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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.
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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
1701 East Market Street
Jeffersonville, IN 47130
Attn: Director of Sales
Facsimile No. (812) 288-0256
NRG New Roads Holdings LLC
112 Telly Street
New Roads, LA 70760
Attn: John Brewster, President
Facsimile No. (225) 618-4481
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Louisiana Generating, LLC
112 Telly Street
New Roads, LA 70760
Attn: John Brewster, President
Facsimile No. (225) 618-4481
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: 12-10-04
NRG NEW ROADS HOLDINGS 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: 1701 EAST MARKET
STREET
JEFFERSONVILLE, IN 47130
GRANTEE: NEW ROADS HOLDINGS LLC LOUISIANA GENERATING, LLC
112 TELLY STREET 112 TELLY STREET
NEW ROADS, LA 70760 NEW ROADS, LA 70760
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: STEVEN D.
GRAHAM, ESQ.
THOMPSON COBURN LLP
ONE US BANK PLAZA
ST. LOUIS, MO 63101
<PAGE>
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, ROBERt G. MECKFESSEL, a resident of the County
of St. Louis,
State of Missouri, with an address of c/o First American Title,
1600 South
Brentwood, Suite 220, St. Louis, Missouri 63144 ("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 5500 HALL STREET, 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
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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 JP Morgan
Chase 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
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<PAGE>
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
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<PAGE>
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
<PAGE>
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, R.S.Mo. 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
<PAGE>
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
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<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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 Northeastern Street
line North 34
degrees 34 minutes 43 seconds West, 2049.40 feet to the most
Southern corner of
property conveyed to Smith's Terminals Corporation by Deed
recorded in Book
8845, Page 100 of the St. Louis City Records; thence along the
Southeastern line
of said Smith's 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
<PAGE>
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
<PAGE>
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.
<PAGE>
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.
<PAGE>
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").
<PAGE>
EXHIBIT B
INTERCREDITOR AND SUBORDINATION AGREEMENT
-11-
<PAGE>
INTERCREDITOR AND SUBORDINATION AGREEMENT
(to be added upon execution by creditors)
<PAGE>
EXHIBIT C
LEASE
-12-
<PAGE>
LEASE
BY AND BETWEEN
AMERICAN COMMERCIAL TERMINALS LLC
("Landlord")
AND
NRG NEW ROADS HOLDINGS LLC
("Tenant")
<PAGE>
LEASE
<TABLE>
<S> <C>
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
</TABLE>
SIGNATURE PAGE
EXHIBIT A Legal Description/Site Plan of Premises
EXHIBIT B Work to be performed by Landlord
<PAGE>
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: 1701 East Market Street, Jeffersonville, IN 47130
(c) TENANT: NRG New Roads Holdings LLC
Address: 112 Telly Street, New Roads, LA 70760
(d) PREMISES: Address: 550 Hall Street, St. Louis, Missouri
(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
<PAGE>
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
<PAGE>
(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
<PAGE>
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
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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.
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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
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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
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