without the
consent of Landlord, or approving a petition filed against Landlord seeking
reorganization or arrangement of Landlord under the bankruptcy laws of the
United States, as now in effect or hereafter amended, or any state thereof, and
such order, judgment or decree shall not be vacated or set aside or stayed
within thirty (30) days from the date of entry thereof (any of such actions
described in (i) or (ii) above being referred to herein as a "Landlord
Bankruptcy"), then Tenant shall be permitted to make all payments of Taxes
directly to the respective taxing authority as and when such payments are due.
If the Premises or any part
4
thereof shall hereafter ever not be separately assessed for Tax purposes, Tenant
shall be required to pay its "Pro Rata Share" of Taxes, and following a Landlord
Bankruptcy, Tenant may, but shall not be required to, pay all of the Taxes for
the entire tax parcel of which the Premises are a part and may set-off such
additional payment as permitted under Paragraph 4.1. For purposes hereof, the
term "Pro Rata Share" shall mean a fraction, the numerator of which equals the
total number of square feet constituting the Premises, and the denominator of
which equals the total number of square feet constituting the tax parcel of
which the Premises is a part. In the event any tax shall be assessed upon the
Rent, Tenant shall pay said tax to Landlord as additional Rent. If Landlord
shall elect to contest any proposed increase in Taxes, any expense incurred in
such contest, including reasonable attorneys' fees or appraisers' fees shall be
considered as tax expenses under the terms of this paragraph and Tenant shall be
responsible for payment thereof. If Landlord shall not elect to contest any
proposed increase in Taxes, Tenant may, upon receiving Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed, proceed to contest such increase by appropriate legal proceedings
conducted promptly and diligently, utilizing Tenant's own counsel and at
Tenant's sole cost and expense. Tenant specifically acknowledges and agrees that
Landlord's consent may be conditioned upon Tenant's payment into escrow of such
amount of Taxes as are claimed to be due, or in lieu thereof to post such
security or bond, all as may be required by law in order to avoid the imposition
of any penalties or excess charges, and so as not to jeopardize in any way
Landlord's ownership of or title to the Premises. Tenant hereby agrees to
indemnify and hold Landlord harmless from any cost, expense (including
attorney's fees) or any liability Landlord may suffer or incur arising out of
such contest. If the method of taxation applicable to rental property shall be
adjusted or modified, a modification agreement with respect to this paragraph
shall be entered into to apply the principle hereof to said revised tax system.
Tenant's obligations hereunder shall be prorated during the first and last Lease
Years based on the number of months of the Term hereof falling within such
years.
(b) In addition to the payment of Taxes as provided above, Tenant shall
pay before delinquency all municipal, county or state taxes, levies and fees of
every kind and nature, including, but not limited to, general or special
assessments assessed during the Term against any personal property of any kind,
owned by or placed in, upon or about the Premises by Tenant, and taxes assessed
on the basis of Tenant's occupancy thereof, including, but not limited to, taxes
measured by rents or other amounts due from Tenant hereunder.
4.5 INSURANCE: -- See Article VII below.
4.6 MONTHLY ESCROW AND ANNUAL RECONCILIATION: Following the Election Date,
Tenant shall pay to Landlord or its successor on the first day of each month of
the Term in advance such amount as Landlord shall estimate shall be equal to
1/12th of the cost of utilities, insurance premiums or Taxes for the Premises
for the ensuing year at the time and place provided for the payment of Rent;
provided, however that Tenant shall have no further obligation to pay such
escrow amounts after a Landlord Bankruptcy (provided further that Tenant is then
directly paying all such amounts due on a timely basis directly to the utility
service providers, insurance companies and taxing authorities). Upon receipt of
the tax bills and insurance premiums, Landlord shall compute the share of said
bills due from Tenant and a summary shall be furnished to Tenant reflecting the
actual amount due. If the amounts paid by Tenant during the preceding period
shall be in excess of the actual costs, the excess shall be credited against the
next ensuing tax payment due from Tenant; if the amount paid by Tenant shall be
less than the actual cost, then Tenant shall pay the remaining balance within
ten (10) days after such notice is furnished. The notice furnished Tenant shall
also include a computation of the estimated sums that will be due from Tenant
each month for the ensuing year and the monthly payments to be made as aforesaid
shall be adjusted accordingly for the ensuing period.
5
4.7 RENT DEPOSIT: INTENTIONALLY DELETED
4.8 PAYMENT OF CHARGES: All Rent and other charges to be paid by Tenant
shall be paid as provided in this Lease without any set-off or deduction
whatsoever (excepting only as may be specifically set forth above at Paragraph
4.1) and the non-payment of any item when due (or with the monthly payments if
not otherwise provided for herein) shall constitute a default under this Lease.
4.9 LATE CHARGE: Rent (hereby defined to mean annual and monthly payments
of Minimum Rent and reimbursements for taxes, insurance and all other charges
required to be paid by Tenant to Landlord) in arrears five (5) days after the
same is due shall bear interest at the annual rate (the "Default Rate") equal to
the lesser of (i) the highest lawful rate, or (ii) twelve percent (12%). This
provision shall not affect the right of Landlord to declare Tenant in default of
this Lease for the failure to pay any sums when due.
ARTICLE V: USE OF PREMISES
5.1 TENANT'S USE: The Premises shall be used and occupied by Tenant solely
for the Permitted Use and for no other purpose without Landlord's prior written
consent. Tenant shall at its expense, comply with all now existing or hereafter
enacted laws, rules, orders, ordinances and regulations of federal, state,
county and municipal authorities, including, but not limited to, the Americans
with Disabilities Act of 1990, as amended. Tenant shall also comply with all
encumbrances affecting the Premises. Tenant shall not commit waste in the
Premises.
5.2 UTILITIES: Tenant shall make application for, obtain and timely pay
for Tenant's requirements of electric current, gas, sewer, heat, water and all
other utilities and all taxes or charges on such utility services which are used
on or attributable to the Premises. If Landlord shall elect to supply any
utilities, then Tenant shall pay to Landlord the cost of its utility
consumption, along with the cost of installing separate metering devices. In no
event shall Landlord be liable for any interruption or failure in the supply of
any utilities to the Premises.
5.3 SIGNS: Tenant shall not erect, install or maintain any sign,
advertising or display matter on any exterior door, wall or window of the
Premises, or on any other part of the Premises which is visible to public view
outside the Premises without the prior written approval of Landlord.
ARTICLE VI: CONSTRUCTION, MAINTENANCE AND REPAIRS
6.1 INITIAL CONSTRUCTION: LANDLORD'S WORK IS LIMITED TO THOSE ITEMS SET
FORTH ON EXHIBIT B HERETO, IF ANY, AND EXCEPT AS OTHERWISE SET FORTH ON EXHIBIT
B, TENANT ACKNOWLEDGES AND AGREES THAT IT ACCEPTS AND TAKES POSSESSION OF THE
PREMISES IN "AS IS" CONDITION. LANDLORD HAS NOT MADE AND HEREBY DISCLAIMS ALL
WARRANTIES AND/OR REPRESENTATIONS, EXPRESS OR IMPLIED, REGARDING THE PREMISES
AND THE CONDITION, HABITABILITY OR FITNESS THEREOF FOR ANY USE OR PURPOSE
WHATSOEVER AND ANY REPRESENTATION OR WARRANTY IMPOSED BY OPERATION OF LAW,
COURSE OF DEALING, CUSTOM, PRACTICE OR OTHERWISE.
6.2 TENANT'S DUTY TO REPAIR:
(a) Tenant shall keep and maintain in good order, condition and repair
(including any replacement and restoration as is required for that purpose) the
Premises and every part thereof and any and all appurtenances thereto wherever
located, including, but without limitation, the exterior and interior portion of
all doors, door checks, windows, plate glass, all plumbing and sewage facilities
within the
6
Premises including free flow up to the main sewer line, the roof, gutters,
downspouts, landscaping, fixtures, heating and air conditioning and electrical
systems serving the Premises (whether or not located in the Premises), sprinkler
systems, all walls, including structural members, floors, foundation and
ceilings, the parking lot, drive lanes, curb cuts, sidewalks, lighting, meters
applicable to the Premises, and all installations made by Tenant, and repairs
required to be made in the Premises due to burglary of the Premises or other
illegal entry into the Premises or any damage to the Premises caused by a strike
involving Tenant or its employees. Notwithstanding anything to the contrary,
Tenant's foregoing obligation to keep and maintain the Premises is subject to
normal wear and tear and further, Tenant shall have no obligation to keep or
maintain the Premises in any better condition or repair than the condition of
the Premises as it exists on the Election Date. Tenant shall arrange and pay for
the removal of all snow and trash from the Premises. Tenant shall enter into and
maintain, at its sole cost and expense, a service agreement with a reputable
contractor, the terms of which shall begin on the Election Date shall continue
throughout the Term, and shall expire at the end of the Term, wherein the said
contractor shall make periodic service inspections and necessary repairs to the
heating and air conditioning systems servicing the Premises at least quarterly.
(b) Tenant shall keep and maintain the Premises in a clean, sanitary and
safe condition and in accordance with all directions, rules and regulations of
the proper officials of the governmental agencies having jurisdiction, at the
sole cost and expense of Tenant, and Tenant shall comply with all requirements
of law, by statute, ordinance or otherwise, affecting the Premises and all
appurtenances thereto.
(c) If Tenant shall be in default under this Xxxxxxxxx 0.0, Xxxxxxxx and
its agents and contractors shall have the right, but not the obligation, to cure
such default on behalf of Tenant, in which event Tenant shall reimburse
Landlord, on demand, for all sums paid by Landlord to effect such cure, plus
interest thereon at the Default Rate from the date of expenditure by Landlord
until the date of reimbursement by Tenant.
6.3 SURRENDER OF PREMISES: Upon the expiration or termination of this
Lease, Tenant shall deliver the Premises in broom clean condition (subject to
the removals hereinafter required), reasonable wear and tear and casualty
excepted, and shall surrender all keys for the Premises to Landlord at the place
then fixed for the payment of Rent and shall inform Landlord of all combinations
for locks, safes and vaults, if any, in the Premises. Tenant, during the last
thirty (30) days of the Term, and in any event prior to the expiration or
termination thereof, shall remove all of its trade fixtures, and, to the extent
required by Landlord by written notice, any other installations, alterations or
improvements made by or on behalf of Tenant without Landlord's prior approval,
before surrendering the Premises as aforesaid and shall repair any damage to the
Premises caused thereby. At such time, Tenant shall also effect repairs and
remove its exterior signs as provided in Paragraph 5.3 hereof. In the event this
Lease is terminated because of Tenant's default hereunder, Tenant shall not be
permitted to remove any of its trade fixtures or property without the prior
written consent of Landlord, which consent may be withheld by Landlord in its
sole discretion. Tenant's obligation to observe or perform this covenant shall
survive the expiration or other termination of the Lease Term. Any items
remaining in the Premises on the expiration or termination date of this Lease
shall be deemed abandoned for all purposes and shall, at Landlord's option
exercised by written notice to Tenant, become the property of Landlord and the
latter may dispose of the same at Tenant's expense without liability of any type
or nature, provided that Tenant has not removed said fixtures or equipment
within ten (10) days from the date of such notice.
6.4 TENANT'S ALTERATIONS: Tenant shall not make any alterations,
additions, changes or improvements to the Premises (except for repairs in
accordance with Paragraph 6.2), nor shall Tenant install any fixtures or
equipment in the Premises without, in each instance, the prior written approval
of Landlord, which approval of Landlord shall not be unreasonably withheld. All
such work shall be done in
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a good and workmanlike manner using only good grades of material, and shall
comply with all applicable laws of every governmental authority having
jurisdiction over the Premises at the time such work is performed and
thereafter, and shall be diligently prosecuted through completion. Any trade
fixtures or equipment installed by Tenant to operate its business shall be of
first-class quality and workmanship.
6.5 MECHANIC'S LIENS: If Tenant makes any alterations or improvements in
the Premises, Tenant shall pay for same when made. Nothing in the Lease shall be
construed to authorize Tenant or any person dealing with or under Tenant, to
charge the Rents, or the Premises, or the interest of Landlord in the Premises
or any person under or through whom Landlord has acquired its interest in the
estate of the Premises, with a mechanic's lien or encumbrance of any kind, and
under no circumstances shall Tenant be construed to be the agent, employee or
representative of Landlord in the making of any such alterations or improvements
to the Premises, but, to the contrary, the right or power to charge any lien,
claim or encumbrance of any kind against the Rent or the Premises is denied.
Landlord shall have the right, but not the obligation, to notify all persons or
entities supplying labor or materials for Tenant to the Premises that such work
is for the exclusive benefit of Tenant in order to notify the provider thereof
that Landlord's interest in the Premises is not subject to impression of a lien
with respect thereto. So long as the laws of the State in which the Premises is
located shall provide for the filing of a statutory bond to eliminate the
attachment of mechanic's or materialmen's liens to real estate, Tenant shall
require that its contractor or itself shall take such steps as are provided by
law for the filing of said statutory bond prior to the initiation of any
construction. If a mechanic's or materialmen's lien is threatened by any
contractor, or in the event of the filing of a notice of any such lien, Tenant
shall promptly pay same and take steps immediately to have the same removed. If
the same is not removed within ten (10) days from the date of written notice
from Landlord, Landlord shall have the right, at Landlord's option, of paying
the same or any portion thereof and the amounts so paid, including attorneys'
fees and expenses associated therewith and interest at the Default Rate on any
sums and expenses paid or advanced from the date of expenditure by Landlord
until the date of reimbursement by Tenant, shall be deemed to be additional rent
due from Tenant to Landlord and shall be paid to Landlord immediately upon
rendition to Tenant of a xxxx for same. Tenant shall indemnify and save harmless
Landlord from and against all losses, claims, damages, costs and expenses
suffered by Landlord by reason of any repairs, installations or improvements
made by Tenant.
6.6 EMERGENCY LIGHTING: If any governmental regulations from time to time
shall require emergency lighting to be installed in the Premises, the
installation and the maintenance of the same, including providing of battery
power, shall be the responsibility of Tenant.
6.7 ROOF: Tenant shall not cause or permit accumulation of any debris or
extraneous matter on the roof of the Premises, will not in any manner cut or
drive nails into or otherwise mutilate the roof of the Premises and shall be
responsible for any damage caused to the roof by Tenant, its agents, servants,
employees or contractors.
ARTICLE VII: INSURANCE
7.1 INDEMNIFICATION: Tenant shall protect, defend, indemnify and save
Landlord, Landlord's lenders having a secured interest in the Premises
("Landlord's Lender") and their respective officers, shareholders, members,
partners, employees and agents harmless from and against any and all liability
and expense of any kind arising from injuries or damages to persons or property
on the Premises or arising out of or resulting in any way from (i) any act or
omission of Tenant, its agents, employees, contractors, licensees or invitees
during the Term; (ii) any breach or default in the performance of any obligation
of Tenant; (iii) the use of the Premises by Tenant's or Tenant's agents,
employees, contractors or invitees; and (iv) out of or on account of any
occurrence in, upon, at or from the Premises, excepting
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only any liability arising out of the gross negligence of Landlord, its
officers, shareholders, members, partners, employees or agents.
7.2 NOTICE OF CLAIM OR SUIT: Tenant shall promptly notify Landlord and
Landlord's Lender of any claim, action, proceeding or suit instituted or
threatened against Landlord, Tenant or Landlord's Lender. Landlord shall
promptly notify Tenant of any claim, action, proceeding or suit instituted or
threatened against Tenant of which Landlord has knowledge. If Landlord or
Landlord's Lender is made a party to any action against which Tenant has agreed
to indemnify Landlord or Landlord's Lender, then Tenant shall pay all costs and
shall provide counsel reasonably acceptable to Landlord, and/or Landlord's
Lender, as the case may be, in such litigation or shall pay at the indemnified
party's option the attorney fees and costs incurred in connection with said
litigation by Landlord or Landlord's Lender.
7.3 FIXTURES: Prior to the Election Date, Landlord shall obtain and
maintain in full force and effect throughout the entire Term, insurance covering
all of the building, structures, fixtures, improvements and land constituting
the Premises, and also covering trade fixtures, merchandise and personal
property from time to time located in or upon the Premises, all to the extent
necessary to allow for the continuing performance of its obligations under the
Transportation Contract, in an amount not less than one hundred percent (100%)
of their full replacement cost from time to time during the Term providing
protection against any peril included within the classification "All Risk"
coverage, including "special perils", together with insurance against sprinkler
leakage (if the Premises are sprinklered), vandalism and malicious mischief.
Notwithstanding anything to the contrary, for the period in which either the
Tranche A Loan Agreement or the Tranche B Loan Agreement remains in effect,
Landlord shall be deemed to have fulfilled the requirement for insurance set
forth in this Paragraph 7.3 if it maintains the level and amount of casualty
insurance required under the applicable loan agreement(s). From and after the
Election Date, Tenant shall obtain and maintain in full force and effect
throughout the entire Term, insurance covering all of the building, structures,
fixtures, improvements and land constituting the Premises, with Landlord and
Landlord's Lender named as additional insureds as their interests may appear,
and also covering trade fixtures, merchandise and personal property from time to
time located in or upon the Premises, all in an amount not less than one hundred
percent (100%) of their full replacement cost from time to time during the Term
providing protection against any peril included within the classification "All
Risk" coverage, including "special perils", together with insurance against
sprinkler leakage (if the Premises are sprinklered), vandalism and malicious
mischief. Any policy proceeds shall be used for the repair or replacement of the
property damaged or destroyed unless this Lease shall cease and terminate under
the provisions of Article VIII, in which event the terms of Article VIII hereof
shall control. If there shall be a dispute as to the amount which comprises full
replacement cost, the decision of Landlord shall be conclusive.
7.4 LIABILITY INSURANCE: Tenant shall maintain at its expense at all times
during the Term liability insurance protecting and indemnifying Landlord,
Landlord's Lender and Landlord's property manager and naming Landlord,
Landlord's Lender and Landlord's property manager as additional insureds in an
amount not less than $1,000,000.00 per person and $3,000,000.00 per accident for
injuries or damages to persons and covering Tenant's indemnification obligation
set forth in Paragraph 7.1, and not less than $1,000,000.00 for damage or
destruction of property.
7.5 FAILURE TO PROCURE INSURANCE: If either party shall fail to procure
insurance required under this Article and fail to maintain the same in force
continuously during the Term, the other party shall be entitled to procure the
same and such defaulting party shall immediately reimburse the procuring party
for such premium expense, plus interest thereon at the Default Rate from the
date of expenditure by the procuring party until the date of reimbursement by
the defaulting party.
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7.6 PROPERTY OF TENANT: All property owned, leased or held by Tenant in,
on or about the Premises shall be at the sole risk and hazard of Tenant. Tenant
shall have the right to use all the equipment of the Landlord located on the
Premises. Landlord shall not be liable or responsible for (and Tenant hereby
releases Landlord from) any loss of or damage to Tenant, or anyone claiming
under or through Tenant, or otherwise, whether caused by or resulting from a
peril required to be insured hereunder, or from water, steam, gas, leakage,
plumbing, electricity or electrical apparatus, pipe or apparatus of any kind,
the elements or other similar or dissimilar causes (excepting only any loss or
damage cause by the gross negligence of Landlord, its officers, shareholder,
member, partners, employees or agents), and whether or not originating in the
Premises or elsewhere.
7.7 POLICY FORM OF TENANT'S INSURANCE: All policies of insurance provided
for herein shall be issued by insurance companies with a general policyholder's
rating of not less than A and a financial rating of not less than A-XII as rated
in the most current available "Best's" insurance reports, and qualified to do
business in the State where the Premises is located, which policies shall be for
the mutual and joint benefit and protection of Landlord, Landlord's Lender and
Tenant. Executed copies of such policies of insurance or certificates thereof
shall be delivered to Landlord prior to entry upon the Premises by Tenant, and
renewal policies or certificates shall be delivered to Landlord within thirty
(30) days prior to the expiration of the term of each such policy and upon
request of Landlord at any time during the Term. All public liability, property
damage and other casualty policies shall contain a provision that Landlord and
Landlord's Lender shall be entitled to recovery under said policies,
notwithstanding their being named as additional insureds thereunder. Tenant's
insurance policies shall contain an endorsement that such insurance may not be
cancelled or amended except upon thirty (30) days' prior written notice from the
insurance company to Landlord, sent by certified or registered mail. As often as
any such policies shall expire or terminate, renewal or additional policies
shall be procured and maintained by Tenant in like manner and to like extent and
if Tenant shall fail to do so, Landlord may procure and maintain such policies
at Tenant's cost and expense. All public liability, property damage and other
casualty policies shall be written as primary policies, not contributing with
and not in excess of coverage which Landlord may carry. All insurance policies
procured pursuant to the terms hereof shall provide that all insurance proceeds
shall be paid to Landlord to be disbursed pursuant to the terms of this Lease.
All insurance coverages hereunder shall be in effect as of the earlier of the
Election Date, the date on which Tenant takes possession of the Premises or the
date on which Tenant first enters the Premises.
7.8 MUTUAL WAIVER OF SUBROGATION: Landlord and Tenant hereby waive the
rights each may have against the other on account of any loss or damage
occasioned to the property of Landlord or Tenant, the Premises or its contents,
arising from any risk required to be insured against by Landlord or Tenant
pursuant to the provisions of this Lease (whether or not such insurance is
actually carried), and the parties each, on behalf of their respective insurance
companies insuring the property of either Landlord or Tenant against any such
loss, waive any right of subrogation that it may have against Landlord or
Tenant, as the case may be.
ARTICLE VIII: FIRE OR OTHER CASUALTY
8.1 If the Premises shall be partially damaged by fire or other casualty
insured under the insurance policies described in Article VII, then upon
Landlord's receipt of the insurance proceeds, Landlord shall, except as
otherwise provided herein, repair and restore the same to the extent required to
return the Premises to the condition in which the same were initially delivered
to Tenant by Landlord; limited, however, to the extent of the insurance proceeds
received in hand by Landlord therefor. If by reason of such occurrence: (a) the
Premises are damaged in whole or in
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part during the last year of the Term (or at any time during any renewal term);
or (c) the building within the Premises is damaged to an extent that the same
cannot be restored within six (6) months from the date of the casualty, then in
any of such events, Landlord may elect either to repair the damage as aforesaid,
or terminate this Lease by written notice of termination given to Tenant within
one hundred eighty (180) days after the date of such occurrence, and thereupon
this Lease shall terminate with the same force and effect as though the date set
forth in Landlord's said notice were the date herein fixed for the expiration of
the Term and Tenant shall immediately vacate and surrender the Premises to
Landlord. Upon the termination of this Lease as aforesaid, Tenant's liability
for the Rent shall cease as of the earlier of (a) the effective date of the
termination of this Lease, or (b) if the Premises is rendered unfit for
occupancy for the purposes permitted under this Lease on account of such
casualty, as of the date Tenant vacates the Premises as a result thereof. Unless
this Lease is terminated by Landlord as aforesaid, this Lease shall remain in
full force and effect, and (a) Landlord shall restore the building to the
condition in which it existed as of the Election Date; and (b) Tenant shall
repair, restore or replace Tenant's improvements, trade fixtures and contents in
the Premises and all other work done to the Premises by Tenant in a manner and
to at least a condition equal to that existing prior to their damage or
destruction, and the proceeds of all insurance carried by Tenant on said
property shall be held in trust by Landlord for the purpose of such repair,
restoration or replacement.
ARTICLE IX: ASSIGNMENT AND SUBLETTING
9.1 TENANT ASSIGNMENT: (a) Tenant shall not assign, transfer or encumber
this Lease or sublet or allow any other tenant to come in, with or under Tenant
without Landlord's prior written consent. "Control" shall mean, the ownership,
directly or indirectly, of stock possessing, or the right to exercise, fifty
percent (50%) of the total combined voting power of all classes of the
controlled corporation's stock issued, outstanding and entitled to vote for the
election of directors. Notwithstanding anything to the contrary, Tenant shall be
permitted to assign this Lease to (i) any successor or assign of Tenant's
interest in the Transportation Contract or (ii) an "Affiliate" of Tenant. As
used herein, an "Affiliate" of Tenant is any person or entity that Controls, is
Controlled by, or is under common Control with, Tenant.
(b) If Tenant desires the consent of Landlord to sublease or assign,
Tenant shall submit the sublease or assignment to Landlord, together with the
following documents: (i) a complete financial statement of the subtenant or
assignee with an authorization to verify the same; (ii) a declaration by the
subtenant or assignee as to the type of business to be carried out and the
number of employees to occupy the Premises; and (iii) proof of payment of all
leasing commissions, if applicable. In addition, the assignee shall agree in
writing (a copy of which shall be delivered to Landlord) to assume all of
Tenant's obligations under this Lease. In the event the then current tenant of
the Premises is merged into another business entity, in order for such successor
to succeed to the rights of Tenant hereunder, the surviving entity must, in
addition to complying with all of the requirements of this Article, agree in
writing with Landlord to be bound to the terms of this Lease and to be liable
for all past and future obligations of Tenant hereunder.
(c) Landlord shall have twenty (20) days after receipt of such notice and
supporting data to adopt one of the following alternatives: (i) to approve the
proposed assignment, transfer, merger or subletting (or stock sale or transfer
where applicable), in which case Tenant shall continue to be liable along with
the said assignee for the fulfillment of all Tenant's obligations hereunder; or
(ii) to disapprove the same in which case this Lease shall continue in full
force and effect with Tenant continuing to occupy the Premises under the terms
hereof.
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Landlord's consent to any proposed assignment or subletting shall not be
deemed to have been unreasonably withheld if (by way of example and not as a
limitation): (a) the use of the proposed assignee or subtenant (i) would violate
any restrictive covenant or encumbrance then in effect and affecting the
Premises, (ii) is inconsistent with the use of the Premises permitted under this
Lease, or (iii) would adversely affect the reputation of or be incompatible with
the types of use then in existence at any portion of the adjoining property
owned by Landlord; or (b) the proposed assignee or subtenant (i) is not a party
of reasonable financial worth and/or financial stability in light of the
responsibilities involved under this Lease, (ii) is of a character or reputation
which is not consistent with the tenants at the adjoining property owned by
Landlord; or (iii) is negotiating (or within the prior nine (9) month period has
negotiated) with Landlord for alternative space owned by Landlord.
(d) Consent of Landlord to one assignment or subletting of the Premises
shall not constitute a waiver of Landlord's rights hereunder. Tenant shall not
assign or sublet the Premises or any portion thereof for any use which will
violate any encumbrance affecting the Premises. Any assignment or subletting,
notwithstanding the consent of the Landlord, shall not in any manner release
Tenant herein from its continued liability for the performance of the provisions
of this Lease and any amendments or modifications thereto. The acceptance of any
Rent payments by Landlord from any alleged assignee shall not constitute
approval by Landlord of any subletting or of the assignment of this Lease.
9.2 LEGAL FEES: If Landlord shall not exercise its right to terminate this
Lease as set forth in Paragraph 9.1 hereof, then such consent to sublease or
assignment shall be effectuated by a legal document in form and substance
satisfactory to Landlord. In such event, Landlord shall be fully reimbursed by
Tenant for legal fees incurred by Landlord with respect to said assignment or
sublease as a condition precedent to the effectiveness of such sublease or
assignment.
ARTICLE X: DEFAULT AND RE-ENTRY
10.1 DEFAULT: The following events shall be deemed to be events of default
by Tenant under this Lease: (a) If Tenant shall fail to make any payment of Rent
within ten (10) days after the same shall become due; or (b) if Tenant shall
fail to comply with any term, provision or covenant of this Lease, other than
the payment of Rent, and shall not cure such failure within ten (10) days after
written notice thereof to Tenant (or such longer period as is expressly set
forth herein or in Landlord's written notice); or (c) if Tenant shall desert,
abandon or vacate any substantial portion of the Premises or close Tenant's
business for ten (10) days or longer; or (d) if Tenant violates any provision of
this Lease of which Landlord has previously notified Tenant more than once in
any Lease Year.
10.2 REMEDIES OF LANDLORD: Upon the occurrence of any such event of
default, Landlord shall have the option to pursue any one or more of the
following remedies (as well as any other remedies provided by law or equity)
without any notice or demand whatsoever:
10.2.1 Enter upon and take possession of the Premises without terminating
this Lease and without relieving Tenant of its obligation to make the payments
of Rent herein reserved, and expel or remove Tenant and any other person who may
be occupying the Premises or any part thereof and any personal property or trade
fixtures located therein, and change or alter the locks and other security
devices, without notice to Tenant and relet the Premises on behalf of Tenant, at
any rental readily obtainable, and receive the rent therefor. Landlord shall
have no obligation to furnish a new key to Tenant unless and until tenant cures
all existing defaults and delivers to Landlord additional security satisfactory
to Landlord to secure Tenant's performance of its obligations under this Lease.
In such event, Tenant shall pay to Landlord on demand the expenses of such
reletting (as described in Paragraph 10.2.2 hereof), and any deficiency which
may arise by reason of such reletting for the remainder of the Term.
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Tenant shall not be entitled to any excess obtained by Landlord in reletting
over the Rent. Landlord can bring separate actions from time to time against
Tenant to collect rent due and owing.
10.2.2 Terminate this Lease forthwith. In the event of such termination,
Tenant shall immediately surrender the Premises to Landlord and if Tenant fails
to do so, Landlord may enter upon and take possession of the Premises and expel
or remove Tenant and any other person who may be occupying the Premises or any
part thereof, and any personal property or trade fixtures located therein. In
the event of the termination of this Lease as provided herein, Tenant shall pay
to Landlord, on demand, the expenses of such reletting (including all repairs,
tenant finish, improvements, brokers' and attorneys' fees and all loss or damage
which Landlord may sustain by reason of such re-entry and reletting) plus an
amount equal to the difference between the Rent provided for herein and the
amount of Rent received by Landlord from the subsequent reletting of the
Premises, for the period which would otherwise constitute the balance of the
Term, which amount shall be considered accelerated and immediately due and
payable, (discounted at the prime rate then in effect) per year) in full by
Tenant to Landlord.
10.2.3 Cure any default of Tenant hereunder and Tenant shall immediately
reimburse Landlord for the cost thereof plus interest thereon at the Default
Rate from the date of expenditure by Landlord until the date of reimbursement by
Tenant.
ARTICLE XI: RESERVED FOR FUTURE USE
ARTICLE XII: EMINENT DOMAIN
12.1 If, prior to the Election Date, the Premises or any part thereof
shall be acquired under threat of eminent domain or condemned by eminent domain
(a "Taking"), then Tenant shall not be entitled to any part of the award as
damages or otherwise for such Taking and Landlord shall receive the full amount
of such award, Tenant hereby expressly waiving any right or claim to any part
thereof; except that Tenant shall be entitled to receive and retain any amounts
which may be specifically awarded to it in such condemnation proceedings because
of the taking of its trade fixtures and improvements made and paid for by Tenant
provided that such award is made separately to Tenant by the condemning
authority without reduction of the award otherwise due to Landlord hereunder. In
the event of the termination of this Lease as aforesaid, neither Landlord or
Tenant shall have any claim against the other hereunder for the value of any
unexpired portion of the Term and Tenant shall have no right or claim to any
part of the award on account thereof.
12.2 If, following the Election Date, the Premises or any part thereof
shall be acquired by a Taking, then the following provisions shall be
controlling:
(a) If all of the Premises shall be acquired by a Taking then and in that
event the Term shall terminate from the date of title vesting in such proceeding
and Tenant shall have no claim against Landlord for the value of any unexpired
Term on the condition that Tenant may pursue a claim for (i) the value of any
unexpired portion of the Term and (ii) the value of any taking of its trade
fixtures or improvements made and paid for by Tenant at its own expense.
(b) If part of the Premises shall be acquired by a Taking that does not
materially affect Tenant's use of the Premises, then Landlord shall elect to
restore the Premises to a condition comparable to its condition at the time of
the Taking less the portion taken, and this Lease shall thereafter continue in
full force and effect. The term "Taking" as used in this Article XII shall
include any voluntary
13
conveyance in lieu thereof. Landlord's restoration obligation in clause (i)
above shall be limited to such repair as is necessary to put the remaining
portion of the Premises in the same condition as when possession was initially
delivered by Landlord to Tenant, reasonable wear and tear excepted, upon
commencement of the Term, and in no event shall Landlord be required to expend
in connection with such restoration more than the amount of any condemnation
award actually received by Landlord and allocated by Landlord to the Premises.
If this Lease is not terminated, Tenant shall, at Tenant's expense, perform any
other work required to utilize the Premises and Tenant shall restore, repair or
replace its stock in trade, fixtures, furniture, furnishings, floor coverings
and equipment, and if Tenant has closed, Tenant shall promptly reopen the
Premises for business.
ARTICLE XIII: GENERAL PROVISIONS
13.1 LANDLORD'S RIGHT OF ENTRY: Notwithstanding anything herein to the
contrary, the parties specifically acknowledge and agree that Landlord shall
retain the full and exclusive right to occupy, enjoy and use the Premises prior
to the Election Date. Thereafter, Landlord reserves the right at all reasonable
times during the Term for Landlord or Landlord's agents to enter the Premises
for the purpose of inspecting and examining the same, and, with prior notice and
during normal business hours, to show the same to prospective purchasers or
tenants, and to make such repairs, alterations, improvements or additions as
Landlord may deem necessary or desirable (it being agreed upon between the
parties that in the event of an emergency, Landlord may enter at any time and
without prior notice). If Tenant shall not be personally present to open and
permit an entry into said Premises, at any time, when for any reason an entry
therein shall be necessary or permissible, Landlord or Landlord's agents may
enter the same by a master key, (or in the event of an emergency, may forcibly
enter the same), without rendering Landlord or such agents liable therefore, and
without in any manner affecting the obligations and covenants of Tenant set
forth in this Lease. Nothing herein contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever for the care, maintenance, safety or repair of the Premises or any
part thereof, except as otherwise specifically provided in this Lease.
13.2 WAIVER: No failure to exercise, nor any delay in exercising any
right, power or remedy hereunder by Landlord shall operate as a waiver thereof,
nor shall any single or partial exercise by Landlord of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right. Waiver by Landlord of any default, breach or failure of Tenant
under this Lease shall not be construed as a waiver of any subsequent or
different default, breach or failure. In the case of a breach by Tenant of any
of the covenants or undertakings of Tenant, Landlord nevertheless may accept
from Tenant any payment or payments hereunder without in any way waiving
Landlord's rights with respect thereto as herein provided or any rights or
remedies available at law or in equity by reason of any other breach or lapse
which was in existence at the time such payment or payments were accepted by
Landlord.
13.3 TRADE FIXTURES: Prior to the expiration or sooner termination of the
Term, provided Tenant is not in default, Tenant shall have the right to remove
any trade fixtures installed and paid for by Tenant on the Premises, provided
Tenant shall repair any damage to the Premises caused by such removal
(including, without limitation, patching and painting any surface to which the
same was attached).
13.4 SUBORDINATION: Tenant accepts this Lease subject and subordinate to
any mortgage, deed of trust or other lien presently existing or hereafter
encumbering the Premises, and to any renewals, refinancing, extensions and
replacements thereof. Tenant specifically acknowledges and agrees to the
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presence and terms of that certain Intercreditor Agreement between it and the
lenders under the Tranche A Loan Agreement and the Tranche B Loan Agreement, and
that in the event of any conflict between it and the terms hereof, the terms of
said Intercreditor Agreement shall control. Subject thereto, Landlord and Tenant
agree that this Lease shall be subordinate as hereinabove described, and that if
any purchaser by a foreclosure sale or by deed in lieu of foreclosure becomes
the owner of the Premises, Tenant will attorn to and recognize such entity as
Landlord hereunder should Landlord so request such attornment; provided that
such subordination and agreement to attorn are conditioned on the agreement by
any lender or purchaser of the Premises that it will not disturb Tenant or
Tenant's rights hereunder for so long as Tenant complies with the terms and
conditions of this Lease. This subordination shall be self-operative and no
further instrument of subordination shall be required in order for the same to
be effective. Upon the request of Landlord, however, in confirmation of this
subordination, Tenant shall execute and promptly deliver any document that
confirms and ratifies the terms of this Paragraph 13.4 that Landlord or any
mortgagee may require. Any mortgagee shall have the right at any time to
subordinate such mortgage, deed of trust lien or other lien to this Lease.
Tenant agrees to give any mortgagee and/or deed of trust holder, by certified
mail, a copy of any notice of default served upon the Landlord, provided that
prior to such notice Tenant has been notified in writing (by way of notice of
assignment of rents and leases or otherwise) of the address of such mortgagee
and/or deed of trust holder. Notwithstanding anything, to the extent that the
terms of the Subordination Agreement conflict with the terms of this paragraph,
the terms of the Subordination Agreement shall control.
13.5 NOTICES: All notices by either party to the other shall be made by:
(a) depositing such notice in the certified mail of the United States of America
(and such notice shall be deemed to have been served on the date of delivery or
first attempt to deliver as shown on the return receipt card); or (b) by a
reputable overnight courier service providing proof of delivery and
acknowledgement of receipt (in which case notice shall be deemed to have been
given on the first business day after the date delivered by such service); or
(c) by personal delivery (in which event, notice shall be deemed to have been
given as of the date of personal delivery with acknowledgment of receipt). All
notices to the Landlord shall be made at the address set forth in the
Fundamental Lease Terms, or at such other address as Landlord may from time to
time designate in writing to Tenant, and all notices to Tenant shall be made at
the address set forth in the Fundamental Lease Terms, or at such other address
as Tenant may from time to time designate in writing to Landlord.
13.6 AMENDMENT: Oral agreements shall be without force and effect. All
amendments to this Lease shall be in writing executed by the parties or their
respective successors in interest.
13.7 SECURITY INTEREST: This paragraph intentionally deleted.
13.8 HOLDING OVER: Should Tenant remain in possession of the Premises
after the expiration or sooner termination of the Term without the consent of
Landlord, such holding over shall, in the absence of a written agreement to the
contrary, be deemed to have created and be construed to be a tenancy at
sufferance terminable without notice of any kind in accordance with law, subject
to all of the terms, covenants and conditions of this Lease insofar as the same
may be applicable to such a tenancy, except that Tenant shall pay, in addition
to all other charges payable by Tenant hereunder, for each day that Tenant holds
over: (a) Rent at one hundred fifty percent (150%) of the Post-Election Minimum
Rent hereinbefore provided to be paid during the last month of the Term; and (b)
all other charges required to be paid hereunder by Tenant. Landlord's receipt of
such holdover rent shall not relieve Tenant of liability to Landlord for damages
resulting from Tenant's holdover.
13.9 NO PARTNERSHIP: Landlord shall not be deemed to be a partner or joint
venturer with Tenant in the conduct of Tenant's business.
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13.10 PARTIAL INVALIDITY: If any term or condition of this Lease or the
application thereof to any person or event shall to any extent be invalid and
unenforceable, the remainder of this Lease and the application of such term,
covenant or condition to persons or events other than those to which it is held
invalid or unenforceable shall not be affected and each term, covenant and
condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
13.11 SUCCESSORS: The provisions, covenants and conditions of this Lease
shall bind and inure to the benefit of the legal representatives, successors and
assigns of each of the parties, except that no assignment or subletting by
Tenant shall vest any right in the assignee or sublessee of Tenant unless all of
the requirements set forth in Article IX hereof have been satisfied.
13.12 SALE OF PREMISES: In the event of any sale or exchange of the
Premises by Landlord, Landlord shall be relieved of all liability under any and
all of its covenants and obligations contained in or derived from this Lease
arising out of any act, occurrence or omission relating to the Premises or this
Lease occurring after the consummation of such sale or exchange.
13.13 TENANT'S OBLIGATIONS UNDER ARTICLES IV, V, VI, AND VII: Unless
otherwise expressly stated herein, Tenant's obligations under Articles IV, V,
VI, and VII of this Lease shall not accrue until the Election Date.
13.14 HAZARDOUS SUBSTANCES:
(a) Tenant shall not use, store, manufacture, dispose of or
discharge any pollutants, contaminants, or harmful or hazardous substances from
or on the Premises, or otherwise occupy or permit the Premises to be occupied or
used in a manner which (i) violates any law, regulation, rule or other
governmental requirement, (ii) impairs the health, safety or condition of any
person or property or (iii) adversely affects the use, enjoyment or value of the
Premises or the surrounding property. Tenant shall promptly notify Landlord of
the breach, or the potential or threatened breach, of any of the provisions of
this paragraph. Landlord shall have the right of access to the Premises to
inspect, test, and in Landlord's sole discretion, remedy any potential
environmental problem. Tenant shall indemnify and hold Landlord, Landlord's
Lender, Landlord's property manager and their respective officers, shareholders,
members, partners, employees, and agents, harmless from any loss, claim,
liability or expense (including, without limitation, attorneys' fees, court
costs, consultant fees, expert fees, penalties, fines, removal, clean-up,
transportation, disposal and/or restoration expenses, diminution in value of the
Premises, damages for the loss or restriction on use of rentable or usable space
or of any amenity of the Premises, damages arising from any adverse impact on
marketing of space) arising in connection with Tenant's failure to comply with
the provisions of this paragraph. Additionally, Tenant shall not cause or permit
the escape, disposal or release of any biologically or chemically active or
other hazardous substances or materials, except in accordance with all
applicable laws. Tenant shall not be liable to Landlord (or those acting or
claiming through Landlord) for any escape, disposal or release of any substance
located on the Premises that occurs prior to the Election Date and further,
Tenant shall not be liable to Landlord (or those acting or claiming through
Landlord) for the exacerbation of any such escape, disposal or release if, prior
to such exacerbation, Tenant did not know (or have reason to know) of such
escape, disposal or release. Tenant shall not allow the storage or use of such
substances or materials not sanctioned by law and by the highest standards
prevailing in the industry for the storage and use of such substances or
materials, nor allow to be brought into the Premises any such materials or
substances except to use in the ordinary course of Tenant's business, and then
only if Tenant complies with the highest legal standard and highest standard
prevailing in the industry for the storage and use thereof. Without limitation,
hazardous substances shall mean any hazardous waste, hazardous or toxic
substances or related materials, asbestos, polychlorinated
16
biphenyls, petroleum products or any other substance or material as defined by
any existing or future federal, state or local environmental law, ordinance,
rule or regulation now or at any time hereafter in effect regulating, relating
to, or imposing liability or standards of conduct concerning any hazardous,
toxic, dangerous, restricted or otherwise regulated waste, substance or
material, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, the Hazardous
Materials Transportation Act, as amended, and in the regulations adopted and
publications promulgated pursuant to each of the foregoing (such federal, state
and local laws, ordinances, rules and regulations are sometimes referred to
herein as "ENVIRONMENTAL LAWS"). If at any time prior to the Election Date any
lender or governmental agency shall ever require testing to ascertain whether or
not there has been any release of hazardous substances on the Premises, then the
cost of such testing shall be reimbursed by Tenant to Landlord upon demand
(together with interest thereon at the Default Rate) if such release was caused
by Tenant, and if required after the Election Date and during the Term hereof,
Tenant shall be solely responsible for the costs of such testing. In addition,
Tenant shall execute affidavits, representations and the like from time to time
at Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of hazardous substances or materials on the Premises. In all
events, Tenant shall indemnify Landlord in the manner elsewhere provided in this
Lease for any release of hazardous substances on the Premises occurring while
Tenant is in possession or during the Term thereof. Tenant's obligations
hereunder shall survive the expiration or sooner termination of this Lease.
(b) Notwithstanding anything to the contrary herein, Tenant shall
not obtain or have, by reason of this Lease or otherwise, any right, title or
interest of any nature whatsoever in any underground storage tank, vessel or
container of any type, including all piping and equipment with respect thereto
("Underground Tanks"), on, in, under or around the Premises which exist on the
Premises as of the Election Date. Tenant shall have no control of or right to
control or responsibility for any such Underground Tanks or for compliance
thereto, and such control, right to control and responsibility is and shall
remain solely that of Landlord or Landlord's prior tenants or predecessors in
interest, and Landlord agrees to fulfill or cause to be fulfilled such
responsibility in accordance with requirements of all applicable laws,
regulations and ordinances. Landlord is and shall remain the sole owner and
operator of such Underground Tanks which exist on the Premises as of the date
hereof, and shall indemnify, defend and hold harmless Tenant from and against
the failure of Landlord to fulfill any of its responsibilities under this
section or under applicable law or otherwise relating in any way to any such
Underground Tanks existing on this Premises as of the date hereof, the content
thereof and/or any releases therefrom.
(c) To the full extent set forth in Section 7 of the Security Side
Letter Agreement, Landlord hereby indemnifies and holds Tenant and Tenant's
officers, shareholders, members, partners, employees, and agents, harmless from
any loss, claim, liability or expense (including, without limitation, attorneys'
fees, court costs, consultant fees, expert fees, penalties, fines, removal,
clean-up, transportation, disposal and/or restoration expenses) arising in
connection with the use, storage, manufacture, disposal of or on the Premises
prior to the Election Date and for any violation of any Environmental Laws,
except to the extent that such use, storage, manufacture, disposal, discharge,
or violation is caused by the act or gross negligence of Tenant. Landlord's
obligation hereunder shall survive the expiration or sooner termination of this
Lease.
13.15 ESTOPPEL LETTER: Tenant shall, within fifteen (15) days of request
by Landlord, execute and deliver to Landlord a statement in written form
prepared by Landlord certifying that this Lease is unmodified and in full force
and effect (or, if there have been any modifications, that the same is in full
force and effect as modified and stating such modifications); that Tenant has no
defenses, offsets or counter claims against its obligations to pay Rent
hereunder and to perform its other covenants under this Lease; and that, to
Tenant's knowledge, there are no uncured defaults of Landlord or Tenant (or, if
there are any alleged defenses, counter claims or defaults, setting them forth
in reasonable detail and the dates
17
to which Rent and other charges have been paid, which statement may be relied
upon by any prospective purchaser, mortgagee or deed of trust holder of the
Premises, and Tenant shall be liable for all loss, cost and expense resulting
from the failure of any sale or funding of any loan caused by any refusal of
Tenant to execute such certificate or any material misrepresentation contained
in such estoppel certificate.
13.16 REIMBURSEMENT OF FEES AND COSTS: Each party shall pay upon demand
all of the other party's costs and expenses incurred in enforcing a defaulting
party's obligations hereunder, including the reasonable fees of counsel
(irrespective of whether or not suit is instituted against the defaulting
party).
13.17 RECORDING: Tenant shall not record this Lease without the prior
written consent of Landlord; provided however, that either party may record a
memorandum of this Lease setting forth such terms of the Lease as may be
reasonably acceptable to and approved of by both parties in writing.
13.18 FORCE MAJEURE: If either party shall be prevented or delayed from
punctually performing any obligation or satisfying any condition under this
Lease by any strike, lockout, labor dispute, inability to obtain labor,
materials or reasonable substitutes therefor, acts of God, unusual governmental
restriction, regulation or control, enemy or hostile government action, civil
commotion, insurrection, sabotage, fire or other casualty, or any other
condition beyond the reasonable control of such party or caused by the other
party, then the time to perform such obligation or to satisfy such condition
shall be extended on a day-by-day basis for the period of delay caused by such
event; provided, however, that the foregoing shall not apply to the obligations
of Tenant pursuant to this Lease to pay Rent or any other sums payable by Tenant
hereunder. In order for the foregoing to be effective, the party claiming the
benefit of this paragraph shall give notice to the other party in writing within
ten (10) days of the incident specified and the particularity of the nature
thereof, the reason therefor, the date and time incurred and the reasonable
length the incident will delay the fulfillment of obligations contained herein.
Failure to give such notice within the specified time shall render such delay
invalid in extending the time for performing the obligations hereunder.
13.19 ENTIRE AGREEMENT: This Lease constitutes the sole and only agreement
of the parties hereto and supersedes any prior understandings or written or oral
agreements between the parties respecting the transaction. Tenant acknowledges
that neither Landlord nor Landlord's agents, employees or contractors have made
any representations or promises with respect to the Premises or this Lease,
except as expressly set forth herein.
13.20 REAL ESTATE COMMISSIONS: Landlord and Tenant each represent that
they have dealt with no finder, agent or broker other than the Brokers set forth
in the Fundamental Lease Terms in connection with the negotiation, execution and
delivery of this Lease. This provision shall not be construed to create any
third party rights hereunder in favor of the Brokers. If any person or entity
other than the Brokers shall assert a claim to a finder's fee, broker's
commission or other compensation on account of the alleged employment as finder,
agent or broker for Tenant or performance of services as a finder, agent or
broker for Tenant in connection with this transaction, Tenant shall indemnify
and hold Landlord and Landlord's lender harmless from and against any and all
claims and all costs, expenses and liabilities incurred in connection therewith,
including but not limited to reasonable attorneys' fees and court costs, by any
other such finder, broker, agent or other person or entity claiming a commission
or other form of compensation by virtue of having dealt with Tenant with regard
to this Lease.
13.21 CONFIDENTIALITY: In order to induce Landlord to enter into this
Lease on the terms and conditions embodied in this Lease, but subject to
Paragraph 13.17, Tenant shall keep strictly confidential the terms, conditions
and Rent set forth in this Lease and shall cause all persons working for
18
Tenant to do likewise. The Rent and other terms and conditions of this Lease
will be disclosed only to lawyers and accountants working for Tenant who have a
need to know, and on tax returns filed with required governmental authorities;
otherwise no disclosure whatsoever of the Rent, and Lease terms and conditions
may be made by Tenant.
13.22 ACCORD AND SATISFACTION: No payment by Tenant or receipt by Landlord
of a lesser amount than the Rent herein stipulated shall be deemed to be other
than on account of the earliest stipulated Rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment as Rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy in this Lease provided or at law or in equity.
13.23 REVIEW OF DOCUMENTS: This Lease was mutually prepared by both
parties and shall not be more strongly construed against either party hereto.
13.24 INTENTIONALLY DELETED.
13.25 COUNTERPARTS: This Lease may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original; and all such counterparts shall together constitute but one and
the same Lease.
13.26 SURVIVAL OF CERTAIN OBLIGATIONS: All obligations hereunder which
have accrued but have not been performed prior to expiration or sooner
termination of this Lease or which by their sense apply to time periods after
termination or expiration of this Lease, as well as all indemnities made by
Tenant, shall survive termination or expiration of this Lease.
13.27 TIME: Time is of the essence of this Lease.
(EXECUTION PAGE FOLLOWS)
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SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have executed this Lease as of the day
and year set forth below their signatures.
LANDLORD: AMERICAN COMMERCIAL TERMINALS LLC
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Date: _____________________________________
TENANT: NRG NEW ROADS HOLDINGS LLC
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
Date: _____________________________________
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EXHIBIT A
DESCRIPTION OF PREMISES
INCLUDE THE FEE AND LEASEHOLD INTERESTS.
EXHIBIT B
DESCRIPTION OF LANDLORD'S WORK
"Landlord's Work" shall consist of Landlord's obligations set forth in
Section 3.A that certain Operations Side Letter Agreement dated December 10,
2004 by and among ACL, Landlord, American Commercial Barge Lines, LLC, LG, and
Tenant relating to the extension of the length of railroad trackage at the
Premises.
EXHIBIT D
TERMINAL OPTION AGREEMENT
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TERMINAL OPTION AGREEMENT
This Terminal Option Agreement ("AGREEMENT") is made and entered into by
and between American Commercial Terminals LLC ("ACT") and NRG New Roads Holdings
LLC ("NRG").
RECITALS
WHEREAS, American Commercial Lines LLC ("ACL"), American Commercial Barge
Line LLC ("ACBL"), ACT, (collectively, "AMERICAN") and NRG have entered into a
Security Side Letter Agreement ("SECURITY SIDE LETTER AGREEMENT") dated as of
December 10, 2004 by which ACL, ACBL, and ACT have agreed to provide certain
security for such parties' respective obligations under the Transportation
Contract that may be entered into by such parties in the manner described in
Section 2 below; and
WHEREAS, the parties to this Agreement desire to incorporate the recitals
to the Security Side Letter Agreement into the recitals of this Agreement by
reference and hereby incorporate such recitals into these recitals; and
WHEREAS, NRG Power Marketing, Inc. ("NRGPM") and Louisiana Generating LLC
("LG") are collectively referred to herein as the "AFFILIATES"; and
WHEREAS, NRG and ACT have negotiated, and this Agreement sets forth, the
definitive terms and conditions of the "Terminal Option" set forth in Section
3.C. of the Security Side Letter Agreement, and that this Agreement shall become
binding upon the parties hereto if and when a definitive Transportation Contract
is entered into by all of the parties thereto (including BNSF) as set forth
above and as further set forth at Section 2 below.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged by ACT and NRG, the parties hereto hereby agree as follows.
AGREEMENT
1. RECITALS. The parties hereby incorporate the above Recitals as part of
this Agreement as if the same were fully set forth herein.
2. TRANSPORTATION CONTRACT/EFFECTIVE DATE. This Agreement does not
obligate American, NRG or any of their Affiliates to enter into and execute a
final Transportation Contract or any other agreement with each other, their
respective affiliates or any other parties. This Agreement shall become binding
upon and enforceable against the parties hereto only in the event that a
definitive Transportation Contract is entered into by all parties (including
BNSF) on or before the "DEADLINE DATE" (as defined in the Security Side Letter
Agreement), and is to become effective on the "EFFECTIVE DATE" (as defined in
the Security Side Letter Agreement). If prior thereto, any party contemplated to
be a party to the Transportation Contract shall deliver notice to another
contemplated party thereto terminating any further negotiations with respect to
the Transportation Contract, then this Agreement shall expire and be deemed void
ab initio; provided, however that the terms of Section 13 regarding the
confidentiality of this Agreement shall in any event remain in full force and
effect.
3. GRANT OF TERMINAL OPTION. ACT, for and in consideration of the terms of
the Transportation Contract and subject to the terms of this Agreement, does
hereby grant to NRG, as designee for NRGPM, the sole and exclusive right and
option (the "TERMINAL OPTION"), to purchase from ACT, all of ACT's right, title
and interest in and to the real property located at 0000 Xxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxx, and commonly known as the Hall Street Terminal, together with all of
ACT's right, title and interest in and to all personal property and improvements
thereon, but specifically excluding any tugs and barges which items are the
subject of the separate Barge and Tug Option Agreement between the parties of
even date herewith (the "PROPERTY"), as more particularly described on Exhibit A
attached hereto.
4. CONDITIONS NECESSARY FOR EXERCISE OF THE TERMINAL OPTION. The Terminal
Option shall be exercisable only upon the occurrence of a Trigger Event (as
defined in the Security Side Letter Agreement). NRG may exercise the Terminal
Option only by written notice (the "TERMINAL OPTION NOTICE") delivered to ACT or
its successor before 11:59 p.m., St. Louis time, on the date that is ninety (90)
days after date that a Trigger Event has occurred (the "TERMINAL OPTION
DEADLINE"). If NRG exercises the Terminal Option, NRG will be conclusively
deemed to have accepted the condition of the Property "AS IS," excepting only to
the extent as may be expressly provided to the contrary in this Agreement. If
NRG elects to exercise its Terminal Option hereunder, it agrees to also provide
written notice thereof to the "Collateral Agents" (as defined in that certain
Intercreditor and Subordination Agreement entered into by and among NRG, the
Affiliates and said Collateral Agent), but failure to notify said Collateral
Agents within the time frames set forth herein shall not serve to invalidate an
otherwise properly delivered Terminal Option Notice to ACT as required hereby.
5. PURCHASE PRICE. In the event NRG exercises the Terminal Option, the
purchase price for the Property shall be the NAFMV of the Property plus any
amounts due from NRG to ACT under Section 7 below, if any (the "PURCHASE
PRICE"). The "NAFMV" of the Property shall be determined according to the
procedure set forth in Section 3.E. of the Security Side Letter Agreement.
Notwithstanding anything to the contrary, pursuant to Section 4 of the Security
Side Letter Agreement, NRG may withhold payment of a portion of the Purchase
Price at the Closing for any claimed damages (as defined therein, and to the
extent that such claimed damages have not been otherwise paid to NRG or any of
its Affiliates or set off elsewhere) and such withheld amount shall be deemed
paid for the purposes of the Closing, subject to the final dispute resolution
procedures and reconciliation and disposition of the disputed amount pursuant to
the terms of Section 4 of the Security Side Letter Agreement.
6. TERMINATION. Subject to the terms of Section 2 above, this Agreement,
the Terminal Option and all further rights and obligations of the parties
hereunder, excepting only as may be expressly set forth herein, shall
automatically terminate, if not exercised or terminated sooner, upon the
earliest to occur of: (i) the Terminal Option Deadline, (II) expiration of the
Transportation Contract.
7. CLOSING.
A. If NRG elects to exercise its Terminal Option, the closing of the
sale and transfer of the Property ("CLOSING") shall be held on the day and time
designated by NRG in the Terminal Option Notice, which day must be a business
day and must be no sooner than ten (10) days following the date that the NAFMV
of the Property has been determined pursuant to the Security Side Letter
Agreement and no later than thirty (30) days following the date that the NAFMV
of the Property has been determined pursuant to the Security Side Letter
Agreement.
B. Real estate taxes and assessments, water assessments, and all
general and special assessments, utility fees and all other operating expenses
of the Property shall be prorated as of the date of Closing. The Closing shall
take place at First American Title Company in St. Louis County, Missouri (the
"TITLE COMPANY") and may occur via escrow without the parties being physically
present. ACT shall pay one-half of the escrow fees and all other closing costs
and expenses customarily charged to the seller of real property in the local
area. NRG shall pay all costs of obtaining the title insurance and survey for
the Property, the remaining one-half of the escrow fee, and any other costs and
expenses not being paid by ACT which are normally charged to purchasers of real
property in the local area. Prorations shall be made based on a 360-day year,
with ACT to pay for the day of Closing.
-2-
C. ACT shall deliver to the Title Company, on or before the date of
Closing, the following:
(i) a recordable special warranty deed prepared on the Title
Company's standard form conveying to NRG fee simple title to the Property;
(ii) a counterpart of a xxxx of sale duly executed and
acknowledged by ACT conveying to NRG all improvements and personal
property located on the Property;
(iii) an affidavit from ACT stating (a) its taxpayer
identification number, and (b) it is not a "foreign person" within the
meaning of Section 1445 et seq. of the Internal Revenue Code of 1986 as
amended;
(iv) such other documents, instruments, certifications and
confirmations as may be within the power and authority of ACT to provide
and as may be reasonably and customarily required of a seller of
comparable property in the local area and as reasonably required by the
Title Company to fully effect and consummate the transaction contemplated
hereby and to issue a title insurance policy in favor of NRG insuring fee
simple title to the Property in the name of NRG or its assigns;
(v) Possession of the Property shall be delivered to NRG at
Closing;
(vi) Assignments of all permits, and other related documents
necessary for the operation of the Property, to the extent they are
assignable; and
(vii) Assignments of contracts necessary for the operation of
the Property to the extent NRG elects to assume them. NRG shall have the
right to review the contracts in order to determine which contract NRG
elects to assume.
D. NRG shall deliver to the Title Company, on or before the date of
Closing, the following:
(i) a counterpart of a xxxx of sale duly executed and
acknowledged by NRG conveying to NRG the improvements and personal
property located on the Property;
(ii) Subject to the provisions of Section 5 of this Agreement
and Section 4 of the Security Side Letter Agreement, NRG shall pay to ACT
the Purchase Price in cash or other readily available funds, adjusted as
set forth in Section 7.B. above; and
(iii) such other documents, instruments, certifications and
confirmations as may be reasonably and customarily required of NRG and as
designated by the Title Company to fully effect and consummate the
transaction contemplated hereby.
8. ACT'S USE OF THE PROPERTY.
A. DAMAGE. From and after the date NRG exercises the Terminal
Option, ACT will not knowingly damage the Property or cause waste on the
Property or cause environmental contamination on the Property or perform any act
which would result in a material reduction in the value or development potential
of the Property. The parties agree that the current use of the Property will not
be deemed to cause damage, waste or environmental contamination.
-3-
B. ENCUMBRANCES. From and after the date NRG exercises the Terminal
Option, ACT may encumber the Property only with NRG's prior written consent,
which consent will not be unreasonably withheld, conditioned or delayed. Any
encumbrance without NRG's prior written consent shall be null and void. For
purposes of this subsection, encumbrance includes, for instance, the grant of
easements, licenses or rights of way, but does not include financial obligations
that can be paid at Closing or matters which expire or will be terminated on or
before Closing.
C. REGULATORY COMPLIANCE. ACT shall comply with all present and
future statutes, laws, rules, orders, regulations and ordinances affecting the
Property, any part thereof or the use or operation thereof and shall comply with
all obligations, covenants, conditions and restrictions applicable to ACT which
are contained in Transportation Contract and the Ancillary Agreements.
D. ENVIRONMENTAL INDEMNIFICATION. ACT shall hold harmless, defend
and indemnify NRG and such other "Indemnitees" (as defined in the Security Side
Letter Agreement) with respect to the environmental condition of the Property as
of the date of exercise of the Terminal Option, to the full extent set forth in
the Security Side Letter Agreement.
E. PERSONAL PROPERTY. Following the occurrence of a Trigger Event
(or in anticipation of the occurrence of a Trigger Event) ACT shall not remove
any personal property from the Property that is reasonably necessary for the
fulfillment of the purposes of the Transportation Contract by ACT.
9. INSPECTION RIGHTS. At any time after the Trigger Event and prior to
NRG's exercise of the Terminal Option, NRG and its agents, employees,
contractors and representatives shall have the right, privilege and license of
entering upon the Property (subject to non-interference with all then existing
business operations and the rights of American and any tenants or other
occupants then in possession), for the purpose of making soil test borings,
utility studies, surveys, asbestos and hazardous waste studies, feasibility
studies, engineering studies and any other studies and investigations as NRG
reasonably deems necessary or desirable in connection with its investigation of
the Property. NRG agrees to restore any damage done to the Property by NRG or
anyone acting in NRG's behalf in making such soil test borings or any such
studies. The testing and restoration of the Property shall be conducted in
accordance with all applicable laws and regulations of any governmental body
having jurisdiction of the Property. NRG agrees to indemnify, defend and hold
American, its affiliates, successors and assigns harmless from and against all
loss, cost liability and expense suffered by them as a result of the foregoing
studies or the exercise of entry rights by NRG, its agents, employees or
independent contractors. NRG's indemnification obligations hereunder shall
survive the termination of this Agreement or Closing, as applicable.
10. ASSIGNMENT. NRG may assign all or any portion of NRG's rights and
interest in and to this Agreement without the prior written consent of ACT to:
(a) an affiliate, subsidiary or parent entity; (b) any entity it controls, is
controlled by, or is under common control with; (c) any entity in which it has a
majority interest or of which it is manager; (d) any entity that succeeds to or
obtains all or substantially all of its assets, whether by merger,
consolidation, reorganization, sale or otherwise; or (e) any entity that
succeeds to NRGPM's rights under the Transportation Contract. NRG shall promptly
inform ACT and the Collateral Agents of any assignment. Otherwise, NRG may not
assign all or any portion of NRG's rights and interest in and to this Agreement
without the prior written consent of ACT. In the event of any assignment by NRG,
NRG shall continue to be liable for all of the obligations of NRG hereunder.
11. REMEDIES FOR BREACH. If either party breaches any of the obligations,
representations, warranties or covenants set forth in this Agreement, the
non-breaching party shall be entitled to exercise any remedies in law or equity,
including the right of specific performance and injunctive relief, subject to
the limitations provided in the Transportation Contract. Additionally, if ACT
breaches any of the
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obligations, representations, warranties or covenants set forth in this
Agreement, then NRG will be entitled to exercise its rights under that certain
Deed of Trust dated December 10, 2004, entered into between ACT, as grantor, and
NRG and Louisiana Generating LLC, as beneficiaries, encumbering the Property
(the "DEED OF TRUST").
12. RECORDING. NRG and ACT shall each have the right at all times to
record a memorandum of this Agreement, in such form as is reasonably acceptable
to the parties, but in any event which does not disclose the financial terms
hereof. The parties shall fully cooperate with such recording, including without
limitation providing notarized signatures of authorized signatories upon
reasonable advance notice. Upon the termination or expiration of this Agreement,
any such memorandum shall be promptly released of record by NRG at NRG's sole
cost and expense. If NRG shall fail to do so, NRG hereby appoints ACL as its
agent, with power of attorney, to do so on its behalf, which power of attorney
shall be deemed to be coupled with an interest.
13. CONFIDENTIALITY. Subject to Section 12, this Agreement is confidential
and shall not be disclosed by any of the parties or their agents, affiliates,
consultants or counsel to any other party without the prior express written
consent of American and NRG, provided however, the parties agree that this
Agreement may be attached to American's proposed Plan of Reorganization (as
defined in the Security Side Letter Agreement) with appropriate measures taken
to attempt to ensure confidentiality of the economic terms and conditions of
this Agreement.
14. RISK OF LOSS. The risk of loss or damage to the Property until Closing
shall be borne by ACT, except to the extent caused by NRG, and any insurance
proceeds for events occurring prior to Closing shall be paid to and solely for
the account of ACT; provided that if proceeds are payable for a casualty that
was not accounted for in the determination of the Purchase Price, the Purchase
Price shall be reduced by the amount of such proceeds that are payable for such
casualty.
15. GOVERNING LAW. This Agreement shall be constructed and interpreted
according to the laws of the State of Missouri.
16. COMPUTATION OF TIME. In computing any period of time under this
Agreement, the day of the act, event or default from which the designated period
time begins to run will not be included. The last day of the period so computed
will be included, unless it is a Saturday, Sunday or legal holiday, and, if so,
the period will run until the end of the next day not a Saturday, Sunday or
legal holiday.
17. INABILITY TO PERFORM. Each party will be excused from performing any
term of this Agreement, if, and for so long as, such performance is prevented,
delayed, or hindered by reason of an event of Force Majeure (as defined in the
Transportation Contract).
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and the signature pages combined to form a fully-executed
Agreement, provided that each party hereto has executed a signature page. The
fact that this Agreement may have been executed at different times by different
parties will not affect its validity.
19. FACSIMILE SIGNATURES. The parties may transmit this Agreement between
them by facsimile machine. The parties intend that faxed signatures constitute
original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding. At the request of either
party, the parties will confirm facsimile transmitted signatures by signing an
original Agreement.
20. ENTIRE AGREEMENT. All prior negotiations and agreements between the
parties hereto are superseded by this Agreement, and except as may be set forth
in the Transportation Contract or Ancillary
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Agreements, there are no representations, warranties, understandings or
agreements other than those expressly set forth herein.
21. EXPENSES OF PREVAILING PARTY. In the case of any legal or equitable
action taken by either party in connection with the default of the other party,
the prevailing party will be entitled to recover from the other party all costs
and reasonable legal fees incurred in connection therewith. A prevailing party
is a party who recovers at least three-quarters of its total claims in the
action or who is required to pay no more than one-quarter of the other party's
total claims in the action.
22. BINDING EFFECT; AUTHORITY. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns. The
persons executing this Agreement on behalf of each party hereby represent and
warrant to the other party that such person has the full authority to enter into
this Agreement and such party is able to faithfully and timely perform each and
every term of this Agreement, without the necessity of the consent, joinder or
approval of any other party.
23. MODIFICATIONS. This Agreement may not be amended, modified or changed,
nor shall any waiver of any provision hereof be effective, except by an
instrument in writing and signed by the party against whom enforcement of any
such waiver, amendment, modification, change or discharge is sought.
24. HEADINGS. The headings in the sections of this Agreement are inserted
for convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties.
25. INVALID PROVISIONS. If any provision in this Agreement is or will
become invalid, illegal or unenforceable in any respect, the validity, legality
or enforceability of the remaining provisions of this Agreement and any other
application thereof will not in any way be affected or impaired thereby;
provided that if permitted by applicable law, any invalid, illegal, or
unenforceable provision may be considered in determining the intent of the
parties with respect to other provisions of this Agreement.
26. JOINT PREPARATION. This Agreement is to be deemed to have been
prepared jointly by the parties hereto, and any uncertainty or ambiguity
existing herein, if any, will not be interpreted against any party, but will be
interpreted according to the application of the rules of interpretation for
arm's length agreements.
27. NOTICES. A party may effect a valid notice pursuant to this Agreement
only by giving such notice in writing and delivering it, postage or charges
prepaid, in person, by certified mail, by overnight delivery service, or by
facsimile transmission to the parties respective addresses set forth below:
ACT: American Commercial Terminals LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Attn: Director of Sales
Facsimile No. (000) 000-0000
NRG: NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile No. (000) 000-0000
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or to such substituted address or facsimile number as designated by notice to
the other party. Same day delivery by messenger will constitute personal
delivery. Such notice will be deemed effective two (2) days after properly
mailed; one (1) day after properly consigned to an overnight delivery service;
upon receipt of personal delivery; or, in the case of notice via facsimile
transmission, on the day the sender receives electronic confirmation of
delivery, provided that if the confirmation does not occur before 4 p.m.,
recipient's local time, on a business day, the notice will take effect on the
next business day.
28. REASONABLE COSTS, EXPENSES, AND FEES. The word "reasonable" will be
deemed to precede each reference to "costs", "expenses", "fees", or similar
items for which any party may seek reimbursement from any other party to this
Agreement.
29. TIME IS OF ESSENCE. Time is of the essence in this Agreement.
30. EXHIBITS. All exhibits and schedules referred to in this Agreement are
attached to and incorporated into this Agreement by reference.
31. SURVIVAL. The terms of Sections 8.D. and 13 shall survive expiration
or termination of this Agreement and/or the conveyance of title to the Property
to NRG.
(SIGNATURE PAGE TO FOLLOW)
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IN WITNESS WHEREOF, the parties have affixed their signatures hereto, as
of the date set forth below their respective signatures below.
NRG NEW ROADS HOLDINGS LLC AMERICAN COMMERCIAL TERMINALS LLC
By: ____________________________ By: ________________________________
Name: __________________________ Name: ______________________________
Title: _________________________ Title: _____________________________
Date: __________________________ Date: ______________________________
SIGNATURE PAGE TO TERMINAL OPTION AGREEMENT
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EXHIBIT A
DESCRIPTION OF PROPERTY
(Legal description on ACT vesting deed(s) to control)
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EXHIBIT E
BARGE OPTION AGREEMENT
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BARGE AND TUG OPTION AGREEMENT
This Barge and Tug Option Agreement ("AGREEMENT") is made and entered into
by and between American Commercial Lines LLC ("ACL") and NRG New Roads Holdings
LLC("NRG").
RECITALS
WHEREAS, ACL, American Commercial Barge Line LLC ("ACBL"), American
Commercial Terminals LLC ("ACT") (collectively, "AMERICAN") Louisiana
Generating, LLC ("LG"), and NRG have entered into a Security Side Letter
Agreement ("SECURITY SIDE LETTER AGREEMENT") dated as of December 10, 2004 by
which ACL, ACBL, and ACT have agreed to provide certain security for such
parties' respective obligations under the Transportation Contract that may be
entered into by such parties in the manner described in Section 2 below; and
WHEREAS, the parties to this Agreement desire to incorporate the recitals
to the Security Side Letter Agreement into the recitals of this Agreement by
reference and hereby incorporate such recitals into these recitals; and
WHEREAS, NRG Power Marketing Inc. ("NRGPM") and LG are collectively
referred to herein as the "AFFILATES"; and
WHEREAS, the parties acknowledge and agree that they have negotiated, and
this Agreement sets forth, the definitive terms and conditions of the "Barge
Option" set forth in Section 3.D. of the Security Side Letter Agreement, and
that this Agreement shall become binding and effective upon the parties hereto
if and when a definitive Transportation Contract is entered into by all of the
parties thereto (including BNSF) as set forth above, and as further set forth in
Section 2 below.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged by ACL and NRG, the parties hereto hereby agree as follows.
AGREEMENT
1. RECITALS. The parties hereby incorporate the above Recitals as part of
this Agreement as if the same were fully set forth herein.
2. TRANSPORTATION CONTRACT/EFFECTIVE DATE. This Agreement does not
obligate American, NRG or any of their affiliates to enter into and execute a
final Transportation Contract or any other agreement with each other, their
respective affiliates or any other parties. This Agreement shall become binding
upon and enforceable against the parties hereto only in the event that a
definitive Transportation Contract is entered into by all parties (including
BNSF) on or before the "DEADLINE DATE" (as defined in the Security Side Letter
Agreement), and is to become effective on the "EFFECTIVE DATE" (as defined in
the Security Side Letter Agreement). If prior thereto, any party contemplated to
be a party to the Transportation Contract shall deliver notice to another
contemplated party thereto terminating any further negotiations with respect to
the Transportation Contract, then this Agreement shall expire and be deemed void
ab initio; provided, however that the terms of Section 14 regarding the
confidentiality of this Agreement shall in any event remain in full force and
effect.
3. GRANT OF OPTIONS.
A. ACL, for and in consideration of the terms of the Transportation
Contract and subject to the terms of this Agreement, does hereby grant to NRG
the sole and exclusive right and option (the "BARGE OPTION"), to purchase from
ACL not more than two hundred (200) barges (collectively the "BARGES," and each
individually a "BARGE"), which Barges shall be identified as set forth in
Section 7 below, together with respective tackle, necessaries, apparel, spare
parts, cordage, general outfit and all other appurtenances and appliances
belonging aboard said Barges, whether aboard the Barges or on shore at the time
of delivery of the Barges to NRG.
B. ACL, for and in consideration of the terms of the Transportation
Contract and subject to the terms of this Agreement, does hereby grant to NRG
the sole and exclusive right and option (the "TUGS OPTION"), to purchase from
ACL the M/V CEPCO I and/or the M/V CEPCO II and the associated spares and
supplies (the "TUGS," and each, individually, a "TUG"), together with the sole
and exclusive right and option (the "HARBOR BARGES OPTION") to purchase from ACL
the Harbor Barges (as defined in the Operations Side Letter). ACL (or ACT) may
be required to purchase the Tugs and Harbor Barges pursuant to that certain
Operations Side Letter Agreement dated as of December 10, 2004 by and between
ACT and LG (the "OPERATIONS SIDE LETTER AGREEMENT"). The Tugs Option and the
Harbor Barges Option are collectively referred to herein as the "HARBOR TUGS AND
BARGES OPTION". The grant of the Harbor Tugs and Barges Option by ACL is
conditioned upon completion of such purchase by ACL (the "ACL PURCHASE").
C. The Barge Option and the Harbor Tugs and Barges Option are
referred to herein as the "OPTIONS" and each, individually, is referred to
herein as the Option.
4. CONDITIONS NECESSARY FOR EXERCISE OF THE OPTIONS. Each of the Barge
Option and the Harbor Tugs and Barges Option shall be exercisable only upon the
occurrence of a Trigger Event (as defined in the Security Side Letter
Agreement). NRG may exercise the Barge Option and/or the Harbor Tugs and Barges
Option only by written notice (the "OPTION NOTICE") delivered to ACL but only
together with either: (a) timely exercise the Terminal Option (as defined in the
Terminal Option Agreement) and consummation of the purchase of the Property
pursuant to the Terminal Option Agreement, or (b) timely taking possession of
the Property under Section 3.2 of the Lease, and pursuant to which NRG elects to
commence operation of the Property pursuant to the Lease. If NRG elects to
exercise any of its Options hereunder it agrees to also provide written notice
thereof to the "COLLATERAL AGENTS" (as defined in that certain Intercreditor and
Subordination Agreement entered into by and among NRG, the Affiliates and said
Collateral Agents dated _______________), but failure to timely notify said
Collateral Agents within the time frames set forth herein shall not serve to
invalidate an otherwise properly delivered Option Notice to ACL as required
hereby.
5. PURCHASE PRICE.
A. If NRG exercises the Barge Option, the purchase price for the
Barges shall be the NAFMV of the Barges (the "BARGE PURCHASE PRICE") as
determined pursuant to the procedure set forth in Section 3.E. of the Security
Side Letter Agreement. Notwithstanding anything to the contrary, pursuant to
Section 4 of the Security Side Letter, NRG may for purposes of closing set off
any claimed damages (as defined therein) against the Barge Purchase Price
payable by it to ACL, to the extent that the claimed damages have not been
otherwise paid to NRG or its Affiliates or set off elsewhere, subject to the
final dispute resolution procedures and reconciliation and disposition of the
disputed amount pursuant to the terms of Section 4 of the Security Side Letter
Agreement.
B. If NRG exercises the Harbor Tugs and Barges Option, the purchase
price for the Tugs shall be the NAFMV of the Tugs being purchased (the "TUG
PURCHASE PRICE") as determined
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pursuant to the procedure set forth in Section 3.E. of the Security Side Letter
Agreement. NRG may not set off any claimed damages arising under any of the
Ancillary Agreements or the Transportation Contract, with respect to American,
against the Tug Purchase Price payable by it to ACL.
C. If NRG exercises the Harbor Tugs and Barges Option, the purchase
price for the Harbor Barges shall be the NAFMV of the Harbor Barges being
purchased (the "HARBOR BARGES PURCHASE PRICE") as determined pursuant to the
procedure set forth in Section 3.E of the Security Side Letter Agreement,
provided further however, that NRG shall also be entitled to a credit against
the Harbor Barges Purchase Price at the closing in an amount equal to the
product of one cent (1cents) multiplied by the "REMAINING COAL TONNAGE NOT
DELIVERED." For purposes hereof, the term "Remaining Coal Tonnage Not Delivered"
shall be determined by calculating the average number of tons of coal delivered
on an annual basis by American to NRG or its Affiliates from commencement of the
Transportation Contract through the date of the Trigger Event (the "AVERAGE").
The Average shall then be multiplied by the number of years (as prorated to
account for any partial year) then remaining in the term of the Transportation
Contract following the date of the Trigger Event (the "REMAINING TERM"). The
product of the Average and the Remaining Term is the "Remaining Coal Tonnage Not
Delivered", which shall form the basis for calculating the amount of the credit
to the Harbor Barges Purchase Price to which NRG may be entitled as aforesaid.
NRG may not set off any claimed damages arising under any of the Ancillary
Agreements or the Transportation Contract, with respect to American, against the
Harbor Barges Purchase Price payable by it to ACL.
6. TERMINATION. Subject to the terms of Section 2 above, this Agreement,
the Options and all further rights and obligations of the parties hereunder,
excepting only as may be expressly set forth herein, shall terminate
automatically, if not exercised or terminated sooner, upon the earliest to occur
of: (i) the Option Deadline, or (ii) the expiration of the Transportation
Contract.
7. IDENTIFICATION OF BARGES. The parties acknowledge that as part of its
management information and record keeping systems, ACL can determine the total
number of all and specific identity of each barge then dedicated to servicing
the Transportation Contract, and that the total number and composition of such
dedicated barges constantly and continuously fluctuate as part of its normal
business operations, but averages approximately 200 at any given time. Upon
receipt of the Barge Option Notice, ACL shall then cause to be promptly
prepared, an inventory list which shall identify by barge serial numbers, ACL's
barges that are then dedicated to servicing the Transportation Contract (the
"TRANSPORTATION BARGES"). The Barges to be purchased by NRG pursuant to the
Barge Option shall first consist of the Transportation Barges. If the total
number of Transportation Barges equals or exceeds 200 barges, then NRG shall
provide to ACL, within thirty (30) days after its receipt of ACL's original
inventory list, a redacted list identifying the Transportation Barges (not more
than 200) which NRG has elected to purchase through its exercise of the Barge
Option. If the total number of Transportation Barges is less than 200 barges,
then ACL shall provide NRG with an inventory list identifying the Transportation
Barges, along with a separate list identifying ACL barges previously assigned to
perform services under the Transportation Contract, or if no such barges have
been previously assigned, by a method that is consistent with ACL's customary
method of assigning barges for the performance of services similar to those to
be performed under the Transportation Contract (the "OTHER BARGES") in an amount
equal to the number by which the number of active dedicated Transportation
Barges identified by ACL is less than 200. The Other Barges shall be similar in
age and quality to the Transportation Barges. NRG shall, within fifteen (15)
days after its receipt of ACL's list of Other Barges, provide to ACL a redacted
list identifying the Other Barges which NRG has elected to purchase through its
exercise of the Barge Options, such that the Transportation Barges and Other
Barges identified by ACL will total 200 barges.
8. CLOSING.
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A. If NRG elects to exercise its Barge Option and/or the Harbor Tugs
and Barges Option, the closing of the sale and transfer of the Barges and/or the
Tugs and Harbor Barges ("CLOSING") shall be held on the day and time designated
by NRG in the Barge Option Notice and/or the Harbor Tugs and Barges Option
Notice, which day must be a business day and must be no sooner than ten (10)
days following the date that each of the Barge Purchase Price, the Tug Purchase
Price and the Harbor Barges Purchase Price (or if only one Option is exercised,
the relevant purchase price(s)) have been determined, and no later than thirty
(30) days following the date that the relevant purchase price(s) have been
determined.
B. Closing of the sale and purchase of the Barges and/or Tugs and
Harbor Barges shall occur at the offices of First American Title Company in St.
Louis County, Missouri (the "TITLE COMPANY") or such other location mutually
acceptable to the parties, and may occur via escrow without the parties being
physically present. ACL shall deliver to NRG, at Closing, Bills of Sale in
duplicate on Department of Transportation U.S. Coast Guard Form CG-1340
transferring title to each Barge and/or Tug and Harbor Barge to NRG together
with such other documentation as may be reasonably be required by NRG and/or the
Title Company and which is reasonably available to ACL in order for the Title
Company to insure that title to each Barge and/or Tug and Harbor Barge has been
vested in NRG. NRG shall deliver to ACL, at Closing, the relevant purchase
price(s) as determined in accordance with Section 5 above, in immediately
available funds, wire transferred to such account as ACL shall designate or such
other account as agreed upon by the parties. Each Barge and/or each Tug and
Harbor Barge shall be considered fully delivered to NRG, regardless of the then
actual location of each such Barge or Tug and Harbor Barge simultaneously with
Closing.
C. Effective as of Closing, any and all written and oral charters by
and among ACL and its subsidiaries, ACT and ACBL, as applicable (together with
the Operations Side Letter), shall be terminated and of no further force and
effect to the extent they govern or affect the operation or towing of any or all
of the Barges.
9. ACL'S USE OF THE BARGES AND TUGS. From and after the date NRG exercises
the Barge Option, ACL will not knowingly damage the Barges or perform any act
which would result in a material reduction in the value of the Barges. From and
after the date NRG exercises the Harbor Tugs and Barges Option, ACL will not
knowingly damage the Tugs or Harbor Barges, or perform any act which would
result in a material reduction in the value of the Tugs or Harbor Barges. The
parties agree that the current use of the Barges will not be deemed to cause
damage to the Barges and that the intended use of the Tugs and Harbor Barges (as
set forth in the Operations Side Letter Agreement) will not be deemed to cause
damage to the Tugs or Harbor Barges. ACL further agrees that for so long as the
applicable Option(s) remain in effect (and except as may be necessary in
connection with the financing of the ACL Purchase or its existing financing
arrangements as contemplated by the Plan of Reorganization and credit facilities
which replace or refinance such financing arrangements) it may further encumber
the Barges or Tugs or Harbor Barges, only with NRG's prior written consent,
which consent will not be unreasonably withheld, conditioned or delayed. Any
encumbrance without NRG's prior written consent shall be null and void. For
purposes of this subsection, encumbrance includes, for instance, the grant of
liens, licenses or security interests, but does not include matters which expire
or will be terminated on or before Closing.
10. INSPECTION RIGHTS.
A. At any time after the Trigger Event and prior to NRG's exercise
of the Barge Option, NRG and its agents, employees, contractors and
representatives shall have the right, privilege and license of entering upon the
Barges for the purpose of inspecting the same, at such times and under such
supervision as reasonably agreed to by ACL, and in any event, in such a manner
so as not to unreasonably interfere with their existing use and continuing
operations. NRG agrees to defend and indemnify and hold American, its
affiliates, successors and assigns, harmless from and against all loss, cost
liability and
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expense suffered by them as a result of the foregoing inspections of the Barges.
NRG's indemnification obligations hereunder shall survive the termination of
this Agreement or Closing, as applicable.
B. NRG shall have no obligation to purchase any Barge which is
damaged after its inspection and prior to Closing. In the event that any Barge
suffers damage which does not constitute a total loss or constructive total
loss, NRG may, at its sole option elect to purchase the Barge, in which case,
any insurance proceeds payable with respect to such accident shall be used to
repair the Barge. In order to assist in having such repairs accomplished, ACL
shall assign to NRG all of its rights under any insurance policies covering such
loss with respect to a damaged Barge that has been purchased by NRG hereunder.
11. RISK OF LOSS. All risk of loss whether total loss, constructive total
loss or less than total loss or constructive total loss shall be borne by ACL
prior to the Closing and any insurance proceeds for events occurring prior to
the Closing shall be for ACL's account. Subject to the terms of Section 10.B.
above, all insurance proceeds for such loss shall be paid to and solely for the
account of ACL.
12. ASSIGNMENT. NRG may assign all or any portion of NRG's rights and
interest in and to this Agreement without the prior written consent of ACL to:
(a) an affiliate, subsidiary or parent entity; (b) any entity it controls, is
controlled by, or is under common control with; (c) any entity in which it has a
majority interest or of which it is manager; (d) any entity that succeeds to or
obtains all or substantially all of its assets, whether by merger,
consolidation, reorganization, sale or otherwise; or (e) any entity that
succeeds to NRG's or the Affiliates' rights under the Transportation Contract.
NRG shall promptly inform ACL and the Collateral Agents of any assignment.
Otherwise, NRG may not assign all or any portion of NRG's rights and interest in
and to this Agreement without the prior written consent of ACL, which consent
shall not be unreasonably withheld or delayed. In the event of any assignment by
NRG, NRG shall continue to be liable for all of the obligations of NRG
hereunder.
13. REMEDIES FOR BREACH. If either party breaches any of the obligations,
representations, warranties or covenants set forth in this Agreement, the
non-breaching party shall be entitled to exercise any remedies in law or equity,
including the right of specific performance and injunctive relief, subject to
the limitations provided in the Transportation Contract.
14. CONFIDENTIALITY. Subject to Section 15, this Agreement is confidential
and shall not be disclosed by any of the parties or their agents, affiliates,
consultants or counsel to any other party without the prior express written
consent of American and NRG, provided however, the parties agree that this
Agreement may be attached to American's proposed Plan of Reorganization (as
defined in the Security Side Letter Agreement) with appropriate measures taken
to attempt to ensure confidentiality of the economic terms and conditions of
this Agreement.
15. RECORDING. NRG and ACL shall each have the right at all times to
record a memorandum of this Agreement, in such form as is reasonably acceptable
to the parties, but in any event which does not disclose the financial terms
hereof. The parties shall fully cooperate with such recording, including without
limitation providing notarized signatures of authorized signatories upon
reasonable advance notice. Upon the termination or expiration of this Agreement,
any such memorandum shall be promptly released of record by NRG at NRG's sole
cost and expense. If NRG shall fail to do so, NRG hereby appoints ACL as its
agent, with power of attorney, to do so on its behalf, which power of attorney
shall be deemed to be coupled with an interest.
16. GOVERNING LAW. This Agreement shall be constructed and interpreted
according to the laws of the State of Missouri, and where applicable, the
maritime laws of the United States.
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17. COMPUTATION OF TIME. In computing any period of time under this
Agreement, the day of the act, event or default from which the designated period
time begins to run will not be included. The last day of the period so computed
will be included, unless it is a Saturday, Sunday or legal holiday, and, if so,
the period will run until the end of the next day not a Saturday, Sunday or
legal holiday.
18. INABILITY TO PERFORM. Each party will be excused from performing any
term of this Agreement, if, and for so long as, such performance is prevented,
delayed, or hindered by reason of any event of Force Majeure (as defined in the
Transportation Contract).
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and the signature pages combined to form a fully-executed
Agreement, provided that each party hereto has executed a signature page. The
fact that this Agreement may have been executed at different times by different
parties will not affect its validity.
20. FACSIMILE SIGNATURES. The parties may transmit this Agreement between
them by facsimile machine. The parties intend that faxed signatures constitute
original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding. At the request of either
party, the parties will confirm facsimile transmitted signatures by signing an
original Agreement.
21. ENTIRE AGREEMENT. All prior negotiations and agreements between the
parties hereto are superseded by this Agreement, and except as may be set forth
in the Transportation Contract or Ancillary Agreements, there are no
representations, warranties, understandings or agreements other than those
expressly set forth herein.
22. EXPENSES OF PREVAILING PARTY. In the case of any legal or equitable
action taken by either party in connection with the default of the other party,
the prevailing party will be entitled to recover from the other party all costs
and reasonable legal fees incurred in connection therewith. A prevailing party
is a party who recovers at least three-quarters of its total claims in the
action or who is required to pay no more than one-quarter of the other party's
total claims in the action.
23. BINDING EFFECT; AUTHORITY. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns. The
persons executing this Agreement on behalf of each party hereby represent and
warrant to the other party that such person has the full authority to enter into
this Agreement and such party is able to faithfully and timely perform each and
every term of this Agreement, without the necessity of the consent, joinder or
approval of any other party.
24. MODIFICATIONS. This Agreement may not be amended, modified or changed,
nor shall any waiver of any provision hereof be effective, except by an
instrument in writing and signed by the party against whom enforcement of any
such waiver, amendment, modification, change or discharge is sought.
25. HEADINGS. The headings in the sections of this Agreement are inserted
for convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties.
26. INVALID PROVISIONS. If any provision in this Agreement is or will
become invalid, illegal or unenforceable in any respect, the validity, legality
or enforceability of the remaining provisions of this Agreement and any other
application thereof will not in any way be affected or impaired thereby;
provided that if permitted by applicable law, any invalid, illegal, or
unenforceable provision may be considered in determining the intent of the
parties with respect to other provisions of this Agreement.
27. JOINT PREPARATION. This Agreement is to be deemed to have been
prepared jointly by the parties hereto, and any uncertainty or ambiguity
existing herein, if any, will not be interpreted against any
-6-
party, but will be interpreted according to the application of the rules of
interpretation for arm's length agreements.
28. NOTICES. A party may effect a valid notice pursuant to this Agreement
only by giving such notice in writing and delivering it, postage or charges
prepaid, in person, by certified mail, by overnight delivery service, or by
facsimile transmission to the parties respective addresses set forth below:
ACT: American Commercial Terminals LLC
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxxxxxx, XX 00000
Attn: Director of Sales
Facsimile No. (000) 000-0000
NRG: NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, President
Facsimile No. (000) 000-0000
or to such substituted address or facsimile number as designated by notice to
the other party. Same day delivery by messenger will constitute personal
delivery. Such notice will be deemed effective two (2) days after properly
mailed; one (1) day after properly consigned to an overnight delivery service;
upon receipt of personal delivery; or, in the case of notice via facsimile
transmission, on the day the sender receives electronic confirmation of
delivery, provided that if the confirmation does not occur before 4 p.m.,
recipient's local time, on a business day, the notice will take effect on the
next business day.
29. REASONABLE COSTS, EXPENSES, AND FEES. The word "reasonable" will be
deemed to precede each reference to "costs", "expenses", "fees", or similar
items for which any party may seek reimbursement from any other party to this
Agreement.
30. TIME IS OF ESSENCE. Time is of the essence in this Agreement.
(SIGNATURE PAGE TO FOLLOW)
-7-
IN WITNESS WHEREOF, the parties have affixed their signatures hereto as of
the date set forth below its signature.
NRG NEW ROADS HOLDINGS LLC AMERICAN COMMERCIAL LINES LLC
By: ____________________________ By: ________________________________
Name: __________________________ Name: ______________________________
Title: _________________________ Title: _____________________________
Date: __________________________ Date: ______________________________
SIGNATURE PAGE TO BARGE AND TUG OPTION AGREEMENT
-8-
EXHIBIT F
CONDITIONAL ASSIGNMENT OF BNSF LEASE
-15-
CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made
and entered into effective as of the Effective Date, as set forth in Section 5
herein, by and between AMERICAN COMMERCIAL TERMINALS LLC, a Delaware limited
liability company ("Assignor"), and NRG NEW ROADS HOLDINGS LLC, a Delaware
limited liability company ("Assignee").
WITNESSETH:
WHEREAS, The Burlington Northern and Santa Fe Railway Company ("BNSF"),
American Commercial Barge Line LLC ("ACBL") and Assignor entered into a
Memoranda of Understanding with NRG Power Marketing Inc. ("NRGPM"), and BNSF and
Assignor entered into another Memorandum of Understanding with NRGPM
(collectively, "MOU"), each dated August 6, 2004, both for the purpose of
setting forth the major terms and conditions under which Assignor and BNSF will
transport unit trains of coal from BNSF-served origins in the Powder River Basin
of Wyoming to Assignor's Hall Street Terminal at St. Louis, Missouri, for
furtherance to the Big Cajun No. II facility near New Roads, Louisiana (the "LG
Power Plant"); and
WHEREAS, the LG Power Plant is owned by Louisiana Generating LLC, a
Delaware limited liability company and affiliate/subsidiary of Assignee and
NRGPM ("LG"); and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and Assignor (the "Transportation Contract") as provided therein; and
WHEREAS, the parties have entered into Security Side Letter Agreement
("Security Side Letter Agreement"), pursuant to which American Commercial Lines
LLC ("ACL"), ACBL and Assignor (collectively, "American") has agreed to provide
certain assurances as additional security for its obligations under the
Transportation Contract; and
WHEREAS, pursuant to that certain Lease dated as of August 17, 1976,
entered into between Burlington Northern Inc., a Delaware corporation,
predecessor in interest to BNSF ("Landlord"), as landlord, and ACBL Western,
Inc., a Delaware corporation, predecessor in interest to Assignor, as tenant,
and all amendments, modifications, supplements and extensions thereto (as
amended and modified, the "Lease") copies of which are attached hereto as
EXHIBIT A, Assignor leases from Landlord that certain real property commonly
known as the "Premises", as more fully described in the Lease; and
WHEREAS, pursuant to the Security Side Letter Agreement, Assignor and
Assignee have agreed to enter into this Assignment, pursuant to which Assignor
will make a conditional assignment of the Lease to Assignee, which assignment is
conditioned upon the occurrence of a Trigger Event (as defined in the Security
Side Letter Agreement) and Assignee's timely exercise of the Terminal Option (as
defined in the Security Side Letter Agreement) and consummation of the purchase
of the Property pursuant to the Terminal Option Agreement dated of even date
herewith (the "Terminal Option Agreement"); and
WHEREAS, Assignor desires to conditionally assign its interest in the
Lease to Assignee, and Assignee desires to accept the assignment thereof, on the
terms and pursuant to the conditions set forth herein; and
WHEREAS, the Transportation Contract and the Ancillary Agreements (as
defined in the Security Side Letter Agreement) form the basis for the coal
transportation described above.
NOW THEREFORE, in consideration of the promises and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Assignor does hereby conditionally sell, grant, convey, assign,
transfer and set over to Assignee all of the right, title and interest of
Assignor in and to the Lease (including but not limited to all renewal options
and rights, all security deposits), which assignment and conveyance shall only
be effective upon Assignor's receipt from Assignee, within ninety (90) days of a
Trigger Event, of a written notice electing to enforce this Assignment (the
"Assignment Date"); and provided further that Assignee must also timely exercise
the Terminal Option and consummate the purchase of the Property pursuant to the
Terminal Option Agreement.
2. Assignee does hereby accept the assignment set forth above, and for the
benefit of Assignor does hereby assume and agree to be bound and abide by all
covenants, agreements and undertakings of Assignee as tenant, as they apply from
and after the Assignment Date, under the Lease.
3. Assignor represents and confirms unto Assignee that the Lease is in
full force and effect, unchanged and unmodified; that there are no defaults by
Assignor, as of the date of execution of this Assignment by Assignor, under the
Lease; and that Assignor is not aware of any conditions or circumstances which,
by lapse of time or upon the giving of notice or both, would result in Landlord,
Assignor or Assignee being in default under the Lease; and that Assignee has
paid all rental obligations and other charges due under or arising out of the
Lease up to and including the date of execution of this Assignment by Assignor.
4. Assignee hereby agrees to indemnify and hold harmless Assignor from any
and all loss, damage, claim or liability (including reasonable attorney's fees)
arising from or under the Lease after the Assignment Date.
5. The "Effective Date" of this Assignment shall be the Effective Date as
defined in the Security Side Letter Agreement. In addition to the foregoing,
this Assignment shall not be enforceable against the parties hereto unless and
until the definitive Transportation Contract has been entered into among the
parties thereto.
6. Assignor agrees to obtain the consent of Landlord to this Assignment in
the form attached hereto as EXHIBIT B.
7. For so long as Assignor has outstanding obligations under the
Transportation Contract and the Ancillary Agreements remain in effect, the
terms, conditions and covenants of this Assignment shall be binding upon and
shall inure to the benefit of each of the parties to this Assignment, their
heirs, successors or assigns, shall run with the land, and may be amended,
waived or terminated only by an agreement in writing signed by both parties,
their successors or assigns.
8. This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. For purposes of executing this Assignment, a document signed and
transmitted by facsimile machine or telecopier is to be treated as an original
document. At the request of either party, the other will confirm facsimile
signature by signing an original instrument.
9. The laws of the State of Missouri shall govern the interpretation,
validity, performance and enforcement of this Assignment.
2
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment,
effective as of the date set forth below their signatures.
ASSIGNOR: ASSIGNEE:
AMERICAN COMMERCIAL TERMINALS LLC, NRG NEW ROADS HOLDINGS LLC,
a Delaware limited liability company a Delaware limited liability company
By: ________________________________ By: ________________________________
Name: ______________________________ Name: ______________________________
Title: _____________________________ Title: _____________________________
Date: ______________________________ Date: ______________________________
SIGNATURE PAGE TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(BNSF LEASE)
3
EXHIBIT A TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(COPY OF LEASE)
4
EXHIBIT B TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
LANDLORD WAIVER AND CONSENT
TO: NEW ROADS HOLDINGS LLC ("NRG")
American Commercial Terminals LLC, a Delaware limited liability company
("TENANT") and the undersigned ("LANDLORD") have entered into a lease, dated
August 17, 1976, as amended (the "LEASE"), demising the premises located in St.
Louis City, Missouri and legally (or otherwise) described in the Lease (the
"PREMISES"). A copy of the Lease is attached hereto as EXHIBIT 1.
Tenant and certain of its affiliates have entered into certain agreements
with Louisiana Generating, LLC, a Delaware limited liability company ("LG")
and/or NRG Power Marketing Inc., a Delaware corporation, and certain affiliates
("NRGPM"), including but not limited to a Transportation Contract (the
"TRANSPORTATION CONTRACT") dated as of December ___, 2004, between LG, Tenant
and certain other parties thereto. In addition, NRG, Tenant, its affiliates and
certain other parties have entered into a Security Side Letter Agreement dated
December ___, 2004, pursuant to which Tenant and its affiliates have agreed to
enter into certain Ancillary Agreements to secure the obligations of Tenant and
its affiliates under the Transportation Contract.
As a condition precedent to LG's obligations under the Transportation
Contract, LG requires, among other things, that Tenant collaterally assign its
leasehold interest in the Lease to NRG pursuant to that certain Conditional
Assignment and Assumption of Lease (the "ASSIGNMENT") to which this Exhibit is
attached and made a part of.
To induce LG to continue to perform under the Transportation Contract or
for the benefit of Tenant, and for other good and valuable consideration,
Landlord hereby agrees that:
1. Landlord hereby consents to the execution by Tenant of the Assignment.
Landlord agrees that the execution, delivery and performance by Tenant of the
Assignment will not constitute a default under the Lease.
2. The Lease is valid and is in full force and effect and has not been
assigned, modified, supplemented or amended in any way, except as described on
EXHIBIT 1, and represents the entire agreement between the parties thereto.
3. To the best knowledge of Landlord, neither Landlord nor Tenant is in
default under the terms of the Lease and no event has occurred which, with the
giving of notice or the passage of time, would constitute a default under the
Lease.
4. Tenant is in possession of the Premises and Tenant is the current
holder of the leasehold estate created under the Lease.
5. The Lease expires on _________, [subject to the renewal or extension
provisions set forth in EXHIBIT 1].
6. No assets of Tenant (including, without limitation, equipment and trade
fixtures) located on or about the Premises will be deemed by Landlord to be
fixtures or to constitute part of the Premises.
5
7. Landlord will not assert, and therefore waives, any liens, whether
granted by the Lease, statute or otherwise (including, without limitation,
rights of levy or distraint for rent), against the property of Tenant located on
the Premises, including, without limitation, Tenant's machinery, improvements,
equipment, furniture, fixtures, inventory and all additions, replacements or
substitutions therefor (collectively, the "PERSONAL PROPERTY").
8. If Tenant defaults on its obligations to NRG and, as a result, NRG
exercises its rights under the Assignment, or otherwise undertakes to enforce
its security interest in Tenant's assets, Landlord will permit NRG or its agent
to enter and take possession of the Premises without terminating the Lease, and
Landlord will recognize NRG (or other nominee thereof) as the tenant under the
Lease, entitled to all of the benefits thereof, and responsible for the
performance of all of Tenant's obligations arising thereunder from and after the
date that NRG takes possession as aforesaid. NRG may cause the Premises to be
assigned or sublet with the written consent of Landlord, which consent shall not
be unreasonably withheld, provided, however, that Landlord agrees that it will
consent to an assignment to any subsidiary or affiliate of NRG and that NRG has
the right to transfer its interest in the Lease, with notice but without
consent, to an entity controlled by, controlling or under common control with
NRG, or to a business entity which acquires all or substantially all of the
assets of NRG. It is understood and agreed that any consent by Landlord to any
assignment or subletting by NRG shall not be considered or construed to be a
consent to any subsequent assignment or subletting nor as a waiver of the right
of Landlord to refuse to consent to any subsequent assignment or subletting.
9. In accordance with and subject to the terms of the Deed of Trust from
Tenant to LG and NRG (the "DOT"), NRG may, at no expense to Landlord enter onto
the Premises following a Trigger Event and take possession of, sever, or remove
the Personal Property or any part thereof, and said Personal Property, upon
severance and/or removal, may be sold, transferred or otherwise disposed of free
and discharged of all liens, claims, demands, rights or interests of Landlord.
If NRG and/or LG enters the Premises solely for the purposes of executing such
party's rights with respect to the Personal Property under the DOT, (i) NRG
shall not be deemed to have assumed any obligations or liabilities of Tenant
under the Lease merely by reason of such limited purpose entrance, and (ii) NRG
shall not have any duty or obligation to remove or dispose of any remaining
Personal Property left on the Premises following such removal; provided that NRG
agrees to repair any damage to the Premises caused by the removal of such
Personal Property.
10. Landlord: (a) will use commercially reasonable efforts to give copies
of all notices of default sent to Tenant under the Lease to NRG at:
NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
or to such other address as NRG may designate from time to time by notice given
to Landlord at the address set forth after its signature hereto, and (b) prior
to exercising any of Landlord's rights and remedies under the Lease or at law or
in equity, NRG shall have the right (but not the obligation) to cure or cause to
be cured such default within the following time periods from and after receipt
by NRG of notice of such default from Landlord: ten (10) days with respect to
monetary defaults and thirty (30) days with respect to non-monetary defaults
after the period of time granted to Tenant to cure such defaults under the terms
of the Lease; provided, however, that if the nature of any non-monetary default
is such that the same cannot be cured within said thirty (30) day period, NRG
shall be given such additional period of time as may be necessary to cure the
default provided that NRG commences the cure within said thirty (30) day period
and proceeds diligently thereafter to complete such cure.
6
11. Landlord will not consent to any material amendment, supplement or
other material modification of the Lease without NRG's prior written consent,
which consent shall not be unreasonably withheld.
12. Landlord agrees to disclose this Landlord Consent to any purchaser or
successor to Landlord's interest in the Premises.
13. The statements and agreements contained herein shall be binding upon,
and shall inure to the benefit of, NRG, its affiliates, Tenant and its
affiliates, successors and assigns, Landlord, mortgagees of the Premises and the
successors and assigns of all of the foregoing.
14. Notwithstanding anything herein to the contrary, nothing in this
Consent nor in the Assignment shall be deemed to enlarge Tenant's or NRG's
rights or privileges under the Lease, or to diminish Tenant's or NRG's
obligations or liabilities under the Lease.
Dated as of the _______ day of ___________, 200____.
LANDLORD:
BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
By: _______________________________
Name: _____________________________
Title: ____________________________
LANDLORD'S ADDRESS:
___________________________________
___________________________________
___________________________________
7
LANDLORD WAIVER AND CONSENT
EXHIBIT 1
LEASE
SEE ATTACHED
EXHIBIT G
CONDITIONAL ASSIGNMENT OF CITY OF ST. LOUIS LEASE
-16-
CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made
and entered into effective as of the Effective Date, as set forth in Section 5
herein, by and between AMERICAN COMMERCIAL TERMINALS LLC, a Delaware limited
liability company ("Assignor"), and NRG NEW ROADS HOLDINGS LLC, a Delaware
limited liability company ("Assignee").
WITNESSETH:
WHEREAS, the Burlington Northern and Santa Fe Railway Company ("BNSF"),
American Commercial Barge Line LLC ("ACBL") and Assignor entered into a
Memoranda of Understanding with NRG Power Marketing Inc. ("NRGPM"), and BNSF and
Assignor entered into another Memorandum of Understanding with NRGPM
(collectively, "MOU"), each dated August 6, 2004, both for the purpose of
setting forth the major terms and conditions under which Assignor and BNSF will
transport unit trains of coal from BNSF-served origins in the Powder River Basin
of Wyoming to Assignor's Hall Street Terminal at St. Louis, Missouri, for
furtherance to the Big Cajun No. II facility near New Roads, Louisiana (the "LG
Power Plant") ; and
WHEREAS, the LG Power Plant is owned by Louisiana Generating LLC., a
Delaware limited liability company and affiliate/subsidiary of Assignee and
NRGPM ("LG"); and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and Assignor (the "Transportation Contract") as provided therein; and
WHEREAS, the parties have entered into a Security Side Letter Agreement
("Security Side Letter Agreement"), pursuant to which American Commercial Lines
LLC ("ACL"), ACBL and Assignor (collectively, "American") has agreed to provide
certain assurances as additional security for its obligations under the
Transportation Contract; and
WHEREAS, pursuant to that certain Lease dated as of June 12, 1985, entered
into between the City of St. Louis, a municipal corporation of the State of
Missouri ("Landlord"), as landlord, and Assignor, as tenant, and all amendments,
modifications, supplements and extensions thereto (as amended and modified, the
"Lease") copies of which are attached hereto as Exhibit A, Assignor leases from
Landlord certain mooring privileges, easements, and access rights at such
locations (the "Premises"), as more fully described in the Lease; and
WHEREAS, pursuant to the Security Side Letter Agreement, Assignor and
Assignee have agreed to enter into this Assignment, pursuant to which Assignor
will make a conditional assignment of the Lease to Assignee, which assignment is
conditioned upon the occurrence of a Trigger Event (as defined in the Security
Side Letter Agreement) and Assignee's timely exercise of the Terminal Option (as
defined in the Security Side Letter Agreement) and consummation of the purchase
of the Property pursuant to the Terminal Option Agreement dated of even date
herewith (the "Terminal Option Agreement"); and
WHEREAS, Assignor desires to conditionally assign its interest in the
Lease to Assignee, and Assignee desires to accept the assignment thereof, on the
terms and pursuant to the conditions set forth herein.
WHEREAS, the Transportation Contract and the Ancillary Agreements (as
defined in the Security Side Letter Agreement) form the basis for the coal
transportation described above.
NOW THEREFORE, in consideration of the promises and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Assignor does hereby conditionally sell, grant, convey, assign,
transfer and set over to Assignee all of the right, title and interest of
Assignor in and to the Lease (including but not limited to all renewal options
and rights, all security deposits), which assignment and conveyance shall only
be effective upon Assignor's receipt from Assignee, within ninety (90) days of a
Trigger Event, of a written notice electing to enforce this Assignment (the
"Assignment Date"); and provided further that Assignee must also timely exercise
the Terminal Option and consummate the purchase of the Property pursuant to the
Terminal Option Agreement.
2. Assignee does hereby accept the assignment set forth above, and for the
benefit of Assignor does hereby assume and agree to be bound and abide by all
covenants, agreements and undertakings of Assignee as tenant, as they apply from
and after the Assignment Date, under the Lease.
3. Assignor represents and confirms unto Assignee that the Lease is in
full force and effect, unchanged and unmodified; that there are no defaults by
Assignor, as of the date of execution of this Assignment by Assignor, under the
Lease; and that Assignor is not aware of any conditions or circumstances which,
by lapse of time or upon the giving of notice or both, would result in Landlord,
Assignor or Assignee being in default under the Lease; and that Assignee has
paid all rental obligations and other charges due under or arising out of the
Lease up to and including the date of execution of this Assignment by Assignor.
4. Assignee hereby agrees to indemnify and hold harmless Assignor from any
and all loss, damage, claim or liability (including reasonable attorney's fees)
arising from or under the Lease after the Assignment Date.
5. The "Effective Date" of this Assignment shall be the Effective Date as
defined in the Security Side Letter Agreement. In addition to the foregoing,
this Assignment shall not be enforceable against the parties hereto unless and
until the definitive Transportation Contract has been entered into among the
parties thereto.
6. Assignor agrees to use its reasonable best efforts to obtain the
consent of Landlord to this Assignment in the form attached hereto as Exhibit B,
but the parties specifically acknowledge and agree that the final form thereof
shall be subject to such change as may be required by Landlord.
2
7. For so long as Assignor has outstanding obligations under the
Transportation Contract and the Ancillary Agreements remain in effect, the
terms, conditions and covenants of this Assignment shall be binding upon and
shall inure to the benefit of each of the parties to this Assignment, their
heirs, successors or assigns, shall run with the land, and may be amended,
waived or terminated only by an agreement in writing signed by both parties,
their successors or assigns.
8. This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. For purposes of executing this Assignment, a document signed and
transmitted by facsimile machine or telecopier is to be treated as an original
document. At the request of either party, the other will confirm facsimile
signature by signing an original instrument.
9. The laws of the State of Missouri shall govern the interpretation,
validity, performance and enforcement of this Assignment.
(SIGNATURE PAGE TO FOLLOW)
3
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment,
effective as of the date set forth below their signatures.
ASSIGNOR: ASSIGNEE:
AMERICAN COMMERCIAL TERMINALS LLC, NRG NEW ROADS HOLDINGS LLC,
a Delaware limited liability company a Delaware limited company
By: _________________________________ By: ______________________________
Name: _______________________________ Name: ____________________________
Title: ______________________________ Title: ___________________________
Date: _______________________________ Date: ____________________________
SIGNATURE PAGE TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(St. Louis Lease)
4
EXHIBIT A TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(Copy of Lease)
5
EXHIBIT B TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
LANDLORD WAIVER AND CONSENT
TO: NEW ROADS HOLDINGS LLC ("NRG")
American Commercial Terminals, Inc. ("Tenant") and the undersigned
("Landlord") have entered into a lease, dated as of June 12, 1985, as amended
(the "Lease"), demising certain mooring privileges, licenses, easements and
access rights at the premises located in the City of St. Louis, Missouri and
described in said Lease (the "Premises"). A copy of the Lease is attached hereto
as Exhibit 1.
Tenant and certain of its affiliates have entered into certain agreements
with Louisiana Generating LLC., a Delaware limited liability company ("LG")
and/or NRG Power Marketing Inc., a Delaware corporation, and certain affiliates
("NRGPM"), including but not limited to a Transportation Contract (the
"Transportation Contract") dated as of December ___, 2004, between LG, Tenant
and certain other parties thereto. In addition, NRG,, Tenant, its affiliates and
certain other parties have entered into a Security Side Letter Agreement dated
December ___, 2004, pursuant to which Tenant and its affiliates have agreed to
enter into certain Ancillary Agreements to secure the obligations of Tenant and
its affiliates under the Transportation Contract.
As a condition precedent to LG's obligations under the Transportation
Contract, LG requires, among other things, that Tenant collaterally assign its
leasehold interest in the Lease to NRG pursuant to that certain Conditional
Assignment and Assumption of Lease (the "Assignment") to which this Exhibit is
attached and made a part of.
To induce LG to continue to perform under the Transportation Contract or
for the benefit of Tenant, and for other good and valuable consideration,
Landlord hereby agrees that:
1. Landlord hereby consents to the execution by Tenant of the Assignment.
Landlord agrees that the execution, delivery and performance by Tenant of the
Assignment will not constitute a default under the Lease.
2. The Lease is valid and is in full force and effect and has not been
assigned, modified, supplemented or amended in any way, except as described on
Exhibit 1, and represents the entire agreement between the parties thereto.
3. To the best knowledge of Landlord, neither Landlord nor Tenant is in
default under the terms of the Lease and no event has occurred which, with the
giving of notice or the passage of time, would constitute a default under the
Lease.
4. Tenant is in possession of the Premises and Tenant is the current
holder of the leasehold estate created under the Lease.
6
5. The Lease expires on _________, [subject to the renewal or extension
provisions set forth in Exhibit 1].
6. No assets of Tenant (including, without limitation, equipment and trade
fixtures) located on or about the Premises will be deemed by Landlord to be
fixtures or to constitute part of the Premises.
7. Landlord will not assert, and therefore waives, any liens, whether
granted by the Lease, statute or otherwise (including, without limitation,
rights of levy or distraint for rent), against the property of Tenant located on
the Premises, including, without limitation, Tenant's machinery, improvements,
equipment, furniture, fixtures, inventory and all additions, replacements or
substitutions therefor (collectively, the "Personal Property").
8. If Tenant defaults on its obligations to NRG and, as a result, NRG
exercises its rights under the Assignment, or otherwise undertakes to enforce
its security interest in Tenant's assets, Landlord will permit NRG or its agent
to enter and take possession of the Premises without terminating the Lease, and
Landlord will recognize NRG (or other nominee thereof) as the tenant under the
Lease, entitled to all of the benefits thereof, and responsible for the
performance of all of Tenant's obligations arising thereunder from and after the
date that NRG takes possession as aforesaid. NRG may cause the Premises to be
assigned or sublet with the written consent of Landlord, which consent shall not
be unreasonably withheld, provided, however, that Landlord agrees that it will
consent to an assignment to any subsidiary or affiliate of NRG and that NRG has
the right to transfer its interest in the Lease, with notice but without
consent, to an entity controlled by, controlling or under common control with
NRG, or to a business entity which acquires all or substantially all of the
assets of NRG. It is understood and agreed that any consent by Landlord to any
assignment or subletting by NRG shall not be considered or construed to be a
consent to any subsequent assignment or subletting nor as a waiver of the right
of Landlord to refuse to consent to any subsequent assignment or subletting.
9. In accordance with and subject to the terms of the Deed of Trust from
Tenant to LG and NRG (the "DOT"), NRG may, at no expense to Landlord enter onto
the Premises following a Trigger Event and take possession of, sever, or remove
the Personal Property or any part thereof, and said Personal Property, upon
severance and/or removal, may be sold, transferred or otherwise disposed of free
and discharged of all liens, claims, demands, rights or interests of Landlord.
If NRG and/or LG enters the Premises solely for the purposes of executing such
party's rights with respect to the Personal Property under the DOT, (i) NRG
shall not be deemed to have assumed any obligations or liabilities of Tenant
under the Lease merely by reason of such limited purpose entrance, and (ii) NRG
shall not have any duty or obligation to remove or dispose of any remaining
Personal Property left on the Premises following such removal; provided that NRG
agrees to repair any damage to the Premises caused by the removal of such
Personal Property.
7
10. Landlord: (a) will give copies of all notices of default sent to
Tenant under the Lease to NRG at:
NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
or to such other address as NRG may designate from time to time by notice given
to Landlord at the address set forth after its signature hereto, and (b) prior
to exercising any of Landlord's rights and remedies under the Lease or at law or
in equity, NRG shall have the right (but not the obligation) to cure or cause to
be cured such default within the following time periods from and after receipt
by NRG of notice of such default from Landlord: ten (10) days with respect to
monetary defaults and thirty (30) days with respect to non-monetary defaults
after the period of time granted to Tenant to cure such defaults under the terms
of the Lease; provided, however, that if the nature of any non-monetary default
is such that the same cannot be cured within said thirty (30) day period, NRG
shall be given such additional period of time as may be necessary to cure the
default provided that NRG commences the cure within said thirty (30) day period
and proceeds diligently thereafter to complete such cure.
11. Landlord will not consent to any material amendment, supplement or
other material modification of the Lease without NRG's prior written consent,
which consent shall not be unreasonably withheld.
12. Landlord agrees to disclose this Landlord Consent to any purchaser or
successor to Landlord's interest in the Premises.
13. The statements and agreements contained herein shall be binding upon,
and shall inure to the benefit of, NRG, its affiliates, Tenant and its
affiliates, successors and assigns, Landlord, mortgagees of the Premises and the
successors and assigns of all of the foregoing.
14. Notwithstanding anything herein to the contrary, nothing in this
Consent nor in the Assignment shall be deemed to enlarge Tenant's or NRG's
rights or privileges under the Lease, or to diminish Tenant's or NRG's
obligations or liabilities under the Lease.
Dated as of the _______ day of ___________, 200____.
LANDLORD:
_______________________________
_______________________________
By: ___________________________
Name: _________________________
Title: ________________________
8
LANDLORD'S ADDRESS:
9
LANDLORD WAIVER AND CONSENT
EXHIBIT 1
LEASE
SEE ATTACHED
EXHIBIT H
CONDITIONAL ASSIGNMENT OF INTER CARRIER AGREEMENT
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CONDITIONAL ASSIGNMENT OF INTER-CARRIER AGREEMENT
THIS CONDITIONAL ASSIGNMENT OF INTER-CARRIER AGREEMENT ("Assignment") is
made and entered into effective as of the Effective Date, as set forth in
Section 5 herein, by and between AMERICAN COMMERCIAL TERMINALS LLC, a Delaware
limited liability company ("Assignor"), successor to American Commercial Marine
Services Company, and NRG NEW ROADS HOLDINGS LLC, a Delaware limited liability
company ("Assignee").
WITNESSETH:
WHEREAS, the Burlington Northern and Santa Fe Railway Company ("BNSF"),
American Commercial Barge Line, LLC ("ACBL") and Assignor entered into a
Memoranda of Understanding with NRG Power Marketing Inc. ("NRGPM"), and BNSF and
Assignor entered into another Memorandum of Understanding with NRGPM
(collectively, "MOU"), each dated August 6, 2004, both for the purpose of
setting forth the major terms and conditions under which Assignor and BNSF will
transport unit trains of coal from BNSF-served origins in the Powder River Basin
of Wyoming to Assignor's Hall Street Terminal at St. Louis, Missouri, for
furtherance to the Big Cajun No. II facility near New Roads, Louisiana (the "LG
Power Plant"); and
WHEREAS, the LG Power Plant is owned by Louisiana Generating LLC, a
Delaware limited liability company and affiliate/subsidiary of Assignee and
NRGPM ("LG"); and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and Assignor (the "Transportation Contract") as provided therein; and
WHEREAS, American Commercial Lines, LLC, ("ACL"), Assignor, ACBL
(collectively, "American") , Assignee, and LG have entered into a Security Side
Letter Agreement ("Security Side Letter Agreement"), pursuant to which American
has agreed to provide certain assurances as additional security for its
obligations under the Transportation Contract; and
WHEREAS, pursuant to that certain Inter-Carrier Agreement dated as of
December 28, 2000, entered into between BNSF and Assignor (as amended and
modified, the "Inter-Carrier Agreement"), a copy of which is attached hereto as
EXHIBIT A, BNSF and Assignor have made certain agreements regarding the
transportation of coal; and
WHEREAS, pursuant to the Security Side Letter Agreement, Assignor and
Assignee have agreed to enter into this Assignment, pursuant to which Assignor
will make a conditional assignment of the Inter-Carrier Agreement to Assignee,
which assignment is conditioned upon the occurrence of a Trigger Event (as
defined in the Security Side Letter Agreement); and
WHEREAS, Assignor desires to conditionally assign its interest in the
Inter-Carrier Agreement to Assignee, and Assignee desires to accept the
assignment thereof, on the terms and pursuant to the conditions set forth
herein; and
WHEREAS, the Transportation Contract and the Ancillary Agreements (as
defined in the Security Side Letter Agreement) form the basis for the coal
transportation described above.
NOW THEREFORE, in consideration of the promises and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Assignor does hereby conditionally sell, grant, convey, assign,
transfer and set over to Assignee all of the right and interest of Assignor in
and to the Inter-Carrier Agreement, which assignment and conveyance shall only
be effective upon Assignor's receipt from Assignee, within ninety (90) days of a
Trigger Event, of a written notice electing to enforce this Assignment (the
"Assignment Date").
2. Assignee does hereby accept the assignment set forth above, and for the
benefit of Assignor does hereby assume and agree to be bound and abide by all
covenants, agreements and undertakings of Assignee, as they apply from and after
the Assignment Date, under the Inter-Carrier Agreement.
3. Assignor represents and confirms unto Assignee that the Inter-Carrier
Agreement is in full force and effect, unchanged and unmodified; that there are
no defaults by Assignor, as of the date of execution of this Assignment by
Assignor, under the Inter-Carrier Agreement; that Assignor is not aware of any
conditions or circumstances which, by lapse of time or upon the giving of notice
or both, would result in Assignor or Assignee being in default under the
Inter-Carrier Agreement; and that Assignor has paid all charges due under or
arising out of the Inter-Carrier Agreement, if any, up to and including the date
of execution of this Assignment by Assignor.
4. Assignee hereby agrees to indemnify and hold harmless Assignor from any
and all loss, damage, claim or liability (including reasonable attorney's fees)
arising from or under the Inter-Carrier Agreement after the Assignment Date.
5. The "Effective Date" of this agreement shall be the Effective Date as
defined in the Security Side Letter Agreement. In addition to the foregoing,
this Assignment shall not be enforceable against the parties hereto unless and
until the definitive Transportation Contract has been entered into among the
parties thereto.
6. Assignor agrees to obtain the consent of BNSF to this Conditional
Assignment of the Inter-Carrier Agreement in the form set forth on EXHIBIT B
hereto.
7. If during the term of the Transportation Contract Assignor and BNSF
enter into a substitute agreement relating to the substantive matters contained
in the IC Agreement or an agreement that extends the terms and conditions of the
IC Agreement, or any other instrument that extends, renews, amends, or augments
the IC Agreement (such substitute or other agreement being referred to herein as
the "New Agreement"), the terms and conditions of this Assignment shall also
apply to the New Agreement. In addition, Assignor agrees to execute any
instrument reasonably requested by Assignee that evidences the application of
this Assignment to the New Agreement. Further, Assignor shall use its reasonable
best efforts to obtain consent to the assignment of the New Agreement by BNSF in
the form set forth on Exhibit B hereto.
8. For so long as Assignor has outstanding obligations under the
Transportation Contract and the Ancillary Agreements remain in effect, the
terms, conditions and covenants of this Assignment shall be binding upon and
shall inure to the benefit of each of the parties to this Assignment, their
heirs, successors or assigns, and may be amended, waived or terminated only by
an agreement in writing signed by both parties, their successors or assigns.
-2-
9. This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. For purposes of executing this Assignment, a document signed and
transmitted by facsimile machine or telecopier is to be treated as an original
document. At the request of either party, the other will confirm facsimile
signature by signing an original instrument.
10. The laws of the State of Missouri shall govern the interpretation,
validity, performance and enforcement of this Assignment.
(SIGNATURE PAGE TO FOLLOW)
-3-
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment,
effective as of the date set forth below their signatures.
ASSIGNOR: ASSIGNEE:
AMERICAN COMMERCIAL NRG NEW ROADS HOLDINGS LLC,
TERMINALS, LLC, a Delaware limited liability company
a Delaware limited liability company
By:_______________________________________ By:_________________________________
Name:_____________________________________ Name:_______________________________
Title:____________________________________ Title:______________________________
Date:_____________________________________ Date:_______________________________
SIGNATURE PAGE TO CONDITIONAL ASSIGNMENT OF INTER-CARRIER AGREEMENT
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EXHIBIT A TO ASSIGNMENT OF INTER-CARRIER AGREEMENT
(COPY OF INTER-CARRIER AGREEMENT)
-5-
EXHIBIT B TO ASSIGNMENT OF INTER-CARRIER AGREEMENT
BNSF WAIVER AND CONSENT
TO: NRG NEW ROADS HOLDINGS LLC
American Commercial Terminals, LLC ("ACT") and the undersigned ("BNSF")
have entered into an Inter-Carrier Agreement, dated as of December 28,2000 (as
amended, the "IC Agreement"), demising certain mooring privileges, licenses,
easements and access rights at the premises located in the City of St. Louis,
Missouri and described in said IC Agreement (the "Premises"). A copy of the IC
Agreement is attached hereto as Exhibit 1.
ACT and certain of its affiliates have entered into certain agreements
with Louisiana Generating LLC, a Delaware limited liability company ("LG")
and/or NRG New Roads Holdings LLC, a Delaware corporation, and certain
affiliates ("NRG"), including but not limited to a Transportation Contract (the
"Transportation Contract") dated as of December___, 0000, xxxxxxx XX, XXX and
certain other parties thereto. In addition, LG, NRG, ACT, its affiliates and
certain other parties have entered into a Security Side Letter Agreement dated
December_____, 2004, pursuant to which ACT and its affiliates have agreed to
enter into certain Ancillary Agreements to secure the obligations of ACT and its
affiliates under the Transportation Contract.
As a condition precedent to LG's obligations under the Transportation Contract,
LG requires, among other things, that ACT collaterally assign its interest in
the IC Agreement to NRG SPE pursuant to that certain Conditional Assignment of
Inter Carrier Agreement (the "Assignment") to which this Exhibit is attached and
made a part of.
To induce LG to continue to perform under the Transportation Contract or
for the benefit of ACT, and for other good and valuable consideration, BNSF
hereby agrees that:
1. BNSF hereby consents to the execution by ACT of the Assignment and to
the conditional assignment to and assumption by NRG. BNSF agrees that the
execution, delivery and performance by ACT of the Assignment will not constitute
a default under the IC Agreement or any other agreement between ACT and BNSF.
2. The IC Agreement is valid and is in full force and effect and has not
been assigned, modified, supplemented or amended in any way, except as described
on Exhibit 1, and represents the entire agreement between the parties thereto.
3. To the best knowledge of BNSF, neither BNSF nor ACT is in default under
the terms of the IC Agreement and no event has occurred which, with the giving
of notice or the passage of time, would constitute a default under the IC
Agreement.
4. Assignee has paid all charges due under or arising out of the
Inter-Carrier Agreement, if any, up to and including the date of execution of
this Assignment by Assignor.
5. The IC Agreement expires on___________________, [subject to the renewal
or extension provisions set forth in Exhibit 1].
-6-
6. If ACT defaults on its obligations to NRG or LG and, as a result, NRG
exercises its rights under the Assignment, or otherwise undertakes to enforce
its security interest in ACT's assets, BNSF will permit NRG to act under the IC
Agreement without terminating the IC Agreement, and BNSF will recognize NRG (or
other nominee thereof) as the successor of ACT under the IC Agreement, entitled
to all of the benefits thereof, and responsible for the performance of all of
ACT's obligations arising thereunder from and after the Assignment Date (as
defined in the Assignment).
7. Notwithstanding anything to the contrary, NRG shall be permitted to
assign its rights under the Assignment (and any conditional rights to the IC
Agreement thereunder) to any affiliate or to any successor of LG in the
Transportation Agreement without the consent of BNSF.
8. BNSF: (a) will give copies of all notices of default sent to ACT under
the IC Agreement to NRG at:
NRG New Roads Holdings LLC
000 Xxxxx Xxxxxx
Xxx Xxxxx, XX 00000
or to such other address as NRG may designate from time to time by notice given
to BNSF at the address set forth after its signature hereto, and (b) prior to
exercising any of BNSF's rights and remedies under the IC Agreement or at law or
in equity, NRG shall have the right (but not the obligation) to cure or cause to
be cured such default within the following time periods from and after receipt
by NRG of notice of such default from BNSF: ten (10) days with respect to
monetary defaults and thirty (30) days with respect to non-monetary defaults
after the period of time granted to ACT to cure such defaults under the terms of
the IC Agreement; provided, however, that if the nature of any non-monetary
default is such that the same cannot be cured within said thirty (30) day
period, NRG shall be given such additional period of time as may be necessary to
cure the default provided that NRG commences the cure within said thirty (30)
day period and proceeds diligently thereafter to complete such cure.
9. BNSF will not consent to any material amendment, supplement or other
material modification of the IC Agreement without NRG's prior written consent,
which consent shall not be unreasonably withheld.
10. BNSF agrees to disclose this Consent to any purchaser or successor to
BNSF's interest in the Transportation Agreement or the IC Agreement.
11. The statements and agreements contained herein shall be binding upon,
and shall inure to the benefit of, NRG, its affiliates, ACT, its affiliates,
BNSF, and the successors and assigns of all of the foregoing.
12. Notwithstanding anything herein to the contrary, nothing in this
Consent nor in the Assignment shall be deemed to enlarge ACT's or NRG's rights
or privileges under the IC Agreement, or to diminish ACT's or NRG's obligations
or liabilities under the IC Agreement.
-7-
Dated as of the_________day of______________, 200____.
BNSF:
THE BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
By:______________________________________
Name:____________________________________
Title:___________________________________
BNSF's ADDRESS FOR NOTICE:
_________________________________________
_________________________________________
_________________________________________
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