EQUIPMENT LEASE
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This Lease Agreement is made and entered into on the __ day of
September, 2004 by and between Consolidated Logistics & Transportation,
LLC, with an address of 000X Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000
(Lessor) and J.S. Transportation, Inc., with an address of 000 Xxxxxxxx
Xxxx, Xxxxx Xxxxx, XX 08060(Lessee).
1. Terms & Conditions
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Lessor leases to Lessee and Lessee rents from Lessor the equipment
listed on Schedule "A" attached hereto and made a part hereof (the
"Equipment"). Pursuant to the terms and conditions set forth herein, this
Lease constitutes the FULL AND ENTIRE AGREEMENT between the Lessor and
Lessee in connection with the Equipment
2. Term
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This Lease shall commence on October 1, 2004 and shall continue for a
period of Forty Eight (48) months otherwise terminated in accordance with
the terms of this Lease. Lessee may however terminate this lease on ninety
(90) days advance written notice to Lessor. In the event this lease is
terminated Lessee shall no longer have the right to purchase the Equipment
in accordance with the Purchase Option described herein.
3. Warranties. Condition of Equipment
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LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
OF ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT
LIMITED TO, THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS OR
SUITABILITY FOR A PARTICULAR PURPOSE OR USE OR WITH RESPECT TO ITS
DURABILITY. Lessee acknowledges that it is accepting the equipment "As
Is", and that Lessor makes no representations regarding the condition of
the Equipment. Lessee acknowledges that Lessor is not a manufacturer of the
Equipment. If the Equipment does not operate as represented or warranted or
is unsatisfactory for any reason, Lessee shall make any claim on account
thereof solely against said manufacturer, Lessee hereby waives any such
claim against Lessor, and shall in any event make any payments of rent to
Lessor without offset, deduction or abatement for any reason. So long as
Lessee is not in default hereunder, Lessee shal1 have the benefit of and
may enforce in Lessee's own name and at Lessee's sole expense, any
manufacturer's warranty or agreement with respect to the Equipment to the
extent permitted by such warranty or agreement and Lessor shall execute and
deliver such instruments as may be reasonably requested by Lessee and
necessary to enable Lessee to obtain such benefits.
4. Rental Payments
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Upon execution of this Agreement Lessee shall pay to Lessor the sum of
$50,000 representing the first month rental obligations pursuant to this
Agreement and a non-refundable payment of the final months rent,
thereafter Lessee promises and agrees to pay, without demand, on the first
day of each month the sum of Twenty Five Thousand Dollars ($25,000.00) for
each month Lessee has possession of the Equipment. Said rental shall be
payable at the office of Lessor, or to such other person and/or at such
other place as Lessor may, from time to time, designate in writing. Lessor
shall assess a late charge on any rental installment that is not paid in
advance in the manner described above at the rate of Five Percent (5 %) of
the delinquent amount.
5. Title to and Return of Equipment
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Dunng the term of this Lease, title to the Equipment shall remain in
the Lessor. This Lease is a lease only and no title, ownership, or other
rights in or to said Equipment shall pass to Lessee except as provided for
under this Lease. Lessor may inspect the Equipment at any time and Lessee
agrees to keep it in first class mechanical condition and repair at
Lessee's expense, and not to mortgage, pledge, sign, sell or otherwise
dispose of its interest therein or in any equipment or accessories attached
thereto. Plates or other markings shall be affixed to or placed on the
Equipment by Lessor or at Lessor's request by Lessee at Lessee's expense
indicating that Lessor is the owner thereof and Lessee will not remove
same. Lessee shall, at its own cost and expense, keep the leased equipment
in good working condition and shall exercise reasonable care in using such
equipment during the term of this Lease, and shall make good to the Lessor
for any damage to such equipment caused by fire, theft, accident, neglect,
abuse or otherwise. Upon the termination of this Lease, the Equipment
leased hereunder shall be returned to Lessor at a location specified by
Lessor and at Lessee's expense in as good condition as received, normal
wear and tear excepted. All replacements, accessories, capital
improvements made to or upon said Equipment shall become a component part
thereof and title thereto shall be immediately vested in Lessor, If Lessor
so requests, Lessee shall furnish Lessor a written statement (a)
acknowledging receipt of the Equipment leased hereunder in good condition
and repair and (b) accepting the Equipment as satisfactory in all respects
for the purposes of this Lease.
6. Assignment by Lessor
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Lessor may, without notice to Lessee, assign this Lease and any
assignees may assign the same. All rights of Lessor hereunder shall be
succeeded to by any assihnee hereof, and said assignee's title to this
Lease, said rental herein provided for to be paid and to the Equipment
shall be free from any defense, setoffs, or counterclaims of any kind which
Lessee may be entitled to assert against Lessor, Lessee hereby waiving the
same as against such assignee; it being understood and agreed that any
assignee does not assume any obligation of the Lessor herein named. It is
further understood agreed, however, that Lessee may separately claim
against Lessor as to any matters which Lessee may be entitled to assert
against Lessor.
7. Assignment by Lessee
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Lessee shall not assign, mortgage, or hypothecate this Lease or any
interest therein, or sublet the Equipment without the prior written consent
of Lessor or its assignee, if applicable. Any assignment, mortgage,
hypothecation of sublease by Lessee without such consent shall be void.
8. Risk of Loss
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Lessee shall bear all risk of loss, theft, or destruction to the
equipment from any cause whatsoever. No such loss or damage shall relieve
Lessee from any obligation under this Lease, all of which continue in full
force and effect. In the event of any such loss, Lessee, at Lessor's
option, shall either (a) place the affected Equipment in good repair,
condition, and working order, or (b) replace the same with like equipment
in good repair, condition, and working order, or (c) pay Lessor the
Stipulated Loss Value as such term is defined below within sixty (60) days
of notification by Lessor that Lessor has elected to receive the equal to
(i) the total of all rent and any other amounts, if any, due with respect
to the affected Equipment as of the date of payment of the Stipulated Loss
Value plus (ii) all future rent payments with respect to the affected
Equipment, discounted to present value at the rate of five percent (5%) per
annum simple interest from the date each such future rent payment would
have been made to the date of the payment of the Stipulated Loss Value,
plus (iii) the anticipated fair market vialue of the affected Equipment at
the expiration of the lease term discounted at the presejnt value at five
percent (5%) per annum simple interest from the date of the last scheduled
rent payment on the affected Equipment to the date of payment of the
Stipulated Loss Value, less the net amount of the recovery, if any,
actually received by Lessor from insurance or otherwise for such loss,
damage theft or destruction. After compliance with the foregoing to
Lessor's reasonable satisfaction, and provided that Lessee is not in
default under this Lease, Lessee shall be subrogated to Lessor's rights to
any insurance policies or claims for reimbursement by others with respect
to such loss, damage, theft, or destruction provided that Lessor's
insurance policies allow for such subrogation.
9. Insurance
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During the lease term, Lessee shall, at its own expense, insure the
Equipment against all hazards, including, but not limited to loss due to
fire theft, and destruction or damage of any nature for the fall
replacement value of the Equipment, and such other insurance as necessary
for Lessee's and Lessor's protection and the protection of all Equipment
leased hereunder, and such policies shall be payable to Lessor (or its
assignee) as its interest may appear. Such policies shall be in form,
amount and coverage, and with insurers acceptable to Lessor. Each policy
shall provide, at least, the following:
1. Workers' Compensation Insurance in accordance with
statutory requirements, and Employer's Liability
insurance with a minimiim limit of $1,000,000 each
occurrence.
2. Commercial Primary Liability Insurance including
Personal Injury and Property Damage with the following
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minimum limits of liability:
Bodily Injury $1,000,000 each occurrence
Property Damage $1,000,000 each occurrence
a. The Commercial General Liability policy shall include
an endorsement stating that Lessor is an additional
insured as regards the Lessee's liability arising
out of operations performed under this Agreement,
3. Commercial General Automobile Liability Insurance with
the following minimum limits of liability:
Bodily Injury $5,000,000 each occurrence
Property Damage $5,000,000 each occurrence
This insurance is to apply to all owned, non-owned, and
hired vehicles used by the Lessee or its subcontractors
in the performance of its obligations under this
Agreement. Bobtail Liability is not acceptable Auto
Liability Policy shall include an endorsement showing
additional insured as regards the Lessee's liability
arising out of operations performed under this
contract.
4. Other Insurance: Any specialized insurance actually
required due to the nature of the work to be performed,
whether required by any applicable statute, regulation,
or licensing requirement, or by prevailing industry
practice.
10. Indemnification
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Lessee does hereby agree to indemnify, defend, and hold Lessor and
Lessor's shareholders, directors,, officers, members, employees, and
agents; free and harmless of any claim, loss, liability, regulatory
violation, sanction, and expense (including attorneys' fees) resulting from
any loss or damage to the Equipment and any injuries to, or deaths of
persons, and damage to property, howsoever arising, directly or indirectly,
from or incident to the use, operation and storage of the Equipment
including but not limited to strict liability in tort, and whether such
injury or death to persons, be they agents or employees of the Lessee or of
third parties, it being specifically agreed to and acknowledged by Lessee
that the foregoing provision includes but is not limited to all claims,
losses, liabilities, fines, forfeitures, penalties, seizures, and expenses
(including attorneys' fees) occurring by reason of any negligence (active
or passive) omission, or other act or conduct of the Lessor or any third
party acting for or on behalf of the Lessor.
11. Taxes
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Lessee agrees to use, operate and maintain the Equipment in accordance
with all laws; to pay all licensing or registration fees for said
Equipment; to keep the same free of levies, liens and encumbrances; to pay
all other taxes, assessments, fees, and penalties which may be levied or
assessed on or in respect to said Equipment or its use by Lessee or of
Lessee's interest therein, or rental payments thereon, including but not
limited to all statet federal, and local taxes, however designated,
levied, or assessed upon the Lessee and Lessor or either of them or said
Equipment, or upon the sale, Ownership, or use or operation thereof.
12. Additional Rent
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If Lessee shall fail to make any payment or perform any act or
obligation required by Lessee hereunder, Lessor may (but need not) make
such payment or perform such act or obligation at the expense of Lessee}
and such payment or performance shall not constitute a waiver or cure of
any Lessee default. Any expense so incurred by Lessor shall constitute
additional rent due hereunder and shall be payable by Lessee to Lessor upon
demand. Any rent, additional rent, or other sum due under this Lease shall
accrue interest from the due date thereof at the lower of (a) Lessor's then
prevailing late charge rate or (b) the highest rate permitted by applicable
law. All payments made hereunder shall be applied first to any charges or
other expenses due hereunder and the remaining balance, if any, to rent
then due.
13. Events of Default
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The occurrence of any of the following shall, at the option of Lessor
and without any notice other than as provided herein, constitute an "Event
of Default" under this Lease; (a) Lessee fails to pay any rent or other
sums due hereunder and such failure shall continue for fifteen (15) days
after written notice by Lessor to Lessee; (b) Lessee fails to perform any
other covenant herein and such failure continues for ten (10) days after
written notice by Lessor to Lessee; (c) a petition in bankruptcy is filed
by or on behalf of Lessee, voluntary or involuntary, or for reorganization,
or for an arrangement pursuant to the U. S. Bankruptcy Code, or any
similar federal or state or foreign law or is adjudicated bankrupt or
insolvent, or makes an assignment for the benefit of creditors, or admits
in writing its inability to pay debts generally as they become due, or is!
dissolved, or suspends payment of any of its obligations, or takes any
corporate action in furtherance of any of the foregoing; (d) a petition
or answer proposing the adjuidication of Lessee as a bankrupt, or its
reorganization under the U. S. Bankruptcy Code, of any other similar
federal or state or foreign law is filed with any Court, and (i) Lessee
shall consent to such filing, or (ii) such petition or answer is not
discharged or denied within sixty (60) days after such filing, (e) a
receiver, trustee, or liquidator (or other similar official) is appointed
for or takes possession or charge of Lessee, substantially all of its
assets, or any Equipment; (f) Lessee's interest in any Equipment is levied
upon or attached in any proceeding, and such process is not vacated or
discharged within thirty (30) days thereafter; (g) Lessee attempts to sell,
transfer, mortgage, pledge, or otherwise encumber, sublet or part with
possession of any Equipment without Lessor's prior written consent; (h)
INTENTIONALLY DELETED; (i) death of the Lessee (if an individual); or 0)
any of
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the events described in clauses (c), (d), or (e) above occurs with, respect
to any party obligated or responsible. Any default on the terms of any
other agreement executed between the parties (including any entity
controlled by, controlling, or under common control with Lessee) may be
declared by Lessor to be a default under the terms of this Lease; any
default on the terms of this Lease may be declared by Lessor to be a
default under the terms of any other agreement between Lessee and Lessor.
14. Remedies of Lessor
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Upon the occurrence of any Event of Default, or at any time
thereafter, Lessor, at its sole option may exercise one or more of the
following remedies: (i) declare all accrued and unpaid rent immediately due
and payable; (ii) terminate this Lease as to any or all items of Equipment
upon written notice to Lessee without prejudice to any other remedies
hereunder; (iii) enter at any time any premises where the Equipment may be,
with or without legal process, and take possession thereof without such
action constituting a termination of this Lease, unless Lessor notifies
Lessee in writing to such effect; (iv) proceed by appropriate action,
either at law or in equity, to enforce performance by Lessee of the
applicable covenants of this Lease or to recover, as liquidated damages for
the loss of the bargain and not as a penalty, an amount equal to the
Stipulated Loss Value of the Equipment, as defined in Section 8 above, as
of the date of Event of Default, plus interest at Lessor's then prevailing
late payment charge from the date of default to the date of payment. After
repossession of the Equipment by Lessor, Lessee shall attempt to mitigate
Lessee's damages as hereinafter provided. Lessor may attempt to sell or
lease (the choice being reserved to Lessor's reasonable discretion) the
Equipment in a public or private transaction at which Lessor may bid and,
if notice thereof is required by law, any notice in writing of any such
sale or lease by Lessor not less than ten (10) days prior to the date
thereof shall constitute reasonable notice thereof to Lessee, The proceeds
of such sale or lease, if any, should be applied first (i) to all Lessor's
costs, charges and expenses incurred in taking, removing, holding,
repairing, and selling or leasing the Equipment; then (ii) to the extent
not previously paid by Lessee, to pay Lessor any damages then remaining
unpaid hereunder; then (iii) to reimburse Lessee any such sums previously
paid by Lessee as damages hereunder; then (iv) any surplus shall be
retained by Lessor. Lessee shall pay Lessor any deficiency in (i) and (ii)
above within ten (10) days of written request for same. Lessor's remedies
provided for herein shall be in addition to any and all other remedies
provided, existing, or available in its favor under any other provisions of
this Lease, at law, or in equity or under statute. Lessor's, remedies may
be exercised concurrently or separately, and the exercise of one remedy
shall not be deemed to be an election of such remedy or to preclude the
exercise of any other remedy. No failure or delay on the part of Lessor in
exercising any right or remedy provided hereunder shall operate as a
waiver thereof. Waiver of default shall not be a waiver of any other or
subsequent default. Lessee waives demand of performance and notice of sale
or lease.
Lessee waives notice of a place of sale or lease and manner and place
of any advertising. If, after default, this Lease is placed in the hands of
any attorney for collection of unpaid rent or enforcement of any other
right or remedy of Lessor, Lessee shall pay all costs and expenses and
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reasonable attorneys' fees incurred in connection therewith. Each of the
parties hereto waives the right to trial by jury in any actjion arising
under this Lease.
15. Repairs and Maintenance
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(a) General. Each vehicle shall be inspected and maintained byjLessee
for the duration of this Lease, and any extensions thereof, in accordance
with allj applicable laws. Except as otherwise provided, Lessee will
furnish for each vehicle the following:
(1) All repairs and maintenance including parts and labor,
preventive maintenance, inspections; and road service;
(2) All necessary tires, lights brakes, lubricants and other
requirements to ensure the leased vehicles are road worthy, and in
conformity with all applicable laws; and
(3) All improvements and maintenance required to iensure the
structural integrity of the Equipment and its proper and safe working
order, including; without limitation, the straightening, reinforcement and
replacement, as necessary, of walls, crossbars, floors and doors and the
maintenance of all structural elements, landing gear, welding, bumpers,
special equipment (e.g. rams, floors, hydraulics, brakes etc.) of the
Equipment in accordance with original design specifications.
(b) Scheduled Services. Lessee agrees to make available and deliver
each vehicle to a facility designated by Lessor when notified by Lessor
that services are required. Lessor will not be required to provide
substitute vehicles during periods of scheduled services.
16. Observance of Laws Registration and Licensing
---------------------------------------------
Lessee agrees not to permit the vehicles to be used in violation of
any federal, state, or municipal laws or ordinances and Lessee will hold
Lessor harmless from all fines, claims, forfeitures, or penalties arising
from these violations, including violations relating to parking and
overweight vehicles. In the event a vehicle is impounded as a result of a
violation. Lessee will continue to pay all charges. If there are changes in
any laws requiring the installation of additional equipment or accessories
or modification of the vehicles, Lessee will comply with these requirements
and Lessee will pay for all costs incurred for modification of the
Equipment. Lessee, at Lessee's expense, will cause all required
registrations and licenses to be maintained with respect to the Equipment
in order that it be utilizable in connection with the transfer and
transportation of solid waste in compliance with all requirements of law. !
17. Choice of Law
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The parties choose the laws of the State of New Jersey to govern the
interpretation, construction, validity, enforcement, and performance of
this Lease.
18. Severability
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If any provision of this Lease shall be illegal in operation or
unenforceable, the same shall not affect any other provision or provisions
herein contained or render the same invalid, inoperative, or unenforceable,
unless such illegality or invalidity shall materially alter the rights and
obligations of the parties hereof In the event any obligation contained in
this Lease shall be held to be in violation of the law, such obligatory
shall be enforced to the full extent permitted by law.
19. Modification
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This Lease may not be changed, altered, or modified except in a
writing executed by the Lessor and the Lessee,
20. Counterparts
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This Lease may be executed in any number of counterparts. In proving
the existence of this Lease, it shall not be necessary to produce or
account for more than one such counterpart. The single executed original of
this Lease marked "Lease Original" shall be the "Original" and all other
counterparts shall be duplicates and shall be labeled as "Non Negotiable".
21. Purchase Option
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Provided that no event of Default shall have occurred and be
continuing, Lessee shall be entitled to purchase the Equipment (but not
less thajn all) from Lessor at the end of the Term for the sum of One
Dollar ($1.00). Upon payment of the purchase price and payment by Lessee to
Lessor of all rent and other sums due hereunder with respect to the
Equipment, Lessor shall transfer all of its right title and interest in the
Equipment to Lessee, "as is", "where is" and without warranty on the part
of Lessor except Lessor will warrant that it has good and marketable title
to such Equipment free and clear of any liens or encumbrances created by
Lessor,
Accepted this __ day
of March, 2004
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LESSOR: Consolidated Logistics LESSEE: JS Transportation
& Transportation, LLC
By:__________________________ By:________________________
Title:_______________________ Title:_____________________
