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ANNEX C
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[CS&M Ref. 4650-037]
LEASE OF RAILROAD EQUIPMENT
Dated as of January 1, 1979
between
THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Trustee
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Filed and recorded with the Interstate Commerce Commission pursuant to
49 U.S.C. (S) 11303 on March 30, 1979, at 9:55 a.m., recordation number 10238-B.
A Uniform Commercial Code financing statement was filed with the
Office of the Secretary of State of Colorado at 1:41 p.m., on April 16, 1979,
File No. 363588, listing the Lessee as Debtor, the Owner-Trustee as the Secured
Party and the Agent as Assignee of the Secured Party and covering the Equipment
listed herein. (This was a precautionary filing in the event the Lease might be
determined to be a U.C.C. security agreement, contrary to the intent of the
parties.)
Lease of Railroad Equipment
Table of Contents
Page
----
(S) 1. Net Lease............................................... L-1
(S) 2. Delivery and Acceptance of Units........................ L-2
(S) 3. Rentals................................................. L-3
(S) 4. Term of Lease........................................... L-4
(S) 5. Identification Marks.................................... L-4
(S) 6. Taxes................................................... L-5
(S) 7. Maintenance; Casualty Occurrences,
Insurance............................................... L-8
(S) 8. Reports and Inspection.................................. L-11
(S) 9. Disclaimer of Warranties; Compliance
with Laws and Rules; Indemnification.................... L-12
(S) 10. Default................................................. L-15
(S) 11. Return of Units upon Default............................ L-18
(S) 12. Assignment; Possession and Use.......................... L-20
(S) 13. Renewal Options and Right of First Refusal.............. L-22
(S) 14. Return of Units upon Expiration of
Lease Term.............................................. L-24
(S) 15. Recording............................................... L-26
(S) 16. Interest on Overdue Rentals............................. L-26
(S) 17. Notices................................................. L-27
(S) 18. Severability; Effect and Modification of Lease.......... L-27
ii
Page
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(S) 19. Execution............................................... L-27
(S) 20. Law Governing........................................... L-28
(S) 21. Definitions............................................. L-28
(S) 22. Concerning the Lessor................................... L-28
Schedule I--Schedule of Equipment
Schedule 2--Casualty Values
LEASE OF RAILROAD EQUIPMENT dated as of January 1, 1979,
between THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, a
Delaware corporation (the "Lessee"), and FIRST SECURITY BANK OF
UTAH, NATIONAL ASSOCIATION, a national banking association, as
Trustee (the "Lessor") under a Trust Agreement dated as of the
date hereof (the "Trust Agreement") with George S. Eccles (the
"Owner").
The Lessor is entering into a conditional sale agreement (the
"Security Documentation") dated as of the date hereof with Whitehead & Kales
Company (the "Builder") wherein the Builder has agreed to manufacture, sell and
deliver to the Lessor the units of railroad equipment described in Schedule 1
hereto (the "Equipment").
The Builder is assigning its interests in the Security Documentation
to United States Trust Company of New York, acting as agent (hereinafter,
together with its successors and assigns, called the "Vendor") under a
Participation Agreement dated as of the date hereof (the "Participation
Agreement") with the Lessee and the parties named in Schedule A thereto.
The Lessee desires to lease such number of units of the Equipment as
are delivered and accepted and settled for under the Security Documentation (the
"Units") at the rentals and for the terms and upon the conditions hereinafter
provided.
NOW, THEREFORE; in consideration of the premises and of the rentals to
be paid and the covenants hereinafter mentioned to be kept and performed by the
Lessee, the Lessor hereby leases the Units to the Lessee upon the following
terms and conditions:
(S) 1. Net Lease. This Lease is a net lease and the Lessee shall not
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be entitled to any abatement of rent, reduction thereof or setoff against rent,
including, but not limited to, abatements, reductions or setoffs due or alleged
to be due by reason of any past, present or future claims of the Lessee against
the Lessor under this Lease or under the Security Documentation, or against the
Builder or the Vendor or otherwise; nor, except as otherwise expressly provided
herein, shall this Lease terminate, or the respective obliga-
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tions of the Lessor or the Lessee be otherwise affected, by reason of any defect
in or damage to or loss of possession or loss of use or destruction of all or
any of the Units from whatsoever cause, any liens, encumbrances or rights of
others with respect to any of the Units, the prohibition of or other restriction
against the Lessee's use of all or any of the Units, the interference with such
use by any person or entity, the invalidity or unenforceability or lack of due
authorization of this Lease, any insolvency of or any bankruptcy, reorganization
or similar proceeding against the Lessee, or for any other cause whether similar
or dissimilar to the foregoing, any present or future law to the contrary
notwithstanding, it being the intention of the parties hereto that the rents
and other amounts payable by the Lessee hereunder shall continue to be payable
in all events in the manner and at the times herein provided unless the
obligation to pay the same shall be terminated pursuant to the express
provisions of this Lease. To the extent permitted by applicable law, the Lessee
hereby waives any and all rights which it may now have or which at any time
hereafter may be conferred upon it, by statute or otherwise, to terminate,
cancel, quit or surrender the lease of any of the Units except in accordance
with the express terms hereof. Each rental or other payment made by the Lessee
hereunder shall be final and the Lessee shall not seek to recover all or any
part of such payment from the Lessor for any reason whatsoever.
(S) 2. Delivery and Acceptance of Units. The Lessor hereby appoints
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the Lessee its agent for inspection and acceptance of the Units pursuant to the
Security Documentation. The Lessor will cause the Units to be delivered to the
Lessee at the point within the United States of America at which the Units are
delivered to the Lessor under the Security Documentation. Upon such delivery,
the Lessee will cause an employee of the Lessee to inspect the same, and if such
Unit is found to be acceptable, to accept delivery of such Unit and the Lessee
shall execute and deliver to the Lessor a certificate of acceptance (the
"Certificate of Acceptance") in accordance with the provisions of Article 3 of
the Security Documentation, stating that such Unit has been inspected and
accepted on behalf of the Lessee and the Lessor on the date of such Certificate
of Acceptance and is marked in accordance with (S) 5 hereof, whereupon, except
as provided in the next sentence hereof, such Unit shall be deemed to have been
delivered to and accepted by the Lessee and shall be subject thereafter to all
the terms and conditions of this Lease. The delivery, inspection and acceptance
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hereunder of any unit of Equipment excluded from the Security Documentation
pursuant to the first paragraph of Article 4 thereof shall be null and void and
ineffective to subject such unit to this Lease.
(S) 3. Rentals. The Lessee agrees to pay to the Lessor as rental for
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each Unit subject to this Lease one interim and 10 consecutive annual payments
in arrears. The interim payment for each Unit subject to this Lease is payable
on September 15, 1979, and shall be in an amount equal to the product of (a) the
Purchase Price (as defined in the CSA) for such Unit multiplied by (b) the
number of days elapsed from and including the date of delivery for such Unit
under the CSA to but not including the interim payment date multiplied by (c) a
fraction, the numerator of which shall be the greater of 9.6% or 125% of the
interest rate charged by Citibank N.A., New York, on 90-day loans to prime
commercial borrowers as of the Deposit Date and the denominator of which shall
be 365. The annual payments are payable on September 15 in each year,
commencing September 15, 1980, to and including September 15, 1989, as follows:
the first five such payments shall be in an amount equal to 11.1949% of the
Purchase Price of each such Unit then subject to this Lease; and the next five
such payments shall each be in an amount equal to 13.6825% of the Purchase Price
of each such Unit then subject to this Lease. The percentages set forth in the
preceding sentence are based upon an assumed delivery and acceptance date on or
before June 30, 1979, for all trilevel auto racks described on Schedule 1
hereto. In the event that the delivery and acceptance date for any of such
trilevel auto racks shall occur after June 30, 1979, such percentages shall be
adjusted by such amount as will cause the Lessor's net return over the term of
this Lease to equal the net return that would have been available had such
delivery and acceptance date occurred on or before June 30, 1979, and the
parties hereto agree to execute such amendments and other documents as may be
necessary to adjust such percentages and all other terms dependent upon the
delivery and acceptance dates, including, without limitation, Casualty Values,
in order to reflect any such occurrence of such delivery acceptance date.
The Lessee shall pay as additional rental the following: (i) on the
Cut-Off Date (as defined in Paragraph 8 of the Participation Agreement), an
amount equal to any amounts payable by the Lessor pursuant to clause (a) of the
final paragraph of Paragraph 8 of the Participation Agreement on such date plus
an amount equal to any amounts payable by
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the Lessor pursuant to the first paragraph of Paragraph 8 of the Participation
Agreement, and (ii) on September 15, 1979, an amount equal to any amount payable
to the Lessor in respect of interim interest pursuant to clause (b) of the
final paragraph of Paragraph 8 of the Participation Agreement.
Notwithstanding any other provision hereof, to the extent that the
Lessee shall be denied possession of a Unit or Units because of the occurrence
of a default under the Security Documentation which is not an Event of Default
(as such term is hereinafter defined) under this Lease, the Lessee shall have no
further obligation to make any additional rental payments for such Unit or Units
with regard to periods subsequent to its loss of possession of such Unit or
Units.
If any of the rental payment dates referred to above is not a business
day the rental payment otherwise payable on such date shall be payable on the
next succeeding business day. The term "business day" as used herein means a
calendar day, excluding Saturdays, Sundays and any other day on which banking
institutions in New York, New York, are authorized or obligated to remain
closed.
The Lessor irrevocably instructs the Lessee to make all the payments
provided for in this Lease, including, but not limited to, the payments provided
for in this (S) 3 and in (S) 7 hereof, at the principal office of the Vendor,
for the account of the Lessor in care of the Vendor, with instructions to the
Vendor first, to apply such payments to satisfy the obligations of the Lessor
under the Security Documentation, and second, so long as no event of default or
event which with the lapse of time and/or demand provided for in the Security
Documentation could constitute an event of default under the Security
Documentation shall have occurred and be continuing, to pay any balance promptly
to the Lessor at such place as the Lessor shall specify in writing. The Lessee
agrees to make each payment provided for herein as contemplated by this
paragraph in Federal or other funds immediately available to the Vendor by 11:00
a.m., New York time, on the date such payment is due.
(S) 4. Term of Lease. The term of this Lease as to each Unit shall
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begin on the date of delivery and acceptance of such Unit hereunder and, subject
to the provisions of (S)(S) 7 and 10 hereof, shall terminate on the date on
which the final payment of rent in respect thereof is due pursuant to (S) 3
hereof. The obligations of the Lessee hereunder (including, but not limited to,
the obligations under (S)(S) 6, 7, 9
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and 14 hereof) shall survive the expiration of the term of this Lease.
Notwithstanding anything to the contrary contained herein, all rights
and obligations of the Lessee under this Lease and in and to the Units are
subject to the rights of the Vendor under the Security Documentation. If an
event of default should occur under the Security Documentation, the Vendor may
terminate this Lease (or rescind its termination), all as provided therein.
(S) 5. Identification Marks. The Lessee (at its own expense) will
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cause each Unit to be kept numbered with its identifying number set forth in
Schedule 1 hereto, or in the case of any Unit not there listed, such identifying
number as shall be set forth in any amendment or supplement hereto extending
this Lease to cover such Unit, and will keep and maintain, plainly, distinctly,
permanently and conspicuously marked on each side of each Unit, in letters not
less than one inch in height, the words "Leased from First Security Bank of
Utah, National Association, as Trustee, and Ownership subject to a Security
Agreement filed with the Interstate Commerce Commission and a Security Interest
under the Uniform Commercial Code", or other appropriate words designated by the
Vendor, with appropriate changes thereof and additions thereto as from time to
time may be required by law in order to protect the Lessor's and Vendor's title
to and interest in such Unit and the rights of the Lessor under this Lease and
of the rights of the Vendor under the Security Documentation. The Lessee will
not place any such Unit in operation or exercise any control or dominion over
the same until such words shall have been so marked and will replace promptly
any such markings which may be removed, defaced or destroyed. The Lessee will
not change the road number of any Unit unless and until (i) a statement of new
number or numbers to be substituted therefor shall have been filed with the
Vendor and the Lessor and duly filed, recorded and deposited by the Lessee in
all public offices where this Lease and the Security Documentation shall have
been filed, recorded and deposited and (ii) the Lessee shall have furnished the
Vendor and the Lessor an opinion of counsel to such effect. The Units may be
lettered with the names or initials or other insignia customarily used by the
Lessee or its affiliates.
Except as provided in the immediately preceding paragraph, the Lessee
will not allow the name of any person, association or corporation to be placed
on any Unit as a designation that might be interpreted as a claim of ownership.
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(S) 6. Taxes. All payments to be made by the Lessee hereunder will
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be free of expense to the Lessor for collection or other charges and will be
free of expense to the Lessor with respect to the amount of any local, state,
Federal or foreign taxes (other than any United States Federal income tax
payable by the Lessor in consequence of the receipt of payments provided for
herein and, to the extent that the Lessor receives credit therefor against its
United States Federal income tax liability, any foreign income tax, and other
than the aggregate of all state or local taxes measured by net income based on
such receipts, value added taxes in lieu of such net income taxes and any state
franchise tax which is not based on or measured by net income up to the amount
of any such taxes which would be payable to the state and city in which the
Lessor has its principal place of business without apportionment to any other
state, except any such tax which is in substitution for or relieves the Lessee
from the payment of taxes which it would otherwise be obligated to pay or
reimburse as herein provided) or license fees, ad valorem property taxes, taxes
and charges (Federal, state and local), fines or penalties and interest (all
such expenses, taxes, license fees, ad valorem property taxes, taxes and charges
(Federal, state and local), fines and penalties and interest being hereinafter
called impositions) hereafter levied or imposed upon or in connection with or
measured with respect to this Lease or any sale, rental, use, payment, shipment,
delivery or transfer of title under the terms hereof or the Security
Documentation, all of which impositions the Lessee assumes and agrees to pay on
demand in addition to the payments to be made by it provided for herein. The
Lessee will also pay promptly all impositions which may be imposed upon any Unit
or for the use or operation thereof or upon the earnings arising therefrom
(except as provided above) or upon the Lessor by reason of its ownership thereof
and will keep at all times all and every part of such Unit free and clear of all
impositions which might in any way affect the title of the Lessor or the
interest of the Lessor or result in a lien upon any such Unit; provided,
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however, that the Lessee shall be under no obligation to pay any impositions of
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any kind so long as such imposition remains unpaid and Lessee is contesting in
its own name and in good faith and by appropriate legal or administrative
proceedings such impositions, or the Lessor is required to contest such
impositions as provided in this S 6, and the nonpayment thereof does not, in the
reasonable opinion of the Lessor, adversely affect the title, property or rights
of the Lessor hereunder or the Lessor or the Vendor under the Security
Documentation. The Lessee
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agrees to give the Lessor notice of such contest brought in Lessee's name
within 30 days after institution thereof and the Lessor agrees to provide such
information as may be reasonably requested by the Lessee in furtherance of such
contest. If any impositions shall have been charged or levied against the
Lessor directly and paid by the Lessor, the Lessee shall pay the Lessor on
presentation of an invoice therefor if the Lessor shall have been legally liable
with respect thereto (as evidenced by an opinion of counsel for the Lessor) or
the Lessee shall have approved the payment thereof, and the Lessor agrees to
give the Lessee written notice promptly after it first obtains knowledge of the
making of such charge or levy, and agrees to take such other action as may
reasonably be requested by the Lessee for the purpose of contesting payment or
obtaining refund of all or a portion of such imposition, as hereinafter provided
in this (S) 6.
In the event that the Lessor shall become obligated to make any
payment to the Builder or the Vendor or otherwise pursuant to any correlative
provision of the Security Documentation not covered by the foregoing paragraph
of this (S) 6, the Lessee shall pay such additional amounts (which shall also be
deemed impositions hereunder) to the Lessor to fulfill completely its
obligations pursuant to said provision; provided, however, that the Lessor shall
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have contested (if required to do so under this (S) 6) such impositions in good
faith and to the extent permitted under the Security Documentation.
In the event any returns, statements or reports with respect to
impositions involving any Unit are required to be made, the Lessee will make
such returns, statements and reports in such manner as to show the interest of
the Lessor and the Vendor in such Units, as shall be satisfactory to the Lessor
and the Vendor or, where not so permitted, will notify the Lessor and the Vendor
of such requirement and will prepare and deliver such reports to the Lessor and
the Vendor within a reasonable period of time prior to the time such reports are
to be filed in such manner as shall be satisfactory to the Lessor and the
Vendor.
In the event that, during the continuance of this Lease, the Lessee
becomes liable for the payment or reimbursement of any imposition, pursuant to
this (S) 6, such liability shall continue, notwithstanding the expiration of
this Lease, until all such impositions are paid or reimbursed by the Lessee.
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In the event the Lessee may be prohibited by law or is impaired from
contesting in its own name any imposition covered by this (S) 6 in respect of
which the Lessee would otherwise be required to make payments to the Lessor
pursuant hereto, the Lessor shall, upon request and at the expense of the
Lessee, take all legal and other appropriate action reasonably requested by the
Lessee to contest such imposition. The Lessor shall not be obligated to take any
such legal or other appropriate action unless the Lessee shall first have
indemnified the Lessor for all liabilities and expenses which may be entailed
therein. Further, the Lessee shall indemnify and hold the Lessor harmless from
and against any and all claims, costs, expenses, damages, losses and liabilities
incurred in connection therewith as a result of, or incident to, any action
taken by the Lessor or Lessee under this (S) 6. The Lessee shall be entitled to
any refund received by the Lessor or the Lessee in respect of any imposition
paid by the Lessee, provided no Event of Default (or other event which after
notice or lapse of time or both would become an Event of Default) shall have
occurred and be continuing.
The Lessee shall, whenever reasonably requested by the Lessor, submit
to the Lessor copies of returns, statements, reports, billings and remittances,
or furnish other evidence satisfactory to the Lessor of the Lessee's performance
of its duties under this (S) 6. The Lessee shall also furnish promptly upon
request such data as the Lessor reasonably may require to permit the Lessor's
compliance with the requirements of taxing jurisdictions.
The amount which the Lessee shall be required to pay with respect to
any imposition which is subject to indemnification under this (S) 6 shall be an
amount sufficient to restore the Lessor to the same net after tax rate of return
and after tax cash position, after considering the effect of such payment on its
United States Federal income taxes and state and city income taxes or franchise
taxes based on net income, that the Lessor would have been in had such
imposition not been imposed.
(S) 7. Maintenance; Casualty Occurrences; Insurance. The Lessee
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agrees that, at Lessee's own cost and expense, it will be responsible for
ordinary maintenance and repairs required to maintain and keep all of the Units
which are subject to this Lease in good operating order, repair and condition
and eligible for interchange service.
In the event that any Unit shall be or become worn
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out lost, stolen, destroyed, or irreparably damaged, from any cause whatsoever,
returned to the Builder pursuant to the patent indemnity provisions of the
Security Documentation, or taken or requisitioned by condemnation or otherwise
by the United States Government or any political subdivision thereof for a
stated period which shall exceed the then remaining term of the Security
Documentation or for an indefinite period, but only when such period shall
exceed the term hereof, or by any other governmental entity resulting in loss of
possession by the Lessee for a period of 90 consecutive days (such occurrences
being hereinafter called Casualty Occurrences), prior to the return of such Unit
in the manner set forth in (S) 14 hereof, the Lessee shall promptly and fully
notify the Lessor and the Vendor with respect thereto. On the September 15 next
succeeding such notice the Lessee shall pay to the Lessor an amount equal to the
rental payment or payments, if any, in respect of such Unit due and payable on
such date plus a sum equal to the Casualty Value (as hereinafter defined) of
such Unit as of the date of such payment in accordance with the schedule
referred to below. Upon the making of such payment by the Lessee in respect of
any Unit, the rental for such Unit shall cease to accrue, the term of this Lease
as to such Unit shall terminate and (except in the case of the loss, theft,
complete destruction or return to the Builder of such Unit) the Lessor shall be
entitled to recover possession of such Unit and the Lessee shall pay all costs
of removal of such Unit and of freight to the place designated pursuant to (S)
14 hereof.
The Casualty Value of each Unit as of the payment date on which
payment is to be made as aforesaid shall be that percentage of the Purchase
Price of such Unit as is set forth in Schedule 2 hereto opposite such date;
provided, however, that if the Casualty Value for any Unit as of such payment
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date as determined pursuant to Schedule 2 reflects an amount representing
investment credit recapture to the Owner that is greater or lesser than the
actual amount of investment credit recapture incurred by the Owner as a result
of the Casualty Occurrence to such Unit, the Casualty Value for such Unit as so
determined shall be appropriately decreased or increased so as to reflect the
actual amount of investment credit recapture incurred by the Owner as a result
of the Casualty Occurrence to such Unit.
Whenever any Unit shall suffer a Casualty Occurrence after termination
of this Lease at the expiration of the original or extended term hereof and
before such Unit shall have been returned in the manner provided in (S) 14
hereof, the
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Lessee shall promptly and fully notify the Lessor with respect thereto and pay
to the Lessor an amount equal to the Casualty Value of such Unit, which shall be
20% of the Purchase Price of such Unit (unless such termination occurs after the
term of this Lease has been extended pursuant to (S) 13 hereof, in which case
the amount of such Casualty Value shall be as agreed upon between the Lessor and
the Lessee at the time of such extension). Upon the making of any such payment
by the Lessee in respect of any Unit (except in the case of the loss, theft or
complete destruction of such Unit), the Lessor shall be entitled to recover
possession of such Unit.
The Lessor hereby irrevocably appoints the Lessee its agent to dispose
of any Unit suffering a Casualty Occurrence or any component thereof, at the
best price obtainable on an "as is, where is" basis. Provided that the Lessee
has previously paid the Casualty Value to the Lessor, the Lessee shall be
entitled to the proceeds of such sale to the extent they do not exceed the
Casualty Value of such Unit, and shall pay any excess to the Lessor.
In the event of the requisition for use (which is not a Casualty
Occurrence) by the United States Government or any political subdivision thereof
(hereinafter called the Government) of any Unit during the term of this Lease
all of the Lessee's obligations under this Lease with respect to such Unit shall
continue to the same extent as if such requisition had not occurred, except that
if such Unit is returned by the Government at any time after the end of the term
of this Lease, the Lessee shall be obligated to return such Unit to the Lessor
pursuant to (S) 11 or 14 hereof, as the case may be, promptly upon such return
by the Government rather than at the end of the term of this Lease, but the
Lessee shall in all other respects comply with the provisions of said (S) 11 or
14, as the case may be, with respect to such Unit. All payments received by the
Lessor or the Lessee from the Government for the use of such Unit during the
term of this Lease shall be paid over to, or retained by, the Lessee provided no
Event of Default (or other event which after notice or lapse of time or both
would become an Event of Default) shall have occurred and be continuing; and all
payments received by the Lessor or the Lessee from the Government for the use of
such Unit after the term of this Lease, shall be paid over to, or retained by,
the Lessor.
Except as hereinabove in this (S) 7 provided, the Lessee shall not be
released from its obligations hereunder in the event of, and shall bear the risk
of, any Casualty
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Occurrence to any Unit from and after delivery and acceptance thereof by the
Lessee hereunder.
The Lessee will, at all times prior to the return of the Equipment to
the Lessor, at its own expense, cause to be carried and maintained property
insurance (which may be self-insurance to the extent hereinafter permitted) and
public liability insurance in respect of the Units at the time subject hereto,
in amounts (subject to customary deductibles) and against risks customarily
insured against by railroad companies in respect of similar equipment, and, in
any event, comparable in amounts and against risks customarily insured against
by the Lessee in respect of similar equipment owned by it. If the Lessor shall
receive any insurance proceeds or condemnation payments in respect of a Unit
suffering a Casualty Occurrence, the Lessor shall, subject to the Lessee's
having made payment of the Casualty Value in respect of such Unit, pay such
proceeds or condemnation payments to the Lessee up to an amount equal to the
Casualty Value with respect to a Unit paid by the Lessee and any balance of such
proceeds or condemnation payments shall remain the property of the Lessor.
Insurance proceeds received by the Lessor from the Lessee's insurance coverage
in respect of any Unit not suffering a Casualty Occurrence shall be paid to the
Lessee upon proof satisfactory to the Lessor that any damage to such Unit in
respect of which such proceeds were paid has been fully repaired, but only to
the extent of the Lessee's costs (including overhead and profit, if applicable)
in effecting such repairs. Except as aforesaid, all such insurance proceeds
shall be retained by the Lessor.
(S) 8. Reports and Inspection. On or before April 30 in each year,
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commencing with the calendar year 1980, the Lessee will furnish to the Lessor
and the Vendor (a) an accurate statement (i) setting forth as at the preceding
December 31 the amount, description and numbers of all Units then leased
hereunder and covered by the Security Documentation, the amount, description and
numbers of all Units that have suffered a Casualty Occurrence during the
preceding calendar year or are then undergoing repairs (other than running
repairs) or then withdrawn from use pending such repairs (other than running
repairs) and such other information regarding the condition and state of repair
of the Units as the Lessor or the Vendor may reasonably request, (ii) stating
that, in the case of all Units repainted or repaired during the period covered
by such statement, the numbers and markings required by (S) 5 hereof and by the
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Security Documentation have been preserved or replaced and (iii) stating that
the Lessee is in compliance with the insurance provisions of (S) 7 hereof and
setting forth a description of the insurance, if any, in effect with respect to
the Equipment pursuant to (S) 7 hereof and (b) a certification of insurance
coverage from the Lessee's independent broker stating the amounts, if any, of
such insurance in effect and the amount of deductible. The Lessor, at its sole
cost and expense, shall have the right by its agents, to inspect the Units and
the Lessee's records with respect thereto at such reasonable times as the Lessor
may request during the continuance of this Lease. The Lessee shall promptly
notify the Lessor and the Vendor of any material changes or any material
proposed changes of which the Lessee has knowledge in its insurance coverage in
effect with respect to the Equipment pursuant to (S) 7 hereof.
The Lessee shall furnish to the Lessor the reports required to be
furnished to the Lessor pursuant to Paragraph 10 of the Participation Agreement.
(S) 9. Disclaimer of Warranties; Compliance with Laws and Rules;
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Indemnification. THE LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS
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OR IMPLIED, AS TO THE DESIGN OR CONDITION OF, OR AS TO THE QUALITY OF THE
MATERIAL, EQUIPMENT OR WORKMANSHIP IN, THE UNITS DELIVERED TO THE LESSEE
HEREUNDER, AND THE LESSOR MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS OF THE
UNITS FOR ANY PARTICULAR PURPOSE OR AS TO TITLE TO THE UNITS OR ANY COMPONENT
THEREOF, OR AS TO THE LESSEE'S RIGHT TO QUIET ENJOYMENT THEREOF (EXCEPT AS TO
ACTS OF THE LESSOR), OR ANY OTHER REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO ANY UNIT, EITHER UPON DELIVERY THEREOF TO THE LESSEE OR
OTHERWISE NOR SHALL THE LESSOR (EXCEPT AS TO VOLUNTARY ACTS OF LESSOR) BE
RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING STRICT LIABILITY
IN TORT), it being agreed that all such risks, as between the Lessor and the
Lessee, are to be borne by the Lessee; but the Lessor hereby irrevocably
appoints and constitutes the Lessee its agent and attorney-in-fact during the
term of this Lease to assert and enforce from time to time, in the name of and
for the account of the Lessor and/or the Lessee, as their interests may appear,
at the Lessee's sole cost and expense, whatever claims and rights the Lessor may
have against the Builder under the provisions of Item 2 of Annex A of the
Security Documentation; provided, however, that if at any time an Event of
-------- -------
Default shall have occurred and be continuing, the Lessor may assert and
enforce, at the Lessee's sole cost and expense, such claims and rights. The
Lessor shall have no responsibility
L-13
or liability to the Lessee or any other person with respect to any of the
following: (i) any liability, loss or damage caused or alleged to be caused
directly or indirectly by any Units or by any inadequacy thereof or deficiency
or defect therein or by any other circumstances in connection therewith; (ii)
the use, operation or performance of any Units or any risks relating thereto; or
(iii) the delivery, operation, servicing, maintenance, repair, improvement or
replacement of any Units. The Lessee's delivery of a Certificate of Acceptance
shall be conclusive evidence as between the Lessee and the Lessor that the Units
described therein are in all the foregoing respects satisfactory to the Lessee,
and the Lessee will not assert any claim of any nature whatsoever against the
Lessor based on any of the foregoing matters.
The Lessee agrees, for the benefit of the Lessor and the Vendor, to
comply in all respects (including without limitation, with respect to the use,
maintenance and operation of each Unit) with all applicable laws of the
jurisdictions in which its operations involving the Units may extend, with all
lawful rules of the Department of Transportation, the Interstate Commerce
Commission and any other legislative, executive, administrative or judicial body
exercising any power or jurisdiction over the Units and with all applicable
interchange rules, to the extent that such laws and rules affect the title,
operation or use of the Units, and in the event that, prior to the expiration of
this Lease or any renewal thereof, such laws or rules require any alteration,
replacement, addition or modification of or to any part on any Unit, the Lessee
will conform therewith at its own expense; provided, however, that the Lessee
-------- -------
may at its own expense, in good faith, contest the validity or application of
any such law or rule in any reasonable manner which does not, in the reasonable
opinion of the Lessor or the Vendor, adversely affect the property or rights of
the Lessor or the Vendor under this Lease or under the Security Documentation.
The Lessee, at its own cost and expense, may furnish other additions,
modifications and improvements to the Units during the term of this Lease. Any
additions, modifications and improvements made by the Lessee which are readily
removable without causing material damage to the Units shall be owned by the
Lessee and may be removed by the Lessee at any time during the term of this
Lease or any renewal thereof and prior to the return thereof to the Lessor
pursuant to (S) 11 or 14 hereof, except additions, modifications and
improvements required to maintain each Unit's eligibility for interchange
service or to comply with the provisions of the first para-
L-14
graph of (S) 7 or the first sentence of this paragraph. Any additions,
modifications and improvements made by the Lessee which are not so readily
removable shall become the property of the Lessor.
The Lessee agrees to indemnify, protect and hold harmless the Lessor
(in both its individual and fiduciary capacities) and the Vendor from and
against all losses, damages, injuries, liabilities, claims (including without
limitation claims for strict liability in tort) and demands whatsoever,
regardless of the cause thereof, and expenses in connection therewith,
including, but not limited to, counsel fees and expenses, patent liabilities,
penalties and interest, arising out of or as the result of the entering into or
the performance of or the occurrence of a default, an event of default or an
Event of Default under the Security Documentation, the Participation Agreement,
this Lease, or any sub-lease entered into pursuant to (S) 12 hereunder, the
ownership of any Unit, the ordering, acquisition, use, operation, condition,
purchase, delivery, rejection, storage or return of any Unit or any accident in
connection with the operation, use, condition, possession, storage or return of
any Unit resulting in damage to property or injury or death to any person,
except as otherwise provided in (S) 14 of this Lease, or the transfer of title
to the Equipment by the Vendor pursuant to any provision of the Security
Documentation. The indemnities arising under this paragraph shall continue in
full force and effect with respect to all events, facts, conditions or other
circumstances occurring or existing prior to the expiration or termination of
the term of this Lease and return of the Units as provided in (S) 14 of this
Lease; provided, however, that the Lessor shall not be indemnified by the Lessee
-------- -------
for any event which would otherwise give rise to the foregoing indemnification,
if such event is caused by the wilful misconduct or gross negligence of the
Lessor, its officers, employees, representatives or agents; provided, further,
-------- -------
that the foregoing indemnification shall not apply to any failure of payment of
the principal of or interest on the Conditional Sale Indebtedness and shall not
be deemed to operate as a guarantee of the residual value of any Unit. The
amount the Lessee shall be required to pay with respect to any of its
obligations under this paragraph shall include a payment to the indemnified
party sufficient to restore such party to the same position, after considering
the effect of such payment on its United States Federal income taxes and state
and city income taxes or franchise taxes based on net income, that the
indemnified party would have been in had the liability or expense indemnified
against not been incurred.
L-15
The Lessee further agrees to indemnify, protect and hold harmless the
Vendor and the Builder as third party beneficiaries hereof from and against any
and all liability, claims, costs, charges and expenses, including royalty
payments and counsel fees, in any manner imposed upon or accruing against the
Vendor or the Builder because of the use in or about the construction or
operation of any of the Units of any article of material specified by the Lessee
and not manufactured by the Builder or of any design, system, process, formula
or combination specified by the Lessee and not developed or purported to be
developed by the Builder which infringes or is claimed to infringe on any patent
or other right. The Lessee will give notice to the Builder of any claim known to
the Lessee from which liability may be charged against the Builder under the
Security Documentation.
The Lessee shall not be released from its obligations hereunder in the
event of any damage to or the destruction or loss of any or all of the Units.
The Lessee agrees to prepare and deliver to the Lessor within a
reasonable time prior to the required date of filing (or, to the extent
permissible, file on behalf of the Lessor) any and all reports (other than tax
returns) to be filed by the Lessor with any Federal, state or other regulatory
authority by reason of the ownership by the Lessor or the Vendor of the Units or
the leasing thereof to the Lessee.
(S) 10. Default. If, during the continuance of this Lease, one or more
-------
of the following events (each such event being herein sometimes called an Event
of Default) shall occur:
(A) default shall be made in payment of any amount provided for in
(S) 3 or (S) 7 of this Lease and such default shall continue for ten
business days, or default shall be made in payment of any other amount
provided for in this Lease and such default shall continue for ten business
days after written notice from the Lessor or the Vendor to the Lessee
specifying the default and demanding that the same be remedied;
(B) the Lessee shall make or permit any unauthorized assignment or
transfer of this Lease, or any interest herein, or of the right to
possession of the Units, or any thereof and shall fail or refuse to cause
such assignment or transfer to be canceled by agreement of all parties
having any interest therein and to recover
L-16
possession of such Units within 15 days after written notice from the
Lessor to the Lessee demanding such cancelation and recovery of
possession;
(C) default shall be made in the observance or performance of any
other of the covenants, conditions and agreements on the part of the Lessee
contained herein or in the Participation Agreement, and such default shall
continue for 30 days after written notice from the Lessor or the Vendor to
the Lessee specifying the default and demanding that the same be remedied;
(D) a petition for reorganization under Section 77 of the Bankruptcy
Act, as now constituted or as said Section 77 may hereafter be amended or
under any other provision of Title 11 of the United States Code, as now
constituted or as hereafter amended, shall be filed by or against the
Lessee and, unless such petition shall have been dismissed, nullified,
stayed or otherwise rendered ineffective (but then only so long as such
stay shall continue in force or such ineffectiveness shall continue), all
the obligations of the Lessee under this Lease and the Consent (as defined
in the Security Documentation) shall not have been and shall not continue
to have been duly assumed in writing, pursuant to a court order or decree,
by a trustee or trustees appointed (whether or not subject to ratification)
in such proceedings in such manner that such obligations shall have the
same status as obligations incurred by such trustee or trustees, within 30
days after such appointment, if any, or 60 days after such petition shall
have been filed, whichever shall be earlier or by the trustee in such
proceedings in accordance with the provisions of 11 U.S.C. (S) 1168, or any
successor provision, as the same may hereinafter be amended; or
(E) any other proceedings shall be commenced by or against the Lessee
for any relief which includes, or might result in, any modification of the
obligations of the Lessee hereunder, under any bankruptcy or insolvency
laws, or laws relating to the relief of debtors, readjustments of
indebtedness, reorganizations, arrangements, compositions or extensions
(other than a law which does not permit any readjustments of the
obligations of the Lessee hereunder or under the Consent), and, unless such
proceedings shall have been dismissed, nullified, stayed or otherwise
rendered ineffective (but then only so long as such stay shall continue in
force or such ineffective-
L-17
ness shall continue), all the obligations of the Lessee under this Lease
and the Consent shall not have been and shall not continue to have been
duly assumed in writing, pursuant to a court order or decree, by a trustee
or trustees or receiver or receivers appointed (whether or not subject to
ratification) for the Lessee or for the property of the Lessee in
connection with any such proceedings in such manner that such obligations
shall have the same status as obligations incurred by such a trustee or
trustees or receiver or receivers, within 30 days after such appointment,
if any, or 60 days after such proceedings shall have been commenced,
whichever shall be earlier;
then, in any such case, the Lessor, at its option, may:
(a) proceed by appropriate court action or actions either at law or in
equity, to enforce performance by the Lessee of the applicable covenants of
this Lease or to recover damages for the breach thereof; or
(b) by notice in writing to the Lessee terminate this Lease, whereupon
all rights of the Lessee to the use of the Units shall absolutely cease and
terminate as though this Lease had never been made, but the Lessee shall
remain liable as herein provided; and thereupon the Lessor may by its
agents enter upon the premises of the Lessee or other premises where any of
the Units may be and take possession of all or any of such Units and
thenceforth hold, possess, sell, operate, lease to others and enjoy the
same free from any right of the Lessee, or its successors or assigns, to
use the Units for any purposes whatever and without any duty to account to
the Lessee for such action or inaction or for any proceeds arising
therefrom; but the Lessor shall, nevertheless, have a right to recover from
the Lessee any and all amounts which under the terms of this Lease may be
then due or which may have accrued to the date of such termination
(computing the rental for any number of days less than a full rental period
by multiplying the rental for such full rental period by a fraction of
which the numerator is such number of days and the denominator is the total
number of days in such full rental period) and also to recover forthwith
from the Lessee as damages for loss of the bargain and not as a penalty, an
amount equal to the excess, if any, of the Casualty Value as of the rental
payment date on or next preceding the date of termination over the amount
the Lessor reasonably
L-18
estimates to be the sales value of such Unit at such time; provided,
--------
however, that in the event the Lessor shall have sold any Unit, the Lessor,
-------
in lieu of collecting any amounts payable to the Lessor by the Lessee
pursuant to the preceding clause of this part (b) with respect to such
Unit, may, if it shall so elect, demand that the Lessee pay the Lessor and
the Lessee shall pay to the Lessor on the date of such sale, as liquidated
damages for loss of a bargain and not as a penalty, an amount equal to the
excess, if any, of the Casualty Value for such Unit, as of the rental
payment date on or next preceding the date of termination over the net
proceeds of such sale; or
(c) make the payment or perform or comply with any agreement, the
nonpayment, nonperformance or noncompliance with which caused such Event of
Default, and the amount of such payment and the amount of the reasonable
expenses of Lessor incurred in connection with such payment or the
performance of or compliance with such agreement, as the case may be,
together with interest at the rate of 10.6% per annum, shall be payable by
Lessee as additional rental hereunder upon demand by Lessor.
In addition, the Lessee shall be liable, except as otherwise provided above, for
any and all unpaid amounts due hereunder before, during or after the exercise of
any of the foregoing remedies and for all reasonable attorneys' fees and other
costs and expenses incurred by reason of the occurrence of any Event of Default
or the exercise of the Lessor's remedies with respect thereto, including all
costs and expenses incurred in connection with the return of any Unit.
The remedies in this Lease provided in favor of the Lessor shall not
be deemed exclusive, but shall be cumulative and may be exercised concurrently
or consecutively, and shall be in addition to all other remedies in its favor
existing at law or in equity. The Lessee hereby waives any mandatory
requirements of law, now or hereafter in effect, which might limit or modify the
remedies herein provided, to the extent that such waiver is not, at the time in
question, prohibited by law. The Lessee hereby waives any and all existing or
future claims to any offset against the rental payments due hereunder, and
agrees to make such payments regardless of any offset or claim which may be
asserted by the Lessee or on its behalf.
L-19
The failure of the Lessor to exercise the rights granted it hereunder
upon the occurrence of any of the contingencies set forth herein shall not
constitute a waiver of any such right upon the continuation or recurrence of any
such contingencies or similar contingencies.
(S) 11. Return of Units Upon Default. If this Lease shall terminate
-----------------------------
pursuant to (S) 10 hereof, the Lessor may, upon such further notice, if any, as
may be required for compliance with any mandatory legal requirements then in
force and applicable to the action to be taken by the Lessor, take or cause to
be taken by its agent or agents, immediate possession of each of the Units, or
one or more of the Units and may remove the same from possession and use of the
Lessee or any other person and for such purpose may enter upon the premises of
the Lessee or any other premises where the Units may be located and may use and
employ in connection with such removal any supplies, services and aids and any
available trackage and other facilities or means of the Lessee, subject to all
mandatory requirements of due process of law.
If this Lease shall terminate pursuant to (S) 10 hereof, the Lessee
shall forthwith deliver possession of the Units to the Lessor. Each Unit so
delivered shall be in the same operating order, repair and condition as when
originally delivered to the Lessee, ordinary wear and tear excepted. For the
purpose of delivering possession of any Unit or Units to the Lessor as above
required, the Lessee shall at its own cost, expense and risk:
(a) forthwith and in the usual manner cause the Equipment to be moved
to such point or points on the lines of the Lessee or any of its affiliates
as the Lessor reasonably may designate;
(b) if the Vendor shall so request cause the Equipment to be detached
from each unit of railroad rolling stock to which it has been attached; at
the option of the Vendor, permit the Vendor to store the Equipment on any
of the lines or elsewhere on the premises of the Lessee, as the Vendor may
reasonably designate (or if the storage of the Equipment on such lines or
premises would materially impair the Lessee's ability to perform its
obligations as a common carrier by rail, on such other lines or premises of
Lessee as shall be satisfactory to the Vendor), at the risk of the Vendee
without charge for rent or storage until the
L-20
Equipment has been sold, leased or otherwise disposed of by the Vendor; and
(c) transport the same to any place on the lines of railroad operated
by the Lessee or any of its affiliates or to any connecting carrier for
shipment, all as directed by the Lessor, but only in such manner as shall
not materially impair the ability of the Lessee to perform its obligations
as a common carrier by rail.
The assembling, delivery, storage, insurance and transporting of the Units as
hereinbefore provided shall be at the expense and risk of the Lessee and are of
the essence of this Lease, and upon application to any court of equity having
jurisdiction in the premises the Lessor shall be entitled to a decree against
the Lessee requiring specific performance of the covenants of the Lessee so to
assemble, deliver, store and transport the Units. During any storage period, the
Lessee will, at its own cost and expense, maintain and keep the Equipment in
good order and repair and will permit the Lessor or any person designated by it,
including the authorized representative or representatives of any prospective
purchaser, lessee or user of any such Unit, to inspect the same. As between the
Lessor and the Lessee, all amounts earned in respect of the Units after the date
of termination of this Lease shall belong to the Lessor and, if received by the
Lessee, shall be promptly turned over to the Lessor. In the event any Unit is
not assembled, delivered and stored, as hereinabove provided, within 60 days
after such termination the Lessee shall, in addition, pay to the Lessor for each
day thereafter an amount equal to the amount, if any, by which the product of
(i) a fraction the numerator of which is 10.6% and the denominator of which is
360, and (ii) the Purchase Price of such Unit for each such day exceeds the
actual earnings received by the Lessor on such Unit for each such day; such
payment shall not affect the obligation of the Lessee to redeliver the Equipment
pursuant to the first sentence of this paragraph.
Without in any way limiting the obligation of the Lessee under the
foregoing provisions of this (S) 11, the Lessee hereby irrevocably appoints the
Lessor as the agent and attorney of the Lessee, with full power and authority,
at any time while the Lessee is obligated to deliver possession of any Unit to
the Lessor, to demand and take possession of such Unit in the name and on behalf
of the Lessee from whomsoever shall be in possession of such Unit at the time.
(S) 12. Assignment; Possession and Use. This Lease
-------------------------------
L-21
shall be assignable in whole or in part by the Lessor without the consent of the
Lessee, but the Lessee shall be under no obligation to any assignee of the
Lessor except upon written notice of such assignment from the Lessor, provided
that no assignment for other than security purposes shall be made without the
consent of the Lessee, which consent shall not be unreasonably withheld. All the
rights of the Lessor hereunder (including, but not limited to, the rights under
(S)(S) 6, 7 and 10 and the rights to receive the rentals payable under this
Lease) shall inure to the benefit of the Lessor's assigns.
So long as the Lessee shall not be in default under this Lease and the
Lessee shall have fully complied with the provisions of the fourth paragraph of
this (S) 12 the Lessee shall be entitled to the possession and use of the Units
and, without the Lessor's consent, to sublease the Units to, or to permit their
use by, a user incorporated in the United States of America (or any State
thereof or the District of Columbia), upon lines of railroad owned or operated
by the Lessee or such user or by a railroad company or companies incorporated in
the United States of America (or any State thereof or the District of Columbia),
or over which the Lessee, such user, or such railroad company or companies have
trackage rights or rights for operation of their trains, and upon the lines of
railroad of connecting and other carriers in the usual interchange of traffic or
in through or run-through service, but only upon and subject to all the terms
and conditions of this Lease; provided, however, that the Lessor's consent, not
-------- -------
to be unreasonably withheld, must be obtained for any sublease that is for a
term or terms that aggregate more than six months in any one year; provided
--------
further, however, that the Lessee shall not sublease or permit the sublease or
- ------- -------
use of any Unit to service involving regular operation and maintenance outside
the United States of America; and provided further, however, that any such
-------- ------- -------
sublease or use shall be consistent with the provisions of Paragraph 12 of the
Participation Agreement. No such assignment or sublease shall relieve the Lessee
of its obligations hereunder which shall be and remain those of principal and
not a surety.
The Lessee will initially affix the Units to railroad flat cars
furnished by Trailer Train Company. The Lessee will not install or affix the
Units to any other railroad rolling stock (other than installation of individual
Units on a temporary basis) unless the owner of such other rolling stock and all
persons having a security interest therein shall have acknowledged that such
owner or holder of a security interest
L-22
shall not acquire any interest in, or rights with respect to, Units which may be
installed on such railroad rolling stock.
Any such sublease may provide that the subleasee, so long as it shall
not be in default under such sublease, shall be entitled to the possession of
the Units included in such sublease and the use thereof; provided, however, that
-------- -------
every such sublease shall be subject to the rights and remedies of the Vendor
under the Security Documentation and the Lessor under this Lease in respect of
the Units covered by such sublease upon the occurrence of an Event of Default
thereunder or hereunder.
The Lessee, at its own expense, will as soon as possible cause to be
duly discharged any lien, charge, security interest or other encumbrance (except
any sublease as aforesaid and other than an encumbrance resulting from claims
against the Lessor, the Vendee or the Vendor not related to the ownership or
leasing of, or the security title of the Vendor to, the Units) which may at any
time be imposed on or with respect to any Unit including any accession thereto
or the interest of the Lessor, the Vendor or the Lessee therein; except that
this covenant will not be breached by reason of liens for taxes, assessments or
governmental charges or levies, in each case not due and delinquent or
undetermined or inchoate materialmen's, mechanics', workmen's, repairmen's or
other like liens arising in the ordinary course of business and, in each case,
not delinquent; and, furthermore, the Lessee shall be under no obligation to
discharge any such lien, charge, security interest or encumbrance so long as it
is contesting the same in good faith and by appropriate legal proceedings and
the failure to discharge the same does not, in the reasonable opinion of the
Lessor and the Vendor, adversely affect the title, property or rights of the
Lessor hereunder or the Vendor under the Security Documentation.
Nothing in this (S) 12 shall be deemed to restrict the right of the
Lessee to assign or transfer its leasehold interest under this Lease in the
Units or possession of the Units to any railroad corporation incorporated under
the laws of any state of the United States of America or the District of
Columbia (which shall have duly assumed the obligations of the Lessee hereunder)
into or with which the Lessee shall have become merged or consolidated or which
shall have acquired or leased all or substantially all the lines of railroad of
the Lessee; provided, however, that such assignee, lessee or transferee will
-------- -------
not, upon the effectiveness of such merger, consolidation, lease or acquisition
be in default under any provision of this Lease and that such acquisition or
lease
L-23
of railroad lines of the Lessee shall not alter in any way the Lessee's
obligation to the Lessor and Vendor hereunder which shall be and remain those of
a principal and not a surety.
(S) 13. Renewal Options and Right of First Refusal. Provided that
-------------------------------------------
this Lease has not been earlier terminated and the Lessee is not in default
hereunder, the Lessee may by written notice delivered to the Lessor not less
than six months prior to the end of the original term of this Lease elect to
extend the term of this Lease in respect of all but not fewer than all of the
Units then covered by this Lease, for a two-year period commencing on the
scheduled expiration of the original term of this Lease. Thereafter the Lessee
may, subject to the first proviso of this (S) 13, elect to extend the term of
this Lease in respect of all but not fewer than all of the Units then covered by
this Lease for three additional two-year periods upon written notice delivered
to the Lessor not less than six months prior to the end of the preceding renewal
period. Each of such extensions shall be on the same terms and conditions as are
contained in this Lease, except as to the amount of rentals, which for the first
of such renewal periods shall be in an amount equal to 6.2194% of the Purchase
Price of each of the Units then subject to this Lease and for each of the three
succeeding renewal periods shall be at a "Fair Market Rental" (as such term is
defined in this (S) 13) payable annually in arrears, and except as to applicable
Casualty Values, which shall be as agreed upon between the Lessor and the Lessee
at the time of each of such extensions.
If the Lessor elects to sell the Units to third parties effective upon
the expiration of the original or any extended term of this Lease, or at any
time within ninety days after such expiration, the Lessee shall have the right
of first refusal to purchase such Units. The Owner shall, in a commercially
reasonable manner, solicit offers to buy such Units (excepting additions,
modifications and improvements which may be removed by the Lessee pursuant to
(S) 9 hereof), and upon receipt thereof shall exhibit to the Lessee a true copy
of the most favorable bona fide offer. The Lessee may by written notice
delivered within 15 days of the receipt of said copy advise the Lessor and the
Owner that the management of the Lessee intends to recommend to its Board of
Directors that its right of first refusal be exercised, and, within a further
period of 30 days following the giving of such written notice, the Lessee shall
by written notice delivered to the Lessor and the Owner either exercise such
right of first refusal or advise the Lessor and the Owner that the
L-24
Board of Directors of the Lessee has determined that such right of first refusal
should not be exercised. If such right of first refusal is exercised as
aforesaid, the Lessee shall purchase such Units at the sale price and on the
same terms set forth in such offer; provided that any such sale to a third party
--------
shall be subject to the Lessee's right to continue to lease the Units pursuant
to the terms hereof.
Upon purchase of the Units by the Lessee, the Lessor shall upon
request of the Lessee execute and deliver to the Lessee or to the Lessee's
assignee or nominee, a bill of sale (without representations or warranties
except that such Units are free and clear of all claims, liens, security
interest and other encumbrances by or in favor of any person claiming by,
through or under the Lessor) for such Units, and such other documents as may be
required to release such Units, from the terms and scope of this Lease and to
transfer title thereto to the Lessee or such assignee or nominee, in such forms
as may reasonably be requested by the Lessee, all at the Lessee's expense.
Fair Market Rental shall be determined on the basis of, and shall be
equal in amount to, the rental which would obtain in an arm's-length transaction
between an informed and willing lessee (other than a lessee currently in
possession) and an informed and willing lessor under no compulsion to lease and,
in such determination, costs of removal from the location of current use shall
not be a deduction from such rental but there shall be excluded any rental value
attributable to additions, modifications and improvements which the Lessee is
entitled to remove pursuant to (S) 9 hereof; provided, however, that Fair Market
-------- -------
Rental shall be determined as provided; in the preceding sentences on the basis
of the term and other terms and conditions of the lease being considered.
If, after 45 days from the giving of notice by the Lessee of the
Lessee's election to extend the term of this Lease beyond the first renewal
period, as provided in the first or second paragraph of this (S) 13, the Lessor
and the Lessee are unable to agree upon a determination of Fair Market Rental,
such rental shall be determined in accordance with the foregoing definition by
the following procedure: If either party to such determination shall have given
written notice to the other requesting determination of such value by this
appraisal procedure, the parties shall consult for the purpose of appointing a
qualified independent appraiser by mutual agreement. If no such appraiser is so
appointed within 20 business days after such notice is
L-25
given, each party shall appoint an independent appraiser within 25 business days
after such notice is given, and the two appraisers so appointed shall within 35
business days after such notice is given appoint a third independent appraiser.
If no such third appraiser is appointed within 35 business days after such
notice is given, either party may apply, to make such appointment, to the
American Arbitration Association, and both parties shall be bound by any
appointment so made. Any appraiser or appraisers appointed pursuant to the
foregoing procedure shall be instructed to determine the Fair Market Rental of
the Units subject to the proposed extended term within 90 days after his or
their appointment. If the parties shall have appointed a single appraiser or if
either party shall have failed to appoint an appraiser, the determination of the
single appraiser appointed shall be final. If three appraisers shall be
appointed, the determination of the appraiser which differs most from the other
two appraisers shall be excluded, the remaining two determinations shall be
averaged and such latter average shall be final and binding upon the parties
hereto. The appraisal proceedings shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association as in
effect on the date hereof, except as modified hereby. The provision for this
appraisal procedure shall be the exclusive means of determining Fair Market
Rental and shall be in lieu of any judicial or other procedure for the
determination thereof, and each party hereto hereby consents and agrees not to
assert any judicial or other procedures. The expenses of the appraisal procedure
shall be borne equally by the Lessee and the Lessor.
(S) 14. Return of Units upon Expiration of Lease Term. As soon as
----------------------------------------------
practicable on or after the expiration of the original term or an extended term
of this Lease with respect to any Unit which Lessee does not purchase or release
pursuant to (S)13, the Lessee will, at its own cost and expense, at the request
of the Lessor, deliver possession of such Unit to the Lessor at such point or
points on its lines as the Lessee may reasonably designate, in such city on the
lines of Lessee as Lessor may reasonably designate, or in the absence of
Lessor's designation, in such city on the lines of Lessee as Lessee may
designate, and permit the Lessor to store such Unit at such point or points on
the Lessee's lines where storage facilities are available as it may select for a
period not exceeding sixty days and transport the same, at any time within such
sixty day period, to any reasonable place on the lines of railroad operated by
the Lessee, or to any connecting carrier for shipment, all as directed by the
L-26
Lessor, the movement and storage of such Units to be at the expense and risk of
the Lessee. During any such storage period the Lessee will permit the Lessor or
any person designated by it, including the authorized representative or
representatives of any prospective purchaser, lessee or user of such Unit, to
inspect the same; provided, however, that the Lessee shall not be liable, except
-------- -------
in the case of negligence of the Lessee or of its employees or agents, for any
injury to, or the death of, any person exercising, either on behalf of the
Lessor or any prospective purchaser, lessee or user, the rights of inspection
granted under this sentence. Each Unit returned to the Lessor pursuant to this
(S) 14 shall (i) be in the same operating order, repair and condition as when
originally delivered to the Lessee, ordinary wear and tear excepted, (ii) except
for additions, modifications and improvements which the Lessee is entitled to
remove under the provisions of (S) 9 of this Lease, meet all operating standards
then in effect under the applicable rules of any governmental agency or other
organization with jurisdiction, and (iii) if requested by the Lessor, be
detached from each unit of railroad rolling stock to which it has been attached.
The assembling, delivery, storage and transporting of the Units as hereinbefore
provided are of the essence of this Lease, and upon application to any court of
equity having jurisdiction in the premises, the Lessor shall be entitled to a
decree against the Lessee requiring specific performance of the covenants of the
Lessee so to assemble, deliver, store and transport the Units. All amounts
earned in respect of the Units after the date of termination of this Lease shall
belong to the Lessor and, if received by the Lessee, shall be promptly turned
over to the Lessor. In the event any Unit is not assembled, delivered and
stored, as hereinabove provided, within 60 days after such termination, the
Lessee shall, in addition, pay to the Lessor for each day thereafter an amount
equal to the amount, if any, by which the product of (i) a fraction the
numerator of which is 10.6% and the denominator of which is 360, and (ii) the
Purchase Price of such Unit for each such day, exceeds (iii) the actual earnings
received by the Lessor on such Unit for each such day.
(S) 15. Recording. The Lessee, at its own expense, will cause this
----------
Lease, the Security Documentation and any assignment hereof or thereof to be
filed and recorded with the Interstate Commerce Commission in accordance with 49
U.S.C. S 11303(a). The Lessee, at its own expense, will further cause this Lease
and/or appropriate financing statements or continuation statements to be filed
and recorded, and from time to time when required refiled and rerecorded,
L-27
in accordance with the applicable provisions of the Uniform Commercial Code of
the States of Utah and Colorado (and, if the Lessee changes its chief place of
business to a different state, in any such other state) and in any other state
of the United States of America or the District of Columbia where filing is
reasonably requested by the Lessor for the purpose of proper protection, to the
satisfaction of counsel for the Lessor, of its interests and rights under this
Agreement or for the purpose of carrying out the intention of this Agreement.
The Lessee will undertake the filing, registering, deposit, and recording
required of the Lessor under the Security Documentation and will from time to
time do and perform any other act and will execute, acknowledge, deliver, file,
register, record (and will refile, reregister, deposit and redeposit or rerecord
whenever required) any and all further instruments required by law or reasonably
requested by the Lessor or the Vendor for the purpose of proper protection, to
their satisfaction, of the Vendor's and the Lessor's respective interests in the
Units, or for the purpose of carrying out the intention of this Lease, the
Security Documentation and the assignment thereof to the Vendor; and the Lessee
will promptly furnish to the Vendor and the Lessor evidence of all such filing,
registering, depositing or recording, and an opinion or opinions of counsel for
the Lessee with respect thereto satisfactory to the Vendor and the Lessor. This
Lease and the Security Documentation shall be filed and recorded with the
Interstate Commerce Commission and under the Uniform Commercial Code of the
State of Utah prior to the delivery and acceptance hereunder of any Unit.
(S) 16. Interest on Overdue Rentals. Anything to the contrary herein
----------------------------
contained notwithstanding, any nonpayment of rentals and other obligations due
hereunder shall result in the obligation on the part of the Lessee promptly to
pay, to the extent legally enforceable, interest at a rate per annum equal to
10.6% on the overdue rentals and other obligations for the period of time during
which they are overdue or such lesser amount as may be legally enforceable.
(S) 17. Notices. Any notice required or permitted to be given by
--------
either party hereto to the other shall be deemed to have been given when mailed,
first class, postage prepaid, addressed as follows:
(a) if to the Lessor, at 79 South Main Street, Salt Lake City, Utah
84125, Attention of Corporate Trust Division, Trust Department; with a copy
to: Itel Corporation, Equipment Finance Division, One Embarcadero
L-28
Center, San Francisco, California 94111, Attention of Financial Service
Group, Contract Administration; and
(b) if to the Lessee, at One Park Central, 1515 Arapahoe Street,
Denver, Colorado 80217, Attention Manager of Equipment Planning;
or addressed to either party at such other address as such party shall hereafter
furnish to the other party in writing. Copies of each such notice shall be given
to the Vendor at 130 John Street, New York, New York 10038, Attention of
Corporate Trust and Agency Division.
(S) 18. Severability; Effect and Modification of Lease. Any provision
-----------------------------------------------
of this Lease which is prohibited or unenforceable in any jurisdiction, shall
be, as to such jurisdiction, 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.
Except for the Participation Agreement and the Trust Agreement, this
Lease exclusively and completely states the rights of the Lessor and the Lessee
with respect to the leasing of the Units and supersedes all other agreements,
oral or written, with respect thereto. No variation or modification of this
Lease and no waiver of any of its provisions or conditions shall be valid unless
in writing and signed by duly authorized signatories for the Lessor and the
Lessee.
(S) 19. Execution. This Lease may be executed in several counterparts,
----------
such counterparts together constituting but one and the same instrument, but the
counterpart delivered to the Vendor pursuant to the assignment hereof to the
Vendor shall be deemed to be the original and all other counterparts shall be
deemed duplicates thereof. Although for convenience this Lease is dated as of
the date first set forth above, the actual date or dates of execution hereof by
the parties hereto is or are, respectively, the date or dates stated in the
acknowledgments hereto annexed.
(S) 20. Law Governing. The terms of this Lease and all rights and
--------------
obligations hereunder shall be governed by the laws of the State of Colorado;
provided, however, that the parties shall be entitled to all rights conferred by
- -------- -------
49 U.S.C. (S) 11303.
L-29
(S) 21. Definitions. Whenever the term "Lessor" is used in this Lease,
------------
it shall also include the Owner and any assignee of the Owner and, where the
context so requires (including but not limited to certain of the provisions of
(S) 6 hereof), shall, except for purposes of any assignment of the "Lessor's"
rights under this Lease, refer only to the Owner or such assignee of the Owner.
(S) 22. Concerning the Lessor. Each and all of the warranties,
---------------------
representations, undertakings and agreements herein made on the part of the
Lessor are each and every one of them made and intended not as personal
representations, undertakings and agreements by First Security Bank of Utah,
National Association, or for the purpose or with the intention of binding said
bank personally but are made and intended for the purpose of binding only the
Trust Estate as such term is used in the Trust Agreement, and this Lease is
executed and delivered by the said bank solely in the exercise of the powers
expressly conferred upon said bank as trustee under the Trust Agreement, and no
personal liability or personal responsibility is assumed by or shall at any time
be asserted or enforceable against said bank, except for wilful misconduct or
gross negligence, or against the Owner under the Trust Agreement (except under
the last paragraph of Section 5.01 thereof) or on account of any representation,
undertaking or agreement herein of the Lessor or the Owner, either expressed or
implied, all such personal liability (except as aforesaid), if any, being
expressly waived and released by the Lessee and by all persons claiming by,
through or under the Lessee.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
instrument to be executed as of the date first above written.
THE DENVER AND RIO GRANDE WESTERN
RAILROAD COMPANY,
by W. J. Holtman
-----------------------------
Vice President
[Corporate Seal]
Attest:
C. E. Schmeckpeper
- -----------------------------
Secretary
L-30
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, not in its
individual capacity but solely
as Trustee,
by William C. McGregor
-----------------------------
Authorized Signatory
[Seal]
Attest:
John R. Sager
- -----------------------------
Authorized Signatory
STATE OF COLORADO,)
)ss.:
COUNTY OF DENVER, )
On this 15th day of March 1979, before me personally appeared
W. J. Holtman, to me personally known, who, being by me duly sworn, says that he
is a President of THE DENVER AND RIO GRANDE WESTERN RAILROAD COMPANY, that one
of the seals affixed to the foregoing instrument is the corporate seal of said
Corporation, that said instrument was signed and sealed on behalf of said
Corporation by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said
Corporation.
Dale F. Machart
-----------------------------
Notary Public
[Notarial Seal]
My Commission expires July 10, 1979
STATE OF UTAH, )
) ss.:
COUNTY OF SALT LAKE,)
On this the 14th day of March 1979, before me personally appeared
William C. McGregor, to me personally known, who being by me duly sworn, says
that he is an Authorized Officer of First Security Bank of Utah, National
Association, that one of the seals affixed to the foregoing instrument is the
seal of said bank, that said instrument was signed and sealed on behalf of said
bank by authority of its Board of Directors, and he acknowledged that the
execution of the foregoing instrument was the free act and deed of said bank.
Venna L. De Cora
-----------------------------
Notary Public
[Notarial Seal]
My Commission expires November 15, 1981
SCHEDULE 1 TO LEASE
D+RGW I.D.
Numbers
Type Quantity (Inclusive)
---- -------- -----------
Fully-enclosed 36 207-242
trilevel auto racks
Fully-enclosed 14 243-256
coverless trilevel
auto racks
Fully-enclosed 36 171-206
bilevel auto racks
SCHEDULE 2 TO LEASE
CASUALTY VALUES
Casualty Payment Percentage of
Dates Purchase Price
- ---------------- --------------
September 15, 1979 103.4830
September 15, 1980 102.6252
September 15, 1981 100.3031
September 15, 1982 96.7315
September 15, 1983 92.0214
September 15, 1984 86.2911
September 15, 1985 77.4176
September 15, 1986 67.6956
September 15, 1987 57.2622
September 15, 1988 46.1350
September 15, 1989 and thereafter during storage 34.6653
CERTIFICATE OF ACCEPTANCE UNDER CONDITIONAL SALE AGREEMENT
AND LEASE OF EQUIPMENT, BOTH DATED AS OF JANUARY 1, 1979
- ----------------------------------------------------------
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84125
George S. Eccles
In care of First Security Leasing Company
79 South Main Street
Salt Lake City, Utah 84111
The Denver and Rio Grande Western Railroad Company
One Park Central
1515 Arapahoe Street
Denver, Colorado 80217
I, duly appointed and authorized representative for the Vendee and the
Lessee under the Conditional Sale Agreement and Lease of Equipment, both dated
as of January 1, 1979, respectively, do hereby certify that I inspected and
accepted delivery under the Conditional Sale Agreement and Lease of Equipment of
the following Items of Equipment:
TYPE OF EQUIPMENT: Enclosed Tri-Level Auto Rack
DATE ACCEPTED: April 24, 1979
NUMBER OF UNITS: Twenty-Two (22)
NUMBERED:
W&K
TTX SERIAL NO. D+RGW NO.
--- ---------- ---------
ETTX 854117 66763/764 218
ETTX 854109 66761/762 217
ETTX 853781 66767/768 220
ETTX 854116 66765/766 219
ETTX 854087 66747/748 210
ETTX 854005 66755/756 214
ETTX 853785 66753/754 213
ETTX 854014 66741/742 207
ETTX 820880 66745/746 209
ETTX 854059 66743/744 208
ETTX 854056 66749/750 211
ETTX 853991 66751/752 212
ETTX 854071 66757/758 215
ETTX 854111 66759/760 216
ETTX 853782 66769/770 221
ETTX 853777 66771/772 222
ETTX 853776 66773/774 223
ETTX 854120 66775/776 224
ETTX 854010 66777/778 225
ETTX 853986 66779/780 226
ETTX 854039 66781/782 227
ETTX 854055 66783/784 228
I do further certify that the foregoing Items of Equipment are in good
order and condition and appear to conform to the specifications, requirements
and standards applicable thereto and to all applicable United States Department
of Transportation and Interstate Commerce Commission requirements and
specifications and to all applicable interchange requirements of the Association
of American Railroads.
I do further certify that each of the foregoing Items of Equipment has
been marked by means of a stencil printed in contrasting colors upon each side
of each Item of Equipment in letters not less than one inch in height as
follows:
"Leased from First Security Bank of Utah, National Association, as
Trustee, and Ownership Subject to a Security Agreement filed with the
Interstate Commerce Commission and a Security Interest under the Uniform
Commercial Code."
The execution of this Certificate will in no way relieve or decrease
the responsibility of Lessee for any warranties it has made with respect to the
Equipment.
cc: Ms. Chris Collins /s/ G.L. Nicalin
Corporate Trust and ---------------------------------------
Agency Division Inspector and Authorized Representative
United States Trust of First Security Bank of Utah,
Company of New York National Association, as Vendee,
130 John Street and The Denver and Rio Grande
New York, N. Y. 10038 Western Railroad Company, as
Lessee
CERTIFICATE OF ACCEPTANCE UNDER CONDITIONAL SALE AGREEMENT
AND LEASE OF EQUIPMENT, BOTH DATED AS OF JANUARY 1, 1979
- ----------------------------------------------------------
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84125
George S. Eccles
In care of First Security Leasing Company
79 South Main Street
Salt Lake City, Utah 84111
The Denver and Rio Grande Western Railroad Company
One Park Central
1515 Arapahoe Street
Denver, Colorado 80217
I, duly appointed and authorized representative for the Vendee and the
Lessee under the Conditional Sale Agreement and Lease of Equipment, both dated
as of January 1, 1979, respectively, do hereby certify that I inspected and
accepted delivery under the Conditional Sale Agreement and Lease of Equipment of
the following Items of Equipment:
TYPE OF EQUIPMENT: Enclosed Tri-Level Auto Rack
DATE ACCEPTED: April 25, 1979
NUMBER OF UNITS: Fourteen (14)
NUMBERED:
W&K
TTX SERIAL NO. D&RGW NO.
--- ---------- ---------
ETTX 854073 66785/786 229
ETTX 854051 66787/788 230
ETTX 853995 66789/790 231
ETTX 854080 66791/792 232
ETTX 854098 66793/794 233
ETTX 854100 66795/796 234
ETTX 854097 66797/798 235
ETTX 854082 66799/800 236
ETTX 854065 66801/802 237
ETTX 854113 66803/804 238
ETTX 853988 66805/806 239
ETTX 853831 66807/808 240
ETTX 854094 66809/810 241
ETTX 854020 66811/812 242
I do further certify that the foregoing Items of Equipment are in good
order and condition and appear to conform to the specifications, requirements
and standards applicable thereto and to all applicable United States Department
of Transportation and Interstate Commerce Commission requirements and
specifications and to all applicable interchange requirements of the Association
of American Railroads.
I do further certify that each of the foregoing Items of Equipment has
been marked by means of a stencil printed in contrasting colors upon each side
of each Item of Equipment in letters not less than one inch in height as
follows:
"Leased from First Security Bank of Utah, National Association, as
Trustee, and Ownership Subject to a Security Agreement filed with the
Interstate Commerce Commission and a Security Interest under the Uniform
Commercial Code."
The execution of this Certificate will in no way relieve or decrease
the responsibility of Lessee for any warranties it has made with respect to the
Equipment.
cc: Ms. Chris Collins /s/ G.L. Nicalin
Corporate Trust and ---------------------------------------
Agency Division Inspector and Authorized Representative
United States Trust of First Security Bank of Utah,
Company of New York National Association, as Vendee,
130 John Street and The Denver and Rio Grande
New York, N. Y. 10038 Western Railroad Company, as
Lessee
CERTIFICATE OF ACCEPTANCE UNDER CONDITIONAL SALE AGREEMENT
AND LEASE OF EQUIPMENT, BOTH DATED AS OF JANUARY 1, 1979
- ----------------------------------------------------------
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84125
George S. Eccles
In care of First Security Leasing Company
79 South Main Street
Salt Lake City, Utah 84111
The Denver and Rio Grande Western Railroad Company
One Park Central
1515 Arapahoe Street
Denver, Colorado 80217
I, duly appointed and authorized representative for the Vendee and the
Lessee under the Conditional Sale Agreement and Lease of Equipment, both dated
as of January 1, 1979, respectively, do hereby certify that I inspected and
accepted delivery under the Conditional Sale Agreement and Lease of Equipment of
the following Items of Equipment:
TYPE OF EQUIPMENT: Enclosed Bi-Level Auto Rack
DATE ACCEPTED: May 25, 1979
NUMBER OF UNITS: Twenty-one (21)
NUMBERED:
W&K
TTX SERIAL NO. D&RGW NO.
--- ---------- ---------
TTGX 911544 67257/258 182
TTGX 911534 67259/260 183
TTGX 910482 67261/262 184
TTGX 911538 67263/264 185
TTGX 912071 67265/266 186
TTGX 911513 67267/268 187
TTGX 912753 67269/270 188
TTGX 912072 67271/272 189
TTGX 911800 67273/274 190
TTGX 912426 67275/276 191
TTGX 911529 67277/278 171
TTGX 912788 67279/280 172
TTGX 911511 67281/282 173
TTGX 910979 67283/284 174
TTGX 911486 67285/286 175
TTGX 911662 67287/288 176
TTGX 912690 67289/290 177
TTGX 912765 67291/292 178
TTGX 912234 67293/294 179
TTGX 912240 67295/296 180
TTGX 911860 67297/298 181
I do further certify that the foregoing Items of Equipment are in good
order and condition and appear to conform to the specifications, requirements
and standards applicable thereto and to all applicable United States Department
of Transportation and Interstate Commerce Commission requirements and
specifications and to all applicable interchange requirements of the Association
of American Railroads.
I do further certify that each of the foregoing Items of Equipment has
been marked by means of a stencil printed in contrasting colors upon each side
of each Item of Equipment in letters not less than one inch in height as
follows:
"Leased from First Security Bank of Utah, National Association, as
Trustee, and Ownership Subject to a Security Agreement filed with the
Interstate Commerce Commission and a Security Interest under the Uniform
Commercial Code."
The execution of this Certificate will in no way relieve or decrease
the responsibility of Lessee for any warranties it has made with respect to the
Equipment.
cc: Ms. Chris Collins /s/ G.L. Nicalin
Corporate Trust and ---------------------------------------
Agency Division Inspector and Authorized Representative
United States Trust of First Security Bank of Utah,
Company of New York National Association, as Vendee,
130 John Street and The Denver and Rio Grande
New York, N. Y. 10038 Western Railroad Company, as
Lessee
CERTIFICATE OF ACCEPTANCE UNDER CONDITIONAL SALE AGREEMENT
AND LEASE OF EQUIPMENT, BOTH DATED AS OF JANUARY 1, 1979
- ----------------------------------------------------------
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84125
George S. Eccles
In care of First Security Leasing Company
79 South Main Street
Salt Lake City, Utah 84111
The Denver and Rio Grande Western Railroad Company
One Park Central
1515 Arapahoe Street
Denver, Colorado 80217
I, duly appointed and authorized representative for the Vendee and the
Lessee under the Conditional Sale Agreement and Lease of Equipment, both dated
as of January 1, 1979, respectively, do hereby certify that I inspected and
accepted delivery under the Conditional Sale Agreement and Lease of Equipment of
the following Items of Equipment:
TYPE OF EQUIPMENT: Enclosed Bi-Level Auto Rack
DATE ACCEPTED: June 13, 1979
NUMBER OF UNITS: Fifteen (15)
NUMBERED:
W&K
TTX SERIAL NO. D&RGW NO.
--- ---------- ---------
TTGX 911516 67305/306 195
TTGX 911520 67307/308 196
TTGX 912078 67309/310 197
TTGX 912658 67311/312 198
TTGX 911524 67313/314 199
TTGX 911536 67315/316 200
TTGX 912556 67317/318 201
TTGX 911933 67303/304 194
TTGX 912065 67301/302 193
TTGX 912070 67299/300 192
TTGX 912102 67319/320 202
TTGX 911197 67321/322 203
TTGX 912760 67323/324 204
TTGX 913478 67325/326 205
TTGX 911861 67327/328 206
I do further certify that the foregoing Items of Equipment are in good
order and condition and appear to conform to the specifications, requirements
and standards applicable thereto and to all applicable United States Department
of Transportation and Interstate Commerce Commission requirements and
specifications and to all applicable interchange requirements of the Association
of American Railroads.
I do further certify that each of the foregoing Items of Equipment has
been marked by means of a stencil printed in contrasting colors upon each side
of each Item of Equipment in letters not less than one inch in height as
follows:
"Leased from First Security Bank of Utah, National Association, as
Trustee, and Ownership Subject to a Security Agreement filed with the
Interstate Commerce Commission and a Security Interest under the Uniform
Commercial Code."
The execution of this Certificate will in no way relieve or decrease
the responsibility of Lessee for any warranties it has made with respect to the
Equipment.
cc: Ms. Chris Collins /s/ G.L. Nicalin
Corporate Trust and ---------------------------------------
Agency Division Inspector and Authorized Representative
United States Trust of First Security Bank of Utah,
Company of New York National Association, as Vendee,
130 John Street and The Denver and Rio Grande
New York, N. Y. 10038 Western Railroad Company, as
Lessee
CERTIFICATE OF ACCEPTANCE UNDER CONDITIONAL SALE AGREEMENT
AND LEASE OF EQUIPMENT, BOTH DATED AS OF JANUARY 1, 1979
- ----------------------------------------------------------
First Security Bank of Utah, N.A.
79 South Main Street
Salt Lake City, Utah 84125
George S. Eccles
In care of First Security Leasing Company
79 South Main Street
Salt Lake City, Utah 84111
The Denver and Rio Grande Western Railroad Company
One Park Central
1515 Arapahoe Street
Denver, Colorado 80217
I, duly appointed and authorized representative for the Vendee and the
Lessee under the Conditional Sale Agreement and Lease of Equipment, both dated
as of January 1, 1979, respectively, do hereby certify that I inspected and
accepted delivery under the Conditional Sale Agreement and Lease of Equipment of
the following Items of Equipment:
TYPE OF EQUIPMENT: Roofless Tri-Level Auto Rack
DATE ACCEPTED: June 7, 1979
NUMBER OF UNITS: Fourteen (14)
NUMBERED:
W&K
TTX SERIAL NO. D&RGW NO.
--- ---------- ---------
CTTX 853863 67707/708 243
CTTX 853918 67725/726 244
CTTX 853914 67727/728 245
CTTX 853832 67711/712 246
CTTX 853912 67709/710 247
CTTX 853784 67729/730 248
CTTX 853870 67731/732 249
CTTX 853835 67733/734 250
CTTX 853916 67713/714 251
CTTX 853833 67715/716 252
CTTX 853915 67717/718 253
CTTX 854072 67719/720 254
CTTX 853741 67721/722 255
CTTX 853840 67723/724 256
I do further certify that the foregoing Items of Equipment are in good
order and condition and appear to conform to the specifications, requirements
and standards applicable thereto and to all applicable United States Department
of Transportation and Interstate Commerce Commission requirements and
specifications and to all applicable interchange requirements of the Association
of American Railroads.
I do further certify that each of the foregoing Items of Equipment has
been marked by means of a stencil printed in contrasting colors upon each side
of each Item of Equipment in letters not less than one inch in height as
follows:
"Leased from First Security Bank of Utah, National Association, as
Trustee, and Ownership Subject to a Security Agreement filed with the
Interstate Commerce Commission and a Security Interest under the Uniform
Commercial Code."
The execution of this Certificate will in no way relieve or decrease
the responsibility of Lessee for any warranties it has made with respect to the
Equipment.
cc: Ms. Chris Collins /s/ G.L. Nicalin
Corporate Trust and ---------------------------------------
Agency Division Inspector and Authorized Representative
United States Trust of First Security Bank of Utah,
Company of New York National Association, as Vendee,
130 John Street and The Denver and Rio Grande
New York, N. Y. 10038 Western Railroad Company, as
Lessee
BILL OF SALE
------------
WHITEHEAD & KALES COMPANY (hereinafter called the Builder), in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by the United States Trust Company of New York (hereinafter
called the Assignee), assignee under an Agreement and Assignment dated as of the
1st day of January 1, 1979, by and between the Builder and the Assignee, by
which the Builder assigned to the Assignee certain rights of the Builder under a
Conditional Sale Agreement dated as of the 1st day of January, 1979, by and
between the Builder and First Security Bank of Utah, N.A., as trustee
(hereinafter called the Vendee), at or before the execution and delivery of
these presents, the receipt of which is hereby acknowledged, does hereby grant,
bargain, sell, transfer and set over unto the Assignee, its successors and
assigns, all of the Builder's right, title and interest (the same being a
security interest) in and to the following items of Equipment which have been
delivered by the Builder to the Vendee pursuant to said Conditional Sale
Agreement:
QUANTITY DESCRIPTION BUILDER'S SERIAL NUMBERS
- ----------------- ----------------------------------- ------------------------
THIRTY-SIX (36) Fully Enclosed Tri-Level Auto Racks (see attached Exhibit A)
TO HAVE AND TO HOLD the aforesaid security interest as to all and singular
the railroad equipment above described to the Assignee, its successors and
assigns, for its and their own use and behoof forever.
And the Builder hereby warrants to the Assignee, its successors and
assigns, and to the Vendee, that at the time of delivery of each of the above
described items of Equipment to the Vendee under the above mentioned Conditional
Sale Agreement, the Builder had legal title thereto and good and lawful right to
sell such item, and the title to such item was free and clear of all claims,
liens, and encumbrances of any nature except only the rights created under the
said Conditional Sale Agreement; the aforesaid Agreement and Assignment; and the
rights of the Lessee, Denver & Rio Grande Western Railroad Company, under the
Lease of Railroad Equipment dated as of January 1, 1979, and the Builder
covenants that it will warrant and defend such title against the demands of all
persons whomsoever based on claims originating prior to the delivery of the
Equipment by the Builder under said Conditional Sale Agreement.
IN WITNESS WHEREOF the Builder has caused this instrument to be executed in
its name by a duly authorized officer and its corporate seal to be hereunto
affixed, duly attested, the 16th day of May, 1979.
WHITEHEAD & KALES COMPANY ( S E A L )
By /s/ C.E. Wieser
--------------------------------------
C. E. Wieser, Vice President-Finance
ATTEST:
/s/ G. Konchal
- ---------------------------------
G. Konchal, Treasurer
THIS EXHIBIT A IS PART OF BILL OF SALE RE CLOSING ON THIRTY-SIX (36) FULLY
ENCLOSED TRI-LEVEL AUTO RACKS FOR THE DENVER & RIO GRANDE WESTERN RAILROAD
COMPANY.
EXHIBIT "A"
Car Number Rack No. Serial No. Shipper Destination
- ----------- -------- ---------- -------- -----------------
ETTX 854014 DRGW 207 66741-42 RD 12614 Lakewood, Georgia
" 854059 " 208 66743-44 " " "
" 820880 " 209 66745-46 " " "
" 854087 " 210 66747-48 " " "
" 854056 " 211 66749-50 " " "
" 853991 " 212 66751-52 " " "
" 853785 " 213 66753-54 " " "
" 854005 " 214 66755-56 " " "
" 854071 " 215 66757-58 RD 12615 " "
" 854111 " 216 66759-60 " " "
" 854109 " 217 66761-62 " " "
" 854117 " 218 66763-64 " " "
" 854116 " 219 66765-66 " " "
" 853781 " 220 66767-68 " " "
" 853782 " 221 66769-70 " " "
" 853777 " 222 66771-72 RD 12616 Oklahoma City, Oklahoma
" 853776 " 223 66773-74 " " "
" 854120 " 224 66775-76 " " "
" 854010 " 225 66777-78 " " "
" 853986 " 226 66779-80 " " "
" 854039 " 227 66781-82 " " "
" 854055 " 228 66783-84 " " "
" 854098 " 233 66793-94 RD 12626 " "
" 854097 " 235 66797-98 " " "
" 854082 " 236 66799-800 " " "
" 854073 " 229 66785-86 RD 12634 " "
" 854065 " 237 66801-02 RD 12641 " "
" 854100 " 234 66795-96 " " "
" 853831 " 240 66807-08 " " "
" 854080 " 232 66791-92 " " "
" 853995 " 231 66789-90 " " "
" 854113 " 238 66803-04 " " "
" 854051 " 230 66787-88 " " "
" 854094 " 241 66809-10 RD 12644 " "
" 853988 " 239 66805-06 RD 12655 " "
" 854020 " 242 66811-12
INVOICE WHITEHEAD & KALES COMPANY
No. 20047 58 HALTINER STREET RIVER ROUGE, MICHIGAN 48218
D.U.N.S 00-535-6258 PHONE:(313)849-1200
- -----------------------------------------------
YOUR ORDER NO. OUR ORDER NO. INVOICE DATE MAIL ALL REMITTANCES TO
AB-75140-74101 4-30-79 ABOVE ADDRESS
- ---------------------------------------------------------
GAP INITIAL & NO. SHIPPED VIA F.O.B. TERMS PLEASE PAY FROM
Various Rail Our Plant Net THIS INVOICE
- ---------------------------------------------------------
NO STATEMENT WILL BE ISSUED
UNLESS REQUESTED
United States Trust Company of New York, PAYABLE IN U.S. FUNDS
SOLD as Agent and
TO First Security Bank of Utah, N.A., as
Owner-Trustee
SHIPPED TO
DESTINATION See Attached Exhibit "A"
- -- SHIPPER'S NO Form 010279
- -----------------------------------------------------------------------------------------------------------------------------------
QTY. DESCRIPTION UNIT PRICE AMOUNT W & K USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------------
36 Enclosed Tri-level Superstructures Mounted on
89' -4" Flat Car
20 Units G.M. Service 36,757.71 735,154,20
15 Units G.M. Service 37,035.51 555,532.65
1 Unit Chrysler Service 36,475.71 36,475.71
-------------
$1,327,162.56
Car Numbers, Serial Numbers and Rack Numbers
See Attached Exhibit "A"
THIS INVOICE IS HEREBY APPROVED
BY: [SIGNATURE APPEARS HERE]
-----------------------------------------------
Denver & Rio Grande Western Railroad, Lessee
and
BY: [SIGNATURE APPEARS HERE]
-----------------------------------------------
First Security Bank of Utah, N.A.-Owner-Trustee
No Michigan Sales Tax or Use Tax is included in this
billing. We will issue additional billing for such tax
if it is determined at any future date that the items
herein are taxable.
WHITEHEAD & KALES COMPANY
- -----------------------------------------------------------------------------------------------------------------------------------
NOTICE* ACCOUNTS NOT PAID WHEN DUE BEAR THE INTEREST AT RATE OF 1% PER MONTH
FROM DATE OF MATURITY WHICH IS AN ANNUAL RATE OF 12%.
- -----------------------------------------------------------------------------------------------------------------------------------
TERMS OF SALE
1. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
NOTICE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EXHIBIT "A"
Car Number Rack No. Serial No. Shipper Destination
- ----------- -------- ---------- -------- -----------------
ETTX 854014 DRGW 207 66741-42 RD 12614 Lakewood, Georgia
" 854059 " 208 66743-44 " " "
" 820880 " 209 66745-46 " " "
" 854087 " 210 66747-48 " " "
" 854056 " 211 66749-50 " " "
" 853991 " 212 66751-52 " " "
" 853785 " 213 66753-54 " " "
" 854005 " 214 66755-56 " " "
" 854071 " 215 66757-58 RD 12615 " "
" 854111 " 216 66759-60 " " "
" 854109 " 217 66761-62 " " "
" 854117 " 218 66763-64 " " "
" 854116 " 219 66765-66 " " "
" 853781 " 220 66767-68 " " "
" 853782 " 221 66769-70 " " "
" 853777 " 222 66771-72 RD 12616 Oklahoma City, Oklahoma
" 853776 " 223 66773-74 " " "
" 854120 " 224 66775-76 " " "
" 854010 " 225 66777-78 " " "
" 853986 " 226 66779-80 " " "
" 854039 " 227 66781-82 " " "
" 854055 " 228 66783-84 " " "
" 854098 " 233 66793-94 RD 12626 " "
" 854097 " 235 66797-98 " " "
" 854082 " 236 66799-800 " " "
" 854073 " 229 66785-86 RD 12634 " "
" 854065 " 237 66801-02 RD 12641 " "
" 854100 " 234 66795-96 " " "
" 853831 " 240 66807-08 " " "
" 854080 " 232 66791-92 " " "
" 853995 " 231 66789-90 " " "
" 854113 " 238 66803-04 " " "
" 854051 " 230 66787-88 " " "
" 854094 " 241 66809-10 RD 12644 " "
" 853988 " 239 66805-06 RD 12655 " "
" 854020 " 242 66811-12
BILL OF SALE
------------
WHITEHEAD & KALES COMPANY (hereinafter called the Builder), in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by the United States Trust Company of New York (hereinafter
called the Assignee), assignee under an Agreement and Assignment dated as of the
1st day of January 1, 1979, by and between the Builder and the Assignee, by
which the Builder assigned to the Assignee certain rights of the Builder under a
Conditional Sale Agreement dated as of the 1st day of January, 1979, by and
between the Builder and First Security Bank of Utah, N.A., as trustee
(hereinafter called the Vendee), at or before the execution and delivery of
these presents, the receipt of which is hereby acknowledged, does hereby grant,
bargain, sell, transfer and set over unto the Assignee, its successors and
assigns, all of the Builder's right, title and interest (the same being a
security interest) in and to the following items of Equipment which have been
delivered by the Builder to the Vendee pursuant to said Conditional Sale
Agreement:
QUANTITY DESCRIPTION BUILDER'S SERIAL NUMBERS
- ----------------- ----------------------------------- ------------------------
FIFTEEN (15) FULLY ENCLOSED BI-LEVEL AUTO RACKS SEE INVOICE
TO HAVE AND TO HOLD the aforesaid security interest as to all and singular
the railroad equipment above described to the Assignee, its successors and
assigns, for its and their own use and behoof forever.
And the Builder hereby warrants to the Assignee, its successors and
assigns, and to the Vendee, that at the time of delivery of each of the above
described items of Equipment to the Vendee under the above mentioned Conditional
Sale Agreement, the Builder had legal title thereto and good and lawful right to
sell such item, and the title to such item was free and clear of all claims,
liens, and encumbrances of any nature except only the rights created under the
said Conditional Sale Agreement; the aforesaid Agreement and Assignment; and the
rights of the Lessee, Denver & Rio Grande Western Railroad Company, under the
Lease of Railroad Equipment dated as of January 1, 1979, and the Builder
covenants that it will warrant and defend such title against the demands of all
persons whomsoever based on claims originating prior to the delivery of the
Equipment by the Builder under said Conditional Sale Agreement.
IN WITNESS WHEREOF the Builder has caused this instrument to be executed in
its name by a duly authorized officer and its corporate seal to be hereunto
affixed, duly attested, the 22nd day of June, 1979.
WHITEHEAD & KALES COMPANY ( S E A L)
By /s/ C. E. Wieser
--------------------------------------
C. E. Wieser, Vice President-Finance
ATTEST:
/s/ G. Konchal
- ------------------------------
G. Konchal, Treasurer
INVOICE WHITEHEAD & KALES COMPANY
No. 20251 58 HALTINER STREET RIVER ROUGE, MICHIGAN 48218
D.U.N.S 00-535-5258 PHONE:(313)849-1200
R 20578
- -----------------------------------------------
YOUR ORDER NO. OUR ORDER NO. INVOICE DATE MAIL ALL REMITTANCES TO
2488-W-SAS AB 75143-74103 6-19-79 ABOVE ADDRESS
- ---------------------------------------------------------
CAP INITIAL & NO. SHIPPED VIA F.O.B. TERMS PLEASE PAY FROM
N&W Our Plant Net THIS INVOICE
- ---------------------------------------------------------
NO STATEMENT WILL BE ISSUED
UNLESS REQUESTED
United States Trust Company of New York, PAYABLE IN U.S. FUNDS
SOLD as Agent and
TO First Security Bank of Utah, N.A., as
Owner-Trustee
SHIPPED TO Agent of Consolidated Rail Corporation
DESTINATION Lorain, Ohio
- -- SHIPPER'S NO Form 010279
- -----------------------------------------------------------------------------------------------------------------------------------
QTY. DESCRIPTION UNIT PRICE AMOUNT W & K USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------------
15 Fully Enclosed Bi-Level Auto-Racks 30534.22 $458,013.30
Car Number Rack No. Serial No. Shipper
----------- -------- ---------- --------
TTGX 912070 DRGW 192 67299-300 RD 12925
" 911933 " 194 67303-04 RD 12951
" 911516 " 195 67305-06 "
" 912065 " 193 67301-02 "
" 911520 " 196 67307-08 RD 12961
" 911536 " 200 67315-16 "
" 911861 " 206 67327-28 RD 12968
" 911197 " 203 67313-14 RD 12978
" 913478 " 205 67325-26 "
" 911524 " 199 67321-22 "
" 912760 " 204 67323-24 RD 12993
" 912102 " 202 67319-20 RD 13002
" 912658 " 198 67311-12 "
" 912078 " 197 67309-10 "
" 912556 " 201 67317-18 RD 13017
THIS INVOICE IS HEREBY APPROVED
By: [SIGNATURE APPEARS HERE]
--------------------------------------------
Denver & Rio Grande Western Railroad, Lessee
and
By: [SIGNATURE APPEARS HERE]
------------------------------------------------ No Michigan Sales Tax or Use Tax is included in this
First Security Bank of Utah, N.A., Owner-Trustee billing. We will issue additional billing for such tax
if it is determined at any future date that the items
herein are taxable.
WHITEHEAD & KALES COMPANY
- ------------------------------------------------------------------------------------------------------------------------------------
NOTICE* ACCOUNTS NOT PAID WHEN DUE BEAR THE INTEREST AT RATE OF 1% PER MONTH
FROM DATE OF MATURITY WHICH IS AN ANNUAL RATE OF 12%
- ------------------------------------------------------------------------------------------------------------------------------------
TERMS OF SALE
1. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
NOTICE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
BILL OF SALE
------------
WHITEHEAD & KALES COMPANY (hereinafter called the Builder), in
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration paid by the United States Trust Company of New York (hereinafter
called the Assignee), assignee under an Agreement and Assignment dated as of the
1st day of January 1, 1979, by and between the Builder and the Assignee, by
which the Builder assigned to the Assignee certain rights of the Builder under a
Conditional Sale Agreement dated as of the 1st day of January, 1979, by and
between the Builder and First Security Bank of Utah, N.A., as trustee
(hereinafter called the Vendee), at or before the execution and delivery of
these presents, the receipt of which is hereby acknowledged, does hereby grant,
bargain, sell, transfer and set over unto the Assignee, its successors and
assigns, all of the Builder's right, title and interest (the same being a
security interest) in and to the following items of Equipment which have been
delivered by the Builder to the Vendee pursuant to said Conditional Sale
Agreement:
QUANTITY DESCRIPTION BUILDER'S SERIAL NUMBERS
- ----------------- ----------------------------------- ------------------------
FOURTEEN (14) FULLY ENCLOSED COVERLESS TRI-LEVEL
AUTO RACKS (RAILPACS) SEE ATTACHED EXHIBIT "A"
TWENTY-ONE (21) FULLY ENCLOSED BI-LEVEL AUTO RACKS
TO HAVE AND TO HOLD the aforesaid security interest as to all and singular
the railroad equipment above described to the Assignee, its successors and
assigns, for its and their own use and behoof forever.
And the Builder hereby warrants to the Assignee, its successors and
assigns, and to the Vendee, that at the time of delivery of each of the above
described items of Equipment to the Vendee under the above mentioned Conditional
Sale Agreement, the Builder had legal title thereto and good and lawful right to
sell such item, and the title to such item was free and clear of all claims,
liens, and encumbrances of any nature except only the rights created under the
said Conditional Sale Agreement; the aforesaid Agreement and Assignment; and the
rights of the Lessee, Denver & Rio Grande Western Railroad Company, under the
Lease of Railroad Equipment dated as of January 1, 1979, and the Builder
covenants that it will warrant and defend such title against the demands of all
persons whomsoever based on claims originating prior to the delivery of the
Equipment by the Builder under said Conditional Sale Agreement.
IN WITNESS WHEREOF the Builder has caused this instrument to be executed in
its name by a duly authorized officer and its corporate seal to be hereunto
affixed, duly attested, the 22nd day of June, 1979.
WHITEHEAD & KALES COMPANY ( S E A L)
By /s/ C. E. Wieser,
--------------------------------------
C. E. Wieser, Vice President-Finance
ATTEST :
/s/ G. Konchal
- ------------------------------
G. Konchal, Treasurer
THIS EXHIBIT "A" IS PART OF BILL OF SALE COVERING PURCHASE BY DENVER RIO GRANDE
WESTERN RAILROAD (LESSEE) OF FOURTEEN (14) FULLY ENCLOSED COVERLESS TRI-LEVEL
AUTO RACKS AND TWENTY-ONE (21) FULLY ENCLOSED BI-LEVEL AUTO RACKS.
EXHIBIT "A"
Car Number Rack No. Serial No. Shipper Destination
- ----------- -------- ---------- -------- -----------------
CTTX 853863 DRGW 243 67707-08 RD 12927 Lansing, Michigan
" 853912 " 247 67709-10 " " "
" 853832 " 246 67711-12 " " "
" 853833 " 252 67715-16 RD 12936 " "
" 853914 " 245 67727-28 " " "
" 853870 " 249 67731-32 " " "
" 853784 " 248 67729-30 " " "
" 853916 " 251 67713-14 " " "
" 853915 " 253 67717-18 " " "
" 853835 " 250 67733-34 RD 12949 " "
" 853918 " 244 67725-26 " " "
" 853741 " 255 67721-22 " " "
" 853840 " 256 67723-24 " " "
" 854072 " 254 67719-20 RD 12959 " "
TTGX 911544 DRGW 182 67257-58 RD 12845 Detroit, Michigan
" 912753 " 188 67269-70 RD 12846 Valley Park, Missouri
" 911513 " 187 67267-68 " " "
" 910482 " 184 67261-62 RD 12855 Detroit, Michigan
" 911538 " 185 67263-64 " " "
" 911529 " 171 67277-78 RD 12870 Pontiac, Michigan
" 912426 " 191 67275-76 RD 12871 Valley Park, Missouri
" 912788 " 172 67279-80 RD 12877 Pontiac, Michigan
" 911511 " 173 67281-82 " " "
" 911800 " 190 67273-74 RD 12878 Valley Park, Missouri
" 911534 " 183 67259-60 RD 12879 Detroit, Michigan
" 912071 " 186 67265-66 RD 12895 " "
" 910979 " 174 67283-84 RD 12897 Pontiac, Michigan
" 912240 " 180 67295-96 " " "
" 911860 " 181 67297-98 " " "
" 911662 " 176 67287-88 RD 12905 " "
" 912690 " 177 67289-90 " " "
" 911486 " 175 67285-86 RD 12910 " "
" 912072 " 189 67271-72 RD 12921 Valley Park, Missouri
" 912234 " 179 67293-94 RD 12923 Pontiac, Michigan
" 912765 " 178 67291-92 RD 12938 " "
INVOICE WHITEHEAD & KALES COMPANY
No. 20248 58 HALTINER STREET RIVER ROUGE, MICHIGAN 48218
D.U.N.S 00-535-6258 PHONE:(313)849-1200
- -----------------------------------------------
YOUR ORDER NO. OUR ORDER NO. INVOICE DATE MAIL ALL REMITTANCES TO
2488-W-SAS AB-75141-75142 6-15-79 ABOVE ADDRESS
- ---------------------------------------------------------
GAP INITIAL & NO. SHIPPED VIA F.O.B. TERMS PLEASE PAY FROM
Various Rail Our Plant Net THIS INVOICE
- ---------------------------------------------------------
NO STATEMENT WILL BE ISSUED
UNLESS REQUESTED
United States Trust Company of New York PAYABLE IN U.S. FUNDS
SOLD as Agent and
TO First Security Bank of Utah, N.A., as
Owner-Trustee
SHIPPED TO
DESTINATION See Attached Exhibit "A"
- -- SHIPPER'S NO " " " "
Form 010279
- -----------------------------------------------------------------------------------------------------------------------------------
QTY. DESCRIPTION UNIT PRICE AMOUNT W & K USE ONLY
- -----------------------------------------------------------------------------------------------------------------------------------
14 Fully enclosed coverless tri-level auto racks
(Railpacs) 35998.00 $ 503,972.00
10 Fully enclosed bi-level auto racks 30077.53 300,775.30
11 Fully enclosed bi-level auto racks 30116.53 331,281.83
-------------
Total Invoice $1,136,029.13
Car numbers, serial numbers and rack numbers
on attached Exhibit "A"
THIS INVOICE IS HEREBY APPROVED
By: [SIGNATURE APPEARS HERE]
-------------------------------------------------
Denver & Rio Grande Western Railroad, Lessee and
By: [SIGNATURE APPEARS HERE]
-------------------------------------------------
First Security Bank of Utah, N.A., Owner-Trustee
No Michigan Sales Tax or Use Tax is included in this
billing. We will issue additional billing for such tax
if it is determined at any future date that the items
herein are taxable.
WHITEHEAD & KALES COMPANY
- ------------------------------------------------------------------------------------------------------------------------------------
NOTICE* ACCOUNTS NOT PAID WHEN DUE BEAR THE INTEREST AT RATE OF
1% PER MONTH FROM DATE OF MATURITY WHICH IS AN ANNUAL RATE OF 12%
- ------------------------------------------------------------------------------------------------------------------------------------
1. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
2. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
3. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
NOTICE XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
EXHIBIT "A"
Car Number Rack No. Serial No. Shipper Destination
- ----------- -------- ---------- -------- -----------------
CTTX 853863 DRGW 243 67707-08 RD 12927 Lansing, Michigan
" 853912 " 247 67709-10 " " "
" 853832 " 246 67711-12 " " "
" 853833 " 252 67715-16 RD 12936 " "
" 853914 " 245 67727-28 " " "
" 853870 " 249 67731-32 " " "
" 853784 " 248 67729-30 " " "
" 853916 " 251 67713-14 " " "
" 853915 " 253 67717-18 " " "
" 853835 " 250 67733-34 RD 12949 " "
" 853918 " 244 67725-26 " " "
" 853741 " 255 67721-22 " " "
" 853840 " 256 67723-24 " " "
" 854072 " 254 67719-20 RD 12959 " "
TTGX 911544 DRGW 182 67257-58 RD 12845 Detroit, Michigan
" 912753 " 188 67269-70 RD 12846 Valley Park, Missouri
" 911513 " 187 67267-68 " " "
" 910482 " 184 67261-62 RD 12855 Detroit, Michigan
" 911538 " 185 67263-64 " " "
" 911529 " 171 67277-78 RD 12870 Pontiac, Michigan
" 912426 " 191 67275-76 RD 12871 Valley Park, Missouri
" 912788 " 172 67279-80 RD 12877 Pontiac, Michigan
" 911511 " 173 67281-82 " " "
" 911800 " 190 67273-74 RD 12878 Valley Park, Missouri
" 911534 " 183 67259-60 RD 12879 Detroit, Michigan
" 912071 " 186 67265-66 RD 12895 " "
" 910979 " 174 67283-84 RD 12897 Pontiac, Michigan
" 912240 " 180 67295-96 " " "
" 911860 " 181 67297-98 " " "
" 911662 " 176 67287-88 RD 12905 " "
" 912690 " 177 67289-90 " " "
" 911486 " 175 67285-86 RD 12910 " "
" 912072 " 189 67271-72 RD 12921 Valley Park, Missouri
" 912234 " 179 67293-94 RD 12923 Pontiac, Michigan
" 912765 " 178 67291-92 RD 12938 " "