EXHIBIT 10.21
CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made
and entered into effective as of the Effective Date, as set forth in Section 5
herein, by and between AMERICAN COMMERCIAL TERMINALS LLC, a Delaware limited
liability company ("Assignor"), and NRG NEW ROADS HOLDINGS LLC, a Delaware
limited liability company ("Assignee").
WITNESSETH:
WHEREAS, the Burlington Northern and Santa Fe Railway Company ("BNSF"),
American Commercial Barge Line LLC ("ACBL") and Assignor entered into a
Memoranda of Understanding with NRG Power Marketing Inc. ("NRGPM"), and BNSF and
Assignor entered into another Memorandum of Understanding with NRGPM
(collectively, "MOU"), each dated August 6, 2004, both for the purpose of
setting forth the major terms and conditions under which Assignor and BNSF will
transport unit trains of coal from BNSF-served origins in the Powder River Basin
of Wyoming to Assignor's Hall Street Terminal at St. Louis, Missouri, for
furtherance to the Big Cajun No. II facility near New Roads, Louisiana (the "LG
Power Plant") ; and
WHEREAS, the LG Power Plant is owned by Louisiana Generating LLC., a
Delaware limited liability company and affiliate/subsidiary of Assignee and
NRGPM ("LG"); and
WHEREAS, pursuant to the MOU, the parties thereto agreed to negotiate the
definitive terms and conditions of a transportation contract by and between LG,
BNSF and Assignor (the "Transportation Contract") as provided therein; and
WHEREAS, the parties have entered into a Security Side Letter Agreement
("Security Side Letter Agreement"), pursuant to which American Commercial Lines
LLC ("ACL"), ACBL and Assignor (collectively, "American") has agreed to provide
certain assurances as additional security for its obligations under the
Transportation Contract; and
WHEREAS, pursuant to that certain Lease dated as of June 12, 1985, entered
into between the City of St. Louis, a municipal corporation of the State of
Missouri ("Landlord"), as landlord, and Assignor, as tenant, and all amendments,
modifications, supplements and extensions thereto (as amended and modified, the
"Lease") copies of which are attached hereto as Exhibit A, Assignor leases from
Landlord certain mooring privileges, easements, and access rights at such
locations (the "Premises"), as more fully described in the Lease; and
WHEREAS, pursuant to the Security Side Letter Agreement, Assignor and
Assignee have agreed to enter into this Assignment, pursuant to which Assignor
will make a conditional assignment of the Lease to Assignee, which assignment is
conditioned upon the occurrence of a Trigger Event (as defined in the Security
Side Letter Agreement) and Assignee's timely exercise of the Terminal Option (as
defined in the Security Side Letter Agreement) and consummation of the purchase
of the Property pursuant to the Terminal Option Agreement dated of even date
herewith (the "Terminal Option Agreement"); and
WHEREAS, Assignor desires to conditionally assign its interest in the
Lease to Assignee, and Assignee desires to accept the assignment thereof, on the
terms and pursuant to the conditions set forth herein.
WHEREAS, the Transportation Contract and the Ancillary Agreements (as
defined in the Security Side Letter Agreement) form the basis for the coal
transportation described above.
NOW THEREFORE, in consideration of the promises and conditions contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Assignor does hereby conditionally sell, grant, convey, assign,
transfer and set over to Assignee all of the right, title and interest of
Assignor in and to the Lease (including but not limited to all renewal options
and rights, all security deposits), which assignment and conveyance shall only
be effective upon Assignor's receipt from Assignee, within ninety (90) days of a
Trigger Event, of a written notice electing to enforce this Assignment (the
"Assignment Date"); and provided further that Assignee must also timely exercise
the Terminal Option and consummate the purchase of the Property pursuant to the
Terminal Option Agreement.
2. Assignee does hereby accept the assignment set forth above, and for
the benefit of Assignor does hereby assume and agree to be bound and abide by
all covenants, agreements and undertakings of Assignee as tenant, as they apply
from and after the Assignment Date, under the Lease.
3. Assignor represents and confirms unto Assignee that the Lease is in
full force and effect, unchanged and unmodified; that there are no defaults by
Assignor, as of the date of execution of this Assignment by Assignor, under the
Lease; and that Assignor is not aware of any conditions or circumstances which,
by lapse of time or upon the giving of notice or both, would result in Landlord,
Assignor or Assignee being in default under the Lease; and that Assignee has
paid all rental obligations and other charges due under or arising out of the
Lease up to and including the date of execution of this Assignment by Assignor.
4. Assignee hereby agrees to indemnify and hold harmless Assignor from
any and all loss, damage, claim or liability (including reasonable attorney's
fees) arising from or under the Lease after the Assignment Date.
5. The "Effective Date" of this Assignment shall be the Effective Date
as defined in the Security Side Letter Agreement. In addition to the foregoing,
this Assignment shall not be enforceable against the parties hereto unless and
until the definitive Transportation Contract has been entered into among the
parties thereto.
6. Assignor agrees to use its reasonable best efforts to obtain the
consent of Landlord to this Assignment in the form attached hereto as Exhibit B,
but the parties specifically acknowledge and agree that the final form thereof
shall be subject to such change as may be required by Landlord.
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7. For so long as Assignor has outstanding obligations under the
Transportation Contract and the Ancillary Agreements remain in effect, the
terms, conditions and covenants of this Assignment shall be binding upon and
shall inure to the benefit of each of the parties to this Assignment, their
heirs, successors or assigns, shall run with the land, and may be amended,
waived or terminated only by an agreement in writing signed by both parties,
their successors or assigns.
8. This Assignment may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument. For purposes of executing this Assignment, a document signed
and transmitted by facsimile machine or telecopier is to be treated as an
original document. At the request of either party, the other will confirm
facsimile signature by signing an original instrument.
9. The laws of the State of Missouri shall govern the interpretation,
validity, performance and enforcement of this Assignment.
(SIGNATURE PAGE TO FOLLOW)
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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 Delaware limited liability company a Delaware limited company
By: /s/ W N Whitlock By: /s/ John P. Brewester
---------------- -------------------------
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
(St. Louis Lease)
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EXHIBIT A TO CONDITIONAL ASSIGNMENT AND ASSUMPTION OF LEASE
(Copy of Lease)
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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 ??? 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."
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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
RICHARD C. HART
STATE OF INDIANA ) NOTARY PUBLIC STATE OF MISSOURI
) SS. MISSOURI CITY
COUNTY OP CLARK ) MY COMMISSION EXPRESS 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 the 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
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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, water-craft or other practical movable structures from
the mooring, without expense to the Lessor, unless authorized 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
Comptroller'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.
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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. "Fleeting 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, sewer, 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. Mall and sent to Lessee's last known address.
10. If this lease is amended or modified under the provisions of Sections
Eight (8) or Mine (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-
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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
transferable 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
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approved, all parts of this lease are binding on sublessor or assigns.
14. This lease way be cancelled at the option of the City if, at any tine
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 Center 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.
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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.
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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 Port Authority, Lessee shall have the tight 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.
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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; that 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 acknowledged 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.
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.
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5. The Lease expires on _________, [subject to the renewal or extension
provisions set forth in EXHIBIT 1].
6. No assets of Tenant (including, without limitation, equipment and
trade fixtures) located on or about the Premises will be deemed by Landlord to
be fixtures or to constitute part of the Premises.
7. Landlord will not assert, and therefore waives, any liens, whether
granted by the Lease, statute or otherwise (including, without limitation,
rights of levy or distraint for rent), against the property of Tenant located on
the Premises, including, without limitation, Tenant's machinery, improvements,
equipment, furniture, fixtures, inventory and all additions, replacements or
substitutions therefor (collectively, the "PERSONAL PROPERTY").
8. If Tenant defaults on its obligations to NRG and, as a result, NRG
exercises its rights under the Assignment, or otherwise undertakes to enforce
its security interest in Tenant's assets, Landlord will permit NRG or its agent
to enter and take possession of the Premises without terminating the Lease, and
Landlord will recognize NRG (or other nominee thereof) as the tenant under the
Lease, entitled to all of the benefits thereof, and responsible for the
performance of all of Tenant's obligations arising thereunder from and after the
date that NRG takes possession as aforesaid. NRG may cause the Premises to be
assigned or sublet with the written consent of Landlord, which consent shall not
be unreasonably withheld, provided, however, that Landlord agrees that it will
consent to an assignment to any subsidiary or affiliate of NRG and that NRG has
the right to transfer its interest in the Lease, with notice but without
consent, to an entity controlled by, controlling or under common control with
NRG, or to a business entity which acquires all or substantially all of the
assets of NRG. It is understood and agreed that any consent by Landlord to any
assignment or subletting by NRG shall not be considered or construed to be a
consent to any subsequent assignment or subletting nor as a waiver of the right
of Landlord to refuse to consent to any subsequent assignment or subletting.
9. In accordance with and subject to the terms of the Deed of Trust
from Tenant to LG and NRG (the "DOT"), NRG may, at no expense to Landlord enter
onto the Premises following a Trigger Event and take possession of, sever, or
remove the Personal Property or any part thereof, and said Personal Property,
upon severance and/or removal, may be sold, transferred or otherwise disposed of
free and discharged of all liens, claims, demands, rights or interests of
Landlord. If NRG and/or LG enters the Premises solely for the purposes of
executing such party's rights with respect to the Personal Property under the
DOT, (i) NRG shall not be deemed to have assumed any obligations or liabilities
of Tenant under the Lease merely by reason of such limited purpose entrance, and
(ii) NRG shall not have any duty or obligation to remove or dispose of any
remaining Personal Property left on the Premises following such removal;
provided that NRG agrees to repair any damage to the Premises caused by the
removal of such Personal Property.
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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.
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: _____________________________________
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LANDLORD'S ADDRESS:
9
LANDLORD WAIVER AND CONSENT
EXHIBIT 1
LEASE
SEE ATTACHED