RAILCAR LEASE AGREEMENT NO.
ARKANSAS POWER & LIGHT COMPANY (AP&L) leases to LESSEE and
LESSEE rents from AP&L the equipment listed below or, if
separately scheduled, in the schedule hereto annexed, marked
Schedule "A", and made a part hereof, all of which, together with
any replacement parts, additions, repairs and accessories are
collectively referred to as "Units".
LESSEE: National Car Systems, Inc.
ADDRESS: 000 Xxxx Xxxxxxx, #000,
Xxxxxx Xxxx, XX 00000-0000
PERSON TO CONTACT: Xxxx X. Xxxxx
TELEPHONE NUMBER: (000) 000-0000
TELECOPY NUMBER: (000) 000-0000
AP&L: Arkansas Power & Light Company
c/o Entergy Services, Inc.
ADDRESS: P. O. Xxx 0000
Xxxxxxxx, Xxxxx 00000
PERSON TO CONTACT: Xxx X. Xxxxxxxxxx
TELEPHONE NUMBER: (000) 000-0000
TELECOPY NUMBER: (000) 000-0000
I. TERM: (As defined in Schedule A).
The LEASE shall commence on the date of acceptance of such
Units by LESSEE (the "Commencement Date") at the Designated Point
of Interchange ("DPOI") and shall continue through the date the
Units are returned to AP&L. Notwithstanding the expiration or
earlier termination of this LEASE, the obligations of the LESSEE
shall continue in effect with regard to all Units until returned
to the possession of AP&L as represented by joint inspection, per
Section IV, Part A.
LESSEE shall have the right to request one or more
extensions of the LEASE. Requests for extension must be in
writing and must be received by AP&L prior to the fifth (5th)
working day of the month preceding the month in which the LEASE
would otherwise have expired. Extensions shall be granted at
AP&L's sole discretion and only upon its written consent.
II. RENT: (As defined in Schedule A).
Rent shall commence on the date the Units are accepted by
LESSEE and shall be due each month in advance. If such payment
period is less than one full month, rent shall be payable on a
pro rata daily charge, calculated by dividing the monthly rent by
30 and multiplying the result by the number of days in LESSEE's
service. If any Unit(s) is damaged or destroyed while in
LESSEE's service, rent shall continue unless and until AP&L
receives the Settlement Value as defined in Association of
American Railroads ("AAR") Interchange Rule 107.
All rent shall be paid to AP&L at the address herein
specified or as otherwise specified by AP&L in writing. Payments
are considered made when received.
On or before the first (1st) working day of each month, AP&L
shall render to LESSEE a monthly invoice for the Units. LESSEE
shall pay such invoice within seven (7) working days from receipt
of such invoice. Payments shall be sent by wire transfer to AP&L
as follows: Hibernia National Bank in New Orleans, LA, Account
#812329537, ABA #000000000, unless AP&L advises LESSEE in writing
to send payments to another address. If any rent or other amount
required to be paid to AP&L hereunder is not paid within seven
(7) working days from receipt of the invoice, LESSEE shall pay to
AP&L on demand the lesser of 1 1/2 % of such late payment for
each month or part thereof from the due date until paid, or, the
maximum amount allowed by law.
III. DISCLAIMER OF WARRANTIES: AP&L makes no warranty, express
or implied, as to the condition of the Units, the conformity of
the Units to LESSEE's requirements or its supplier's
specifications, and/or the capabilities of any Unit or fitness
for any particular purpose. As to AP&L, LESSEE leases the Units
and takes such "AS IS".
IV. ACCEPTANCE, DELIVERY & RETURN OF UNITS:
A. ACCEPTANCE: Each of the Units shall be subject to
joint inspections upon delivery and return. Failure to report
any defect in the Units in writing at such inspections shall
constitute acceptance thereof by the parties hereunder and shall
be conclusive evidence of the condition of such Units for the
purposes of the LEASE.
B. DELIVERY & RETURN: AP&L agrees to deliver to LESSEE
the Units, all charges prepaid, and LESSEE agrees to accept the
Units, all charges prepaid, at the DPOI, and LESSEE agrees to
return the Units to AP&L, all charges prepaid, at the agreed upon
place of return, both of which shall be on the AP&L normal route-
of-movement free of any cargo or residue.
Upon the expiration or termination of this LEASE, or upon
demand therefor by AP&L pursuant to this LEASE, LESSEE, unless
otherwise directed, will immediately ship the Units in accordance
with the provisions of Section IV hereof, in as good condition as
received, normal wear and tear excepted. LESSEE shall be
responsible for the rent on each Unit until the inspection and
acceptance. Joint inspection shall be performed no later than
(5) five business days after physical receipt of the Units.
C. MOVEMENT CHARGES: LESSEE shall be responsible for the
costs of movement of the Units under Section IV.
V. APPLICABLE LAW; ENTIRE AGREEMENT; SEVERABILITY: This LEASE
shall be interpreted, construed and enforced in accordance with
the laws of the State of Arkansas. This LEASE constitutes the
entire agreement between the parties hereto, and no
representations, oral or written, shall constitute an amendment
unless signed in writing by an officer of both parties.
LESSEE authorizes AP&L to insert on Schedule A of this
LEASE, reporting marks and/or other identification data, or
descriptions of the Units so accepted by joint inspection by the
parties hereto and AP&L agrees to promptly provide LESSEE with a
copy of such insertion.
AP&L shall not be liable for any loss of or damage to
commodities, or any part thereof, loaded or shipped in the Units,
and LESSEE agrees to assume financial responsibility for, to
indemnify and to save AP&L harmless from any such loss or damage.
Nothing herein contained shall give or convey to LESSEE any
right, title or property interest in and to the Units, except as
LESSEE.
VI. INSPECTION, MARKING: LESSEE shall make the Units available
for inspection by AP&L's representatives during LESSEE's normal
business hours, and shall make LESSEE's log, maintenance and
other records pertaining to the Units available for inspection
and duplication by AP&L's representatives. LESSEE shall not
modify or stencil any Unit(s) or apply other markings.
VII. USE: LESSEE agrees that Units will be operated and used
exclusively in LESSEE'S business for the transportation of coal
within the contiguous boundaries of the U.S. All Units will be
operated by competent and qualified personnel only and in
accordance with applicable operating industry standards and
practices, laws, government regulations and applicable insurance
policies. LESSEE convenants that it shall adhere to all rules
and regulations of the Association of American Railroads ("AAR")
and all state and federal regulations for the duration of this
Agreement.
VIII. MAINTENANCE: LESSEE shall not misuse or abuse the
Units, and shall at its expense repair or replace the Units to
the extent of any misuse or abuse. If any Unit is damaged or
destroyed while under LESSEE's control and possession, the LESSEE
shall pay for the repairs of such Unit or pay the "Settlement
Value" as defined in AAR Rule 107.
AP&L shall maintain the Units during the term of the LEASE
as required by AAR Interchange Rules and Federal Railroad
Administration ("FRA") regulations. AP&L shall be responsible
for all maintenance charges and/or costs not the responsibility
of LESSEE under the LEASE.
IX. GENERAL INDEMNITY: LESSEE shall defend, indemnify and hold
AP&L harmless from and against any and all claims, actions,
damage, obligations, liabilities, liens, and expenses, including
but not limited to legal fees incurred by AP&L, arising out of or
in connection with LESSEE's use or return of the Units during the
term of this lease, regardless of whether any acts, omissions or
negligence of AP&L contributed thereto, except when the Units are
in the Watco Shop or covered by Watco indemnification or
insurance for the benefit of the AP&L, or in any other shop if
prior approval is given by AP&L and that shop provides
indemnification or insurance to AP&L. LESSEE agrees that, upon
written notice by AP&L of the assertion of any claim, action,
damage, obligation, liability or lien, LESSEE shall, at AP&L's
request, assume the full responsibility for defense thereof. If
LESSEE fails to assume the defense of such claim or suit, in
addition to AP&L's other rights and remedies, it is agreed that
LESSEE shall be fully and equally bound by any settlement or
judgment without further recourse as to all matters which could
have been compromised or litigated.
X. SUBLEASE OR ASSIGNMENT: LESSEE shall not (a) sublet the
Units, (b) assign, transfer or otherwise dispose of this LEASE,
the Units or any interest therein, or (c) create or suffer any
levy, lien, or encumbrance on the Units, or any of them, other
than liens or encumbrances created by AP&L.
XI. ASSIGNMENT BY AP&L: AP&L shall have the right to assign its
interest in this LEASE and the Units; provided, however,
assignment shall be subject to the rights of LESSEE hereunder.
Trustee shall have the right to sell or grant a security interest
in and to the Units.
XII. DEFAULT; NO WAIVER: The LESSEE shall be in default
hereunder upon the occurrence of one or more of the following
events: (a) LESSEE fails to pay when due any rent or other
amount required to be paid by LESSEE hereunder and such failure
shall continue for a period of ten (10) days after such due date;
(b) LESSEE fails to perform any other provision hereunder or
violates any of the convenants or representations made by LESSEE
herein and such failure or breach shall continue unremedied for a
period of fifteen (15) days after written notice to LESSEE; or
(c) LESSEE makes an assignment for the benefit of creditors, or a
trustee or receiver is appointed for LESSEE or for a substantial
part of LESSEE's property, or a petition of bankruptcy is filed
by or against LESSEE. Any failure of AP&L to require strict
performance by LESSEE or any waiver by AP&L of any provision in
the LEASE shall not be construed as a consent or waiver of any
other breach of the same or any other provision.
XIII. REMEDIES: If the LESSEE is in default hereunder, AP&L
shall have the right to exercise any one or more of the following
remedies: (a) terminate this LEASE with respect to any or all
Unit(s); (b) recover from LESSEE all rent and other amounts
then due and to become due hereunder; (c) repossess the Units
without demand or notice, and without court order or legal
proceeding; (d) terminate LESSEE's right to possession of the
Units, lease the Units, or any of them, to others and recover
from LESSEE any deficiencies between the rent provided herein and
that paid by others; (e) any other remedy available at law or
in equity, including but not limited to seeking damages, specific
performance or an injunction.
XIV. RIGHT OF RECALL: AP&L shall have the right to recall the
Units from LESSEE's service and request Units to be delivered at
a designated point of return; all charges prepaid by LESSEE and
LESSEE shall return Units within 30 days after written request of
recall from AP&L. For any Unit not returned within said 30 days,
subsequent rent for said Units will be increased by 40 percent
until said Unit is returned.
XV. AP&L'S EXPENSES: Upon termination pursuant to Section XII
and/or XIII hereof, or in the event a default shall have
occurred, LESSEE shall pay AP&L all of AP&L's costs and expenses,
including without limitation attorney's fees and expenses,
incurred in moving and/or transporting any Unit from its location
to AP&L's normal route of movement and placing it in the
condition required and/or in enforcing any of the terms,
conditions or provisions hereof or in protecting AP&L's rights
and interests in and to this LEASE and the Units.
XVI. OWNERSHIP; PERSONAL PROPERTY: The Units are, and shall at
all times remain the property of Trustee; and LESSEE shall have
no right, title or interest therein or thereto except as
expressly set forth herein. The Units are, and shall at all
times be and remain, personal property, notwithstanding that any
Unit or any part thereof may now be, or hereafter become in any
manner affixed or attached to real property or any improvements
thereof.
XVII. NOTICES; ADMINISTRATION: Service of all notices under
the LEASE shall be sufficient if delivered personally or by
Registered or Certified mail, postage prepaid, return receipt
requested to the addresses shown above, or at such other address
as any party may provide in writing from time to time. Any such
notice shall be effective when delivered personally or when
deposited in the United States mail.
XVIII. BINDING EFFECT: The parties for themselves, their
heirs, executors, successors, personal representatives and
assigns do hereby agree to full performance of all of the terms
and conditions herein.
XIX. AUTHORITY: AP&L and LESSEE each represents and warrants to
the other that the person or persons executing this RAILCAR LEASE
AGREEMENT on behalf of such party is duly authorized to sign and
bind that respective party to the terms and conditions of this
RAILCAR LEASE AGREEMENT.
IN WITNESS WHEREOF, the parties have caused this RAILCAR
LEASE AGREEMENT to be entered into this _____________ day of
_____________________________, 19___, but effective as of the
Commencement Date.
LESSOR: ARKANSAS POWER & LIGHT COMPANY
BY: ENTERGY SERVICES, INC.
By: ______________________________
Xxx X. Xxxxxxxxxx
Director, Coal Supply
LESSEE: _______________________________
By: _______________________________
Its: _______________________________
SCHEDULE A
Forming Part of
ARKANSAS POWER & LIGHT COMPANY
RAILCAR LEASE AGREEMENT NO.
This is Schedule A to the above RAILCAR LEASE AGREEMENT by
and between Arkansas Power & Light Company (AP&L) and
. The units described
herein shall be subject to the terms and conditions of the
Railcar Lease Agreement and this Schedule during the term of use
and for the rental set forth below:
Reporting Monthly Rental
Number of Units Type of Units Marks Per Car
--------------- ------------------------------ ---------- --------------
4000 cubic foot capacity
gondola coal Units, equipped
with 100-ton trucks and rotary
couplers
Exhibit A, attached and made part of Schedule A, is the
Certificate of Acceptance for the specific Units covered by this
LEASE.
Designated Point of Interchange (DPOI) is at Coffeyville, Kansas.
The term of use of the Units hereinabove described shall commence
as stated in Section I and shall continue until _________________
___________________________, 19___.
Dated this _______ day of____________________, 19___.
ARKANSAS POWER & LIGHT COMPANY (LESSEE)
BY: ENTERGY SERVICES, INC.
By: _________________________ By: _________________________
Xxx X. Xxxxxxxxxx
Director, Coal Supply
DATE: _________________________ DATE: _________________________
Exhibit A to
Arkansas Power & Light Company
Car Leasing Agreement No. ________
CERTIFICATE OF ACCEPTANCE
The undersigned, a duly authorized representative of
________________________________, or Arkansas Power & Light
Company, as may be appropriate, the "Receiving Party", does
hereby certify that he has caused to be inspected and, on the
date set out below, has accepted on behalf of the Receiving Party
the following described cars, which cars are in good order,
condition and repair and conform to the terms, provisions,
requirements and standards of the certain Car Leasing Agreement
No. _____ dated as of _____________, 1995, between Arkansas Power
& Light Company and __________.
Equipment Description: 100-ton rotary dump gondolas
Unit Number Unit Number Unit Number
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AUTHORIZED REPRESENTATIVE OF RECEIVING PARTY:
By:_____________________________ Acceptance Date: ___________________
Title:__________________________ Date:_______________________________
ACKNOWLEDGMENT
STATE OF TEXAS
COUNTY OF JEFFERSON
BEFORE ME, the undersigned, a Notary Public in and for
JEFFERSON County, Texas, on this day, personally appeared
XXX X. XXXXXXXXXX, who acknowledged himself to be the
DIRECTOR, COAL SUPPLY of ENTERGY SERVICES INC. a
corporation, and that he, as such DIRECTOR, COAL SUPPLY,
being authorized so to do, executed the foregoing instrument
for the purposes therein contained, by signing the name of
the corporation by himself as XXX X. XXXXXXXXXX.
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this 31ST day
of AUGUST, A.D. 1995.
My Commission Expires: _____________________________
XXXXX X. XXXX
(SEAL) NOTARY PUBLIC, STATE OF TEXAS
STATE OF __________________
COUNTY OF ________________
BEFORE ME, the undersigned, a _____________________ in
and for ________________ County, _____________________,
on this day, personally appeared _____________________, who
acknowledged himself to be the _____________________
of _____________________ a corporation, and that he,
as such _____________________, being authorized so to do,
executed the foregoing instrument for the purposes therein
contained, by signing the name of the corporation by himself
as ________________________ .
GIVEN UNDER MY HAND AND SEAL OF OFFICE, this ______ day
of _____________, A.D. 19____.
My Commission Expires: ____________________
(SEAL) ____________________
