ASSIGNMENT OF LEASE
THIS ASSIGNMENT is executed as of the 4th day of
August, 1995 (the "Effective Date"), by and between Arkansas
Power & Light Company, ("AP&L"), an Arkansas corporation
whose principal place of business is located at 000 X.
Xxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, and Helm
Financial Corporation ("Helm"), a California corporation
whose principal place of business is located at Xxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000.
Whereas System Fuels, Inc., as Lessee, entered into a
Lease of Railroad Equipment (the "Lease") dated as of
November 2, 1979 with First Security State Bank, as Lessor
and as Trustee, concerning the lease of approximately 600
steel gondola railcars (hereinafter, the "Railcars");
Whereas First Security State Bank entered into an
Assignment of Lease and Agreement with Metropolitan Life
Insurance Company as collateral security for payment and
performance of obligations of First Security State Bank to
Metropolitan Life Insurance Company;
Whereas the Lease was amended by Amendment to Lease
dated August 17, 1988 (the Lease, as amended by the
Amendment to Lease, is hereinafter referred to as the
"Lease, as amended");
Whereas System Fuels, Inc. subsequently assigned its
interest in the Lease, as amended, and the Railcars leased
thereunder to AP&L;
Whereas the interests of First Security National Bank &
Trust Company of Lexington and Westinghouse Credit
Corporation as owners of the Railcars have been acquired and
are now owned by Helm Locomotive Leasing Corporation
("Locomotive"), a California corporation;
Whereas AP&L desires to assign its rights, title,
interest, obligations, and liabilities under and to the
Lease, as amended, and the Railcars to Helm, and Helm
desires to accept the same;
Whereas the Lease, as amended, requires the prior
written consent of First Security State Bank, or its
successor, and Metropolitan Life Insurance Company to this
assignment;
Whereas Helm has represented to AP&L that Locomotive is
a separate legal entity from Helm and that all necessary
consents to the assignment herein have been obtained; Now,
therefore, AP&L and Helm agree as follows:
1. Effective on the Effective Date, AP&L assigns to
Helm and Helm accepts the assignment from AP&L of all of
AP&L's right, title, interest, obligations, and liabilities
in, to, and under the Lease, as amended, and any and all
Railcars leased under the Lease, as amended. Helm
acknowledges that there are presently 587 Railcars leased
under the Lease, as amended.
2. Helm shall indemnify, defend, and save AP&L
harmless from and against any and all claims, demands,
losses, damages, and liabilities, of whatever kind, nature,
and character whatsoever that accrue (a) subsequent to
Delivery (as defined in Paragraph 5(e)), in the event that
such claim demand, loss, damage, or liability relates to or
arises in connection with operation or maintenance of one or
more individual Railcars, or (b) subsequent to or on the
Effective Date, in the event that such claim demand, loss,
damage, or liability otherwise arises out of or in any way
relates to this assignment or the Lease, as amended. AP&L
shall indemnify, defend, and save Helm harmless from and
against any and all claims, demands, losses, damages, and
liabilities, of whatever kind, nature, and character
whatsoever that accrue (a) prior to Delivery, in the event
that such claim, demand, loss, damage, or liability relates
to or arises in connection with operation or maintenance of
one or more individual Railcars, or (b) before the Effective
Date, in the event that such claim, demand, loss, damage, or
liability otherwise arises out of or in any way relates to
this assignment or the Lease, as amended. The indemnity
granted in this paragraph shall include without limitation
claims, demands, losses, damages, and liabilities arising
from indemnity obligations contained in the Lease, as
amended. The parties agree that they will not indemnify
each other against each other's negligence.
3. Helm represents and warrants:
a. That Locomotive and Helm are separate legal
entities, and this assignment
does not terminate the Lease, as amended;
b. That First Security Bank of Utah, N.A. has
provided written consent to the
assignment contained herein; and
c. That Metropolitan Life Insurance Company
has provided written consent
to the assignment contained herein.
4. At its own expense, Helm shall cause this
Assignment of Lease to be filed where required by law.
5. AP&L will deliver the Railcars to Helm and Helm
shall inspect the Railcars as follows:
a. AP&L will deliver the Railcars to Helm in
multiple lots on multiple days in
a storage yard chosen by AP&L located in Chanute,
Kansas, with freight prepaid to Coffeeville, Kansas.
b. The Railcars will be delivered in a
condition that meets the standards
contained in the Association of American Railroads
Interchange Rules ("AAR Rules") and the Federal
Railroad Administration Regulations ("FRA Standards").
The AAR Rules and the FRA Standards are
collectively referred to herein as the "Standards.
c. When AP&L considers that a lot of Railcars
is ready for delivery, it will so
notify Helm by facsimile transmission to (415) 398-
4816. Helm will then be allowed fourteen (14) working
days within which to conduct, together
with AP&L, a joint inspection of the Railcars
described in the facsimile transmission notice.
M Railcars that meet the Standards will be accepted
by Helm at the conclusion of the inspection. Any
Railcar that does not meet the Standards will be
repaired to the Standards by AP&L at its
expense, and upon the completion of such repairs
shall be accepted by Helm. Should Helm not conduct
an inspection of any Railcar within
fourteen (14) working days of the facsimile
transmission notice described above, Helm will be
deemed to have waived its right to conduct an
inspection, such Railcar will be deemed to meet
the Standards, and Helm will be deemed to have accepted
such Railcar.
d. The preceding paragraph does not apply to
Railcars inspected by Helm prior to the Effective
Date. All Railcars inspected by Helm and AP&L
prior to the Effective Date and determined to meet
the Standards will be deemed accepted by Helm on the
Effective Date. Any Railcar inspected by
Helm prior to the Effective Date and determined
not to meet the Standards will be deemed accepted by
Helm on the latter of the Effective Date or the
date of completion of repairs needed to bring such
Railcar to the Standards.
x. Xxxx'x acceptance of a Railcar, whether by
execution of this assignment, by voluntary act,
or by waiver, constitutes "Delivery" of that Railcar,
as that term is used herein.
f. After Delivery but before Helm's movement of any Railcar,
Helm will change the Railcar's reporting marks and AEI
tags to remove references to System Fuels, Inc. and/or AP&L.
6. Under the Lease, as amended, rentals are next due and payable on
January 1, 1996. On that date, AP&L shall pay the Lessor the
following:
a. One-third of the total rental payment then due; plus
b. For each Railcar not made available for
Helm's inspection on or before August 31, 1995,
an amount equal to the Daily Rate, as defined below,
multiplied by the number of days that elapses
between August 31, 1995 and the day that is four (4)
working days after AP&L provides Helm with the
facsimile transmission notice described in
Paragraph 5(c) above; plus
c. For each Railcar not made available for inspection
by Helm on or before August 31, 1995 and that upon
inspection is determined to require repair to
meet the Standards, an amount equal to the Daily
Rate, as defined below, multiplied by the number of
days that elapses between the day that is four
(4) working days after AP&L provides Helm with the facsimile
transmission notice described in Paragraph 5(c)
above and the day that the repairs needed to bring such
Railcar to the Standards are completed and accepted by Helm.
Helm shall pay the balance of the total rental payment due
on January 1, 1996 and all rental payments due thereafter.
"Daily Rental" as used herein means an amount equal to the
total rental payable under the Lease, as amended, on January
1, 1996, divided by 108,008.
7. Helm shall not be paid any compensation
regarding nor shall Helm receive reimbursement of any of its expenses
incurred in connection with this assignment from AP&L or any of its
affiliates.
Thus done and signed in the presence of the undersigned
witnesses, as of the day and date first mentioned above.
WITNESSES:
/s/Xxxx X. Xxxxxxxxx ARKANSAS POWER & LIGHT COMPANY
BY: ENTERGY SERVICES, INC.
/s/Xxxxx XxXxxx XxXxxx By:/s/ Xxx X. Xxxxxxxxxx
Xxx X. Xxxxxxxxxx
Director, Coal Supply
/s/ HELM FINANCIAL CORPORATION
/s/ BY: /s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
President
STATE OF LOUISIANA
PARISH OF ORLEANS
On this 4th day of August, 1995, before me, Xxxx X.
Xxxx, a Notary Public duly commissioned in and for the
Parish of Orleans, State of Louisiana, personally came and
appeared Xxx X. Xxxxxxxxxx, to me personally known, who,
being by me sworn, deposed and said that he is the Director
of Coal Supply of Entergy Services, Inc., that Entergy
Services, Inc. is the duly authorized special agent of
Arkansas Power & Light Company with regard to the foregoing
instrument, that said instrument was signed by him on behalf
of Arkansas Power & Light Company, in its own fight, and
Entergy Services, Inc., as special agent of Arkansas Power &
Light Company, by authority of their boards of directors,
and he acknowledged that the foregoing instrument has been
executed as the free act and deed of Arkansas Power & Light
Company.
Witness my hand and official seal.
/s/ Xxxx X. Xxxx
NOTARY PUBLIC
My commission expires upon my death.
STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
On this 14th day of August, 1995, before me, Xxxx X. Xxxxxx, a
Notary Public duly commissioned and qualified in and for the County of
San Francisco, State of California, personally came and appeared Xxxxxxx X.
Xxxxxxxx, to me personally known, who, being by me sworn, deposed and
said that he is the President of Helm Financial Corporation, that the
foregoing instrument was signed by him on behalf of said corporation
by authority of its board of directors, and that he
acknowledged that the foregoing instrument has been executed
as the free act and deed of said corporation.
Witness my hand and official seal.
/s/ Emma Xxxxx Xxxxxx
NOTARY PUBLIC
My commission expires: June 16, 1999
