EXHIBIT 10.18
TERMINAL OPTION AGREEMENT
This Terminal Option Agreement ("AGREEMENT") is made and entered into by
and between American Commercial Terminals LLC ("ACT") and NRG New Roads Holdings
LLC ("NRG").
RECITALS
WHEREAS, American Commercial Lines LLC ("ACL"), American Commercial Barge
Line LLC ("ACBL"), ACT, (collectively, "AMERICAN") and NRG have entered into a
Security Side Letter Agreement ("SECURITY SIDE LETTER AGREEMENT") dated as of
December 10, 2004 by which ACL, ACBL, and ACT have agreed to provide certain
security for such parties' respective obligations under the Transportation
Contract that may be entered into by such parties in the manner described in
Section 2 below; and
WHEREAS, the parties to this Agreement desire to incorporate the recitals
to the Security Side Letter Agreement into the recitals of this Agreement by
reference and hereby incorporate such recitals into these recitals; and
WHEREAS, NRG Power Marketing, Inc. ("NRGPM") and Louisiana Generating LLC
("LG") are collectively referred to herein as the "AFFILIATES"; and
WHEREAS, NRG and ACT have negotiated, and this Agreement sets forth, the
definitive terms and conditions of the "Terminal Option" set forth in Section
3.C. of the Security Side Letter Agreement, and that this Agreement shall become
binding upon the parties hereto if and when a definitive Transportation Contract
is entered into by all of the parties thereto (including BNSF) as set forth
above and as further set forth at Section 2 below.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt, adequacy and sufficiency of which is hereby
acknowledged by ACT and NRG, the parties hereto hereby agree as follows.
AGREEMENT
1. RECITALS. The parties hereby incorporate the above Recitals as part of
this Agreement as if the same were fully set forth herein.
2. TRANSPORTATION CONTRACT/EFFECTIVE DATE. This Agreement does not
obligate American, NRG or any of their Affiliates to enter into and execute a
final Transportation Contract or any other agreement with each other, their
respective affiliates or any other parties. This Agreement shall become binding
upon and enforceable against the parties hereto only in the event that a
definitive Transportation Contract is entered into by all parties (including
BNSF) on or before the "DEADLINE DATE" (as defined in the Security Side Letter
Agreement), and is to become effective on the "EFFECTIVE DATE" (as defined in
the Security Side Letter Agreement). If prior thereto, any party contemplated to
be a party to the Transportation Contract shall deliver notice to another
contemplated party thereto terminating any further negotiations with respect to
the Transportation Contract, then this Agreement shall expire and be deemed void
ab initio; provided, however that the terms of Section 13 regarding the
confidentiality of this Agreement shall in any event remain in full force and
effect.
3. GRANT OF TERMINAL OPTION. ACT, for and in consideration of the terms of
the Transportation Contract and subject to the terms of this Agreement, does
hereby grant to NRG, as designee for NRGPM, the sole and exclusive right and
option (the "TERMINAL OPTION"), to purchase from ACT, all of ACT's right, title
and interest in and to the real property located at 5500 Hall Street, St. Louis,
Missouri, and commonly known as the Hall Street Terminal, together with all of
ACT's right, title and interest in and to all personal property and improvements
thereon, but specifically excluding any tugs and barges which items are the
subject of the separate Barge and Tug Option Agreement between the parties of
even date herewith (the "PROPERTY"), as more particularly described on Exhibit A
attached hereto.
4. CONDITIONS NECESSARY FOR EXERCISE OF THE TERMINAL OPTION. The Terminal
Option shall be exercisable only upon the occurrence of a Trigger Event (as
defined in the Security Side Letter Agreement). NRG may exercise the Terminal
Option only by written notice (the "TERMINAL OPTION NOTICE") delivered to ACT or
its successor before 11:59 p.m., St. Louis time, on the date that is ninety (90)
days after date that a Trigger Event has occurred (the "TERMINAL OPTION
DEADLINE"). If NRG exercises the Terminal Option, NRG will be conclusively
deemed to have accepted the condition of the Property "AS IS," excepting only to
the extent as may be expressly provided to the contrary in this Agreement. If
NRG elects to exercise its Terminal Option hereunder, it agrees to also provide
written notice thereof to the "Collateral Agents" (as defined in that certain
Intercreditor and Subordination Agreement entered into by and among NRG, the
Affiliates and said Collateral Agent), but failure to notify said Collateral
Agents within the time frames set forth herein shall not serve to invalidate an
otherwise properly delivered Terminal Option Notice to ACT as required hereby.
5. PURCHASE PRICE. In the event NRG exercises the Terminal Option, the
purchase price for the Property shall be the NAFMV of the Property plus any
amounts due from NRG to ACT under Section 7 below, if any (the "PURCHASE
PRICE"). The "NAFMV" of the Property shall be determined according to the
procedure set forth in Section 3.E. of the Security Side Letter Agreement.
Notwithstanding anything to the contrary, pursuant to Section 4 of the Security
Side Letter Agreement, NRG may withhold payment of a portion of the Purchase
Price at the Closing for any claimed damages (as defined therein, and to the
extent that such claimed damages have not been otherwise paid to NRG or any of
its Affiliates or set off elsewhere) and such withheld amount shall be deemed
paid for the purposes of the Closing, subject to the final dispute resolution
procedures and reconciliation and disposition of the disputed amount pursuant to
the terms of Section 4 of the Security Side Letter Agreement.
6. TERMINATION. Subject to the terms of Section 2 above, this Agreement,
the Terminal Option and all further rights and obligations of the parties
hereunder, excepting only as may be expressly set forth herein, shall
automatically terminate, if not exercised or terminated sooner, upon the
earliest to occur of: (I) the Terminal Option Deadline, (II) expiration of the
Transportation Contract.
7. CLOSING.
A. If NRG elects to exercise its Terminal Option, the closing of the
sale and transfer of the Property ("CLOSING") shall be held on the day and time
designated by NRG in the Terminal Option Notice, which day must be a business
day and must be no sooner than ten (10) days following the date that the NAFMV
of the Property has been determined pursuant to the Security Side Letter
Agreement and no later than thirty (30) days following the date that the NAFMV
of the Property has been determined pursuant to the Security Side Letter
Agreement.
B. Real estate taxes and assessments, water assessments, and all
general and special assessments, utility fees and all other operating expenses
of the Property shall be prorated as of the date of Closing. The Closing shall
take place at First American Title Company in St. Louis County, Missouri (the
"TITLE COMPANY") and may occur via escrow without the parties being physically
present. ACT shall pay one-half of the escrow fees and all other closing costs
and expenses customarily charged to the seller of real property in the local
area. NRG shall pay all costs of obtaining the title insurance and survey for
the Property, the remaining one-half of the escrow fee, and any other costs and
expenses not being paid by ACT which are normally charged to purchasers of real
property in the local area. Prorations shall be made based on a 360-day year,
with ACT to pay for the day of Closing.
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C. ACT shall deliver to the Title Company, on or before the date of
Closing, the following:
(i) a recordable special warranty deed prepared on the Title
Company's standard form conveying to NRG fee simple title to the Property;
(ii) a counterpart of a bill of sale duly executed and
acknowledged by ACT conveying to NRG all improvements and personal
property located on the Property;
(iii) an affidavit from ACT stating (A) its taxpayer
identification number, and (B) it is not a "foreign person" within the
meaning of Section 1445 et seq. of the Internal Revenue Code of 1986 as
amended;
(iv) such other documents, instruments, certifications and
confirmations as may be within the power and authority of ACT to provide
and as may be reasonably and customarily required of a seller of
comparable property in the local area and as reasonably required by the
Title Company to fully effect and consummate the transaction contemplated
hereby and to issue a title insurance policy in favor of NRG insuring fee
simple title to the Property in the name of NRG or its assigns;
(v) Possession of the Property shall be delivered to NRG at
Closing;
(vi) Assignments of all permits, and other related documents
necessary for the operation of the Property, to the extent they are
assignable; and
(vii) Assignments of contracts necessary for the operation of
the Property to the extent NRG elects to assume them. NRG shall have the
right to review the contracts in order to determine which contract NRG
elects to assume.
D. NRG shall deliver to the Title Company, on or before the date of
Closing, the following:
(i) a counterpart of a bill of sale duly executed and
acknowledged by NRG conveying to NRG the improvements and personal
property located on the Property;
(ii) Subject to the provisions of Section 5 of this Agreement
and Section 4 of the Security Side Letter Agreement, NRG shall pay to ACT
the Purchase Price in cash or other readily available funds, adjusted as
set forth in Section 7.B. above; and
(iii) such other documents, instruments, certifications and
confirmations as may be reasonably and customarily required of NRG and as
designated by the Title Company to fully effect and consummate the
transaction contemplated hereby.
8. ACT'S USE OF THE PROPERTY.
A. DAMAGE. From and after the date NRG exercises the Terminal
Option, ACT will not knowingly damage the Property or cause waste on the
Property or cause environmental contamination on the Property or perform any act
which would result in a material reduction in the value or development potential
of the Property. The parties agree that the current use of the Property will not
be deemed to cause damage, waste or environmental contamination.
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B. ENCUMBRANCES. From and after the date NRG exercises the Terminal
Option, ACT may encumber the Property only with NRG's prior written consent,
which consent will not be unreasonably withheld, conditioned or delayed. Any
encumbrance without NRG's prior written consent shall be null and void. For
purposes of this subsection, encumbrance includes, for instance, the grant of
easements, licenses or rights of way, but does not include financial obligations
that can be paid at Closing or matters which expire or will be terminated on or
before Closing.
C. REGULATORY COMPLIANCE. ACT shall comply with all present and
future statutes, laws, rules, orders, regulations and ordinances affecting the
Property, any part thereof or the use or operation thereof and shall comply with
all obligations, covenants, conditions and restrictions applicable to ACT which
are contained in Transportation Contract and the Ancillary Agreements.
D. ENVIRONMENTAL INDEMNIFICATION. ACT shall hold harmless, defend
and indemnify NRG and such other "Indemnitees" (as defined in the Security Side
Letter Agreement) with respect to the environmental condition of the Property as
of the date of exercise of the Terminal Option, to the full extent set forth in
the Security Side Letter Agreement.
E. PERSONAL PROPERTY. Following the occurrence of a Trigger Event
(or in anticipation of the occurrence of a Trigger Event) ACT shall not remove
any personal property from the Property that is reasonably necessary for the
fulfillment of the purposes of the Transportation Contract by ACT.
9. INSPECTION RIGHTS. At any time after the Trigger Event and prior to
NRG's exercise of the Terminal Option, NRG and its agents, employees,
contractors and representatives shall have the right, privilege and license of
entering upon the Property (subject to non-interference with all then existing
business operations and the rights of American and any tenants or other
occupants then in possession), for the purpose of making soil test borings,
utility studies, surveys, asbestos and hazardous waste studies, feasibility
studies, engineering studies and any other studies and investigations as NRG
reasonably deems necessary or desirable in connection with its investigation of
the Property. NRG agrees to restore any damage done to the Property by NRG or
anyone acting in NRG's behalf in making such soil test borings or any such
studies. The testing and restoration of the Property shall be conducted in
accordance with all applicable laws and regulations of any governmental body
having jurisdiction of the Property. NRG agrees to indemnify, defend and hold
American, its affiliates, successors and assigns harmless from and against all
loss, cost liability and expense suffered by them as a result of the foregoing
studies or the exercise of entry rights by NRG, its agents, employees or
independent contractors. NRG's indemnification obligations hereunder shall
survive the termination of this Agreement or Closing, as applicable.
10. ASSIGNMENT. NRG may assign all or any portion of NRG's rights and
interest in and to this Agreement without the prior written consent of ACT to:
(A) an affiliate, subsidiary or parent entity; (B) any entity it controls, is
controlled by, or is under common control with; (C) any entity in which it has a
majority interest or of which it is manager; (D) any entity that succeeds to or
obtains all or substantially all of its assets, whether by merger,
consolidation, reorganization, sale or otherwise; or (E) any entity that
succeeds to NRGPM's rights under the Transportation Contract. NRG shall promptly
inform ACT and the Collateral Agents of any assignment. Otherwise, NRG may not
assign all or any portion of NRG's rights and interest in and to this Agreement
without the prior written consent of ACT. In the event of any assignment by NRG,
NRG shall continue to be liable for all of the obligations of NRG hereunder.
11. REMEDIES FOR BREACH. If either party breaches any of the obligations,
representations, warranties or covenants set forth in this Agreement, the
non-breaching party shall be entitled to exercise any remedies in law or equity,
including the right of specific performance and injunctive relief, subject to
the limitations provided in the Transportation Contract. Additionally, if ACT
breaches any of the
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obligations, representations, warranties or covenants set forth in this
Agreement, then NRG will be entitled to exercise its rights under that certain
Deed of Trust dated December 10, 2004, entered into between ACT, as grantor, and
NRG and Louisiana Generating LLC, as beneficiaries, encumbering the Property
(the "DEED OF TRUST").
12. RECORDING. NRG and ACT shall each have the right at all times to
record a memorandum of this Agreement, in such form as is reasonably acceptable
to the parties, but in any event which does not disclose the financial terms
hereof. The parties shall fully cooperate with such recording, including without
limitation providing notarized signatures of authorized signatories upon
reasonable advance notice. Upon the termination or expiration of this Agreement,
any such memorandum shall be promptly released of record by NRG at NRG's sole
cost and expense. If NRG shall fail to do so, NRG hereby appoints ACL as its
agent, with power of attorney, to do so on its behalf, which power of attorney
shall be deemed to be coupled with an interest.
13. CONFIDENTIALITY. Subject to Section 12, this Agreement is confidential
and shall not be disclosed by any of the parties or their agents, affiliates,
consultants or counsel to any other party without the prior express written
consent of American and NRG, provided however, the parties agree that this
Agreement may be attached to American's proposed Plan of Reorganization (as
defined in the Security Side Letter Agreement) with appropriate measures taken
to attempt to ensure confidentiality of the economic terms and conditions of
this Agreement.
14. RISK OF LOSS. The risk of loss or damage to the Property until Closing
shall be borne by ACT, except to the extent caused by NRG, and any insurance
proceeds for events occurring prior to Closing shall be paid to and solely for
the account of ACT; provided that if proceeds are payable for a casualty that
was not accounted for in the determination of the Purchase Price, the Purchase
Price shall be reduced by the amount of such proceeds that are payable for such
casualty.
15. GOVERNING LAW. This Agreement shall be constructed and interpreted
according to the laws of the State of Missouri.
16. COMPUTATION OF TIME. In computing any period of time under this
Agreement, the day of the act, event or default from which the designated period
time begins to run will not be included. The last day of the period so computed
will be included, unless it is a Saturday, Sunday or legal holiday, and, if so,
the period will run until the end of the next day not a Saturday, Sunday or
legal holiday.
17. INABILITY TO PERFORM. Each party will be excused from performing any
term of this Agreement, if, and for so long as, such performance is prevented,
delayed, or hindered by reason of an event of Force Majeure (as defined in the
Transportation Contract).
18. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and the signature pages combined to form a fully-executed
Agreement, provided that each party hereto has executed a signature page. The
fact that this Agreement may have been executed at different times by different
parties will not affect its validity.
19. FACSIMILE SIGNATURES. The parties may transmit this Agreement between
them by facsimile machine. The parties intend that faxed signatures constitute
original signatures and that a faxed Agreement containing the signatures
(original or faxed) of all the parties is binding. At the request of either
party, the parties will confirm facsimile transmitted signatures by signing an
original Agreement.
20. ENTIRE AGREEMENT. All prior negotiations and agreements between the
parties hereto are superseded by this Agreement, and except as may be set forth
in the Transportation Contract or Ancillary
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Agreements, there are no representations, warranties, understandings or
agreements other than those expressly set forth herein.
21. EXPENSES OF PREVAILING PARTY. In the case of any legal or equitable
action taken by either party in connection with the default of the other party,
the prevailing party will be entitled to recover from the other party all costs
and reasonable legal fees incurred in connection therewith. A prevailing party
is a party who recovers at least three-quarters of its total claims in the
action or who is required to pay no more than one-quarter of the other party's
total claims in the action.
22. BINDING EFFECT; AUTHORITY. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their successors and assigns. The
persons executing this Agreement on behalf of each party hereby represent and
warrant to the other party that such person has the full authority to enter into
this Agreement and such party is able to faithfully and timely perform each and
every term of this Agreement, without the necessity of the consent, joinder or
approval of any other party.
23. MODIFICATIONS. This Agreement may not be amended, modified or changed,
nor shall any waiver of any provision hereof be effective, except by an
instrument in writing and signed by the party against whom enforcement of any
such waiver, amendment, modification, change or discharge is sought.
24. HEADINGS. The headings in the sections of this Agreement are inserted
for convenience only and in no way alter, amend, modify, limit or restrict the
contractual obligations of the parties.
25. INVALID PROVISIONS. If any provision in this Agreement is or will
become invalid, illegal or unenforceable in any respect, the validity, legality
or enforceability of the remaining provisions of this Agreement and any other
application thereof will not in any way be affected or impaired thereby;
provided that if permitted by applicable law, any invalid, illegal, or
unenforceable provision may be considered in determining the intent of the
parties with respect to other provisions of this Agreement.
26. JOINT PREPARATION. This Agreement is to be deemed to have been
prepared jointly by the parties hereto, and any uncertainty or ambiguity
existing herein, if any, will not be interpreted against any party, but will be
interpreted according to the application of the rules of interpretation for
arm's length agreements.
27. NOTICES. A party may effect a valid notice pursuant to this Agreement
only by giving such notice in writing and delivering it, postage or charges
prepaid, in person, by certified mail, by overnight delivery service, or by
facsimile transmission to the parties respective addresses set forth below:
ACT: American Commercial Terminals LLC
1701 East Market Street
Jeffersonville, IN 47130
Attn: Director of Sales
Facsimile No. (812) 288-0256
NRG: NRG New Roads Holdings LLC
112 Telly Street
New Roads, LA 70760
Attn: John Brewster, President
Facsimile No. (225) 618-4481
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or to such substituted address or facsimile number as designated by notice to
the other party. Same day delivery by messenger will constitute personal
delivery. Such notice will be deemed effective two (2) days after properly
mailed; one (1) day after properly consigned to an overnight delivery service;
upon receipt of personal delivery; or, in the case of notice via facsimile
transmission, on the day the sender receives electronic confirmation of
delivery, provided that if the confirmation does not occur before 4 p.m.,
recipient's local time, on a business day, the notice will take effect on the
next business day.
28. REASONABLE COSTS, EXPENSES, AND FEES. The word "reasonable" will be
deemed to precede each reference to "costs", "expenses", "fees", or similar
items for which any party may seek reimbursement from any other party to this
Agreement.
29. TIME IS OF ESSENCE. Time is of the essence in this Agreement.
30. EXHIBITS. All exhibits and schedules referred to in this Agreement are
attached to and incorporated into this Agreement by reference.
31. SURVIVAL. The terms of Sections 8.D. and 13 shall survive expiration
or termination of this Agreement and/or the conveyance of title to the Property
to NRG.
(SIGNATURE PAGE TO FOLLOW)
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IN WITNESS WHEREOF, the parties have affixed their signatures hereto, as
of the date set forth below their respective signatures below.
NRG NEW ROADS HOLDINGS LLC AMERICAN COMMERCIAL TERMINALS LLC
By: /s/ John P. Brewster By: /s/ W. N. Whitlock
----------------------- ------------------------------
Name: John P. Brewster Name: W. N. Whitlock
Title: President Title: President
Date: 12-10-04 Date: 12-10-04
SIGNATURE PAGE TO TERMINAL OPTION AGREEMENT
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EXHIBIT A
DESCRIPTION OF PROPERTY
(Legal description on ACT vesting deed(s) to control)
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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 Heal 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 chat 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
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 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
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