Exhibit C-43
SHORT TERM RAILCAR LEASE AGREEMENT
Kansas City Power and Light Company, hereinafter referred to as
"Lessee," agrees to lease one train set of approximately of 120
(up to 130) rotary-equipped aluminum gondola coal railcars
("Cars") from Midwest Generation LLC, hereinafter referred to as
"Lessor," and Lessor agrees to lease said Cars to Lessee according
to the following terms and conditions. The Cars leased hereunder
are described on Exhibit "A" to this railcar lease agreement (the
"Lease").
1. The Cars will be used in unit coal train service between
Powder River Basin (PRB) origins and Lessee destinations. The Cars
shall not be loaded in excess of 286,000 pounds gross weight on
rail.
2. (THIS SECTION IS LEFT INTENTIONALLY BLANK)
3. A PRB mine of the accepting or receiving party's choice,
accessible by the Burlington Northern Santa Fe Railroad, will be
the exchange point unless another point is chosen by mutual
agreement. Inspections of the Cars upon delivery to Lessee and
return to Lessor will be performed at the exchange point or at
another point mutually agreed to by the parties. Upon termination
of the Lease, the Cars shall be returned substantially empty to
Lessor at the exchange point or another point mutually agreed to
by Lessor and Lessee. The receiving party shall deliver a
certificate of acceptance to the other party substantially in the
form of Exhibit "A" attached hereto within five (5) business days
of completion of the inspection. Each party shall bear its own
expenses related to such inspections.
4. This Lease shall be in effect ("Effective Date(s)") from
departure of the Cars from the exchange point on or about November
1, 2001, through and including the return of the Cars on or about
December 31, 2002 in the condition as required by this Lease. The
Lessor, at its sole option, may terminate the Lease sooner, but
not earlier than 180 days, by giving a 45-day prior written Notice
of Termination to the Lessee. The Cars will be returned promptly
upon completion of such 45-day period.
5. Lessee agrees to pay Lessor a rental of $17.26 per day
from the Effective Date(s) for each Car until the Car is returned
to and accepted by the Lessor. This is a full service lease rate.
On behalf of Lessor, Dial and Companies, Inc., shall send Lessee
invoices in arrears for rent on or about the first day of each
month that this Lease is in effect. Payment of rent shall be due
within ten (10) business days of receipt of invoice.
6. This Lease shall be a full service lease and,
accordingly, Lessor shall have the Cars maintained in good
condition and repair during the term of this Lease and Lessor
shall be responsible for any and all maintenance costs. Lessor
shall have the right to perform maintenance according to its
normal procedures, including one unit train shopping for running
repair maintenance, not to exceed four (4) days in duration
approximately once every six (6) to nine (9) months.
7. Normal wear and tear excepted, Lessee shall be
responsible for loss or destruction of, or damage to, the Car(s)
or parts thereof or appurtenances thereto, furnished under this
Lease during the Lessee's actual or constructive possession of the
Car(s) or use thereof hereunder unless the then prevailing Field
and Office Manual of the Code of Interchange Rules, promulgated by
the Association of American Railroads (hereinafter called
"Interchange Rules") places responsibilities upon a railroad
subscribing to the Interchange Rules and said railroad has paid
Lessor for such loss, damage or destruction; provided, however,
Lessee shall not be responsible if such loss, destruction, or
damage to the Cars or parts thereof or appurtenances thereto was
substantially attributable to the gross negligence or willful
misconduct of Lessor or those acting on its behalf, or by a defect
in the Car(s) not reasonably discoverable by Lessee or those
acting on its behalf. The relative degree of fault attributable to
each party shall be apportioned for any loss or destruction of or
damage to, the Car(s) or parts thereof or appurtenances hereto,
furnished under this Lease, if both panics are responsible
hereunder. Settlement for damage or destruction of said Cars shall
be made in accordance with the Interchange Rules. Reimbursement to
Lessor for repair of damaged Cars for which the Lessee is
responsible will be consistent with competitive private shop rates
for time, material and labor associated with PRB coal movements.
8. If Lessee or a railroad is responsible for the loss,
damage, or destruction of one or more Cars, rental for such Cars
shall continue until (i) Lessor receives the settlement value per
the Interchange Rules (Rule 107) or (ii) the Car is repaired and
returned to Lessor. Car repairs that are the responsibility of the
Lessee must conform to the original construction of the Car.
9. (THIS SECTION IS INTENTIONALLY LEFT BLANK)
10. Payment for rental shall be sent to Lessor at the
address shown below. Notices to Lessor shall be sent by fax to the
telephone number shown below.
Attention: Xxxxx Xxxxx
Manager, Fuel Transportation Phone: 000-000-0000
Midwest Generation, LLC Fax: 000-000-0000
One Financial Xxxxx - Xxxxx 0000
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
11. Invoices shall be sent to Lessee at the address shown
below. Notices to Lessee shall be sent by fax to the telephone
number shown below:
Attention: Xxxxx Xxxxxxx
Kansas City Power & Light Phone: 000-000-0000
Company:
XX Xxx 000000 Fax: 000-000-0000
Xxxxxx Xxxx, XX 00000-0000
12. Taxes will be the responsibility of Lessor unless they
arise solely out of Lessee's breach of a term of this Agreement.
Unless otherwise provided herein, Lessee shall not be required to
maintain casualty or other insurance.
13. This Lease represents the entire agreement between the
parties regarding the Cars leased hereunder, superseding all prior
agreements, written or oral, and shall not be amended or otherwise
modified except in writing agreed to by both parties.
14. Lessee shall not encumber the Cars in any way and shall
not sublease or assign its rights, duties or obligations under
this Agreement, in whole or in part, without the prior written
consent of Lessor. This Lease shall be and is subject to and
subordinate to the pre-disclosed terms and conditions of any and
all pre-existing leasing agreements applicable to the Cars between
Lessor and any third party.
15. EXCEPT AS OTHERWISE PROVIDED IN THIS LEASE, LESSOR
LEASES THE CARS TO LESSEE "AS-IS" AND EXPRESSLY DISCLAIMS AND
MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESSED OR IMPLIED,
AS TO THE DESIGN, CONDITION, QUALITY, CAPACITY, MERCHANTABILITY,
DURABILITY, SUITABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE OF,
OR ANY OTHER MATTER CONCERNING, THE CARS. EXCEPT WHERE A CLAIM
RESULTS IN WHOLE OR IN PART FROM GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LESSOR OR THOSE ACTING ON ITS BEHALF, LESSEE HEREBY
WAIVES ANY CLAIM (INCLUDING WITHOUT LIMIT ANY CLAIM BASED ON
STRICT OR ABSOLUTE LIABILITY IN TORT OR INFRINGEMENT) IT MIGHT
HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE, (INCLUDING INCIDENTAL OR
CONSEQUENTIAL DAMAGE) OR EXPENSE CAUSED BY THE CARS OR BY LESSEE'S
LOSS OF USE THEREOF FOR ANY REASON WHATSOEVER, INCLUDING NON-
COMPLIANCE WITH ENVIRONMENTAL LAWS.
16. LESSEE SHALL DEFEND (IF SUCH DEFENSE IS TENDERED TO IT),
INDEMNIFY AND HOLD LESSOR HARMLESS FORM ALL CLAIMS, SUITS,
LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES. INCLUDING
ATTORNEY'S FEES, IN ANY WAY ARISING OUT OF THE USE OR OPERATION OF
THE CARS, EXCEPT TO THE EXTENT THAT EITHER (A) ANY ACTS,
OMISSIONS, OR NEGLIGENCE OF LESSOR OR THOSE ACTING ON ITS BEHALF
CONTRIBUTED THERETO OR (B) A RAILROAD HAS ASSUMED FULL
RESPONSIBILITY FOR THE CLAIMS, SUITS, LIABILITIES, LOSSES,
DAMAGES, COST AND EXPENSES.
17. This Agreement and performance hereunder shall be
governed by and construed in accordance with the laws of the State
of Illinois.
18. Lessee will use the Cars in a careful and proper manner,
will comply with and conform to all applicable governmental laws,
rules and regulations and Interchange Rules relating thereto, and
will cause the Cars to be operated in accordance with the
manufacturers or suppliers written instructions or manuals
provided to Lessee, if any. Without limitation to the generality
of the foregoing, Lessee (i) will cause the Cars to be used in
compliance with all rules and regulations of AAR and Federal
Railroad Administration or successor agency, if any, ("FRA"); (ii)
will not permit any Car to be loaded improperly or in excess of
the designed load limit; (iii) will not permit any Car to be
loaded with any commodity other than PRB coal (and in no event
will any hazardous material, hazardous commodity, hazardous waste
or hazardous substance be loaded in any Car and (iv) will not
permit any Car to be used outside the continental United States at
any time except for incidental use in Canada.
19. Lessor shall not be liable for any loss of or damage to
commodities, or any part thereof, loaded or shipped in or on the
Cars, except to the extent of the gross negligence or willful
misconduct of Lessor, its affiliates, directors, officers, agents
or employees.
20. The parties agree that the terms of this Agreement and
any proprietary information of either party that is disclosed to
the other party in the course of dealing under this Agreement
shall be reasonably held in confidence and shall not be disclosed
to any third party, except to: (i) any representative of,
consultant, attorney, agent, or accountant retained by a party,
(ii) any potential lender or assignee of a party, or (iii) as
required to resolve a dispute hereunder, without the other party's
written consent, provided that either party may disclose such
information in response to an order, rule, or regulation of a
court or governmental body having jurisdiction or to members and
employees of the Illinois, Missouri, and Kansas public utility
commissions.
IN WITNESS HEREOF, Lessor and Lessee each caused this Lease to be
executed by their authorized representatives as signed below.
LESSOR: Midwest Generation, LLC
An Illinois Corporation
Principal Address:
One Financial Xxxxx - Xxxxx 0000
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
By /s/R. Xxxxxxx Xxxxx
Its Director, Fuels
Date 10/30/2001
LESSEE: Kansas City Power & Light Company
A Missouri Corporation
Principal Address:
0000 Xxxxxx
Xxxxxx Xxxx, XX 00000-0000
By /s/Xxxxx X. Xxxxxx
Its______________________
Date_____________________
