EXHIBIT 10.16
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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
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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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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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
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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
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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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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
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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
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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.
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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: /s/ W. N. Whitlock
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Printed Name: W. N. Whitlock
Title: President
TRUSTEE
By: ______________________________
Printed Name: ____________________
Title: ___________________________
SECURED PARTY
NRG NEW ROADS HOLDINGS, LLC
By: /s/ John P. Brewster
-------------------------------
[SEAL] Printed Name: John P. Brewster
Title: President
SECURED PARTY
LOUISIANA GENERATING, LLC
By: /s/ John P. Brewster
-------------------------------
Printed Name: John P. Brewster
Title: President
STATE OF INDIANA )
) ss.
COUNTY OF CLARK )
On this 10 day of December, 2004, before me appeared W. N. Whitlock,
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 Delaware limited liability company, and that said instrument was signed in
behalf of said limited liability company, and that said W. N. Whitelock
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.
/s/ KAREN R WELSH
(SEAL) ----------------------------------
Notary Public
My term expires December 12, 2007 KAREN R WELSH
NOTARY PUBLIC STATE OF INDIANA
CLARK COUNTY
MY COMMISSION EXP. DEC. 12, 2007
10
STATE OF _______________ )
)
COUNTY OF ______________ )
On this _______ day of ____________, 200__, before me personally appeared
_____________________, to me personally known, who, being by me duly sworn, did
say that he is the Trustee of ______________________________, a ______________
corporation, and that the seal affixed to the foregoing instrument is the
corporate seal of said corporation, and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors; and
said ___________________________ acknowledged said instrument to be the free act
and deed of said corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
___________________________
Notary Public
My Commission Expires:
STATE OF NEW JERSEY )
)
COUNTY OF MERCER )
On this 10th day of December, 2004 , before me personally appeared John
P. Brewster, 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 John P. Brewster
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.
/s/ Deborah R. Fry
-------------------------
Notary Public
My Commission Expires:
DEBORAH R. FRY
A Notary Public Of New Jersey
My Commission Expires 10/23/2006
11
STATE OF NEW JERSEY )
) ss.
COUNTY OF MERCER )
On this 10th day of December, 2004, before me appeared John P. Brewster
, 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 John P. Brewster
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.
DEBORAH R. FRY /s/ Deborah R. Fry
(SEAL) A Notary Public Of New Jersey ------------------------------
My Commission Expires 10/23/2006 Notary Public
My term expires
12
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
PARCEL 1:
LEGAL DESCRIPTION:
A tract of land being Part of Block 3470 of the City of St Louis,
Missouri, and described as follows:
Beginning at a point on the Northeastern line of Hall Street, 80.00
feet wide, at the most Western corner of property conveyed to All American
Redevelopment Corporation by deed recorded in Book 56M, Page 145 of the
St. Louis City Records; thence along the said 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
LEGAL DESCRIPTION CONTINUED:
curve; thence continuing Northwestwardly and parallel to said track along
a curve to the right having a radius of 518.77 feet, an arc distance of
153.44 feet to a point of tangency, said point also being perpendicular
distant Northeastwardly 15.00 feet from the center line of Track #228 of
the Burlington Northern Inc.; thence Northwestwardly and parallel to said
track North 34 degrees 10 minutes 33 seconds West, 348.56 feet to a point
of curve; thence continuing Northwestwardly and parallel to said track
along a curve to the right having a radius of 432.40 feet an arc distance
of 51.56 feet to a point of tangency; thence Northwestwardly and parallel
to said track North 27 degrees 20 minutes 40 seconds West, 31.58 feet to a
point of curve; thence continuing Northwestwardly and parallel to said
track along a curve to the left having a radius of 462.40 feet an arc
distance of 55.69 feet to a point of tangency; thence Northwestwardly and
parallel to said track North 34 degrees 14 minutes 40 seconds West, 792.97
feet to a point of curve; thence continuing Northwestwardly and parallel
to said track along a curve to the right having a radius of 381.20 feet,
an arc distance of 22.96 feet (the chord bearing and length of which is
North 32 degrees 31 minutes 09 seconds West, 22.95 feet) to a point on the
direct prolongation Northeastwardly of the Northwestern line of property
conveyed to All American Redevelopment Corporation, as aforementioned;
thence along the last mentioned line South 55 degrees 49 minutes 17
seconds West, 756.84 feet to the point of beginning and containing 69.445
acres, more or less.
EXCEPTING THEREFROM the following described tract of land:
Commencing at a point on the Northeastern line of Hall Street, 80.00
feet wide, at the most Western corner of property conveyed to All American
Redevelopment Corporation by Deed recorded in Book 56M, Page 145 of the
St. Louis City Records; thence along the Northwestern line of the last
mentioned property and its direct prolongation Northeastwardly North 55
degrees 49 minutes 17 seconds East, 726.79 feet to a point, said point
being radial distant 15.00 feet from the center line of Track #228 of the
Burlington Northern Inc. and the point of beginning of the herein
described tract of land; thence leaving said point and running Northwardly
and parallel to said track along a curve to the right having a radius of
411.20 feet, an arc distance of 341.37 feet (the chord bearing and length
of which is North 7 degrees 15 minutes 29 seconds West, 331.65 feet) to a
point of tangency; thence Northeastwardly and parallel to said
LEGAL DESCRIPTION CONTINUED:
track North 16 degrees 31 minutes 30 seconds East, 56.66 feet to a point
of curve; thence Northwestwardly and parallel to said track along a curve
to the left having a radius of 381.20 feet, an arc distance of 403.15 feet
to a point of tangency, said point also being perpendicular distant
Southwestwardly 15.00 feet from the center line of Track #33 of the
Burlington Northern Inc.; thence Southeastwardly and parallel to said
track south 44 degrees 04 minutes 10 seconds East, 154.18 feet to a point;
thence departing from said Track #33 and running Southwardly along a curve
to the right having a radius of 411.20 feet an arc distance of 276.83 feet
to a point of tangency, said curve being radial distant Westwardly 15.00
feet from the center line of Track #228, as aforementioned; thence
Southwestwardly and parallel to said track south 16 degrees 31 minutes 30
seconds West, 56.66 feet to a point of curve; thence Southeastwardly and
parallel to said track along a curve to the left having a radius of 381.20
feet an arc distance of 314.82 feet (the chord bearing and length of which
is South 7 degrees 08 minutes 04 seconds East, 305.95 feet) to a point on
the direct prolongation Northeastwardly of the Northwestern line of
property conveyed to All American Redevelopment Corporation, as
aforementioned; thence along the last mentioned line South 55 degrees 49
minutes 17 seconds West, 30.05 feet to the point of beginning.
EXHIBIT B
1. Easement granted to Metropolitan St. Louis Sewer District recorded in Book
8546 Page 428.
2. Rights reserved by the City of St. Louis to forever maintain, replace and
prepare all water pipes now existing in the streets and alleys vacated
under provisions of Ordinance Number 16017, of the City of St. Louis,
approved March 10, 1891.
3. Easement over a strip of land 60 feet wide in former Adelaide Street
granted to Shell Oil Company, Incorporated according to instrument dated
March 15, 1947 and recorded in Book 6610 Page 586, as amended by
instrument dated November 26, 1947 and recorded in Book 6667 Page 215.
4. Easement granted to Metropolitan St. Louis Sewer District by Chicago,
Burlington & Quincy Railroad Company dated February 1, 1968 for a sewer
line across the Southerly 15 feet of the premises herein conveyed
5. All other easements, if any, for sewer, water, gas, power and
communications line, and drainage ditches or otherwise that are of public
record or that may be discovered by an accurate engineering survey and by
visual inspection of the premises herein conveyed.
6. Reservation of easements and rights according to the instrument recorded
in Book 126M, Page 1277.
7. Easement to Union Electric Company recorded in Book 154M Page 863.
PARCEL 2: Grantor's leasehold interest pursuant to that certain Lease dated as
of August 17, 1976 between Burlington Northern, Inc., a Delaware corporation (as
"Landlord") and ACBL Western, Inc., a Delaware corporation and predecessor in
interest to Grantor (as "Tenant").
PARCEL 3: Grantor's leasehold interest pursuant to that certain Lease dated as
of June 12, 1985 between the City of St. Louis, Missouri (as "Landlord") and
Grantor (as "Tenant").
GENERAL WARRANTY DEED
This General Warranty Deed (this "Deed"), dated as of June 30, 1998,
is made and entered into by and between American Commercial Marine Service LLC,
a Delaware limited liability company ("Grantor"), successor by merger to
American Commercial Marine Service Company, a Delaware corporation, formerly
known as American Commercial Terminals, Inc., formerly known as ACBL Western,
Inc., whose address is 1701 "East Market Street, Jeffersonville, Indiana
47131-0610, and American Commercial Terminals LLC, a Delaware limited liability
company ("Grantee"), whose address is 1701 East Market Street, Jeffersonville,
Indiana 47131-0610.
WITNESSETH:
Grantor, for and in consideration of the sum of One Dollar ($1.00)
and other good and valuable consideration paid by Grantee, the receipt and
sufficiency of which are hereby acknowledged, does by these presents GRANT,
BARGAIN AND SELL, CONVEY AND CONFIRM unto Grantee, the real estate (the "Real
Estate") situated in the City of St. Louis, and State of Missouri, and described
on Exhibit A attached hereto and incorporated herein by this reference, subject
to the exceptions listed on Exhibit B attached hereto and incorporated herein by
this reference.
TO HAVE AND TO HOLD the Real Estate, together with all rights and
appurtenances to the same belonging, unto Grantee, and to the successors and
assigns of Grantee forever. Grantor hereby covenants that it and its successors
will WARRANT AND DEFEND the title to the Real Estate unto Grantee and Grantee's
successors and assigns forever, against the lawful claims of all persons
whomsoever, excepting, however, general taxes and assessments for the calendar
year 1998 and thereafter, and special taxes becoming a lien after the date of
this Deed.
IN WITNESS WHEREOF, Grantor has executed and delivered this Deed as
of the day and year first above written.
"GRANTOR"
American Commercial Marine Service LLC,
a Delaware limited liability company
By: /s/ Michael Khouri
------------------------------------
Printed Name: Michael Khouri
Title: Senior Vice President
Grantee hereby accepts the foregoing conveyance of the Real Estate as of the day
first above written.
"GRANTEE"
American Commercial Terminals LLC, a Delaware
limited liability company
By: /s/ Michael Khouri
------------------------------------
Printed Name: Michael Khouri
Title: Senior Vice President
STATE OF NEW YORK )
)SS.
COUNTY OF NEW YORK )
On this 30 day of June 1998, before me appeared Michael Khouri to me
personally known, who, being by me duly sworn did say that he is the Senior Vice
President of American Commercial Marine Service LLc, a Delaware limited
liability company, and that said instrument was signed in behalf of said limited
liability company by authority of its members, and said Senior Vice President
acknowledged said instrument to be 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.
/s/ Diane C. Skudin
--------------------------------
Notary Public
MY Commission Expires:___________
DIANE C. SKUDIN
Notary Public, State of New York
No.018K4828725
Qualified in Nassau County
STATE OF NEW YORK ) Certificate Filed in New York County
)SS. Commission Expires April 30, 1999
COUNTY OF NEW YORK )
On this 30 day of June 1998, before me appeared Michael Khouri to me
personally known, who, being by me duly sworn did say that he is the Senior Vice
President of American Commercial Terminals LLC, a Delaware limited liability
company, and that said instrument was signed in behalf of said limited liability
company by authority of its members, and said Senior Vice President acknowledged
said instrument to be 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.
/s/ Diane C. Skudin
--------------------------------
Notary Public
My Commission Expires: _____________
DIANE C. SKUDIN
Notary Public, State of New York
No.018K4828725
Qualified in Nassau County
Certificate Filed in New York County
Commission Expires April 30, 1999
-2-
EXHIBIT A
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
LEGAL DESCRIPTION CONTINUED:
curve; thence continuing Northwestwardly and parallel to said track along
a curve to the right having a radius of 518.77 feet, an arc distance of
153.44 feet to a point of tangency, said point also being perpendicular
distant Northeastwardly 15.00 feet from the center line of Track #228 of
the Burlington Northern Inc.; thence Northwestwardly and parallel to said
track North 34 degrees 10 minutes 33 seconds West, 348.56 feet to a point
of curve; thence continuing Northwestwardly and parallel to said track
along a curve to the right having a radius of 432.40 feet an arc distance
of 51.56 feet to a point of tangency; thence Northwestwardly and parallel
to said track North 27 degrees 20 minutes 40 seconds West, 31.58 feet to a
point of curve; thence continuing Northwestwardly and parallel to said
track along a curve to the left having a radius of 462.40 feet an arc
distance of 55.69 feet to a point of tangency; thence Northwestwardly and
parallel to said track North 34 degrees 14 minutes 40 seconds West, 792.97
feet to a point of curve; thence continuing Northwestwardly and parallel
to said track along a curve to the right having a radius of 381.20 feet,
an arc distance of 22.96 feet (the chord bearing and length of which is
North 32 degrees 31 minutes 09 seconds West, 22.95 feet) to a point on the
direct prolongation Northeastwardly of the Northwestern line of property
conveyed to All American Redevelopment Corporation, as aforementioned;
thence along the last mentioned line South 55 degrees 49 minutes 17
seconds West, 756.84 feet to the point of beginning and containing 69.445
acres, more or less.
EXCEPTING THEREFROM the following described tract of land:
Commencing at a point on the Northeastern line of Hall Street, 80.00
feet wide, at the most Western corner of property conveyed to All American
Redevelopment Corporation by Deed recorded in Book 56M, Page 145 of the
St. Louis City Records; thence along the Northwestern line of the last
mentioned property and its direct prolongation Northeastwardly North 55
degrees 49 minutes 17 seconds East, 726.79 feet to a point, said point
being radial distant 15.00 feet from the center line of Track #228 of the
Burlington Northern Inc. and the point of beginning of the herein
described tract of land; thence leaving said point and running Northwardly
and parallel to said track along a curve to the right having a radius of
411.20 feet, an arc distance of 341.37 feet (the chord bearing and length
of which is North 7 degrees 15 minutes 29 seconds West, 331.65 feet) to a
point of tangency; thence Northeastwardly and parallel to said
LEGAL DESCRIPTION CONTINUED:
track North 16 degrees 31 minutes 30 seconds East, 56.66 feet to a point
of curve; thence Northwestwardly and parallel to said track along a curve
to the left having a radius of 381.20 feet, an arc distance of 403.15 feet
to a point of tangency, said point also being perpendicular distant
Southwestwardly 15.00 feet from the center line of Track #33 of the
Burlington Northern Inc.; thence Southeastwardly and parallel to said
track south 44 degrees 04 minutes 10 seconds East, 154.18 feet to a point;
thence departing from said Track #33 and running Southwardly along a curve
to the right having a radius of 411.20 feet an arc distance of 276.83 feet
to a point of tangency, said curve being radial distant Westwardly 15.00
feet from the center line of Track #228, as aforementioned; thence
Southwestwardly and parallel to said track south 16 degrees 31 minutes 30
seconds West, 56.66 feet to a point of curve; thence Southeastwardly and
parallel to said track along a curve to the left having a radius of 381.20
feet an arc distance of 314.82 feet (the chord bearing and length of which
is South 7 degrees 08 minutes 04 seconds East, 305.95 feet) to a point on
the direct prolongation Northeastwardly of the Northwestern line of
property conveyed to All American Redevelopment Corporation, as
aforementioned; thence along the last mentioned line South 55 degrees 49
minutes 17 seconds West, 30.05 feet to the point of beginning
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.
Indefinite Term Lease
No. 222,839
THIS LEASE made this 17th day of August, 1976 between BURLINGTON NORTHERN
INC., a Delaware corporation, hereinafter called "Lessor", and ACBL WESTERN,
INC., a Delaware corporation,
whose post office address is 1701 East Market Street, Jeffersonville, Indiana
47130 hereinafter called "Lessee",
WITNESSETH:
In consideration of the covenants hereinafter contained to be kept and
performed by Lessee, Lessor hereby leases to Lessee upon the terms and
conditions hereinafter set forth the following described premises situate in the
City of St. Louis, County of St. Louis, State of Missouri.
All that part of premises of the said lessor as shown outlined red on the
print hereto attached, marked Exhibit "A" dated August 12, 1976 and made a part
hereof.
SAVING AND RESERVING to Lessor the right to construct, maintain and
operate a railroad track or tracks; to construct, maintain and use buildings or
other structures for railroad purposes located or to be located upon any part of
the above described premises not occupied by the buildings and structures
hereinafter mentioned; to construct, maintain and use or to permit to be
constructed, maintained and used by others any existing or additional pipe,
telegraph, telephone or power transmission line upon over or beneath the said
premises; to make any change in or any part thereof for railroad purposes; and
further saving and reserving to Lessor the right to enter thereon for any one or
more of such Purposes without payment to Lessee of any sum for damage of any
nature which may be caused thereby.
Lessee hereby leases said premises from Lessor for the term hereof subject
to the covenants and promises following, which Lessee agrees to observe and
perform, to-wit:
1. Lessee shall use and occupy said premises for the sole and exclusive
purpose of constructing, maintaining and operating thereon a non-exclusive
roadway, overhead conveyors and rail-barge coal handling facility shown outlined
red on said Exhibit "A" together with temporary roadway and construction area
shown batched red on said Exhibit "A".
No other buildings, structures, additions, alterations or improvements shall be
erected or made on the premises by Lessee or at the direction of Lessee, save
with the express permission of Lessor in writing and at the sole cost of Lessee.
2. Lessee shall pay annually, in advance, as rental for said premises the
sum of Twelve thousand and no/100 Dollars ($12,000.00).
3. Lessor reserves the right to change the rental stipulated herein at any
time while this lease remains in effect.
4. Lessee shall pay all taxes, license fees or other charges which may
become due or which may be assessed against said premises, against Lessee,
against the business conducted on said premises or against any and all
improvements placed thereon during the term hereof, except special assessments
for public improvements. Lessee shall reimburse Lessor for any such taxes,
license fees or other charges which may be paid by Lessor promptly upon the
presentation by Lessor or bills for the amount thereof, and in default of such
reimbursement, all sums so paid by Lessor shall be deemed to be and shall be
treated as additional rental and recoverable as such hereunder.
In the event that the premises hereby demised, or any part thereof, shall
be subject to any special assessment for any public-improvement or improvements.
the rental herein reserved and stipulated to be paid by Lessee shall be
automatically increased by an amount equal to [ ] per annum on the total amount
of the assessment.
5. Lessee shall not place or permit to be placed or to remain, any
material, structure, pole or other obstruction within 8.5 feet laterally of the
center line or within 23 feet vertically from the top of rail of any track
located on or near said premises, provided that if by statute or order of
competent public authority greater clearances shall be required than those
provided for in this paragraph, then Lessee shall strictly comply with such
statute or order.
No building or structure erected on said premises shall have a swinging
door or window opening towards any railroad track which, when open, will
restrict the clearance to less than 8.5 feet from the center line of such track.
Lessee shall not nor shall Lessee foster, sanction or permit others to
operate any equipment, motor driven or otherwise, for the purpose of serving
Lessee, upon, or across any railroad track located on or adjacent to the demised
premises except at established crossings.
Lessee agrees to indemnify and save harmless Lessor from all loss, damage,
penalties, costs or judgments that may be assessed against or recovered from it
on account of or in any manner arising or growing out of a violation of the
provisions of this paragraph 5.
6. Lessee, at Lessee's sole costs and expense, shall install and maintain
adequate facilities for fire protection in all buildings and structures upon
said premises. Lessee also, at Lessee's sole cost and expense, shall observe
and comply with all the rules, regulations and orders of any duly constituted
authority and of any board of fire underwriters having jurisdiction of said
premises and all provisions of any fire insurance policy covering said premises.
7. Lessee shall not permit the existence of any nuisance on said premises;
shall maintain and keep the same in proper, clean, safe end sanitary condition
and free and clear of any explosive, flammable or combustible material which
would increase or tend to increase the risk of fire, except for such material as
may be necessary to Lessee's business; and, further, Lessee shall keep, observe
and comply with all federal, state and local regulations, ordinances and
laws, and with the regulations of any duly constituted legal authority having
jurisdiction of the premises, and at Lessee's sole cost shall make any and all
improvements, alterations, repairs and additions and install all appliances
required on said premises by or under any such regulations, ordinances or laws.
Lessee shall not place or permit to be placed any advertising matter upon any
part of said premises or upon any improvements thereon, except such as is
necessary to advertise Lessee's own business.
8. Lessee, at Lessee's sole cost and expense, shall keep the premises
hereby demised in good condition and shall make all repairs and renewals that
from time to time may be necessary to keep any improvement which may be located
thereon in good condition and repair and ready and fit for occupancy; and on
termination of this lease, either by expiration of the term hereof or by
cancellation, or otherwise, shall surrender said demised premises in a condition
satisfactory to Lessor and shall fill and level all excavations and remove and
level all obstructions above ground at Lessee's sole cost and expense. In the
event of Lessee's failure to do so, Lessor may do said work and Lessee shall
reimburse Lessor for the cost end expense thereof.
9. (a) It is understood by the parties that said premises are in dangerous
proximity to the tracks of Lessor and that property on said premises will be in
danger of injury or destruction by fire incident to the operation, maintenance
or improvement of the railway, and Lessee accepts this lease subject to such
dangers. It is therefore agreed, as one of the material considerations of this
lease without which the same would not be granted, that Lessee assumes all risk
of loss, damage or destruction by fire to buildings or contents or to any other
property brought upon or in proximity to said premises by Lessee, or by any
other person with the consent or knowledge of Lessee, without regard to whether
such fire be the result of negligence or misconduct of any person in the employ
or service of Lessor or of defective appliances, engines or machinery, except to
the premises of Lessor and to rolling stock belonging to Lessor or to others,
and to shipments of third parties in the course of transportation. Lessee hereby
indemnifies and agrees to protect Lessor from all such loss, damage or
destruction to property, including claims and causes of action asserted against
Lessor by any insurer of said property.
(b) Lessee also agrees to indemnify and hold harmless Lessor for loss,
damage, injury or death from any set or omission of Lessee, Lessee's invitees,
licensees, employees, or agents, to the person or property of the parties hereto
and their employees, and to the person or property of any other person or
corporation while on or near said premises; and if any claim or liability, other
than from fire, shall arise from the joint or concurring negligence of both
parties hereto, it shall be borne by them equally.
10. It is agreed that the provisions of paragraphs 5 and 9 are for the
equal protection of any other railroad company or companies heretofore or
hereafter granted the joint use of Lessor's property, of which said premises are
a part.
11. (a) Without the written consent of Lessor. Lessee shall not assign
this lease or any interest therein, or sublet, and no heir, executor,
administrator, receiver, master, sheriff, trustee in bankruptcy, or other
assignee by operation of law shall assign or sublet without such written
consent.
(b) In the event of assignment of this lease, Lessor, having no advice to
the contrary, shall at such time credit all unearned rental hereunder to the
assignee. Any other disposition of unearned rental will be made by Lessor only
upon the joint written request of both Lessee and Lessee's assignee at the time
of submitting said assignment to Lessor for its consent.
12. Each and all of the cover and promises made by Lessee herein material
considerations herefor, and upon the breach or non-performance by Lessee of any
of the said covenants or promises, Lessor, at its option, may re-enter said
premises, or any part thereof in the name of the whole, upon ten (10) days'
written notice to Lessee, and may have, repossess and enjoy the same as of its
former estate, and may terminate this lease and all rights hereby granted. A
waiver by Lessor of a default shall not be deemed a waiver of any subsequent
default of Lessee.
13. Notwithstanding any requirement herein for payment of rental in
advance for a period in excess of one month, it is further agreed that either
party may terminate this lease at any time upon giving the other party not less
than thirty (30) days' written notice of such termination; provided, however,
that rent shall be paid by said Lessee to the date of termination fixed by said
notice.
14. Upon the date of termination of this lease by notice as aforesaid, or
otherwise, Lessee shall surrender said premises to Lessor, and, if not in
default hereunder, shall prior to date of termination remove from said premises
all structures and property not belonging to Lessor and restore said premises to
substantially their former state, and in case of failure so to do, any such
structures and property shall become the property of Lessor, or Lessor may
dismantle and remove the same and restore said premises to their former state at
the expense of Lessee without incurring any liability therefor.
15. All notices hereunder to be given by Lessor to Lessee may be
effectually given by letter from Lessor or its agent or attorney forwarded by
registered mail, postage prepaid, addressed to Lessee at Lessee's post office
address above stated.
16. All notices hereunder to be given by Lessee to Lessor may be
effectually given by letter from Lessee or Lessee's agent or attorney forwarded
by registered mail, postage prepaid, addressed to Lessor's Industrial and Real
Estate Development Department at 176 East Fifth Street, St. Paul, Minnesota
55101.
17. Nothing herein contained shall imply or import a covenant on the part
of Lessor for quiet enjoyment.
18. Any sum which under the provisions of this lease Lessee has agreed to
pay shall constitute, when due and unpaid, a lien enforceable at law by Lessor
upon any building, improvements or other property of Lessee located on said
premises.
19. Subject to the foregoing provisions, this lease and all of the
covenants and promises thereof shall inure to the benefit of and be binding upon
the parties hereto and their executors, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have executed this lease, in duplicate,
the day and year first hereinabove written.
In Presence of: BURLINGTON NORTHERN INC.
/s/ [Illegible] By /s/ [Illegible]
- ------------------------------- ----------------------------------
General Manager -- Lesses
_______________________________ ACRL WESTERN, INC.
/s/ Barbara J. Gravity By /s/ James N. White
- ------------------------------- ----------------------------------
BARBARA J. GRAVITY JAMES N. WHITE
_______________________________ Title Vice President
LEASE AGREEMENT
This agreement made and entered into as of the 12 day of June, 1985, by
and between the City of St. Louis, a Municipal Corporation of the State of
Missouri, hereinafter called Lessor, through its Mayor and Comptroller and
American Commercial Terminals, Inc., a Delaware Corporation, hereinafter called
Lessee, through its President and Assistant Secretary.
WITNESSETH:
1. That for and in consideration of the rents hereinafter reserved to be
paid by the Lessee to the Lessor, and the mutual covenants and agreements herein
contained, the Lessor hereby leases and lets to said Lessee an exclusive
license to the following described mooring privileges to wit:
Beginning at the center line of Holly Avenue and for a distance of 1400
feet upstream and 1000 feet downstream for a total of 2400 feet of mooring
space. Further, the City grants an easement to the Lessee to cross over
City property on both sides of the floodwall and including the
installation of load up coveyor system and supports of the system. The
conveyor system will cross the concrete floodwall at a point 200 feet
north of the center line of Holly Avenue.
It is further agreed that the Lessor will grant a license during the term
of this lease to cross over City property on both sides of the floodwall
for maintenance and construction purposes.
It is further agreed that the Lessor grants the right of access through
the nearest existing opening in the floodwall and along the area between
the floodwall and the river including the right of access from such areas
to the mooring cells.
The Lessor grants mooring rights, including the right to install mooring
cells and other related permanent improvements in the Mississippi River between
the above described points.
2. The term of this lease shall be for twenty-five (25) years beginning on
the 12 day of June, 1985 and terminating on the 11 day of June, 2010.
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3. For the rights and privileges herein granted, the Lessee agrees to pay
the Lessor an annual rental of Twenty-Two Thousand five Hundred Dollars
($22,500.00) ($9.375 per linear foot *2400 linear feet) payable at a rate of One
Thousand Eight Hundred Seventy-five Dollars ($1,875.00) monthly in advance.
4. The rents to be paid to the Lessor for the rights and privileges
leased hereunder shall be subject to adjustments as provided by, and under
the terms and conditions set forth in "APPENDIX A, STANDARD PROVISIONS, LEASES
OF WHARF LAND AND MOORING," which is attached hereto and made a part hereof.
5. The above described area shall be used only for the purpose of
handling, loading and unloading bulk commodities between truck, railcar and
barges. Bulk commodities shall mean coal, coke, grain, feed or other
agricultural products, fertilizers and other similar fungible dry bulk
commodities commonly carried on barge.
6. In consideration of the granting of this lease the following
considerations become part of the lease conditions.
In the past, conversations have taken place between representatives of
American Commercial Terminals, Inc. (ACT, fomerly ACBL Western, Inc. (ACBL),
Burlington Northern (BN), and the City of St. Louis (City). One topic of
particular discussion has been the approximately 70 acres, the site of the coal
transfer facility, owned by ACT. The City has indicated its interest in
reserving for future development that part of the property which lies south of
the extension of Adelaide Avenue and ACT is willing to do so in consideration of
the granting of a lease on certain adjacent riverfront property to be used in
conjunction with its bulk commodity transfer facility.
ACT hereby grants onto the City of St. Louis the following interests in
said property lying south of the extension of Adelaide:
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(A) For a period of 10 years from the date hereof, the right to
first refusal to acquire said property or to designate another party to acquire
said property, provided that the purpose of acquisition is for industrial
development on a firm basis. In such event, the party seeking to develop the
property must have a firm construction contract acceptable to the City to permit
completion and commencement of operation of the improvement within a reasonable
time. ACT shall have the right to refuse to transfer the property for such
purpose only if the proposed activity would compete with or would substantially
interfere with ACT's operation of its bulk commodity transfer facility or with
BN's rail common carrier activities.
(B) The above mentioned right of first refusal shall lapse in the
event that ACT shall indicate in writing to the City that ACT wishes to expand
the capacity of its bulk commodity transfer facility by use of such property, or
to otherwise develop such property, and if the City within 180 days thereafter
does not exercise such right of first refusal. ACT may not, however, indicate
such a desire to utilize such property until at least 3 years from date hereof.
(C) In the event such right of first refusal is exercised, the
transferee shall pay to ACT for such property the prorated per acre price paid
By ACT for the entire tract plus an interest charge from the date July 1, 1975,
until the date of transfer. The interest charge shall be calculated (1) by
applying the prime interest rate charged by Chase Manhattan Bank on a monthly
basis, plus 1/2 of it, or (2) at a rate of 10% per annum, whichever is less.
7. The following shall be added after the first sentence of Paragraph 5 of
Appendix A hereto; "The term "cure" as used herein with respect to providing the
Lessee ninety days of the notice of any default other than non-payment in which
to cure such default, shall mean prompt institution of all proceedings and
actions necessary to accomplish such
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cure and the diligent pursuit thereof. The Lessor shall take no action to cancel
such lease rights based upon such a default other than for non-payment so long
as all proceedings and actions necessary to such a cure have been and are
promptly instituted and diligently pursued; provided that in no event, other
than due to an occurrence of an act of God or other event outside of the control
of Lessee, shall such cure period be for longer than 180 days after such
notice."
8. The following shall be added at the end of Paragraph 9 of Appendix A
hereto: "In the event the Lessor should exercise its rights under Paragraphs 8
and 9 of Appendix A, it is the intent of the Lessor and the Lessor will make
every effort to provide to Lessee or its approved successor, an appropriate
and acceptable site for mooring vessels if desired by Lessee consistent with any
leases or other agreements which may be in effect at that time. The Lessor
recognizes the magnitude of the investment made by Lessee and the vital
significance of Lessee's location hereunder as a part of its business."
9. The following shall be added at the end of Paragraph 13 of Appendix
hereto: "Notwithstanding the foregoing, the Lessee is hereby authorized to
assign the lease or sublease the property leased hereby to the Bi-State
Development Agency of the Missouri-Illinois Metropolitan District ("Bi-State")
and for Bi-State to assign or sublease said property back to Lessee, including
pursuant to the lease between Lessee and Bi-State dated June 30, 1980 and the
sublease agreement between Bi-State and Lessee dated as of June 30, 1980, all in
connection with the $23,000,000 aggregate principal amount of district Terminal
Facilities revenue Bonds (American Commercial Terminals, Inc., Project), Series
1980 of Bi-State issued on or about June 30, 1980 and any refunding bonds issued
to pay off all or a portion of said bonds hereafter. Any approved assignee or
sublease is granted rights of notice and cure of default in addition to, and to
the same extent as, the Lessee hereunder."
-4-
10. The second sub-paragraph of Paragraph 14 of Appendix A is hereby
deleted and the following is substituted therefor: "Sale of all or substantially
all of the assets of the Lessee other than to or by Bi-State or the trustee for
the bondholder in connection with the bond issue or any refunding bond issue
referred to in Paragraph 7 of this lease, or transfer of the lease by the
Lessee, without Board of Public Service and Port Commission approval makes this
lease subject to cancellation at the option of the Lessor."
11. All other matters governing this lease as well as rents are set forth
in "Appendix A".
LESSEE: AMERICAN COMMERCIAL LESSORS: CITY OF
TERMINALS, INC. ST. LOUIS, MO.
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
---------------------------- -----------------------------
President Mayor
By: /s/ [ILLEGIBLE]
-----------------------------
ATTEST: Comptroller
ATTEST:
By: /s/ [ILLEGIBLE] By: /s/ [ILLEGIBLE]
---------------------------- -----------------------------
Assistant Secretary City Register
THE FOREGOING WAS APPROVED AS TO FORM ONLY
/s/ [ILLEGIBLE]
------------------------------
Deputy City Counselor
STATE OF MISSOURI )
) SS.
CITY OF ST. LOUIS )
On this 12th day of June, 1985, before me appeared Vincent C. Sehoenehl,
Jr., and Paul M. Berra, to me personally known, who being by the duly sworn
did say that they are the Mayor and the Comptroller of the City of St. Louis and
that they are authorized to execute this lease agreement on behalf of the City
of St. Louis under the authority of ordinance No. 59328 end acknowledge said
instrument to be the free act and deed of the City of St. Louis.
COMPTROLLER'S OFFICE
DOCUMENT NUMBER 6120
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IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my seal in
the City and State of aforesaid the day and year first above written.
/s/ Richard C. Hart
-------------------
Notary Public
STATE OF INDIANA ) RICHARD C. HART
) SS. NOTARY PUBLIC STATE OF MISSOURI
COUNTY OP CLARK ) MISSOURI CITY
MY COMMISSION EXPIRES JUNE 6, 1987
On this 17 day of May, 1985, before me a Notary Public in and for the
County of Clark appeared D. Ray Miller, who being by me sworn did say that he is
President of American Commercial Terminals, Inc., and that the seal affixed to
the foregoing instrument is the corporation seal of said corporation, and that
said instrument was signed and sealed in behalf of said corporation by authority
of its Board of Directors and said President acknowledged said instrument to be
the free act and deed of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the County of Clark, State of Indiana the day and year first above
written.
/s/ Gaye Decker
-----------------------------------
Notary Public - Gaye Decker
Resident of Clark County, IN
My commission expires: 1/6/88.
-6-
APPENDIX "A"
STANDARD PROVISIONS
LEASES OF WHARF LAND AND MOORING RIGHTS
1. The base rate of $ .09375 per square foot of land and $9.375 per linear
foot of mooring may be adjusted at five year intervals beginning January 1, 1984
upon recommendation of the Port Commission and approval of the Board of Public
Service. No such recommendation may be made by the port Commission unless within
180 days before January 1, on which the adjusted rates are to become effective,
the Port Commission shall conduct a public hearing with due notice to the public
and to the users of City owned land and mooring rights. The maximum adjustment
which can be recommended and approved shall be 25% of the base rates set out in
the first sentence of this section. Each adjustment shall be added to the base
rate plus any previous adjustments and the resultant rate shall be called the
current adjusted base rate. If the recommended adjustment to the base rate by
the Board of Public Service is in excess of 15%, the recommended raise of rate
shall be approved by resolution of the Board of Aldermen. If the Board of
Aldermen fails to act before the effective date of the rate, the rate then
shall be automatically adjusted by 15%.
2. The above mooring area or leased parcel shall be used by Lessee only
for purposes consistent with the lawful use of said area. Structures or major
alterations shall be made in accordance with plans and specifications approved
by Lessor through the Board of Public Service. Upon the expiration,
termination, or cancellation of the lease agreement, the Lessee shall remove all
and any vessels, boats, watercraft or other practical movable structures from
the mooring, without expense to the Lessor, unless authorised by Section
Eleven (11). In the event said vessels, boats, watercraft or other practical
movable structures are not removed within ninety (90) days after receipt of
notice by
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the Lessee, the Lessor may take possession of said vessels, boats, watercrafts
or other practical movable structures or may cause same to be removed at the
expense of the Lessee.
Written notice when required shall be deemed to be sufficient and
delivered when deposited in the certified U.S. Mail and sent to Lessee's last
known address.
3. During the term of this lease or renewal or extension thereof, the
Lessee agrees to abide by all City Ordinances, State Laws, Federal Laws, Coast
Guard, Corps of Engineers and any other properly applicable governmental
regulatory requirements and to call to the attention of the proper enforcement
authorities, any violation thereof by others on the leased premises of which
lessor has actual knowledge. Failure to do so on the part of the Lessee shall be
considered a breach of this contract.
4. Lessee agrees to hold Lessor harmless for all limits of liability and
to defend the Lessor from any and all claims for injuries or damages resulting
from or rising out of Lessee's use of the leased premises or mooring area
described herein; and that it will at all times during the term of this lease at
its own cost, and for the benefit of the City, protect the City with Public
Liability and Property Damage Insurance, issued in the name of Lessee and naming
the City of St. Louis and Port Authority as named insured, covering each person
up to $500,000 with an overall limit as to all persons for each accident of
$1,000,000 and $1,000,000 for property damage, approved by the City Counselor as
to form and by the Comptroller as to surety and reserving the right of recovery
by the City in the event of damage to City owned property, which shall be filed
with the Port Authority and the Comptroller's Office before the lease is issued.
Said insurance coverage must be maintained during the life of this lease, and
any renewal or extension thereof.
Included in the insurance policy shall be coverage requiring immediate
removal of the vessel when the vessel is
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damaged or sunken from any cause whatsoever. This clause shall be expressed as
a specific warranty by the insurance company regardless of cause.
The Lessee shall notify or cause the insurance company to notify the
Controller's office of the renewal of said insurance or cancellation of same.
Failure to do so shall be considered a breach of this lease.
5. Upon the nonpayment of said rent at the time when the same becomes due,
or upon the nonperformance by the Lessee of any of the substantive covenants
hereinbefore or hereinafter mentioned, or those specifically covered herein, the
Lessor, at its election may terminate this lease, provided that the Lessee
shall, after notice of nonpayment or default, have thirty (30) days to cure
any such nonpayment and ninety (90) days to cure any other default. The failure
and omission of the Lessor to declare this lease forfeited upon the default of
said Lessee in the payment of said rents as the same become due, or the
nonperformance of any of the substantive covenants to be performed by the
Lessee, shall not operate to bar, abridge, or destroy the right of the Lessor to
declare this lease null and void upon any subsequent breach, forfeiture or
cause therefore by the Lessee.
6. Lessee agrees to pay ad valorem taxes on boats, vessels, aircraft or
watercraft and on operation of same that may be moored on said leased area or
any operations within said leased area, including all other owned property and
equipment, and it is agreed that the Lessee will not deny the authority of the
proper assessing agency to assess ad valorem taxes on said improvements. The
Lessee reserves the right to question the amount of such assessment in any court
of competent jurisdiction or other tribunal established by law to correct the
valuation of the property on which the assessment of such tax is based. Failure
to do so shall be considered a breach of the terms of this lease. All boats and
barges engaged in interstate commerce shall be exempt.
-3-
7. If the Lessee remains in possession of the leased premises after the
expiration of the terms for which it is leased and the Lessee pays rent and the
Lessor accepts said rent, such possession shall be construed as creating a
month-to-month tenancy and not a renewal or extention of this lease but such
month-to-month tenancy shall not continue for more than one (1) year.
8. The Lessor reserves the right to modify, amend, or cancel said lease as
set forth in paragraph 9 hereof in the event the premises are needed for
right-of-way, sewer or Floodwall construction purposes or any other municipal
purposes or uses. Municipal purposes or uses shall include economic development
in the Port District, but shall exclude any proposed use or purpose directly
or indirectly relating to the fleeting of barges. Meeting of barges is defined
as the temporary mooring or storage of barges regardless of duration, for
redeployment to a river tow or to a dock.
9. In the event that any portion of the leased parcel or mooring area
shall be needed for any municipal purpose, subject to the same exclusion set
forth in paragraph 8 above, sever, right-of-way, Floodwall or Floodwall
construction, as set forth in paragraph 8 hereof, the Lessor shall have the
right to modify, amend, or cancel this lease upon one (1) year's written notice
thereof to Lessee and eliminate such portion of the leased or mooring area as
shall be needed for such purpose. In such event, it is agreed and understood by
Lessee that no claim or action for damages or other compensation shall arise or
be allowed by reason of such termination or modification. Written notice when
required shall be deemed to be sufficient and delivered when deposited in the
Certified U.S. Mail and sent to Lessee's last known address.
10. If this lease is amended or modified under the provisions of Sections
Eight (8) or Nine (9), the current rent shall be adjusted in direct proportion
to the change made in the leased area. If the remaining area is not suit-
-4-
able to the Lessee, Lessee shall have the right to terminate this lease without
penalty by written notice within 90 days after receipt of the notice to amend
provided by Section Nine (9).
11. In the event this lease is cancelled, modified or amended under the
provisions of Sections Eight (8) or Nine (9), the Lessor shall cause the Lessee
to be reimbursed for the undepreciated cost of the capital improvements (not
removable) the Lessee has made and paid for and not prorated to the Lessee's
customer or paid for by Lessee's customer. Such capital improvement being only
those which have been made pursuant to the written approval of the Board of
Public Service and those improvements in place on the date hereof whether or not
approved by said Board. It is agreed and understood that the term capital
improvements shall not include wharf boats, vessels or other floating or trans-
ferable stationary improvements. Such reimbursement shall be made by or as a
part of the cost of the intended new use. Reimbursement will not be based on
anticipated profits, and no funds from general revenue shall be used for this
purpose.
In the event that the rate for service to the customer has been increased
to cover the cost of the capital improvements, this accumulated increased cost
shall be deducted before the undepreciated cost of the capital improvements is
determined.
12. The Lessee shall have the right to terminate this lease upon service
of one (1) year's written notice and the payment of an additional one (1) year's
rental which shall accompany such notice. The payment of the additional year's
rental shall not relieve Lessee of the obligation to pay the current year's
rental as provided herein.
13. Any sublease or assignment of this lease, change in corporate
structure, or any rights thereunder, shall be valid only with the approval of
the Board of Public Service of the City of St. Louis and the Port Commission. If
-5-
approved, all parts of this lease are binding on sublessor or assigns.
14. This lease may be cancelled at the option of the City if, at any time
during the term of this lease, the person or persons who on the date of
execution of this lease own or owns a majority of the Lessee's voting shares of
stock, ceases or cease to own majority of such shares, except as the result of
transfer(s) by gift or inheritance, or public work offering pursuant to the
Securities and Exchange Act of 1934, as amended, or merger into or
consolidation with another corporation.
Sale of a portion or all of the assets of the Lessee, or sale or transfer
of the lease by the Lessee, without Board of Public Service and Port Commission
approval makes this lease subject to cancellation at the option of the City.
If sale, transfer or assignment of Lessee's stock is approved, all parts
of this lease are binding on the purchaser, transferee or assignee.
15. The Lessee agrees not to erect any barrier, fence or supporting
Structures or store any materials on the Floodwall itself or twenty-five (25)
feet on either side of the Floodwall.
16. Any delinquent payment shall bear interest from the date due at prime
rate plus two (2%) percent. Prime rate shall be that average rate as established
by Mercantile Trust, Boatmen's Bank and Centerre National Bank of the City of
St. Louis.
17. The Lessee shall not store any garbage or trash on the Wharf or
mooring area, but must keep the area neat and free of all trash and rubble.
Further, the Lessee shall prohibit and enforce the ruling that no trash or
articles of any sort shall be thrown overboard or into the river. The Lessee
shall enforce this clause on any craft or vehicle servicing the Lessee. Failure
to do shall be considered a breach of this contract.
-6-
The Lessee shall have responsibility for the house-keeping on the Improved
Wharf immediately in front of the mooring area. Failure to maintain this area as
required by this lease and all other City ordinances when directed by the Board
of Public Service with the approval of the Port Commission shall result in the
cancellation of this lease.
18. Upon execution of this lease, the Lessee shall, at his own expense,
have this lease recorded by the City's Recorder of Deeds and have the Register
make a microfilm of the lease.
19. AFFIRMATIVE ACTION PROGRAM TO INSURE NON-DISCRIMINATION AND FAIR
EMPLOYMENT PRACTICES.
Lessee agrees that in performing under this contract neither it nor anyone
under his control will permit discrimination against any employee, worker, or
applicant for employment because of race, creed, color, religion, national
origin or ancestry, sex, age, handicap, or veteran's status.
If Lessee is unable to conform to the approved positive employment program
submitted to determine eligibility under the fair employment practice provisions
of the City code, Lessee will notify the Civil Rights Enforcement Agency, Civil
Courts Building, St. Louis, Missouri, to determine steps to be taken by the
Lessee to achieve the provisions of the City's program.
20. After expiration of this lease and the Lessee operates on a
month-to-month basis, all articles of the lease continue to apply for one year
only.
21. Annually, the Lessee must present to the Port Commission a marine
survey of the safety of the facilities operated by them.
22. All vessels must be moored in line parallel to the Floodwall and there
shall be no mooring in such number as to violate any applicable permits obtained
by Lessee from the U.S. Corps of Engineers without approval of the Board of
Public Service and the Port Commission.
-7-
23. No auxiliary craft shall be moored to any craft covered by this lease
except for public safety reasons and maintenance. Maintenance craft may be
moored during the period Maintenance is taking place.
24. Other than as to installations in existence on the date hereof which
shall not be subject to the requirements set forth herein, after notice to the
Board of Public Service and the Fort Authority, Lessee shall have the right to
install, or modify the installation or use of, deadmen and mooring cells on the
bank adjacent to Lessee's mooring area in accordance with plans and
specifications approved by a licensed Marine engineer for such Installation, or
modification of the Installation or use thereof. Lessee must obtain the proper
permits from the City, State and Federal regulatory agencies. Lessee shall have
the right to Ingress and egress to the mooring facilities over the land between
the Floodwall and the mooring area leased herein.
25. This lease in its entirety covers all the covenants and agreements
between the Lessor and Lessee and can only be changed, renewed, or extended in
writing signed by the Lessor and Lessee and approved by the Port Commission and
Board of Public Service, when authorized by an Ordinance enacted for that
purpose. The lease of Wharf property may not be extended to cover a period of
time exceeding a total of 25 years as provided by Article I, Section 1(16), City
Charter.
26. The terms and conditions of this lease shall be binding on Lessee's
heirs, successors or assigns.
-8-
SECRETARY'S CERTIFICATE
MICHAEL A. KHOURI, being first duly sworn upon his oath, states that he is
the ASSISTANT SECRETARY of AMERICAN COMMERCIAL TERMINALS, INC., a Delaware
corporation; Chat in such capacity he has the care, custody and control of the
corporate records of such corporation, including the Articles of Incorporation,
Bylaws, Minutes and Corporate Seal; that D. RAY MILLER is PRESIDENT of said
corporation and in such capacity is duly authorized to execute contracts,
bills-of-sale, deeds and documents necessary to operate and conduct the business
and affairs of the corporation; and that the following is a true and correct
impression of the corporate seal of said corporation.
/s/ Michael A. Khouri
-------------------------------
MICHAEL A. KHOURI
(SEAL)
DATED: May 17, 1985
Before me, a Notary Public in and for Clark County, Indiana, personally
appeared MICHAEL A. KHOURI, who acknowl-edged the foregoing as his free act and
deed and as the duly authorized act and deed of the above-named corporation.
/s/ Gaye Decker
-------------------------------
Notary Public - Gaye Decker
Resident of Clark County, IN
My commission expires: January 6, 1988.