LEASING AGREEMENT NO. 010396
Lease made as of this January 26, 1996, by and between KEEN LEASING, INC.
OF CARLISLE, PA, HEREINAFTER REFERRED TO AS LESSOR, AND Xxxxxxxx'x Foods,
Inc. A Virginia Corporation hereinafter referred to as "Lessee".
TABLE OF CONTENTS
(Omitted)
In consideration of the mutual promises herein contained and
intending to be legally bound hereby, the parties hereto agree as follows:
Article I
Lease
The Lessor hereby leases to the Lessee and the Lessee hereby leases
and hires from the Lessor, all vehicles, and other property described in:
(A) The schedule or schedules executed by the parties concurrently
herewith and made part hereof by reference to this agreement; and
(B) Any schedule or schedules hereafter executed by the parties
hereto and made a part hereof by reference to this agreement.
All said vehicles and other property described in all said schedules
are hereinafter called "the leased vehicles" and all said schedules are
hereinafter collectively referred to as "Schedule A".
Article II
Term
The term of this lease respecting each leased vehicle commences on
the date the leased vehicle is delivered to the Lessee and ends at the
expiration of the initial lease term as set forth In Schedule A unless
extended or sooner terminated as hereinafter provided or as provided in the
appropriate Schedule A. All terms and conditions of this agreement shall
continue in full force and effect until termination with respect to all
leased vehicles shall have taken place as provided herein.
Article III
Renewal
Renewal of this lease shall be accomplished by the execution of a
Schedule A upon such conditions with respect to term and rental payments as
may be agreed by the parties. In the event renewal conditions cannot be
agreed upon by the parties, then termination of this lease shall occur as
provided in Article II.
Article IV
Option to Terminate
(A) Subject to the other provisions of this Agreement, Lessee may
at any time after twenty-four calender months following date of delivery as
listed on Schedule "A" upon ninety (90) days prior written notice to the
Lessor, terminate this lease, in accordance with the terms of this lease.
Lessor agrees not to terminate this lease unless Lessee is in violation of
this lease. For purposes of this agreement, the date of termination shall
be the date so specified in the notice or the date when the vehicle is
permanently returned to Lessor's place of business, whichever is later.
(B) In the event Lessee exercises its right of termination, Lessee
shall reimburse Lessor on the date of termination or as soon thereafter as
the amount can be determined, the amount of all insurance premiums, if any,
license, registration, permit, or federal, state or local use charges,
whether designated as fees, taxes or otherwise, and personal property taxes
on or with respect to terminated vehicles to be paid by Lessor, allocable
to the unexpired portion of the term or terms designated in Schedule A for
which such premiums, charges and taxes may have been paid or may thereafter
be payable by Lessor.
(C) Termination as to any leased vehicle by either party under this
agreement shall not effect this lease as to my other leased vehicle.
(D) In the event of loss or damage to any leased vehicle, where the
cost of repairs to such vehicle is greater then the fair market value of
such vehicle after repair, Lessee shall be deemed to have exercised its
option to terminate, which termination shall be deemed effective as of the
date and time of said loss or damage. Lessor will be deemed to have
elected not to sell such vehicle after termination and shall only be
entitled to receive the insurance proceeds plus Lessee deductible
applicable to such vehicle. In the event that the parties cannot agree as
to whether a leased vehicle has suffered loss or damage where the cost of
repairs to such vehicle is greater than the fair market value of such
vehicle after repair, the parties agree to accept the determination with
respect to same as made by the insurance company referred to in Article XII
hereof. Lessor agrees to accept fair market value vs Schedule A value
where referred to in this paragraph (D) only.
Article V
Option of Purchase
(A) At any time prior to the exercise of its option to terminate
this lease with respect to any leased vehicle, Lessee shall have the option
to purchase such vehicle for cash or upon terms suitable to Lessor, for an
amount computed as follows: The adjusted original value as hereinafter
defined on Schedule A, plus all amounts then owed to Lessor with respect to
the leased vehicle, less depreciation for the amount set forth in Schedule
A.
(B) If Lessee exercises its right of termination but does not or
cannot exercise its option to purchase, then Lessor has the option within
thirty (30) days following the date of termination to sell, publicly or
privately, any vehicle so terminated. After sale of such vehicle by
Lessor, the difference, if any between the sale price (after deducting all
costs and expenses of sales and adding any insurance proceeds received by
Lessor) and Lessee's purchase price as computed in accordance with the
provisions of paragraph (A) of this Article, shall be paid to Lessor by
Lessee upon demand. In the event Lessor elects not to sell vehicles which
have been terminated by Lessee, then Lessee shall not owe any amounts to
Lessor under this Section (B).
Article VI
Rental
(A) Lessee shall pay as rental for each vehicle during the term
hereof a sum which shall consist of a fixed rental charge plus mileage
charge and, in the case of refrigerated trailers or trucks, an hourly
charge as designated in the appropriate Schedule A. Lessee shall pay said
fixed rental charge in advance, in the amounts set forth in the appropriate
Schedule A, on the first day of each month to Lessor at its address herein
set forth or to such other person or organization as Lessor shall designate
in writing.
(B) Rental for the first month of this lease term shall be prorated
from the date of delivery. Rental for the final month shall be prorated to
the date of termination. The date of termination with respect to a vehicle
purchased by Lessee is the date on which payment of full purchase price as
computed in accordance with Article V is received by Lessor.
Notwithstanding any other provision of this Agreement rental for each
leased vehicle as provided in this Article VI shall continue to accrue and
be payable until the date of termination.
(C) The mileage charge shall be paid monthly on or before the last
day of the month and shall be computed with respect to all miles driven in
the preceding calendar month. The mileage charge for miles driven for the
calender month in which this lease term expires shall be due within ten
(10) days following the last day of said lease term. Any vehicle
substituted for another pursuant to Article IX and the vehicle for which it
was substituted shall be considered one vehicle for the purpose of
computing mileage charges. If the mileage gauge for any vehicle shall fail
to function the mileage for the period of failure shall be determined by
computing the mileage over the routes normally traveled.
(D) The hourly charge shall be paid monthly on or before the last
day of the month and shall be computed with respect to hours of use in the
preceding calender month. This hourly charge for use in the calender month
in which this lease term expires shall be due within ten (10) days
following the last day of said lease term.
(E) All rental payments shall be considered timely paid if received
by Lessor on the 30th day of the month. If Lessee fails to make payments
as specified above. Lessee agrees to pay interest on the amount past due at
a rate of one and one half percent (1.5%) per month or the maximum legal
rate allowed, whichever is lower.
(F) The parties hereto recognize that the fixed rental charge is
based, in part, upon costs for licenses, taxes and other fees as
established by the responsible governments or regulatory bodies having
jurisdiction over the operation of the leased vehicles. In the event that
costs of such items as herein set forth to be payable by Lessor shall
increase, or decrease, fixed rental rates will be adjusted to compensate
therefore as hereinafter provided.
(G) Lessor and Lessee agree that this lease rates are based on
Lessor's current costs and labor conditions, and that such costs may
change. Therefore, Lessee agrees that for each rise or fall of 1% In the
Revised Consumer Price Index For Urban Wage Earners and Clerical Workers
(1967 Base Period, published by the U.S. Bureau of Labor Statistics), above
or below the best figure on the Schedule A, charges for each vehicle will
be adjusted upward or downward as follows:
1%of 50%%of the fixed charge.
1% of 60% of the mileage charge.
1% of 100% of the hourly charge on the refrigeration
equipment.
There will be no adjustments until July 1, 1999 and will be limited to a 3%
cap. Thereafter adjustments shall be done annually and will be limited to
a 3% cap.
All adjustments shall be made using the most recently available CPI.
If the CPI is no longer published, the Lessor may designate a successor or
substitute index. If information for 1967 as a base year is not longer
published, the Lessor may select another base year for which information is
readily available.
(H) Additional vehicles will be supplied upon Lessee's request
subject to availability at the location which services the Lessee. All
subsequent rented vehicles of the same type as currently being leased will
be supplied at the highest rate being paid by Lessee at the time for a like
vehicle plus fifteen (15%) percent. All vehicles of a type not currently
being leased will be supplied at the prevailing retail rental rates posted
by Lessor less twenty (20%) percent. All additional vehicles shall be
subject to all the terms and conditions of this lease.
(I) In addition to any leased vehicles listed on this Schedule A
and any rented vehicles which may be added to the fleet pursuant to Article
VI(H), Lessor agrees that it will:
1. keep two additional reefer straight trucks as captive
subs, available for use by Lessee when leased vehicles are being serviced
or repaired, at no additional fixed cost to Lessee, mileage and hourly
charges apply only. When these units are used as extra units, only mileage
and hourly rates equal to the highest rate being paid by Lessee at the time
for a like vehicle shall apply.
2. upon Lessee's request, rent to Lessee up to two
additional reefer straight trucks and two additional tractors of a type
like those already leased. These additional vehicles will be charged for
actual days used. The rates for these additional vehicles will be
calculated by multiplying the highest prevailing like lease unit monthly
rate by 12, dividing that annualized total by 365 and then multiplying by
1.15. The mileage and hourly rates will also be multiplied by 1.15.
3. upon 30 days notice from Lessee, lease to Lessee up to
four additional reefer straight trucks of a type like those already leased,
at the same rates currently applicable under this lease for such vehicles.
(J) Whether or not Lessee rents an additional vehicle when a unit
is inoperable due to physical damage, charges on the unit shall continue
until 30 days after Lessee's insurance company adjuster approves repairs,
provided all parts are reasonably available to Lessor.
Article VII
Ownership
(A) Except as specifically provided herein, each leased vehicle is,
and shall at all times be and remain, the sole and exclusive property of
Lessor, Lessee shall have no right title, or interest therein except as
expressly set forth in this lease.
(B) Without the prior written consent of Lessor, (which consent
will not be unreasonably withheld) Lessee shall not:
(1) Assign transfer, pledge or hypothecate this lease,
any leased vehicle or part of equipment hereof, or any interest therein; or
(2) Sublet or lend any leased vehicle or any part or
equipment thereof, or permit the leased vehicle or any part of equipment
thereof to be used by anyone other then Lessee or Lessee's employees.
(3) Create or suffer or permit to be created any lien or
security Interest of any kind upon any leased vehicle and will forthwith
remove and procure the release of any such lien or security interest.
Consent to any of these prohibited acts applies only in the given instance,
and is not a consent to any subsequent like act by the Lessee or any other
person.
(C) All rights of the Lessor under this lease may be assigned,
pledged, mortgaged, transferred, or otherwise disposed of, either in whole
or in part, provided, however that this lease shall not be thereby impaired
or affected.
(D) Lessor shall at any reasonable time have the right to enter
Into and on the premises where any leased vehicle may be located for the
purpose of inspecting the same or observing its use. Lessee shall give
Lessor immediate notice of any attachment of other judicial process
affecting any leased vehicle and shall, whenever requested by Lessor,
advise Lessor of the exact location of any leased vehicle.
Article VIII
Warranties
(A) THE LESSOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS
TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF
ANY LEASED VEHICLE, ITS MERCHANTABILITY, OR ITS FITNESS FOR ANY PARTICULAR
PURPOSE.
(B) Lessee shall inspect each leased vehicle within one week after
receipt thereof. Unless Lessee within said period of time gives written
notice to Lessor, specifying any defect in or other proper objection to
this lease vehicle, it shall be conclusively presumed, as between Lessor
and Lessee, that Lessee has fully inspected and acknowledge that the
equipment is in good condition and repair, and that Lessee is satisfied
with and has accepted the leased vehicle in such good condition and repair.
Lessor shall ensure that all leased vehicles substantially comply with the
specifications specified by Lessee. It is understood that occasionally
substitute components of a like kind and quality will be substituted for
those originally specified, provided that the operation of the vehicle is
not affected thereby.
Article IX
Maintenance and Repairs
(A) Lessor and Lessee agree to work together to minimize the effect
of any maintenance or repairs on Leases's operation. Lessor agrees not to
take a vehicle out of serve during normal working hours without furnishing
a substitute vehicle as provided in Section (C) hereof.
(B) Lessor shall perform all maintenance and repairs as may be
required or deemed necessary by Lessor, in Lessor's complete discretion.
If Lessor deems it advisable, any such maintenance or repairs may be
performed at such location as described on Schedule A and by such persons
as Lessor shall designate. Lessee agrees to make each leased vehicle
available for purposes of performing maintenance and repairs. Lessee
agrees to require each driver to make all complaints or suggestions
relative to any faulty operation or other trouble with any leased vehicle
in writing, or on such forms as may from time to time be supplied by
Lessor, whenever such vehicle is delivered for maintenance or repair
service as aforesaid. Lessor agrees to respond reasonably to any such
complaints or suggestions.
(C) Lessor agrees to fulfill maintenance and repair obligations
within a reasonable time following delivery of any leased vehicle. If it
is impractical In Lessor's opinion to repair any leased vehicle with
reasonable promptness, Lessor shall temporarily substitute another vehicle.
If it is determined that repeated mechanical problems make a vehicle
uneconomical to continue to repair, then Lessor will permanently substitute
another vehicle of like kind and quality. If Lessor permanently replaces
a leased vehicle prior to the last year of this lease term the replacement
vehicle will be redecaled and the cost will be shared equally between the
parties. A vehicle shall not be construed to be out of service due to
disablement during periods when normal maintenance or nominal repair is
being performed. Lessor shall incur no liability to Lessee for failure to
repair any disable vehicle if prevented by causes reasonably beyond the
control of Lessor.
(D) In the event that emergency service or repair is required which
service or repair would be Lessor's responsibility pursuant to this lease,
and if it would not be feasible for Lessor to perform such work, Lessee
will arrange with the person or establishment performing such emergency
service or repairs and to forward the xxxx directly to Lessor for
reimbursement. Lessor shall be under no obligation to pay for any such
work exceeding a cost limit of $100 unless its prior consent was first
requested and obtained.
(E) Lessor shall provide the following services for each leased
vehicle:
(1) Oil changes and lubrications, antifreeze, tire
change, tires and tubes, and other necessary supplies used in the normal,
safe and efficient operation of the vehicles;
(2) All repairs and maintenance including parts and labor
which may be needed to maintain vehicles in a safe operating condition;
(3) Original painting at time of delivery according to
Lessee's specifications.
(F) Washing of vehicles shall be the responsibility of Lessor and
shall be performed every two weeks, exterior only. Current costs to wash
vehicles are indicated on side two of the Schedule A. Additional costs
Incurred will be the responsibility of the Lessee.
(G) Lessor shall reimburse Lessee's drivers for income loss due to
vehicle breakdown after the first four (4) hours providing all of the
following conditions are met:
(1) The breakdown was caused by mechanical malfunction
or tire failure;
(2) The breakdown was not caused in whole or in part by
driver negligence or abuse;
(3) Lessor is immediately notified of such breakdown;
(4) Lessee instructs driver to go "off duty" whenever
feasible and whenever possible; and
(5) Lessee presents Lessor with a written notice with
accompanying documentation concerning all of the above conditions within
thirty (30) days following the date of breakdown.
(H) Lessee is responsible for all fuel costs relating to the
operation of all leased vehicles. Lessor will endeavor to provide, at its
facilities, fuel available for purchase by Lessee for the leased vehicles
at a price to be agreed upon by the parties. Lessee shall at all times
keep the oil in the crankcase at the proper level.
(I) Lessor shall be responsible for maintaining oil and water
levels in the refrigeration units.
(J) Lessee agrees to pay a $25 processing fee for windshield or
other minor outside repairs that are handled and billed by Lessor.
Article X
Damage to Vehicle
(A) ln case of accident, Lessee will be responsible for any towing,
wrecker service, cargo transfer, and/or any additional charges incurred by
Lessor who shall act as agent for Lessee and incur expenses only as
approved by Lessee.
(B) Any repairs of damage to a leased vehicle must be approved by
Lessor, in advance.
(C) Repairs to damaged vehicles performed by Lessor shall be done
in a commercially reasonable manner as to quality and timeliness. Lessor
shall use due diligence in completing all repair work so as to minimize the
down time of the vehicle.
(D) Lessee agrees to notify Lessor immediately of any accidents or
collisions in which any leased vehicle has been involved, and to cooperate
fully with Lessor to prevent loss through accidents, and to aid in every
way possible in the defense of suits or other proceedings brought as a
result of the operation of any leased vehicle.
Article XI
Alteration
Without the prior written consent of the Lessor, the Lessee shall
not make any alterations, additions, or improvements to any leased vehicle.
All additions and improvements or whatsoever kind of nature made to a
leased vehicle belong to and become the property of Lessor. Lessor agrees
to grant permission for Lessee to install on-board computers in the leased
vehicles with the understanding that they shall remain the property of
Lessee.
Article XII
Insurance
(A) Lessee, at its sole cost and expense, shall obtain and maintain
the following insurance coverage with one or more insurance companies
qualified to do business in the state in which the vehicle is licensed
protecting the interest of Lessor and Lessee:
(1) Bodily injury liability coverage of not less than
$2,000,000.
(2) Property damage liability coverage of not less than
$500,000.
(3) Comprehensive and collision coverage of not less than
the actual cash value to each leased vehicle, subject to the deductible
amount if any, set forth in Schedule A with loss payable to Lessor, and
others as may be designated by Lessor.
(B) Such insurance shall include Lessor and or any other party
having interest in the equipment as additional insured and loss payee and
Lessee shall furnish Lessor satisfactory evidence of such coverage by an
insurance company approved by Lessor (however such approval shall not be
unreasonably withheld) and authorized to transact business in the state in
which the leased vehicle is registered.
(C) In the event Lessee shall fall to obtain, maintain or pay for
any insurance specified as the responsibility of Lessee, Lessor, at its
option, may provide for such insurance and add the amount paid therefore to
the next monthly rental payment due from Lessee.
(D) For purposes of insurance coverage only, a leased vehicle which
is in the custody or control of Lessor or one of Lessor's employees for the
purposes of maintenance or repairs shall not be considered as leased from
the time it is picked up until the time it is delivered to Lessee, but
shall be deemed to be in the custody and control of Lessor in connection
with Lessor's garage business for service and/or repair.
(E) If at any point Lessee desires to partially self insure prior
written permission of the Lessor is required. Such permission shall not be
unreasonably withheld.
Article XIII
Cargo
(A) Any leased vehicle, when returned to Lessor for any purpose,
shall be empty, or if loaded with cargo, Lessor shall not be responsible
for any such cargo, Lessor shall not be responsible for any such cargo or
other personal property in or on such vehicle. It is understood that
Lessee shall at all times and under all circumstances bear the risk of loss
of any cargo, unless such loss or damage is solely due to the negligence of
Lessor.
(B) Lessee shall indemnify, defend and hold Lessor, its agents and
employees, harmless from and against all claims based on or arising out of
any loss or damage to cargo, unless such loss or damage is solely due to
the negligence of Lessor.
Article XIV
Title, Licenses, Taxes and Inspections
(A) Each leased vehicle shall bear license plates supplied by
Lessor and the titles thereto shall be registered in the name of Lessor.
The annual registration or license fees for a base state shall be paid by
Lessor subject to the amounts listed on Schedule & Local registration or
registration in other states shall be at the option and expense of Lessee
unless included on said Schedule A.
(B) Federal highway use tax and personal property tax for any
leased vehicle will be the responsibility of Lessor subject to the amounts
listed on Schedule A.
(C) Periodic safety inspections and the expenses related thereto
will be the responsibility of Lessor.
(D) Lessor will provide whenever possible at Lessee's expense
additional licensing, prorates, or other reciprocities that may be
requested by Lessee. When such services are requested by Leases, a charge
to be agreed upon by Lessee and Lessor shall be paid by Lessee.
(E) All other taxes, including fuel tax and the reporting same,
will be the responsibility of Leases. Lessor shall, where allowed by law
and upon Lessee's request, apply for fuel tax permits and, unless otherwise
specified on the appropriate Schedule A, shall rebill their cost to Lessee.
Lessor, when providing such permits, shall also file fuel tax returns,
provided the Lessee submits weekly to Lessor all driver trip records,
original fuel receipts or invoices, and any other information necessary for
the preparation of such fuel tax returns. Lessee shall reimburse Lessor
for any additional charges, assessment, tax, penalty, or credit disallowed
as a result of the untimely or improper submission of such information by
Lessee. Leases shall reimburse Lessor for any increase in the cost of
obtaining fuel tax permits. If Lessee provides the fuel, fuel tax permits
must be in Lessee's name and unless otherwise identified on the Schedule 4
Lessee shall be responsible for the fuel tax permits, file the fuel tax
returns, and keep and maintain any and all records required to perform such
acts. In the event of any failure by Lessee to perform its duties in
accordance with the paragraph, it shall agree to defend, indemnity, and
hold harmless Lessor from and on account of any and all financial loss,
including claims against it and expenses including penalty and interest
which results from any such failure of the Lessee, and Lessee shall further
be responsible to pay all such taxes.
Article XV
Driver Qualifications
(A) Lessee shall furnish to Lessor a complete list of all its
agents or employers authorized to receive and drive the leased vehicles and
shall update said list in writing should any changes occur. Lessor is
authorized to deliver any lease vehicle to any person whose name appears on
said list.
(B) Lessor has the right to approve all drivers and to disqualify
and remove from the list of authorized drivers any individual who, in
Lessor's opinion, is not qualified to fully and competently operate a
leased vehicle. Lessor may require road tests or periodic road tests of
any Lessee's drivers. Lessee agrees to furnish complete driver's records
to Lessor upon demand. Lessor, as a condition of approval, may require
further training or instruction of any driver.
(C) Leases shall cause the teased vehicles to be operated in a
careful and proper manner and in full compliance with all laws, ordinances,
and regulations relating to the possession, use, or maintenance of motor
vehicles. Lessee shall insure that each leased vehicle is operated within
the load limits set forth in its Schedule A and only by safe, careful and
qualified drivers in its employ having a proper license. Leases shall be
responsible for all acts or omissions of its drivers. Lessee shall not
cause or permit anyone to make any repairs or adjustments except
substituting mounted spare tires and removing and mounting chains unless
specifically authorized by Lessor.
(D) All drivers are conclusively presumed to be the employers of
Leases only. Said drivers shall be selected, employed, controlled and paid
by Lessee. Lessee shall insure that its drivers comply with all reasonable
regulations now or hereafter made by Lessor insofar as said regulations
shall relates to the proper use, care and operation of the leased vehicles.
Article XVI
Indemnification
(A) Lessee shall indemnity, defend and save harmless Lessor, its
officer, agents, servants and employers, from and against all losses,
claims demands, suits, decrees, judgements and awards for damages, losses,
liabilities, coats and expenses of whatever nature for any and all damage
or damages to property of others and injuries, including but not limited to
death to any person or persons, arising out of or in any way connected with
the operation of any leased vehicle, unless due to the negligence or fault
of Lessor, its employers or agents.
(B) Lessee shall indemnity Lessor for any loss or damage to any
leased vehicle caused by negligence, carelessness or abuse by Lessee, its
agents or drivers. Lessee further agrees to pay all costs and expenses
resulting from any leased vehicle becoming mired, unless due to malfunction
of the leased vehicle.
(C) Each party hereto shall promptly notify the other of any such
loss, damage, theft destruction, injury, claim demand, cost or expense of
which said party has actual knowledge.
(D) Lessor shall indemnify, defend and save harmless Lessee, its
officers, agents, servants and employees, from and against all losses,
claims, demands, suits, decrees, judgments and awards for damages, losses,
liabilities, costs and expenses of whatever nature for any and all damage
or damages to property of others and injuries, including but not limited to
death to any person or persons, arising out of or in any way connected with
the Lessor's failure to perform its obligations under this lease or
maintain the leased vehicles in a safe operating condition.
(E) Lessee's obligation to indemnity as provided in the Article
shall not Extend to any portion of any such ions, damage, injury, claim,
demand, cost or expense that is within the coverage of any insurance
provided pursuant to Article XII hereof.
Article XVII
Return of Leased Vehicles
(A) Upon termination of this lease, in whole or as to any leased
vehicle, Lessee shall, on the effective date of any termination, return to
Lessor such vehicle or vehicles in as good condition and running order as
they were received by Lessee, ordinary wear and tear only excepted.
(B) If Lessee fails or refuses to return said vehicle to Lessor,
Lessor shall have the right to take possession of said vehicles and to
remove said vehicles, For that purpose Lessor shall be permitted to enter
any premises where any of said vehicles shall be, without being liable to
any suit, action, defense, or other proceedings by Lessee.
(C) The return or repossession of vehicles pursuant the this
Article shall not affect in any way the rights and obligations of the
parties hereto eat forth in Article XIII hereof.
Article XVIII
Remedies on Default
(A) Except as eat forth in Article XI, the parties agree that the
liability of either party for any breach or default of this Agreement shall
be limited to the enforcement of the obligations assumed by this Agreement
and enforcement of this provisions. It is specifically agreed that neither
party shall be liable for consequential damages of any kind whatsoever.
(B) Time is of the essence of this Agreement in the event Lessee
fails to make any payment required by the terms of the Agreement at the
time the same falls due and prior to delinquency thereof, including the
rental payments to Lessor provided for herein, taxes, fees, and insurance
premiums, or if Lessee is in default of any other obligation under this
Agreement and it such default or nonpayment continues seven (7) days
following notice by Lessor of such default or nonpayment Lessor, at its
option, may (1) consider and treat such default or nonpayment as an
immediate termination of this Agreement by Lessee, in which event the
rights and obligations provided in this Agreement with respect to
termination shall apply, or (2) accelerate and confess judgment for all
remaining lease payments as wall as all other payments due hereunder but
not yet paid, provided, however, that in the event Lessee elects such
acceleration credit will be Given for resale by Lessor of any defaulted
vehicles or payments received by Lessor for the release of such vehicles to
another customer, it any.
(C) Failure by Lessor to perform any term or condition of this
Agreement shall not be deemed as a default when such failure is due to
causes reasonably beyond the control of Lessor.
Article XIX
Miscellaneous
(A) Notices. Any notice or demand on either party hereunder may
be mailed or personally delivered to such party at the address first above
given or such subsequent address as may hereafter be furnished in writing
to the other party. Notice or demand so Given shall be sufficient for any
purpose under the Agreement.
(B) Waiver. Failure of either party in any one or more instances
to insist on the performance of any of the terms of this Agreement, or to
exercise any right or privileges conferred herein, or the waiver of any
breach of any terms of this Agreement shall not thereafter be construed as
a waiver of such terms, which shall continue in force as it no such waiver
had occurred.
(C) Amendment. No amendment to or modification of this Agreement
shall be valid unless in writing and sighed by both parties.
(D) Captions. Captions and headings are strictly for the purpose
of convenience and general reference only and shall not affect the meaning
or interpretation of any of the provisions of this Agreement.
(E) Entire Agreement. This document and all Schedule or Schedules
herewith or hereafter executed by the parties hereto and made apart hereof
by reference to this Agreement constitutes the entre Agreement between the
parties and supersedes any prior written or oral agreements between them
respecting the within subject matter. There are no representations,
agreements, arrangements or understandings, oral or written, between and
among the parties hereto relating to the subject matter of this Agreement
which are not fully expressed herein.
(F) Binding Effect. This Agreement shall be binding upon, and
insure to the benefit of, the parties hereto and their res-We successors
and assignees where permitted by this lease.
(G) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes,
and all of which together shall constitute one and the same instrument.
(H) Legal Construction. If any one or more of the provisions
contained in this lease shall for any reason be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality, or
unenforceability shall not affect any other provisions thereof and this
lease shall be contrued as if such invalid, illegal, or unenforceable
provision held never been contained herein.
(I) Time. Time is of the essence of the Agreement in each and all
of its provision.
(J) Nonwaiver. No covenant or condition of this lease may be
waived except by the written consent of the Lessor. Forbearance or
indulgence by the Lessor in any regard whatsoever shall not constitute a
waiver of the covenant or condition to be performed by the Lessee to which
the same may apply, and, until complete performance by the Lessee of any
covenant or condition, the Lessor shall be "wed to revoke any remedy
available to the Lessor under this lease or by law or in equity despite
said forbearance or indulgence.
(K) General. This Agreement will not be binding on Lessor until
executed by a person duly authorized and will then constitute the entire
agreement and understanding between the parties concerning the Vehicles,
notwithstanding any previous writing or oral undertakings, and its terms
will not be altered by any oral agreement or informal writing, nor by
failure to insist upon performance, or failure to exercise any rights or
privileges, but alterations, additions, or changes in the Agreement will
only be accomplished by written endorsements, amendments, or additional
Schedules A to the agreement executed by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be signed by a duly authorized officer, and have caused to be affixed
hereto their common or corporate seals, attested by their secretaries or
assistant secretaries, the day and year first above written.
LESSOR: KEEN LEASING, INC. LESSEE: XXXXXXXX'X FOOD, INC.
By: XXXX XXXX By: XXXXXX X. XXXXXX
(Signature) (Signature)
Title: President Title: President
Date: 1/26/96 Date: 1/26/96
Attest: XXXX XXXXXX Attest: XXXX XXXXXX
(Signature) (Signature)
Schedule A of Leasing Agreement
-------------------------------
(Schedule has been omitted)
Exhibit to Lease
----------------
KEEN TRUCK RENTAL & LEASING
X.X. XXX 000
0000 XXXXXXXXXX PIKE 717) 243-6885
XXXXXXXX, XX 00000 FAX (000) 000-0000
January 10, 1996
Xx. Xxxx Xxxxxxx, Project Manager
Xxxxxxxx'x Foods, Inc.
0000 Xxxxxx Xxxxxx
P. O. Box 7229
Xxxxxxxxxx, Xxxxxxxx 00000
Dear Xxxx:
This will serve as a letter of understanding concerning issues
related to Xxxxxxxx'x Foods, Inc., replacing its current fleet of Keen
lease vehicles with new equipment, also to be leased from Keen Leasing,
Inc.
1. GARAGE LEASE:
a) The current Garage Lease dated June 19, 1989 shall remain in
effect with the term to be extended so it is the same as the new Lease
Agreement No. 010396.
b) Keen agrees that upon sixty (60) days notice from
Xxxxxxxx'x, Keen will vacate the premises described by the Garage Lease.
2. RELEASE FROM LEASE AGREEMENT NO.22489:
a) Keen agrees to release Xxxxxxxx'x from Lease Agreement No.
22489 and make the new Lease Agreement No. 010396 effective upon the
inservice of the new equipment.
b) It is understood that Xxxxxxxx'x will replace its existing
lease vehicles with new Keen lease vehicles prior to the existing vehicles
and of terms. As of the inservice of the new vehicles, Xxxxxxxx'x will be
released from its original term commitment on the existing lease vehicles.
3. FORGIVENESS OF DAMAGE REPAIRS:
a) As an incentive to replace the existing Keen lease fleet
with new Keen lease vehicles, and contingent upon that action, Keen agrees
to forgive the repair of damage to existing equipment described on the
repair estimate dated December 17, 1995.
b) It is understood that Xxxxxxxx'x will be responsible for
repairing damage done alter the December 17, 1995 vehicle inspection.
4. RE-DECALING OF (2) captive SUB TRUCKS:
a) Keen agrees to replace, at their expense, the two units that
will be kept as captive subs using the new graphics to be designed by
Xxxxxxxx'x.
We hope this letter of understanding will clarify your concerns and allow
you to proceed with the new lease agreement.
Sincerely,
KEEN LEASING, INC.
XXXXX XXXXXXXX
(Signature)
Director of Sales & Marketing
BD/db
AGREED TO: KEEN LEASING, INC.
By: XXXX XXXX
(Signature)
Title: President
AGREED TO: XXXXXXXX'X FOODS, INC.
By: XXXXXX X. XXXXXX
(Signature)
Title: President
