EXHIBIT 10.20
CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made
and entered into effective as of the Effective Date, as set forth in Section 5
herein, by and between AMERICAN COMMERCIAL TERMINALS LLC, a Delaware limited
liability company ("Assignor"), and NRG NEW ROADS HOLDINGS LLC, a Delaware
limited liability company ("Assignee").
WITNESSETH:
WHEREAS, The Burlington Northern and Santa Fe Railway Company ("BNSF"),
American Commercial Barge Line LLC ("ACBL") and Assignor entered into a
Memoranda of Understanding with NRG Power Marketing Inc. ("NRGPM"), and BNSF and
Assignor entered into another Memorandum of Understanding with NRGPM
(collectively, "MOU"), each dated August 6, 2004, both for the purpose of
setting forth the major terms and conditions under which Assignor and BNSF will
transport unit trains of coal from BNSF-served origins in the Powder River Basin
of Wyoming to Assignor's Hall Street Terminal at St. Louis, Missouri, for
furtherance to the Big Cajun No. II facility near New Roads, Louisiana (the "LG
Power Plant"); and
WHEREAS, the LG Power Plant is owned by Louisiana Generating LLC, a
Delaware limited liability company and affiliate/subsidiary of Assignee and
NRGPM ("LG"); and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and Assignor (the "Transportation Contract") as provided therein; and
WHEREAS, the parties have entered into Security Side Letter Agreement
("Security Side Letter Agreement"), pursuant to which American Commercial Lines
LLC ("ACL"), ACBL and Assignor (collectively, "American") has agreed to provide
certain assurances as additional security for its obligations under the
Transportation Contract; and
WHEREAS, pursuant to that certain Lease dated as of August 17, 1976,
entered into between Burlington Northern Inc., a Delaware corporation,
predecessor in interest to BNSF ("Landlord"), as landlord, and ACBL Western,
Inc., a Delaware corporation, predecessor in interest to Assignor, as tenant,
and all amendments, modifications, supplements and extensions thereto (as
amended and modified, the "Lease") copies of which are attached hereto as
EXHIBIT A, Assignor leases from Landlord that certain real property commonly
known as the "Premises", as more fully described in the Lease; and
WHEREAS, pursuant to the Security Side Letter Agreement, Assignor and
Assignee have agreed to enter into this Assignment, pursuant to which Assignor
will make a conditional assignment of the Lease to Assignee, which assignment is
conditioned upon the occurrence of a Trigger Event (as defined in the Security
Side Letter Agreement) and Assignee's timely exercise of the Terminal Option (as
defined in the Security Side Letter Agreement) and consummation of the purchase
of the Property pursuant to the Terminal Option Agreement dated of even date
herewith (the "Terminal Option Agreement"); and
WHEREAS, Assignor desires to conditionally assign its interest in the
Lease to Assignee, and Assignee desires to accept the assignment thereof, on the
terms and pursuant to the conditions set forth herein; and
WHEREAS, the Transportation Contract and the Ancillary Agreements (as
defined in the Security Side Letter Agreement) form the basis for the coal
transportation described above.
NOW THEREFORE, in consideration of the promises and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Assignor does hereby conditionally sell, grant, convey, assign,
transfer and set over to Assignee all of the right, title and interest of
Assignor in and to the Lease (including but not limited to all renewal options
and rights, all security deposits), which assignment and conveyance shall only
be effective upon Assignor's receipt from Assignee, within ninety (90) days of a
Trigger Event, of a written notice electing to enforce this Assignment (the
"Assignment Date"); and provided further that Assignee must also timely exercise
the Terminal Option and consummate the purchase of the Property pursuant to the
Terminal Option Agreement.
2. Assignee does hereby accept the assignment set forth above, and for the
benefit of Assignor does hereby assume and agree to be bound and abide by all
covenants, agreements and undertakings of Assignee as tenant, as they apply from
and after the Assignment Date, under the Lease.
3. Assignor represents and confirms unto Assignee that the Lease is in
full force and effect, unchanged and unmodified; that there are no defaults by
Assignor, as of the date of execution of this Assignment by Assignor, under the
Lease; and that Assignor is not aware of any conditions or circumstances which,
by lapse of time or upon the giving of notice or both, would result in Landlord,
Assignor or Assignee being in default under the Lease; and that Assignee has
paid all rental obligations and other charges due under or arising out of the
Lease up to and including the date of execution of this Assignment by Assignor.
4. Assignee hereby agrees to indemnify and hold harmless Assignor from any
and all loss, damage, claim or liability (including reasonable attorney's fees)
arising from or under the Lease after the Assignment Date.
5. The "Effective Date" of this Assignment shall be the Effective Date as
defined in the Security Side Letter Agreement. In addition to the foregoing,
this Assignment shall not be enforceable against the parties hereto unless and
until the definitive Transportation Contract has been entered into among the
parties thereto.
6. Assignor agrees to obtain the consent of Landlord to this Assignment in
the form attached hereto as EXHIBIT B.
7. For so long as Assignor has outstanding obligations under the
Transportation Contract and the Ancillary Agreements remain in effect, the
terms, conditions and covenants of this Assignment shall be binding upon and
shall inure to the benefit of each of the parties to this Assignment, their
heirs, successors or assigns, shall run with the land, and may be amended,
waived or terminated only by an agreement in writing signed by both parties,
their successors or assigns.
8. This Assignment may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. For purposes of executing this Assignment, a document signed and
transmitted by facsimile machine or telecopier is to be treated as an original
document. At the request of either party, the other will confirm facsimile
signature by signing an original instrument.
9. The laws of the State of Missouri shall govern the interpretation,
validity, performance and enforcement of this Assignment.
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment,
effective as of the date set forth below their signatures.
ASSIGNOR: ASSIGNEE:
AMERICAN COMMERCIAL TERMINALS LLC, NRG NEW ROADS HOLDINGS LLC,
a Delware limited liability company a Delware limited liability company
By: /s/ W N Whitlock By: /s/ John P. Brewster
---------------------- ------------------------
Name: W N Whitlock Name: John P. Brewster
Title: President Title: President
Date: 12-10-04 Date: 12/10/04
SIGNATURE PAGE TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(BNSF LEASE)
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EXHIBIT A TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(COPY OF LEASE)
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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 spacial 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 end 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
INDUSTRIAL TRACK AGREEMENT
Parties AGREEMENT made this 10th________ day of April____________
1978, between BURLINGTON NORTHERN INC., a Delaware corporation,
hereinafter called "Railroad", and A.C.B.L. WESTERN, INC., a
Delaware corporation, hereinafter called "Industry", whose
billing address for the purpose of this agreement is Suite 104,
Airport Office Center, 4482 Woodson Road, St. Louis, Missouri
63134.
WITNESSETH:
Location WHEREAS, Industry will construct a terminal facility for
the transfer of coal from railroad to barge at St. Louis,
Missouri, and desires to provide for rail access to and from said
terminal facility in the approximate location as shown colored
solid and dashed blue, solid red, solid yellow and crossings
colored red and green on the plat hereto attached, dated November
25, 1977, marked Exhibit "A", and by this reference made a part
hereof.
NOW THEREFORE, in consideration of the Ritual promises to
be kept and performed and the benefits to be derived by each of
the parties, Railroad and Industry hereby agree as follows:
Right of Way Section 1. Subsequent to the original construction,
Industry shall procure without expense to Railroad all necessary
public authority and permission for any future rehabilitation,
relocation, construction, maintenance and operation of the track
colored dashed blue and crossing colored green.
Industry further agrees that said track end crossings shall
be rehabilitated, relocated, constructed, maintained and operated
subject to all provisions of any such public authority or
permission and, regardless of the fact that same may be granted
to Railroad rather than to Industry, to assume any and all
liability for and to indemnify, defend and save harmless Railroad
from and against any and all loss, cost, damage, suit or expense
in any manner arising or growing out of the compliance with or
violation of the provisions of such public authority or
permission by Industry.
If saturation of the grade of said track and of any highway
is ordered at any time in the future by public authority,
Industry shall pay a pro-rata share of the costs based on the
number of tracks owned by Industry compared to the total number
of tracks spanned by the separation.
Construction, Section 2.(a) Industry will do all grading and provide
Membership and necessary sub-ballast and drainage, at their sole expense, for
Maintenance that portion of track which is located on Railroad property.
(b) Railroad will construct track between the
letters A-B, C-D, E-H, I-J, L-M, N-O, P-Q and will remove and
relocate track colored solid yellow to the locations colored
solid red, rehabilitate track between the letters A-S, S-I and
J-K, construct crossing colored red and relocate signal from
location colored yellow to the location colored green on Exhibit
"A" and reconstruct yard office with the Industry's portion of
expenses for all said work to be the agreed amount of
$1,368,141,00.
Railroad will, at its expense, construct track between the
letters I-R on Exhibit "A".
Progress bills will be submitted by Railroad to Industry
with the first installment of 50% of the total cost due and
payable in March of 1978. The remaining amount will be billed in
two installments of 25% of the total amount and will be due and
payable upon completion of one-half of the work and upon final
completion of the project. Such billings will be based on
Railroad's engineers estimates of percentage of completion of the
work. Cost of construction herein agreed to be borne by Industry
will be paid within twenty (20) days after bills are rendered
therefor.
Upon completion of the rehabilitation of track between the
letters S-l and J-K and construction of track between the letters
A-B on Exhibit "A" and in
consideration of the sum received herein, Railroad does hereby
grant, bargain, sell and deliver unto Industry all of its, right,
title and interest in and to the track between the letters S-I
and J-K on Exhibit "A", and Railroad shall simultaneously assume
the maintenance, ownership and exclusive use of track between the
letters A-B on Exhibit "A".
At the time Railroad accepts ownership of the track shown
between the letters A-B on Exhibit "A", said track will
thereafter not be deemed a part of the "track" as covered by this
agreement.
(c) Railroad will, at its expense, maintain track
colored solid red and solid blue and crossing colored red on
Exhibit "A".
Industry will, at its expense, maintain track colored
dashed blue and crossing colored green on Exhibit "A".
(d) Railroad will own track colored solid blue
and solid red on Exhibit "A" and Industry will own track colored
dashed blue on Exhibit "A".
Industry shall bear and pay any costs for changes or
alterations in that portion of track owned by Industry that may
be necessary in order to conform to any changes of grade or
relocation of the tracks of Railroad at the point of connection
with said track required by any law, ordinance or regulation, or
necessary because of any other reason beyond Railroad's control.
In the event Railroad should be requested to perform minor
preventive maintenance on the track colored dashed blue or
crossing colored green on Exhibit "A", Industry will be advised
the nature and cost of such maintenance and will give its
approval prior to commencement of such work by Railroad. Such
approval shall not be unreasonably withheld.
Industry shall pay to Railroad the agreed cost of such
maintenance within twenty (20) days after bills are rendered
therefor.
Any work performed by Industry in constructing or
maintaining the track or any facilities extending over, under or
across the same or in making additions and betterments thereto
shall be done in a substantial and workmanlike manner and in
accordance with Railroad's standards. Wire lines shall be
constructed and maintained in accordance with Railroad's
requirements, the National Electric Safety Code and any statute,
order, rule or regulation of any public authority having
jurisdiction. If Industry fails to maintain said facilities or
that portion of the track herein agreed by it to be maintained or
to pay the bills therefor within the prescribed time, Railroad
may refuse to operate over the track.
If said track is used for the receiving, forwarding or
storing of hazardous commodities, Industry agrees to comply with
Railroad's requirements and the requirements of any statute,
order, rule or regulation of any public authority having
jurisdiction with respect thereto as the same may be modified,
supplemented and amended from time to time.
Definition Section 3. Subsequent to the completion of the initial
of Cost track work covered by this agreement, "cost" for the purpose of
this agreement shall be actual labor, material and equipment
costs including all assignable additives. Material and supplies
shall be charged at current value where used.
Right of Section 4. Industry hereby grants to Railroad the exclusive
Railroad right to operate over Industry's track free of charge, such
To Use operation to include the movement of empty cars as well as loaded
cars for purpose of serving Industry or in an emergency.
Clearances Section 5. Industry shall not place, or permit to be
placed, or to remain, any material, structure, pole or other
obstruction within 8-1/2 feet laterally of the center or within
23 feet vertically from the top of the rail of said track;
provided that if by statute or order of competent public
authority greater clearances shall be required than those
provided for in this Section 5, then Industry shall strictly
comply with such statute
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or order. However, vertical or lateral clearances which are less
than those hereinbefore required to be observed but are in
compliance with statutory requirements will not be deemed to be
a violation of this Section. Industry agrees to indemnify
Railroad and save it harmless from and against any and all
claims, demands, expenses, costs and judgments arising or growing
out of loss of or damage to property or injury to or death of
persons occurring directly or indirectly by reason of any breach
of the foregoing or any other convenant contained in this
agreement.
Should either, or both, the lateral and vertical clearances
hereinbefore required to be observed be permitted to be reduced
by order of competent public authority, Industry hereby agrees to
strictly comply with the terms of any such order and indemnify
and hold harmless Railroad from and against any and all claims,
demands, expenses, costs and judgments arising or growing out of
loss of or damage to property or injury to or death of persons
occurring directly or indirectly by reason of or as a result of
any such reduced clearance.
Railroad's operations over the track with knowledge of an
unauthorized reduced clearance shall not be or be deemed to be a
waiver of the foregoing covenants of Industry contained in this
Section 5 or of Railroad's right to recover for such damages to
property or injury to or death of persons that may result
therefrom.
Public Section 6. Industry shall pay all compensation, taxes and
Assessments assessments for local improvements required at any time to be
paid to a municipality, public authority, corporation or person
for the privilege of maintaining and operating said track colored
dashed blue and crossing colored green on Exhibit "A".
Liability Section 7. Industry agrees to indemnify and hold harmless
Railroad for loss, damage, injury or death from any act or
omission of Industry, its 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 track colored dashed blue and right of way
thereunder and crossing colored, green, and if any claim or
liability shall arise from the joint or concurring negligence of
both parties hereto it shall be borne by then equally.
In the event Industry permits a party or parties,
hereinafter called "Permitteo", other than Railroad to use said
track for receiving, forwarding or storing shipments. Railroad
hereby consents to such use, and in such case Industry hereby
agrees to indemnify and hold harmless Railroad from and against
any and all loss, damage, injury or death, resulting from or
arising out of any act or omission of Permittee, its employees or
agents, to the person or property of the parties hereto and said
Permittee, and to the person or property of any other person or
corporation while on or near said track colored dashed blue,
right of way thereunder and crossing colored green.
Notwithstanding anything herein contained to the contrary,
nothing herein is to be construed, as an indemnification against
the sole negligence of Railroad, its officers, employees and
agents.
Assignment Section 8. This agreement shall inure to the benefit of and
be binding upon the successors and assigns of the parties hereto.
Industry shall be permitted, upon furnishing Railroad prior
written notice, to assign this agreement to an affiliate of
Industry; however, said agreement may not be further assigned
without the prior written consent of Railroad, and for any
departure in this respect Railway may terminate this agreement.
Right to Section 9. Railroad shall be privileged to terminate this
Disconnect agreement and discontinue the maintenance and operation of said
Track track, and to remove its ownership, only in the event of any of
the following contingencies, viz.:
(a) Railroad is authorized by competent public
authority to abandon its line to which track is connected.
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(b) Industry shall fail to keep and perform any
obligation or stipulation stated in or resulting under this
agreement after written notice of default and after Industry's
failure to remedy said default in a reasonable period of time.
Except as provided in Section 10 of this agreement, no
recourse or claim will exist in favor of or be asserted by
Industry because of the discontinuance of operation and removal
of the metal and fastenings as provided in this Section of this
agreement.
Removal of Section 10. Upon discontinuance of the use of the dashed
Track blue track by Industry, Railroad shall have the option to
purchase said track at the current second-hand value less the
cost of rehabilitation to Railroad's standards. Failing to
exercise such option. Industry may remove its ownership and
restore and level the premises to a condition satisfactory to
Railroad.
Joint Use Section 11. This agreement is also made for the benefit of
any Other such other railroads which, either by prior understandings or
Railroads agreements with the Railroad have the right to use the track, or
which shall be admitted in the future to the use of the track by
Railroad, all of which railroads shall be deemed the "Railroad"
within the meaning hereof.
Section 12. Effective as of the date track construction is
completed, Industry will pay to Railroad an annual charge of
$650.00 for use of land underlying track colored dashed blue on
Exhibit "A".
IN WITNESS WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first above written.
BURLINGTON NORTHERN INC.
By /s/ [ILLEGIBLE]
-----------------------------
Vice President
A.C.B.L. WESTERN, INC.
By /s/ [ILLEGIBLE]
-----------------------------
Title: Vice President
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EXHIBIT B TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
LANDLORD WAIVER AND CONSENT
TO: NEW ROADS HOLDINGS LLC ("NRG")
American Commercial Terminals LLC, a Delaware limited liability company
("TENANT") and the undersigned ("LANDLORD") have entered into a lease, dated
August 17, 1976, as amended (the "LEASE"), demising the premises located in St.
Louis City, Missouri and legally (or otherwise) described in the Lease (the
"PREMISES"). A copy of the Lease is attached hereto as EXHIBIT 1.
Tenant and certain of its affiliates have entered into certain agreements
with Louisiana Generating, LLC, a Delaware limited liability company ("LG")
and/or NRG Power Marketing Inc., a Delaware corporation, and certain affiliates
("NRGPM"), including but not limited to a Transportation Contract (the
"TRANSPORTATION CONTRACT") dated as of December ___, 2004, between LG, Tenant
and certain other parties thereto. In addition, NRG, Tenant, its affiliates and
certain other parties have entered into a Security Side Letter Agreement dated
December ___, 2004, pursuant to which Tenant and its affiliates have agreed to
enter into certain Ancillary Agreements to secure the obligations of Tenant and
its affiliates under the Transportation Contract.
As a condition precedent to LG's obligations under the Transportation
Contract, LG requires, among other things, that Tenant collaterally assign its
leasehold interest in the Lease to NRG pursuant to that certain Conditional
Assignment and Assumption of Lease (the "ASSIGNMENT") to which this Exhibit is
attached and made a part of.
To induce LG to continue to perform under the Transportation Contract or
for the benefit of Tenant, and for other good and valuable consideration,
Landlord hereby agrees that:
1. Landlord hereby consents to the execution by Tenant of the
Assignment. Landlord agrees that the execution, delivery and performance by
Tenant of the Assignment will not constitute a default under the Lease.
2. The Lease is valid and is in full force and effect and has not been
assigned, modified, supplemented or amended in any way, except as described on
EXHIBIT 1, and represents the entire agreement between the parties thereto.
3. To the best knowledge of Landlord, neither Landlord nor Tenant is in
default under the terms of the Lease and no event has occurred which, with the
giving of notice or the passage of time, would constitute a default under the
Lease.
4. Tenant is in possession of the Premises and Tenant is the current
holder of the leasehold estate created under the Lease.
5. The Lease expires on _________, [subject to the renewal or extension
provisions set forth in EXHIBIT 1].
6. No assets of Tenant (including, without limitation, equipment and
trade fixtures) located on or about the Premises will be deemed by Landlord to
be fixtures or to constitute part of the Premises.
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7. Landlord will not assert, and therefore waives, any liens, whether
granted by the Lease, statute or otherwise (including, without limitation,
rights of levy or distraint for rent), against the property of Tenant located on
the Premises, including, without limitation, Tenant's machinery, improvements,
equipment, furniture, fixtures, inventory and all additions, replacements or
substitutions therefor (collectively, the "PERSONAL PROPERTY").
8. If Tenant defaults on its obligations to NRG and, as a result, NRG
exercises its rights under the Assignment, or otherwise undertakes to enforce
its security interest in Tenant's assets, Landlord will permit NRG or its agent
to enter and take possession of the Premises without terminating the Lease, and
Landlord will recognize NRG (or other nominee thereof) as the tenant under the
Lease, entitled to all of the benefits thereof, and responsible for the
performance of all of Tenant's obligations arising thereunder from and after the
date that NRG takes possession as aforesaid. NRG may cause the Premises to be
assigned or sublet with the written consent of Landlord, which consent shall not
be unreasonably withheld, provided, however, that Landlord agrees that it will
consent to an assignment to any subsidiary or affiliate of NRG and that NRG has
the right to transfer its interest in the Lease, with notice but without
consent, to an entity controlled by, controlling or under common control with
NRG, or to a business entity which acquires all or substantially all of the
assets of NRG. It is understood and agreed that any consent by Landlord to any
assignment or subletting by NRG shall not be considered or construed to be a
consent to any subsequent assignment or subletting nor as a waiver of the right
of Landlord to refuse to consent to any subsequent assignment or subletting.
9. In accordance with and subject to the terms of the Deed of Trust
from Tenant to LG and NRG (the "DOT"), NRG may, at no expense to Landlord enter
onto the Premises following a Trigger Event and take possession of, sever, or
remove the Personal Property or any part thereof, and said Personal Property,
upon severance and/or removal, may be sold, transferred or otherwise disposed of
free and discharged of all liens, claims, demands, rights or interests of
Landlord. If NRG and/or LG enters the Premises solely for the purposes of
executing such party's rights with respect to the Personal Property under the
DOT, (i) NRG shall not be deemed to have assumed any obligations or liabilities
of Tenant under the Lease merely by reason of such limited purpose entrance, and
(ii) NRG shall not have any duty or obligation to remove or dispose of any
remaining Personal Property left on the Premises following such removal;
provided that NRG agrees to repair any damage to the Premises caused by the
removal of such Personal Property.
10. Landlord: (a) will use commercially reasonable efforts to give
copies of all notices of default sent to Tenant under the Lease to NRG at:
NRG New Roads Holdings LLC
112 Telly Street
New Roads, LA 70760
or to such other address as NRG may designate from time to time by notice given
to Landlord at the address set forth after its signature hereto, and (b) prior
to exercising any of Landlord's rights and remedies under the Lease or at law or
in equity, NRG shall have the right (but not the obligation) to cure or cause to
be cured such default within the following time periods from and after receipt
by NRG of notice of such default from Landlord: ten (10) days with respect to
monetary defaults and thirty (30) days with respect to non-monetary defaults
after the period of time granted to Tenant to cure such defaults under the terms
of the Lease; provided, however, that if the nature of any non-monetary default
is such that the same cannot be cured within said thirty (30) day period, NRG
shall be given such additional period of time as may be necessary to cure the
default provided that NRG commences the cure within said thirty (30) day period
and proceeds diligently thereafter to complete such cure.
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11. Landlord will not consent to any material amendment, supplement or
other material modification of the Lease without NRG's prior written consent,
which consent shall not be unreasonably withheld.
12. Landlord agrees to disclose this Landlord Consent to any purchaser
or successor to Landlord's interest in the Premises.
13. The statements and agreements contained herein shall be binding
upon, and shall inure to the benefit of, NRG, its affiliates, Tenant and its
affiliates, successors and assigns, Landlord, mortgagees of the Premises and the
successors and assigns of all of the foregoing.
14. Notwithstanding anything herein to the contrary, nothing in this
Consent nor in the Assignment shall be deemed to enlarge Tenant's or NRG's
rights or privileges under the Lease, or to diminish Tenant's or NRG's
obligations or liabilities under the Lease.
Dated as of the _______ day of ___________, 200____.
LANDLORD:
BURLINGTON NORTHERN AND SANTA FE
RAILWAY COMPANY
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
LANDLORD'S ADDRESS:
____________________________________________
____________________________________________
____________________________________________
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LANDLORD WAIVER AND CONSENT
EXHIBIT 1
LEASE
SEE ATTACHED