Exhibit c-45
MASTER RAILCAR LEASE
THIS MASTER RAILCAR LEASE ("Agreement") is
made as of May 2, 2001 between THE CIT GROUP/EQUIPMENT
FINANCING, INC., a Delaware corporation ("Lessor"), and
KANSAS CITY POWER AND LIGHT COMPANY, a Missouri
corporation ("Lessee").
1. SCOPE OF AGREEMENT
A. Agreement to Lease. Lessor and Lessee
agree to lease the railroad Cars (herein referred to
collectively as the "Cars" and individually as a "Car")
described in the Schedules executed pursuant hereto by
Lessor and Lessee from time to time, or otherwise
delivered to and accepted by Lessee.
B. Schedules Control. Each Schedule shall
incorporate therein all of the terms and conditions of
this Agreement and shall constitute a part of this
Agreement to the same extent as if the provisions
hereof were set forth in full therein; provided that
the terms of any Schedule shall control, as to Cars on
such Schedule, over any inconsistent terms elsewhere in
this Agreement.
C. Definitions. All capitalized terms
which are not defined herein are defined in Rider A
attached hereto and made a part hereof ("Rider A").
2. TERM
This Agreement shall remain in full force
until terminated as to all Cars on all Schedules. The
lease term (the "Lease Term") with respect to any Car
shall commence on the date set forth on any Schedule
("Lease Commencement Date") and shall expire on the
later to occur of the Expiration Date or the date on
which all the Cars are returned to and accepted by
Lessor as set forth on the applicable Schedule.
3. RENT
A. Rent Payable. Lessee shall pay Lessor
rent as set forth on each Schedule at such place as
Lessor may designate to Lessee. All rent and other
amounts payable hereunder shall be paid without notice
or demand and without counterclaim, deduction,
reduction or setoff of any kind whatsoever other than
amounts payable pursuant to Section 4 hereof as to
which a good-faith dispute exists, which amounts need
not be paid prior to a resolution of such dispute by
the parties hereto.
B. Overdue Payments. If Lessee has not
paid rent or other amounts payable hereunder for a
period of longer than ten (10) days from due date,
Lessee shall pay Lessor, as additional rent, interest
on such unpaid sum from its due date to the date of
payment by Lessee at a rate equal to one and a half
percent (1.5%) per month or the maximum rate permitted
by law, whichever is less.
C. Holdover Rent. Until any Car is
returned to, and accepted by Lessor, pursuant to
Section 11, Lessee shall continue to pay rent for such
Car and to comply with all other payment and other
obligations under this Agreement as though such
expiration or other termination had not occurred. If
thirty (30) days after the Expiration Date, Lessee has
not returned any Car, Lessor may charge, and Lessee
shall pay Lessor upon demand, 150% of the rent in
effect immediately prior to expiration or termination
of the Lease Term of such Car. Such additional charge
will not take effect without ten (10) days prior
written notice by Lessor. Nothing in this Section shall
give Lessee the right to retain possession of any Car
after expiration or other termination of this Agreement
with respect to such Car.
4. MAINTENANCE
A. Lessee shall promptly notify Lessor
upon receipt by Lessee of knowledge of any damage to
any of the Cars. Lessor, at its expense, shall arrange
for the performance of all Maintenance and repair of
the Cars, except as hereinafter provided. Lessee shall
not repair, or authorize the repair of, any of the Cars
without Lessor's prior written consent, except that
running repairs (as specified in the Interchange Rules)
may be performed without prior written consent. The
amount paid for such running repairs shall not be in
excess of the basis, in effect at the time the repair
is made, provided by the AAR. If any Car becomes unfit
for service and shall be held in a Car shop for repair
and shall remain therein for a period in excess of five
days, Lessee shall receive a credit for the rental with
respect to such Car after such period of five days
until such Car is released from the shop or until
another Car shall have been placed in the service of
Lessee by Lessor, provided that Lessee notified Lessor
prior to routing the Car to shop upon instructions of
Lessor. If any Car is in shop for Lessee Maintenance
Items there will be no rent credit.
(i) It is understood that "Lessee
Maintenance Items", as defined in each Schedule, shall
include (a) specialty items specified in any Schedule
(b) damage while in Lessee's or Lessee's shipper or
consignee's possession, custody & control, and (c)
damage or corrosion occurring from use other than
permitted under this Agreement.
B. Replacement Parts. Any and all
changes or replacements or additions to any Car or part
thereof made by Lessee shall constitute accessions to
such Car and, without cost or expense to Lessor, title
thereof shall be immediately vested in Lessor.
C. Reporting Marks. No lettering or
marking of any kind shall be placed upon any of the
Cars by Lessee except with the prior written consent of
Lessor.
D. Mileage Allowances. Lessee agrees to
keep records pertaining to the movement of the Cars,
and Lessee agrees to promptly furnish Lessor with
complete reports of the Car movements, upon request,
including dates received, loaded and shipped,
commodity, destination, and full junction routing and
any other mileage information which Lessee may receive
from railroad companies or other sources which may be
of use to Lessor. Lessor shall collect the mileage
earned by the Cars, and subject to all rules of the
tariffs of the railroads, Lessor shall remit to Lessee
such mileage as and when received from the railroads.
E. Railroad Charges. Lessee agrees to
reimburse Lessor for any payment Lessor may be required
to make to any railroad, due to mileage equalization
where applicable, resulting from excess empty mileage
incurred by the Cars on such railroad. For the purpose
of this Section the railroad mileage and junction
reports shall be prima facie evidence of the facts
reported therein. In addition, if Lessor is required to
make any payments to a railroad resulting from the
empty movement of any of the Cars while they are in
Lessee's service, Lessee agrees to reimburse Lessor for
such payments.
Lessee shall be liable for any demurrage,
track storage or detention charges imposed in
connection with any of the Cars as well as loss of or
damage to any Car while on any private siding or track
or on any private or industrial railroad or in the
custody of any carrier not subject to the Association
of American Railroads Rules for Interchange.
F. Load Limits. Lessee agrees not to load
any of the Cars in excess of the load limit stenciled
thereon.
5. INSPECTION
Lessee shall permit Lessor or its agents
reasonable access during normal business hours to
examine the Cars wherever located or Lessee's records
relating to the Cars.
6. INSURANCE
A. During the Lease Term of this
Agreement, Lessee shall keep or cause to be kept with
insurance companies acceptable to Lessor, comprehensive
general liability insurance, including products
liability and contractual coverage for the liabilities
assumed herein, including bodily injury, death, and
property damage in a combined single limit of not less
than $10,000,000.00 per occurrence. Lessee shall
provide to Lessor concurrently with the execution
hereof and within 30 days prior to each policy
expiration or replacement thereof, original signed
certificates of insurance with such information
included as Lessor may reasonably request to evidence
Lessee's compliance.
B. In the event any Car is not covered by
the insurance described in Section 6A hereof, Lessor
shall have the right, at its option, to purchase
coverage and recover all premiums for such insurance
from Lessee, and/or declare this Agreement in default
and proceed in accordance with Section 10 hereof.
C. All insurance shall name Lessor as an
additional insured in respect of risks arising out of
the condition, maintenance, use or ownership of the
Cars and shall provide that losses, if any, shall be
payable to Lessor as its interest may appear.
D. All insurance maintained pursuant to
this Section shall provide that: (1) the insurer
thereunder waives all rights of subrogation against
Lessee or Lessor, (2) thirty (30) days prior written
notice of expiration, modification or termination shall
be given to Lessor, and (3) any other insurance
maintained by Lessor shall not be contributory or have
the effect of suspending, impairing, invalidating or
reducing the coverages required to be provided and
maintained by Lessee.
7. TAXES
A. Lessor agrees to assume responsibility
for and to pay all Property Taxes levied upon the Cars
and to file all Property Tax reports relating thereto.
Lessee represents that it is exempt from, however
agrees to assume responsibility for and to pay all
applicable state, city, county or province sales, use
or similar taxes, if any, found due resulting from the
Agreement or use of the Cars and to indemnify Lessor
for any payments of such sales, use or similar taxes
Lessor may be required to pay. Lessee shall have no
liability with respect to Federal, state or local taxes
on or measured by Lessor's net income, capital or net
worth. These obligations survive the expiration or
earlier termination of any Schedule and this Agreement.
B. The obligation of Lessee under this
Section 7 shall survive the expiration or other
termination of this Agreement.
C. If Lessee is required to withhold any
tax including any assessed penalties or other amount
for any amount payable to Lessor pursuant to this
Agreement Lessee shall pay an additional amount
sufficient to enable Lessor to receive and retain,
after such withholding (including withholding from such
additional payment), an amount equal to the amount
Lessor would have received if such withholding had not
been required.
D. If a written claim is made against
Lessor for any Imposition of sales. use or similar
taxes for which Lessee may be required to indemnify
Lessor, Lessor shall notify Lessee in writing of such
claim, but the failure to so notify Lessee shall not
affect any obligation of Lessee unless such failure
precludes Lessee's right to contest such claim. If
requested by Lessee in writing within 30 days after
notification, and upon determination that the amount of
the claim exceeds $15,000 and that the action to be
taken will not, as determined in good faith by Lessor,
result in any material danger of the sale, forfeiture
or loss of, or the creation of any Lien on the Cars.
Lessor shall contest (or, in its sole discretion, allow
Lessee to contest) such claim, provided that (i) Lessee
shall have agreed to reimburse Lessor on demand for all
reasonable out-of-pocket expenses incurred by Lessor
for the purpose of conducting the contest, (ii) before
Lessor commences any judicial action, Lessee shall
acknowledge its obligation to indemnify Lessor for the
amount of the Imposition in controversy if the contest
is unsuccessful, (iii) Lessee provides and pays for an
opinion of independent tax counsel mutually acceptable
to Lessee and Lessor that there is a reasonable basis
for the contest, (iv) if Lessor decides to initiate
such contest by paying the Imposition claimed and
claiming a refund thereof, Lessee shall have advanced
to Lessor the amount of such Imposition on an interest-
free basis (except for any interest paid to Lessor as
part of a refund) and shall have agreed to indemnify
Lessor for any adverse tax consequence of such interest-
free loan.
8. CASUALTY CARS
A. In the event any Car is destroyed, the
rental with respect to such Car shall terminate upon
receipt by Lessor of written notification of such
casualty by the Lessee or the party responsible for
such destruction. Lessor shall be entitled to receive
Settlement Value for any Car destroyed. In the event
any Car is reported to be bad ordered, Lessor may, at
its discretion, either repair such Car or substitute
another Car of the same type and capacity. If a
substitute Car is not offered to the Lessee, and Lessor
elects to repair the bad ordered Car, such Car shall be
repaired as quickly as reasonable and upon completion
of such repair shall be promptly returned to Lessee for
the duration of the Lease Term. The rental with respect
to a substituted or repaired bad ordered Car shall
commence upon delivery of such Car to Lessee.
B. In the event that any of the Cars, or
the fittings, appliances or appurtenances thereto,
shall be damaged, ordinary wear and tear excepted, or
destroyed either as a result of the acts of a Lessee's
employees, agents or customers or from any commodity or
other material loaded therein or thereon, Lessee agrees
to assume financial responsibility in accordance with
Interchange Rules for such damage or destruction.
X. Xxxxxx shall not be liable for any
loss of or damage to commodities, or any part thereof
loaded or shipped in or on the Cars, and Lessee agrees
to assume financial responsibility for, to indemnify
Lessor against, and to save it harmless from any such
loss or damage.
9. POSSESSION AND USE
A. Lessee shall (i) use the Cars solely
for the purpose for which the Cars are intended as
specified in the applicable Schedule and (ii) comply
with all government laws, regulations, requirements and
rules including, but not limited to the Interchange
Rules and the rules of the FRA with respect to the use
and operation of each Car.
B. Lessee shall not, directly or
indirectly, (i) encumber or dispose of any Car or any
part of any Car or permit any lien or encumbrance to be
entered or levied upon any Car or this Agreement;
(ii) alter or modify in any way the physical
structure of the Car; (iii) use or permit the Cars to
be used or maintained outside the United States for
greater than a temporary or incidental use; (iv) use
any Car in unit train service or other designated high
mileage usage unless the applicable Schedule provides
otherwise; (v) permit any Car to be loaded with any
hazardous material, hazardous commodity, hazardous
waste or hazardous substance.
C. Lessee agrees to indemnify Lessor and
shall, on demand, promptly reimburse Lessor on an After-
Tax Basis for any costs, duties, loss of depreciation,
penalties and interest suffered by Lessor due to use of
any Car outside the United States. This obligation
survives the expiration or earlier termination of any
Schedule and this Agreement.
D. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto
and their respective successors and assigns; PROVIDED,
HOWEVER, THAT LESSEE MAY NOT WITHOUT THE PRIOR WRITTEN
CONSENT OF LESSOR PLEDGE OR ASSIGN THIS AGREEMENT OR
ANY OF ITS RIGHTS OR OBLIGATIONS HEREUNDER OR SUBLEASE
OR ASSIGN ANY CARS TO ANY PARTY. Any purported
assignment or sublease in violation hereof shall be
void.
E. In the event the U.S. Department of
Transportation, or any other governmental agency or non-
governmental organization having jurisdiction over the
operation, safety or use of railroad equipment,
requires that Lessor add, modify or in any manner
adjust the Cars subject to this Agreement in order to
qualify them for operation in railroad interchange,
Lessee agrees to pay an additional monthly charge of
$2.00 per Car for each $100 expended by Lessor on such
Car, or such other monthly charge in lieu thereof, as
may be provided for Modifications in any Schedule
hereto, in any case effective as of the date the Car is
released from the shop after application of such
additions, modifications or adjustments (hereinafter
the "Modifications"). No rental credits will be issued
on Cars entering the shop for any Modifications
provided Cars are returned to service within 15 days
after entering the shop.
10. DEFAULT; REMEDIES.
If Lessee fails to pay when due any rent
or other amount required to be paid by this Agreement
or to perform any of its other obligations under this
Agreement, and such default is not cured within thirty
(30) days after notification of such default, or if a
petition in bankruptcy or for reorganization or similar
proceeding is filed by or against Lessee, then Lessor
may exercise any one or more of the following remedies
and any additional rights and remedies permitted by law
(none of which shall be exclusive) and shall be
entitled to recover all its costs and expenses
including attorneys' fees in enforcing its rights and
remedies:
A. Terminate this Agreement and recover
damages; and/or
B. Proceed by any lawful means to enforce
performance by Lessee of this Agreement; and/or
C. By notice in writing to Lessee,
terminate Lessee's right to possession and use of the
Cars, whereupon all right and interest of Lessee in
such Cars shall terminate; thereupon Lessee shall at
its expense promptly return such Cars to Lessor at such
place as Lessor shall designate and in the condition
required as provided in Section 11 of this Agreement;
or if Lessee does not so promptly return the Cars on
demand. Lessor may enter upon any premises where to
Cars may be located and take possession of such Cars
free from any right of Lessee; and/or
D. Proceed to recover from Lessee any
and all amounts which under the terms of this Agreement
may be then due or which may have accrued prior to the
date of termination and also to recover forthwith from
Lessee (a) as representing actual loss incurred by
Lessor, damages for loss of the bargain and not as a
penalty, a sum, with respect to each Car which
represents the then present value of all rent for such
Car which would otherwise have accrued hereunder from
the date of such termination to the end of the Lease
Term of this Agreement as to such Unit, such present
value to be computed in each case on the basis of a six
percent (6%) per annum discount, compounded annually
from the respective dates upon which rents would have
been payable hereunder had this Agreement not been
terminated and (b) any damages and expenses, in
addition thereto which Lessor shall have sustained by
reason of the breach of any covenant or covenants of
this Agreement.
E. Lease, sell or otherwise dispose of
the Cars to such persons, at such price, rental or
other consideration and for such period as Lessor shall
elect. Lessor shall apply the proceeds from such
leasing, sale or other disposition, less all costs and
expenses incurred in the recovery, repair, storage,
renting, sale or disposition of such Cars (including
costs and expenses in connection with any bankruptcy
proceeding involving Lessee and/or the Cars, including
relief from stay motions, cash collateral disputes,
assumption/rejection motions and disputes concerning
any proposed disclosure statement and plan during any
such bankruptcy proceeding) toward the payment of
Lessee's obligations hereunder. Lessee shall remain
liable for any deficiency.
X. Xxxxxx'x failure to exercise or delay
in exercising any right, power or remedy available to
Lessor shall not constitute a waiver or otherwise
affect or impair its rights to the future exercise of
any such right, power or remedy.
11. EXPIRATION OR OTHER TERMINATION
A. Return of Cars. Upon the expiration
or earlier termination of this Agreement with respect
to any Car, Lessee, at its sole expense, shall return
such Car to Lessor as provided in the Schedule, subject
to Sections 11B and 11C.
B. Condition Upon Return. Lessee, shall
return each such Car to Lessor (i) in interchange
condition in accordance with Interchange Rules and FRA
rules and regulations in effect on the date the Cars
are returned to Lessor and free of AAR Interchange Rule
95 damage; (ii) empty and free from all accumulations
or deposits from commodities transported in or on it
while in the service of Lessee; (iii) suitable for
loading the commodities allowed in the applicable
Schedule; (iv) with respect to the specific parts or
equipment specified in Section 7 of the applicable
Schedule, in as good condition, order and repair as
when delivered to Lessee, normal wear and tear
excepted. In addition, Lessee shall have removed all
existing company logos of Lessee, and shall comply with
the provisions of each applicable Section of each
Schedule.
C. Inspection. Lessor may inspect any
Car which is returned to it for up to fifteen (15) days
after return in accordance with Section 11A hereof.
Lessor shall give advance notice to Lessee of
inspection date and time and provide Lessee with a
written report of the results of Lessor's inspection.
Lessee shall be entitled to participate in any such
inspection, provided that Lessee shall not interfere
with the conduct of such inspection. Unless Lessee
shall notify Lessor within 7 days of Lessor's
inspection of any Car then Lessee shall be deemed to be
in agreement with the results of Lessor's inspection.
Lessee agrees to pay Lessor within 30 days of receipt
of an invoice for Maintenance or cleaning for which
Lessee is responsible.
12. LIABILITY ARISING OUT OF USE AND
OPERATION OF CARS.
Lessee agrees to defend, indemnify and
hold its affiliates, and their respective agents,
directors, officers, employees, successors and assigns
harmless from and against any claim (including without
limitation relating to environmental matters) of
whatsoever nature and regardless of the cause thereof
arising out of this Agreement or in connection with or
resulting from the deliver, possession, ownership,
leasing, condition, use, loss of use, maintenance,
return or operation of the Cars during the Lease Term
or arising out of Lessee's default hereunder,
excepting, however, any claim which accrues with
respect to any of the Cars (i) while such Car is in a
repair shop undergoing repairs, that are not
necessitated by Lessee's acts or omissions or any
breach by Lessee of its obligations hereunder, or that
otherwise the responsibility of Lessee hereunder, or
(ii) to the extent attributable to the gross negligence
or willful misconduct of Lessor, its agents or
employees. The indemnities set forth in this Section
12 shall survive the expiration or other termination of
this Agreement.
13. DISCLAIMER OF WARRANTIES.
LESSOR'S OBLIGATIONS WITH RESPECT TO THE
CARS ARE EXPRESSLY LIMITED TO THOSE SET FORTH IN THIS
AGREEMENT, AND LESSOR MAKES NO OTHER WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED. LESSOR MAKES NO WARRANTY OF
MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR
OTHERWISE, NOR SHALL LESSOR HAVE ANY LIABILITY FOR ANY
CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR
IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH
ANY CAR. LESSEE SHALL BE SOLELY RESPONSIBLE FOR
DETERMINING THAT THE SPECIFICATIONS AND DESIGN OF ANY
CAR ARE APPROPRIATE FOR THE COMMODITIES LOADED THEREIN.
14. MISCELLANEOUS.
A. Financial Reports. Lessee shall
promptly furnish to Lessor the annual report or audited
financial statements of Lessee and its parent company
not more than 120 days after the end of its fiscal year
and any other financial information with respect to
Lessee and its parent company as Lessor may reasonably
request from time to time.
B. Assignment. All rights and
obligations of Lessor under this Agreement and any
Schedule and Lessor's interest in the Cars subject to
such Schedule and in the rent and other amounts payable
with respect thereto may be assigned, pledged or
transferred in whole, without notice to or consent by
Lessee, and Lessee's rights hereunder are and shall at
all times be subject and subordinate to any and all
rights of any assignee, mortgagee or security holder,
and pledge or transfer, and Lessee agrees that any such
assignee, transferee or pledgee shall be entitled to
all the privileges, powers and immunities of Lessor.
If requested, Lessee shall evidence its consent to the
foregoing by executing a consent and agreement in form
and substance satisfactory to Lessor and its assignee,
pledgee or transferee. However, no consent by Lessee
is required to any transfer, pledge or assignment.
C. Further Assurances. Both parties
agree to execute the documents contemplated by this
transaction and such other documents as may be required
in furtherance of any financing agreement entered into
by Lessor or its assignees in connection with the
acquisition, financing or use of the Cars.
D. Recording. Lessee shall sign a
Memorandum of this Agreement in form and substance
satisfactory to Lessor for filing and recordation with
the STB in accordance with 49 U.S.C. 11301.
E. No Waiver. No delay, waiver,
indulgence or partial exercise by either party of any
right, power, or remedy shall preclude any further
exercise thereof or the exercise of any additional
right, power or remedy.
F. Notices. Any notices required or
permitted to be given hereunder shall be deemed given
when sent by telecopy, by overnight mail using a
nationally recognized overnight courier or deposited in
United States mail, registered or certified, postage
prepaid, addressed to:
Lessor:
THE CIT GROUP/EQUIPMENT FINANCING, INC.
1211 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Senior Vice President - Rail Group
Documentaion
Telecopier No. (000) 000-0000
Lessee: as designated in each Schedule.
or to such addresses as Lessor may from time to
time designate.
F. Intentionally omitted.
H. Severability. Any provision of this
Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in
any other jurisdiction.
I. Entire Agreement. This Agreement and
all other documents, instruments, certificates and
agreements executed and delivered pursuant hereto to
which either Lessor or Lessee is a party constitutes
the entire agreement of the parties with respect to the
subject matter hereof, and supersedes and replaces any
prior or contradictory representations, warranties or
agreements by Lessor and Lessee.
J. RESTRICTIONS ON ASSIGNABILITY BY
LESSEE. Lessee has reviewed the provisions of Section
9D of the Agreement prohibiting or restricting the
assignment or other transfer of its interests in the
Agreement or the Equipment leased to it and is bound by
such provisions as set forth in the Agreement. Lessee
agrees that said provisions are made "conspicuous" by
this paragraph.
K. Counterparts. This Agreement may be
executed in any number of counterparts, and such
counterparts together shall constitute one contract.
L. Quiet Enjoyment. Provided Lessee
shall not be in default hereunder and conditioned upon
Lessee performing all of the terms, conditions and
covenants of this Agreement, Lessor will not disturb
Lessee's peaceable and quiet possession and use of the
Cars during the terms of this Agreement.
M. Applicable Law. The terms of this
agreement and all rights and obligations hereunder
shall be governed by the laws of the state of New York
without regard to New York's choice of law doctrine.
N. Waiver of Trial by Jury. LESSEE AND
LESSOR AGREE AND STIPULATE THAT A FAIR TRIAL MAY BE HAD
BEFORE A STATE OR FEDERAL JUDGE BY MEANS OF A BENCH
TRIAL WITHOUT A JURY. IN VIEW OF THIS FOREGOING, AND
AS A SPECIFICALLY NEGOTIATED PROVISION OF THIS
AGREEMENT, LESSEE AND LESSOR HEREBY EXPRESSLY WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AGREEMENT, OR THE
TRANSACTIONS RELATED HERETO, WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND LESSEE AND LESSOR HEREBY AGREE
AND CONSENT THAT EITHER PARTY MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO
TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
Each party, pursuant to due corporate
authority, has caused this Agreement to be executed by
its authorized officer or other employee, and each of
the undersigned declares under penalty of perjury that
he or she holds the title indicated below, that the
execution of this Agreement was the free act and deed
of the corporation, the foregoing is true and correct
and that this Agreement was executed on the date
indicated below, and that this Agreement is a legal,
valid and binding obligation of each party.
THE CIT GROUP/EQUIPMENT FINANCING, INC.
Lessor
By:/s/Xxxxxx Xxxxxxxxx
Title: Vice President
Date: 22 May 01
KANSAS CITY POWER AND LIGHT COMPANY
Lessee
By:/s/Xxxxx X. Xxxxxx
Title: VP
Date: May 2, 2001
Reviewed By Counsel
/s/Xxxxxxx X. Xxxxxx
RIDER A TO MASTER RAILCAR LEASE
Dated as of May 2, 2001
by between
THE CIT GROUP/EQUIPMENT FINANCING, INC., as Lessor and
KANSAS CITY POWER AND LIGHT COMPANY, as Lessee
"AAR" shall mean the Association of American
Railroads.
"Agreement" shall mean this Master Railcar Lease,
as it may be amended, modified or supplemented together
with all Schedules and Riders.
"After-Tax Basis" shall mean an amount equal to
the sum of (i) the amount of the tax to be paid plus
(ii) the amount of all taxes, fees and other
governmental charges payable by the payee with respect
to the receipt or accrual of the amounts described in
items (i) and (ii) of this sentence, calculated based
on the assumption that the payee is subject to United
States Federal income tax at the highest marginal
statutory rate applicable to corporations at the time
the indemnity is paid or accrued and is subject to
United States state and local and (if applicable)
foreign income taxes at the actual rates applicable to
the payee as certified by an officer of the payee.
"Delivery Location" location designated on each
applicable Schedule.
"FRA" shall mean the Federal Railroad
Administration.
"Interchange Condition" shall mean with respect to
any Car, the performance standards and criteria for the
condition of such Car and its maintenance and repair of
such Car as set forth in the Interchange Rules.
"Interchange Rules" mean collectively the Field
Manual of the AAR Rules of Interchange and the Office
Manual of the AAR Rules of Interchange adopted by the
AAR Mechanical Division, Operations, and Maintenance
Department, as the same may from time to time be
amended, modified or supplemented. References herein
to the Interchange Rules provide performance standards
and criteria for the condition of the Cars and their
maintenance and repair. However, as between Lessor and
Lessee, this Agreement, not the Interchange Rules,
governs who is responsible for performing Maintenance.
"Maintenance" shall mean all repairs, servicing,
maintenance, replacement or furnishing of parts,
mechanisms and devices as are needed to keep any Car in
good condition and working order and repair, suitable
for loading of the commodities listed in the applicable
Schedule and in accordance with the Interchange Rules,
the FRA rules and the applicable rules of any other
applicable regulatory body having jurisdiction over the
Cars.
"Property Tax" means any annually recurring tax on
personal property that is imposed on the owner of the
Cars by any government or other taxing authority within
the United States of America, is calculated by
reference to the value of the personal-property subject
to the tax and attributable to any or all of the Cars
(whether called an "ad valorem property tax", a
"railcar tax", a "mileage tax" or otherwise) plus any
and all fines, penalties, additions to tax and/or
interest relating thereto.
"Schedule" means any schedule signed by both
Lessor and Lessee pursuant to this Agreement, as the
same may from time to time be amended, modified,
supplemented or extended.
"Settlement Value" with respect to each Car shall
mean the value set forth as the Settlement Value" in
each Schedule.
"STB" shall mean the Surfact Transportation Board.
SCHEDULE NO.01
This Schedule No.01 to that certain
Master Railcar Lease (hereinafter as the same may from
time to time be amended, modified or supplemented
referred to as the "Agreement") dated as of May 2, 2001
between THE CIT GROUP/EQUIPMENT FINANCING, INC
("Lessor") and KANSAS CITY POWER AND LIGHT COMPANY
("Lessee")is made as of May 2, 2001.
Lessor and Lessee agree as follows.
1. Capitalized Terms. All
capitalized terms defined in the Agreement shall have
the meanings defined therein when used in this Schedule
No.01 except that the term "Cars" as used herein shall
only refer to the equipment described in this Schedule
unless otherwise indicated.
2. Cars Leased. Lessor hereby
leases the following cars to Lessee subject to the
terms and conditions of the Agreement and this
Schedule.
Quantity Equipment Description Reporting Marks and
Numbers
125 4480 C.F. aluminum coal See Schedule A
gondolas attached.
3. Acceptance. Lessee shall inspect
each Car promptly when delivered to Lessee at a
Delivery Location. Failure to report that any Car is
not in Interchange Condition within the earlier of
seven (7) days of such Car's delivery to Lessee or the
date of loading of such Car by Lessee or at Lessees
direction, (such period being referred to as the "7 Day
Acceptance Period") shall constitute acceptance by
Lessee of such Car, and shall be conclusive evidence
that such Car (a) is fit and in suitable condition for
transporting the commodities then and thereafter loaded
in such Car,(b) meets all of Lessee's requirements for
the Car and (c) is accepted by Lessee for all purposes
of the Agreement.
4. Lease Commencement Date. May
1,2001
5. Expiration Date. April 30,2004
6. Commodities to be carried.
Lessee will use the Cars in unit train high mileage
service for carrying only coal.
7. Lessee Maintenance Items.
Notwithstanding anything to the contrary contained
herein, Lessee shall, at its expense, repair damage to
any of the Cars, normal wear and tear excepted.
8. Remarking Responsibility. Not
applicable. Cars will bear CEFX marks.
9. Delivery Location. BNSF or UP
point between PRB and KCMO.
10. Rent Lessee shall pay Lessor a
fixed rent of $310.00 per Car per month, payable in
advance. Rent payable for any period which is less than
a full month shall be prorated. Rent shall commence
upon arrival of the last Car to the Delivery Location
("Rent Commencement Date").
(b) Additional Mileage Rental. In the
event any Car travels more than 100,000 miles in any
calendar year, Lessee shall pay Lessor $0.025 per mile
for each mile over 100,000 miles traveled by such Car.
Any Cars covered by this Lease during only a portion of
the calendar year shall be measured on a prorated basis
for the calculation of amounts due Lessor.
11. Settlement Value. The amount payable to
the owner of a Car under Interchange Rule 107.
12. Return Provisions. Upon the expiration of
this Agreement, Lessee shall return the Cars to a
mutually agreed upon location on the UP or BNSF
railroads between the PRB and KCMO. Cars will be
returned empty and free of product in or on the Cars
and in interchange condition per the then current AAR
and FRA regulations.
13. Lessee Notice. Kansas City Power And
Light Company
0000 Xxxxxx Xxxxxx
X.X. Xxx 000000
Xxxxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
14. Special Conditions.
a) AAR Circular OT-5. Whenever approval
of the originating line haul carrier is required in
order that Cars may be placed in service pursuant to
the AAR Circular OT-5 and any revisions or successors
thereto, Lessee shall obtain such approval, and this
Agreement shall continue in full force and effect
notwithstanding any withdrawal or modifications of such
approval or failure to obtain such approval
b) Transportation Expense.
Transportation Expense to the Delivery Location shall
be for Lessor's account.
Each party, pursuant to due corporate
authority, has caused this Schedule No. 0l to be
executed by its authorized officer or other employee,
and each of the undersigned declares under penalty of
perjury that he or she holds the title indicated below,
that the execution of this Schedule No.01 was the free
act of the corporation, the foregoing is true and
correct and that this Schedule No.01 was executed on
the date indicated below.
THE CIT GROUP/EQUIPMENT FINANCING, INC.
Lessor
By:/s/Xxxxxx Xxxxxxxxx
Title: Vice President
Date: 22 May 01
KANSAS CITY POWER AND LIGHT COMPANY
Lessee
By:/s/Xxxxx X. Xxxxxx
Title: VP
Date: May 2, 2001
Review By Counsel
/s/Xxxxxxx X. Xxxxxx
AMENDMENT NO.1 TO SCHEDULE NO.01 TO MASTER RAILCAR
LEASE BETWEEN THE CIT GROUP/EQUIPMENT FINANCING, INC.
AND KANSAS CITY POWER AND LIGHT COMPANY
This Amendment No. 1 ("Amendment"), dated
as of April 25, 2002, modifies and amends Schedule
No.01 made as of May 2, 2001 (as amended, modified or
supplemented, "Schedule No. 01") to the Master Railcar
Lease made as of May 2,2001 (as amended, modified or
supplemented, the "Lease") between The CIT
Group/Equipment Financing, Inc. ("Lessor") and Kansas
City Power and Light Company ("Lessee") to correct, as
of May 2,2001, an inaccuracy in the description of
railcars leased under the Lease pursuant to Schedule
No. 01.
WHEREAS pursuant to the Lease and
Schedule No.01 thereto, Lessee and Lessor confirm that
Schedule No.01 covers 125 aluminum coal gondola
railcars;
WHEREAS Lessor and Lessee confirm that
the car marks and numbers in Schedule No.01 are amended
as herein provided.
NOW THEREFORE in consideration of the
foregoing, the mutual agreements, terms and conditions
herein contained and other good and valuable
consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. The car marks and numbers originally
set forth in Schedule A to Schedule No.01 are hereby
deleted and a revised Schedule A, attached hereto as
Exhibit A ("Revised Schedule A"), shall be attached to
Schedule No. 01.
2. This Amendment shall be effective on
and as of May 2, 2001.
3. Except as expressly amended herein,
the Lease and Schedule No.01 shall continue in full
force and effect and all references in Schedule No.01
to Schedule A shall mean Revised Schedule A.
4. The terms of this Amendment and all
rights and obligations hereunder shall be governed by
the laws of the state of New York without regard to New
York's choice of law doctrine.
5. This Amendment may be executed in any
number of counterparts, each of which shall be deemed
an original and all of which together shall constitute
a single instrument.
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be executed by their duly
authorized officers as of the day and year first
written above.
THE CIT GROUP/EQUIPMENT FINANCING, NC.
By:/s/Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: SR. VP
KANSAS CITY POWER AND LIGHT COMPANY
By:/s/F. L. Branca
Name: Xxxxx X. Xxxxxx
Title: President, KCPL Power
Review By Counsel
/s/Xxxxxxx X. Xxxxxx
STATE OF NEW YORK )
)ss:
COUNTY OF NEW YORK)
On this 25th day of April, 2002,
before me a Notary Public in and for said County and
State, personally appeared Xxxxxxx Xxxxxxx SVP of The
CIT Group/Equipment Financing, Inc., who acknowledged
herself/himself to be a duly authorized officer of said
corporation, and that, as such officer, being
authorized to do so, s/he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto
set my hand and official seal on the date above
mentioned.
/s/Xxxxxxx Xxxxxxx
Notary Public
XXXXXXX XXXXXX
Notary Public, State of New York
No. 01GA5065133
Qualified In Nassau County
Certificate Filed in New York County
Commission Expires Sept 3, 2002
STATE OF MISSOURI )
)ss:
COUNTY OF XXXXXXX )
On this 25 day of April, 2002, before me, a
Notary Public in and for said County and State,
personally appeared Xxxxx X. Xxxxxx, a President of
Kansas City Power and Light Company, who acknowledged
herself/himself to be a duly authorized officer of said
corporation, and that, as such officer, being
authorized to do so, s/he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand
and official seal on the date above mentioned.
/s/Xxxxxxx Xxxxxxx
Notary Public
