Exhibit C-44
NET LEASE OF RAILROAD EQUIPMENT
BETWEEN
KANSAS CITY POWER & LIGHT COMPANY
AND
PULLMAN LEASING COMPANY
January 1, 1989 - December 31, 2003
TABLE OF CONTENTS
Article Section Page
1 Lease of Cars Shown on Riders 1
2 Term of Lease 1
3 A Delivery of Cars 1
B Inspection and Acceptance 1
C Condition of Cars upon Delivery and Acceptance 2
D Railcar Repair Records 2
4 A Marking of Cars 2
B Lettering by Lessee 2
C Remarking and Relettering Cars 3
5 Rental Payments 3
6 Notices 3
7 Preservation of Cars 4
8 Maintenance of Cars 4
9 Rental Abatement Due to Destruction of Cars 4
10 A Notification of Destruction of Cars 5
B Responsibility for Loss or Destruction of or 5
Damage to Cars
C Substitution of Cars Damaged or Destroyed 5
11 Liability Arising Out of Use or Operation of Cars 5
12 Liability for Loss or Damage to Commodities 6
13 Liability for Loss of Use of Cars 6
14 Taxes, Duties, Customs, Switching and Demurrage 6
15 Assignment of Lessor's Interest 6
16 A Boundaries for Car Use and Permitted Sublease 7
B Merger, Consolidation or Acquisition of Lessee 7
17 Title to the Cars 7
18 Compliance With Law; Cost of Car Alterations 8
19 Lessee Data for Lease Administration 8
20 Lessor Inspection of Cars 8
21 Default of Lessee 9
22 Return of Cars Upon Default 9
23 Return of Cars Upon Expiration of Term 10
24 Early Termination 11
25 Renewal Options 12
26 Warranties 12
27 Governing Law 12
28 A Severability 13
B Headings 13
C Waiver 13
D Benefit 13
E Entire Agreement 13
Exhibits
1. Rider No. 1
2. Car Restencil List
PULLMAN LEASING COMPANY
NET LEASE OF RAILROAD EQUIPMENT
Effective this 11 day of January, 1989, PULLMAN LEASING
COMPANY, a Delaware corporation, (hereinafter referred to as
"Lessor") and KANSAS CITY POWER & LIGHT COMPANY, a Missouri
corporation, (hereinafter referred to as "Lessee") in
consideration of the promises hereinafter exchanged do enter into
the following Lease.
ARTICLE 1 LEASE OF CARS SHOWN ON RIDERS. Xxxxxx agrees to
furnish to Xxxxxx and Xxxxxx agrees to accept and
use upon the terms and conditions herein set forth
the railroad cars (hereinafter collectively
referred to as the "cars" and separately as a
"car") shown on Riders that may be added to this
Lease from time to time by mutual agreement of
Xxxxxx and Xxxxxx.
ARTICLE 2 TERM OF LEASE. The term of this Lease with respect
to each of the cars shall be the term specified on
the Rider to this Lease that is applicable to such
car, unless sooner terminated in accordance with
Article 23 or Article 24 hereof, subject to any
extension thereof as may be agreed upon in writing
by Lessor and Xxxxxx in accordance with Article 25
hereof.
ARTICLE 3A DELIVERY OF CARS. Each of the cars shall be
delivered to Lessee hereunder at PLM's Bill,
Wyoming railcar maintenance shop (hereinafter
referred to as "RMC"). Furnishing of the cars by
Lessor shall be subject to all causes beyond the
control of Lessor; however, best efforts shall be
made to deliver the cars during the month of
January, 1989. All transportation charges
associated with moving the cars from their current
service to RMC shall be for Lessor's account.
B INSPECTION AND ACCEPTANCE. Each of the cars shall
be subject to a joint inspection at RMC before
loading. For each car, Lessor and Lessee shall
execute a joint inspection certificate, which shall
detail all damage, if any, to the car. Should the
damage be of a nature that does not render the car
unfit or unsuited for transportation in the opinion
of Xxxxxx and Lessee, Lessee shall accept the car
with no obligation to repair the damage and no
liability for the damage so detailed upon return of
the car to Lessor. Should the damage be of a nature
that renders the car unfit or unsuited for
transportation, or that in Xxxxxx's reasonable
opinion may deteriorate over time to render the car
unfit or unsuited for transportation, then Lessee
may reject the car, and no rentals or other charges
for such car will be due Lessor. Lessor shall
either repair such rejected car to Lessee's
satisfaction at Lessor's sole expense or replace
such rejected car with another railcar of the sane
type acceptable to Lessee if such replacement car
is available. The date of the joint inspection
certificate for each unrejected car shall be the
"Effective Date" for that car. The loading of any
car which is not the subject of a joint inspection
certificate by or on behalf of Lessee shall
nevertheless constitute acceptance thereof by
Lessee hereunder and shall be conclusive evidence
of the fit and suitable condition of each such car
for the purpose of transporting the commodities
then and thereafter loaded therein. The date of
such loading shall be the "Effective Date" for such
car.
C CONDITION OF CARS UPON DELIVERY AND ACCEPTANCE.
Lessor hereby warrants that each car upon delivery
shall be in good condition and repair according to
the rules adopted by the Association of American
Railroads governing the condition of and repair to
railroad freight cars for interchange of freight
traffic in effect from time to time (hereinafter
referred to as the "A.A.R. Interchange Rules" or
"Rules") including, but not limited to: all wheels
will be within the A.A.R. Interchange Rules
tolerances; each car will pass the single car air
test; all brake shoes, hoses, structural, and
safety appliances will meet the A.A.R. Interchange
Rules specifications. At the time of delivery, any
conditions failing to meet AAR specifications shall
be sufficient grounds for Lessee to reject the
affected car.
D RAILCAR REPAIR RECORDS. Lessor agrees to supply
Lessee with copies of the repair history of each of
the cars furnished in the Riders within six (6)
months following delivery of the cars. Xxxxxx
agrees to furnish Lessor with copies of all repair
cards incurred during the term of this Lease for
each of the cars leased hereunder within six (6)
months following termination of the Lease.
ARTICLE 4A MARKING OF CARS. At the time of delivery of the
cars by Lessor to Lessee, or as promptly as
practicable thereafter and prior to the cars' first
loading, Lessee shall cause each car to be plainly
marked on each side with Xxxxxx's identification
mark. If during the continuance of this Lease such
marking shall at any time be removed or become
illegible, wholly or in part, Lessee shall
immediately cause such marking to be restored or
replaced at Xxxxxx's expense. Lessee shall provide
Lessor with a listing of Lessor's cars as delivered
and the corresponding Lessee identification mark to
which each car was remarked to be attached and
become part of this Lease as soon as practicable
after all cars have been remarked.
B LETTERING BY XXXXXX. For the purpose of evidencing
the operation of the cars in Xxxxxx's service
hereunder, Lessee shall be permitted to board,
placard or stencil the cars with letters not to
exceed two inches (2") in height. Such height
restriction shall not apply to Lessee's
identification markings discussed in Article 4A
above.
C REMARKING AND RELETTERING CARS. Following
termination of this Lease or applicable Rider,
Lessee shall cause its identification marks and
lettering to be removed from the cars and shall
remark and reletter the cars as reasonably directed
by Xxxxxx at Xxxxxx's expense.
ARTICLE 5 RENTAL PAYMENTS. The rental with respect to each of
the cars shall be the rental specified on the Rider
to this Lease that is applicable to such car; such
rental shall become effective with respect to each
of the cars covered by such Rider upon the
Effective Date for each car and shall continue in
effect with respect to each such car throughout the
term of this Lease unless such car is redelivered
to Lessor at an earlier date, as provided in
Article 23 or Article 24 hereof, or as otherwise
provided in Article 9. The first rental payment for
each car shall be made at the pro rata daily rate
for the number of days from the Effective Date to
the end of the month in which the Effective Date
falls and shall be due within ten (10) business
days of the end of the month in which the Effective
Date falls. All subsequent payments of rental,
excluding the final rental payment, shall be made
in advance and shall be made on or before the first
business day of each succeeding month of the term
of this Lease. For purposes of this Lease, the term
"business day" shall mean calendar days, excluding
Saturdays, Sundays and holidays. Payments shall be
deemed made when mailed, as determined by the
postmark date, to the following address:
Pullman Leasing Company
P. 0. Box 96519
Chicago, Illinois 60693
The last payment of rental shall cover the number
of days from the first day of the final month to
the termination date of this Lease at the pro rata
rate per day. Such final rental payment shall be
due within ten (10) business days of the end of the
month in which the termination date falls.
ARTICLE 6 NOTICES. Any notice, election, or other
communication required or permitted to be made by
one party to another under this Agreement shall be
effective upon receipt, shall be in writing, and
shall be delivered personally to the party to whom
addressed, or sent by wire or by United States mail
or private express service with all necessary
postage or other charges fully pre-paid, addressed
to the party to whom directed at the address
specified below. Any party may change the address
at which it receives notice by giving notice of
such change to the other party, in the manner
specified above.
If to Lessor: Pullman Leasing Company
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Vice President Sales
If to Lessee: Kansas City Power & Light Company
P.O. Box 418679
Kansas City, Missouri 64141-9679
Attn: Supervisor, Unit Trains
Any notice pertaining to matters of an operational
or emergency nature may be delivered by mail,
messenger, telephone, telegraph, or by any other
reasonable means, to such representative of the
party hereto being notified as may be appropriate
under the circumstances, and such notice shall be
effective upon receipt. If such notice is given
orally, by telephone or otherwise, it shall be
confirmed in writing as soon as practicable
thereafter.
ARTICLE 7 PRESERVATION OF CARS. Lessee will preserve the cars
in good condition, normal wear and tear excepted,
and will not alter the physical structure of any of
the cars without the approval in writing of Lessor.
ARTICLE 8 MAINTENANCE OF CARS. Xxxxxx, at its expense, agrees
to maintain the cars after the Effective Date and
for the term of this Lease in good condition and
repair according to the A.A.R. Interchange Rules.
If any car parts, specialty items or appurtenances
(including, but not limited to, loading or
unloading appurtenances, lading oriented fittings,
closuring or locking devices, or otherwise
removable car parts or attachments) is removed,
broken off or altered to facilitate
loading/unloading, or for any other reason, and is
found to be missing, damaged, altered or replaced
with a non-standard car part, specialty item or
appurtenance, Lessee shall be obligated to repair
or replace the same at the request of Lessor
unless (i) removal or modification has been with
the written consent and approval of Lessor, or (ii)
full responsibility has been assumed in writing by
a railroad or third party, or (iii) such loss or
damage occurs while the car is located at a repair
facility of Lessor and is the result of the
negligence or misconduct of Lessor or its agents.
ARTICLE 9 RENTAL ABATEMENT DUE TO DESTRUCTION OF CARS. If any
car is damaged beyond repair or is destroyed,
rental for such car shall xxxxx on the date on
which Lessor receives payment for such car pursuant
to the A.A.R. Interchange Rules. If such car is
replaced by another car in accordance with Article
10C hereof, rental for such replacement car shall
commence on the Effective Date of such replacement
car.
ARTICLE 10A NOTIFICATION OF DESTRUCTION OF CARS. In the event
that any car shall be destroyed or, in the
reasonable opinion of Xxxxxx, irreparably damaged
during the term of this Lease, Lessee shall
promptly notify Lessor.
B RESPONSIBILITY FOR LOSS OR DESTRUCTION OF OR DAMAGE
TO CARS. Responsibility for loss or destruction of
or damage to cars or parts thereof or appurtenances
thereto furnished under this Lease shall be as
fixed by the then prevailing A.A.R. Interchange
Rules or, if applicable, by Regulations of the
Canadian Transport Commission. Said Rules or
Regulations shall establish the rights, obligations
and liabilities of Lessor, Lessee and any railroad
subscribing to such Rules or Regulations and moving
the cars over its lines in respect to matters to
which said Rules or Regulations relate. In the
event that any car is lost, damaged or destroyed on
any tracks of Lessee or on any private track, or in
the event that any car is damaged by any commodity
which may be transported and stored in or on such
car, such repairs or renewals as may be necessary
to place such car in good order and repair and any
cleaning of such car prior to any such repairs or
renewals shall be at the sole cost and expense of
Lessee; provided, however, that such damage by
commodity shall not include normal wear and tear
due to coal transportation. Xxxxxx and Xxxxxx agree
to cooperate with and to assist each other in any
reasonable manner requested but without affecting
their respective obligations under this Article to
establish proper claims against parties responsible
for loss or destruction of or damage to the cars.
C SUBSTITUTION OF CARS DAMAGED OR DESTROYED. Upon
Xxxxxx's request, Lessor, at its election, may
substitute another car of the same type and
capacity for any car which is damaged beyond repair
or destroyed during the term of this Lease. The
rental for such replacement car shall be the same
as the rental for the damaged or destroyed car, and
it shall commence on the Effective Date as
determined by the date of the joint inspection
certificate pertaining to each replacement car as
discussed under Article 3 hereof.
ARTICLE 11 LIABILITY ARISING OUT OF USE OR OPERATION OF CARS.
Except where responsibility is placed on others, as
provided in Article 10B hereof, Xxxxxx agrees to
indemnify and save harmless Lessor from and against
any and all losses, damages, injuries, liabilities,
claims and demands, regardless of the cause
thereof, and any expenses in connection therewith,
including reasonable counsel fees, arising out of,
or as a result of, the use and/or operation of the
cars during the term of this Lease other than
losses, damages, injuries, claims, demands and
expenses caused by Xxxxxx's negligence, or
intentional acts or omissions or attributable to
defects in workmanship and/or materials
incorporated into the cars by Lessor or the
manufacturer of the cars, or by their agents or
representatives.
ARTICLE 12 LIABILITY FOR LOSS OF OR DAMAGE TO COMMODITIES.
Lessor shall not be held liable for any loss of, or
damage to, commodities or any part thereof, loaded
or shipped in the cars, regardless of how such loss
or damage shall be caused, or shall result. Xxxxxx
agrees to assume responsibility for, to indemnify
Lessor against and to save Lessor harmless from any
such loss or damage or claim therefor.
ARTICLE 13 LIABILITY FOR LOSS OF USE OF CARS. Lessor shall not
be held liable to Lessee for loss of use of any car
or cars, in whole or in part, regardless of the
cause thereof.
ARTICLE 14 TAXES, DUTIES, CUSTOMS, SWITCHING AND DEMURRAGE.
Xxxxxx agrees to assume responsibility for and to
pay all property taxes levied upon or measured by
the cars and to file all property tax returns and
reports relating thereto. Lessee further agrees to
assume responsibility for and to pay or to
reimburse Lessor for all other taxes (except taxes
assessed upon the net income of Lessor) including
but not limited to any sales and/or use taxes or
similar taxes, tariff, duty, customs, switching
charges, freight charges, including freight charges
to a repair facility, demurrage or other charges
made by any governmental, railroad or other agency,
on account of the cars or in connection with the
use or operation of any of the cars after the
respective Effective Dates for the cars. Xxxxxx
agrees to promptly furnish Lessee with all
reasonably requested information for the
administration of this Article.
ARTICLE 15 ASSIGNMENT OF XXXXXX'S INTEREST. All rights of
Lessor hereunder may be assigned, pledged,
mortgaged, transferred or otherwise disposed of,
either in whole or in part, and/or Lessor may
assign, pledge, mortgage, transfer or otherwise
dispose of title to the cars with or without notice
to Lessee. In the event of any such assignment,
pledge, mortgage, transfer or other disposition in
connection with the financing or refinancing of the
purchase of the cars or any of them and in the
event of the occurrence of an event of default by
Lessor under such mortgage or agreement, this Lease
and all of Lessee's rights under this Lease and all
rights of any person, firm or corporation who
claims or who may hereafter claim any rights under
this Lease under or through Lessee are hereby made
subject and subordinate to the rights of any
chattel, mortgagee, assignee, trustee or holder of
legal title to the cars under any chattel
mortgages, conditional sale agreements, agreements
and assignments and/or equipment trust agreements
covering the cars or any of them heretofore or
hereafter created and entered into by Lessor, its
successors or assigns and to all of the rights of
any such chattel mortgagee, assignee, trustee or
other holder of the legal title to the cars. Any
sublease of the cars or any of them permitted by
Article 16 hereof that is entered into by Xxxxxx,
its successors or assigns shall contain language
which expressly makes such sublease subject to the
subordination contained in this Article 15. At the
request of the Lessor or any chattel mortgagee,
assignee, trustee or other holder of the legal
title to the cars, the cars may be lettered or
marked with a legend to identify the legal owner of
the cars at no expense to Lessee. Such legend shall
not replace Xxxxxx's identification markings as
provided for in Article 4A hereof. If during the
continuance of this Lease any such marking shall at
any time be removed or become illegible, wholly or
in part, Lessee shall immediately cause such
marking to be restored or replaced at Lessor's
expense.
ARTICLE 16A BOUNDARIES FOR CAR USE AND PERMITTED SUBLEASE.
Xxxxxx agrees to use the cars exclusively within
the boundaries of the United States (exclusive of
Alaska and Hawaii) and to make no transfer or
assignment of this Lease, or of the cars, to
service outside the continental United States by
operation of law or otherwise, without Xxxxxx's
prior written consent. However, Lessee may sublease
any of the cars for use within the permitted
boundaries without securing the prior written
consent of Lessor. Such subleasing shall in no way
relieve Lessee from any of its obligations to
Lessor under this Lease.
B MERGER, CONSOLIDATION OR ACQUISITION OF LESSEE.
Nothing in this Article 16 shall be deemed to
restrict the right of Lessee to assign or transfer
its leasehold interest under this Lease in the cars
or possession of the cars to any corporation into
or with which Lessee shall have become merged or
consolidated or which shall have acquired or leased
all or substantially all of the lines of railroad
of Lessee, provided that such assignees, successors
or transferees shall have duly assumed the
obligations of Lessee hereunder and that they will
not, upon the effectiveness of such merger or
consolidation or acquisition of properties and the
assumption of such obligations, be in default under
any provision of this Lease and that such merger or
consolidation or acquisition of properties shall
not alter in any way Lessee's obligations to Lessor
hereunder which shall be and remain those of a
principal and not a guarantor.
ARTICLE 17 TITLE TO THE CARS. Xxxxxx acknowledges and agrees
that by the execution hereof it does not obtain and
by its payments and performance hereunder it does
not and will not have or obtain any title to the
cars or any of them at any time subject to this
Lease nor any property right or interest legal or
equitable therein, except solely as Lessee
hereunder and subject to all of the terms hereof.
Lessee shall keep the cars free from any
encumbrances or liens by any party claiming by or
through Lessee which may be a cloud upon or
otherwise affect Lessor's title.
ARTICLE 18 COMPLIANCE WITH LAW: COST OF CAR ALTERATIONS. At
the time of delivery of the cars by Lessor to
Lessee, the cars will conform to the applicable
specifications and to all of the governmental laws,
regulations, requirements and rules, and to all of
the standards recommended by the Association of
American Railroads and, as applicable, of the
Canadian Transport Commission interpreted as being
applicable to railroad equipment of the character
of the cars as of the date of delivery to Lessee.
Xxxxxx agrees to comply with all governmental laws,
regulations, requirements and rules, and with the
A.A.R. Interchange Rules and, as applicable, the
Regulations of the Canadian Transport Commission
with respect to the use and operation of each of
the cars during the term of this Lease. In the case
any equipment or appliance on any of the cars shall
be required to be changed or replaced or in case
any additional or other equipment or appliance is
required to be installed on any of the cars during
the term of this Lease in order to comply with such
laws, regulations, requirements, rule and/or the
A.A.R. Interchange Rules as a result of any changes
or revisions made herein during the term of this
Lease, Lessee shall make such change, replacement
and/or installation and pay the cost thereof;
provided, however, that no adjustment in rentals
shall result therefrom; and provided, further, that
Lessee may, in good faith, contest the validity of
application of any such law, regulation,
requirement or rule in any reasonable manner which
does not, in the opinion of Lessor, adversely
affect the property or rights of Lessor under this
Lease or create any danger that Lessor will incur
criminal or other liability for which no
indemnification is provided hereunder. Any part or
parts changed, replaced and/or added to any of the
cars shall be considered to be accession to such
cars and title thereto shall be immediately vested
in Lessor.
ARTICLE 19 LESSEE DATA FOR LEASE ADMINISTRATION. Xxxxxx agrees
to furnish Lessor promptly, at Xxxxxx's request,
with complete and accurate information reasonably
required for the efficient administration of this
Lease.
ARTICLE 20 LESSOR INSPECTION OF CARS. Lessor or its assignee
shall have the right by its authorized
representatives to inspect the cars at the sole
cost and expense of Lessor at such reasonable times
as Lessor shall deem necessary.
ARTICLE 21 DEFAULT OF LESSEE. If (a) Lessee shall fail to
carry out and perform any of its obligations under
this Lease, or shall fail to satisfy Lessor that it
has commenced a program to correct such deficiency
which, in the sole judgment of Lessor, will correct
the deficiency within a reasonable time thereafter,
within twenty (20) days after Lessor shall have
demanded in writing performance thereof, or (b) if
a petition in bankruptcy or for reorganization or
for a trustee or receiver is filed by or against
Lessee and all of the obligations of Lessee under
this Lease shall not have been duly assumed by the
trustee or receiver appointed, if any, in such
proceeding or otherwise given the same status as
obligations assumed by the trustee or receiver
within thirty (30) days after the appointment, if
any, or sixty (60) days after such proceedings
shall have been commenced, whichever shall be
earlier, Lessor may take possession of the cars and
any accessions thereto wherever they may be found
and at the election of Lessor, or its assignee as
the case may be, either (i) declare the Lease
terminated in which event all rights and
obligations of the parties hereunder shall cease
except only the obligations of Lessee to pay
accrued rentals to the date of retaking, or (ii)
attempt to relet the cars as agent of Lessee, apply
the proceeds of such reletting first to the
reasonable expenses that may be incurred in the
retaking and delivery of the cars to the new
Lessee, then the payment of amounts due Lessor
under this Lease, and Xxxxxx shall remain liable
for any sums remaining due after so applying the
proceeds so realized. Lessee shall pay said deficit
monthly as the same may accrue. Lessor shall make
all reasonable efforts to relet the cars at a
rental equal to or greater than that paid by
Xxxxxx.
ARTICLE 22 RETURN OF CARS UPON DEFAULT. If Lessor shall
terminate this Lease pursuant to Article 21 hereof,
Lessee shall forthwith deliver possession of all
cars then covered by this Lease to Lessor. For the
purpose of delivering possession of any car or cars
to Lessor as above required, Lessee shall at its
own expense and risk (except as hereinafter stated)
A. forthwith place such cars upon such
storage tracks as Lessor may reasonably designate
or, in the absence of such designation, as Lessee
may select,
B. permit Lessor to store such cars on such
tracks for a period not exceeding three months at
the risk of Lessee, and
C. transport the cars, at any time within
such three month period, to any reasonable place on
the lines of any railroad designated by Lessor for
shipment to Lessor.
The redelivery, storage and transporting of the
cars as hereinbefore provided are of the essence of
this Lease, and upon application to any court of
equity having jurisdiction in the premises Lessor
shall be entitled to a decree against Lessee
requiring specific performance of the covenants of
Lessee so to redeliver, store and transport the
cars.
Without in any way limiting the obligations of
Lessee under the foregoing provisions of this
Article 22, Xxxxxx hereby irrevocably appoints
Lessor as the agent and attorney of Lessee, with
full power and authority, at any time while Xxxxxx
is obligated to deliver possession of any car to
Lessor, to demand and take possession of such car
in the name and on behalf of Xxxxxx from whosoever
shall be at the time in possession of such car.
ARTICLE 23 RETURN OF CARS UPON EXPIRATION OF TERM. On the date
on which the term of this Lease or applicable Rider
expires, Lessee, at its sole cost and expense,
shall return each of the cars and each part thereof
to Lessor at such repair shop, storage yard,
terminal facility or other point as may be
reasonably designated by Lessor, empty, free from
residue and in the same good order and condition as
it was delivered by Lessor to Lessee, ordinary
wear, tear and coal dust excepted. All
transportation costs associated with moving the
cars from Xxxxxx's service to Lessor's designated
return point shall be for Xxxxxx's account.
If Lessor determines at the end of the Lease term
that any of the cars require cleaning of residue
other than coal dust, Lessor shall allow Lessee the
opportunity to clean the cars at Lessee's expense.
If Xxxxxx declines such opportunity, then Xxxxxx
shall reimburse any charges reasonably incurred by
Xxxxxx for actual cleaning of the cars.
Lessee at its option, may redeliver any or all of
the cars to Lessor during the thirty (30) calendar
day period immediately preceding the date on which
the term of this Lease or applicable Rider expires.
If Lessee shall elect to so redeliver any or all of
the cars, the rental on such cars shall cease on
the date on which such cars are so redelivered to
Lessor.
In the event that any or all of the cars are not
redelivered to Lessor on or before the date on
which the term of this Lease or applicable Rider
with respect to such cars expires, all of the
obligations of the Lessee under this Lease with
respect to such cars shall remain in full force and
effect until such cars are redelivered to Lessor;
provided, however, that the daily rental for each
of such cars during such period shall be one and
one-half times the pro rata daily rate of the
rental specified in the Rider applicable to such
cars for a maximum period of one (1) year after
such termination date. If Lessee shall for any
reason fail to redeliver any of such cars during
such one (1) year period, Lessee shall pay to
Lessor on that date that such one (1) year period
expires a sum equal to the then depreciated value
of such car or cars using the A.A.R. Interchange
Rules schedule of depreciation.
ARTICLE 24 EARLY TERMINATION. Subject to the terms and
conditions herein expressed, Lessee shall have the
following right to terminate this Lease prior to
end of the term hereof.
If no event of default (or an event which would
constitute an event of default but for the lapse of
time or of the giving of notice or both) shall have
occurred and be continuing and the cars in Lessee's
reasonable judgment as expressed by Xxxxxx's
President or responsible Vice President become
surplus or economically obsolete to Xxxxxx's
requirements, then Lessee may at its option, upon
not less than 180 days prior written notice to
Lessor, terminate this Agreement with respect to
all of the cars, provided that (i) such termination
occurs on or after the fifth anniversary or any
succeeding anniversary of the Effective Date(s),
and (ii) no such termination shall be effective
until the cars have been relet and all sums payable
by Lessee to Lessor have been paid in full.
Upon notification of Lessor that Lessee intends to
exercise its termination right under this Article,
Xxxxxx and Xxxxxx shall attempt in good faith to
relet the cars. Lessor and Xxxxxx shall certify to
each other in writing the amount and the terms of
each bid received by them and the names and
addresses of the parties submitting such bids.
Subject to Xxxxxx's right to reject bids as set
forth in this Article, on the date of termination
specified in Lessee's notification Lessor shall
without recourse, representation or warranty, relet
the cars to the highest bidder who shall have
submitted such bid prior to such date on terms and
conditions acceptable to Lessor in its sole and
reasonable discretion. In no event shall the Lessor
be obligated to accept a bid which is less than the
rate of this current lease or less than the
remaining term of the current lease.
If, within 60 days prior to the termination date,
neither Lessor nor Lessee shall have received any
bid for the reletting of the cars or there shall
not have been received any bid which shall be
acceptable to Lessor, in its sole and reasonable
discretion, Lessor shall so advise Lessee.
Thereupon, Lessee shall have the right (i) to
notify Lessor, within 30 days following the giving
of such advice, that Lessee will continue to lease
the cars with the same effect as if Lessee had not
given notice of termination with respect thereto or
(ii) to pay to Lessor, on the termination date, a
sum equal to the then depreciated value of the cars
using the A.A.R. Interchange Rules schedule of
depreciation and any other rentals or other Lessee
obligations accrued and unpaid through and
including such date, and thereupon Lessee shall
have no further right with respect to the cars and
no further obligations with respect to the cars
except those which survive the expiration of the
term of this Lease.
ARTICLE 25 RENEWAL OPTIONS. Provided that no event of default,
or any event which with the lapse of time or the
giving of notice, or both, would constitute
default, shall have occurred and be continuing,
Lessee shall have the following renewal options
upon the expiration of the initial term of this
Lease. Lessee shall have the option to renew and
extend this Lease (without modification of terms,
except for termination date) either as to all or as
to 120 or 167 of the cars then leased hereunder for
one additional renewal term of five (5) years
subject to the original terms and conditions herein
contained for the original term of the Lease.
Alternatively, Xxxxxx shall have the option to
renew and extend this Lease either as to all or as
to 120 or 167 of the cars then leased hereunder for
two additional renewal terms of two years each
(without modification of terms, except for
termination date) as the Lessee shall specify.
ARTICLE 26 WARRANTIES. Lessor's obligations with respect to
the cars are expressly limited to those set forth
in this Agreement, and except as otherwise
expressly stated herein, XXXXXX MAKES NO WARRANTIES
OF ANY KIND EXPRESS OR IMPLIED. WHETHER OF
MERCHANTABILITY. FITNESS FOR ANY PARTICULAR PURPOSE
OR OTHERWISE. NOR SHALL LESSOR HAVE ANY LIABILITY
FOR ANY CONSEOUENTIAL OR INCIDENTAL DAMAGES ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY
CAR LEASED HEREUNDER. Lessee shall be solely
responsible for determining that the
specifications, design and paint of any car are
appropriate for the commodities loaded therein.
ARTICLE 27 GOVERNING LAW. This Agreement and performance of
the parties hereunder shall be governed by and
construed in accordance with the laws of the State
of Illinois.
ARTICLE 28A SEVERABILITY. If any provision of this Agreement
shall be held to be invalid or unenforceable by the
final judgement of a court of competent
jurisdiction, such invalidity or unenforceability
shall not affect any other provision but this
Agreement shall continue in full force and effect
as if such provision had not been a part hereof.
B HEADINGS. The Article headings used herein are for
convenience of reference only and shall not be used
in interpreting this Agreement.
C WAIVER. This Agreement may not be amended or
modified except by written agreement signed by the
parties. No waiver of any provision of this
Agreement shall be effective unless in writing
signed by the party against whom enforcement of
such waiver is sought and unless otherwise
expressly so provided such waiver shall be limited
only to the specific situation for which it was
given.
D BENEFIT. This Agreement shall be binding upon and
inure to the benefit of Xxxxxx and its successors
and assigns, and Xxxxxx and (to the extent
permitted by Article 16) its successors and
assigns.
E ENTIRE AGREEMENT. This Agreement, including all
Riders and other documents attached hereto or
incorporated by reference herein, constitutes the
entire agreement of the parties with respect to the
subject matter hereof and supersedes all other
understandings, oral or written, with respect to
the same.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed and delivered as of the day and year
first above written.
ATTEST: PULLMAN LEASING COMPANY
By /s/B. E. Tazar By /s/Xxxxxx X. Xxxxxx
Assistant Secretary President
ATTEST: KANSAS CITY POWER & LIGHT COMPANY
By /s/Xxxxxx Sell Xxxx By /s/X. X. Xxxxxx
Assistant Secretary (title)
Vice President
RIDER NO. 1
This Rider shall be attached to and form a part of Net Lease of
Railroad Equipment dated as of the 11th day of January, 1989, by
and between PULLMAN LEASING COMPANY, and KANSAS CITY POWER & LIGHT
COMPANY Cars covered by this Rider are as follows:
Quantity: 222 railcars.
Description: Open top xxxxxx railcars with rotary couplers.
Capacity: 4000 cubic feet per railcar (100 tons).
Fixed Rental: $433.87 per railcar per month.
With respect to the cars covered by this Rider, it is hereby
agreed that, despite any terms or conditions of the Lease and/or
this Rider, all freight charges shall be for Xxxxxx's account.
All of the other terms and conditions of the Lease shall remain in
full force and effect.
The term of the Lease, with respect to the cars covered by this
Rider, shall commence on the 1st day of January 1989, and shall
continue to and include the 31st day of December, 2003.
ATTEST: PULLMAN LEASING COMPANY
By /s/B. E. Tazar By /s/Xxxxxx X. Xxxxxx
Assistant Secretary President
ATTEST: KANSAS CITY POWER & LIGHT COMPANY
By/s/Xxxxxx Sell Xxxx By /s/X. X. Xxxxxx
Assistant Secretary Vice President
Administrative Services
