LEASE AGREEMENT
THIS LEASE AGREEMENT entered into this 2nd day of November, 1995, by
and between TRAILER LEASING COMPANY, DIVISION OF KELLERS SYSTEMS, INC.,
(hereinafter called "Lessor,") with its principal office at 0000 Xxxxx Xxxxx
Xxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, and XXXXXX MANUFACTURING COMPANY
(hereinafter called "Lessee"), at X.X. Xxx 0, Xxxxxxx, Xxxxxxx 00000.
IN CONSIDERATION of the mutual promise and undertakings as hereinafter
contained,
THE PARTIES AGREE AS FOLLOWS:
1. Lease of Equipment: Lessee does hereby lease the trailers and
equipment as set out on the Schedule attached hereto and marked Exhibit "A" (the
"Equipment") from Lessor for an initial term of ______ months commencing on the
delivery date as set forth on Exhibit "A". Lessee agrees to pay Lessor for the
lease of the Equipment, rentals at the rate of ______________ Dollars per month
per trailer unit.
2. Rental Payments: Rentals shall be paid by Lessee to Lessor on the
recurring billing date of each month during the term hereof, payable one (1)
month in advance. Rentals shall be paid to the Lessor at 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000, unless otherwise directed in writing by the
Lessor.
3. Return of Trailers: At the termination of this Lease for any reason,
or upon demand from Lessor if Lessee is in default, or at any time Lessee
returns one or more trailers to Lessor, the trailer(s) must be returned to the
following location: 0000 Xxxxx 0xx Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
Return locations may be changed by notice from Lessor.
4. Receipt in Good Condition: Lessee acknowledges that he has inspected
each unit of Equipment at the Lease commencement and has received it in good
condition and free from defects.
5. Rights in the Equipment: Lessor shall at all times have the primary
right, title, and interest in or to the Equipment, and except as contained
herein, acquires only the right to possess and use said Equipment in accordance
with the terms hereof and provided Lessee shall not be in default hereunder. If
Lessee defaults in any of the terms or conditions of this Lease, Lessee's right
to possess and use said Equipment shall cease and Lessee shall be required to
return all of the Equipment to Lessor immediately. Lessee shall in no event be
deemed an agent of Lessor if the registered owner of the Equipment as indicated
by the Equipment registration card is other than the Lessor, then the Lessee
under this agreement shall become sub-lessee of Lessor and be subject and
subordinate to the provisions of any written agreement covering this Equipment
between owner and Lessor, including the owner's rights of repossession. If
applicable, the Lessee has been advised of the existence of such a written
agreement, and such agreement has been made available and is available to the
Lessee as sub-lessee upon request. Lessor reserves to itself, the right to place
upon each unit of Equipment leased hereunder, the name of the Lessor and
registered owner, and Lessee agrees not to remove said words or permit or suffer
any other person to do so.
6. Licenses and Certificates: Each trailer leased hereunder carries a
license for either the State of Maine or the State of Michigan. Lessee assumes
all responsibility to obtain and pay for any and all other licenses, titles,
permits and other certificates as may be required by law or otherwise for
Lessee's lawful operation of said Equipment, Lessee agrees that all certificates
of title or registration applicable to the Equipment leased hereunder shall
reflect Lessor's ownership.
7. Prohibited Uses: The Lessee agrees not to transport any persons in
or on any leased trailer, agrees not to propel or tow any other vehicle with or
through the agency of any trailer, and agrees not to knowingly use any trailer
for any immoral, illegal or prohibited purpose. Lessee agrees not to store or
transport any toxic substance in any leased trailer.
8. Taxes: Lessee shall promptly pay all taxes, assessments and other
governmental charges, including but not limited to sales, use or ad valorem
taxes in any state levied or assessed during the term of this lease upon the
Equipment or the interest of the Lessee in the Equipment or upon the use or
operation of the Equipment or the earnings of Lessee arising out of his lease or
use of the Equipment. If any levy or assessment is made against Lessor on
account of any of the foregoing matters or on account of its ownership of the
Equipment, exclusive, however, of any taxes on income of Lessor from this lease
of the Equipment, Lessee will promptly pay or reimburse Lessor for same. Lessee
shall indicate Lessor's ownership of the Equipment on any personal property tax
reports which Lessor is required to file. Lessee shall be responsible for the
payment of any personal property taxes.
9. Compliance with Laws and Regulations: Lessee agrees to comply with
all laws, ordinances, and regulations of all state, federal or local governments
or agencies which affect the use, operation or maintenance of the Equipment, and
to indemnify and hold harmless Lessor, its officers, directors, employees,
agents, successors and assigns from any and all fines, forfeitures, seizures,
penalties and liabilities including the cost of compliance that may result from
the use, possession, operation, or condition of any of the Equipment.
10. Indemnification:
A. Lessee agrees to indemnify and hold harmless Lessor, its
officers, employees, agents, successors and assigns from any and all
claims, lawsuits, demands, liens or any liability whatsoever arising
out of the use, possession, or lease of the Equipment or from work
performed or materials supplied in connection with the use, operation
or maintenance of any of the Equipment and from loss or damage thereto
and from and against all loss, penalties and expenses, including
attorney's fees, howsoever arising because of, but not limited to, the
storage, maintenance, use, repair, loading, unloading or operation or
alleged use or operation, of any of the Equipment therein or thereon.
B. Lessee hereby indemnifies Lessor, its officers, directors,
employees, agents, successors and assigns and agrees to hold them
harmless from and against any and all loss, expenses, and damages any
of them may sustain or suffer because of:
i. The loss of or damage to said Equipment for any
reason; or
ii. Injury to any person, or damage to the property
of any person as a result of, in whole or in part, the use or
operation of said Equipment while in the custody, possession,
or control of the Lessee, its employees, agents, and
personnel, or at any time during the term of this lease; or
iii. Loss, injury or damage sustained because of the
failure of Lessee to maintain said Equipment as agreed and
provided herein; or
iv. Lessor's being a party to this agreement.
11. Assignment: Lessee shall not have the right to assign this Lease or
to sublet, rent, or otherwise hire out or part with possession of any of said
Equipment to any person, firm, partnership, association or corporation other
than Lessee, without the prior written consent of Lessor which shall not be
unreasonably withheld. Lessor shall have the right to assign this Lease and/or
the rentals or other sums to be received. In the event of an assignment of this
Lease by Lessor, the assignee shall acquire thereby whatever rights and/or
remedies are assigned and the Lessee shall agree to render its performance to
the assignee.
12. Operation: Lessee agrees that the Equipment leased hereunder will
not be operated by any person other than Lessee or agents or employees of
Lessee, each of whom Lessee warrants to be a careful, dependable operator having
a currently valid license to operate said Equipment and the power equipment used
therewith as required by law.
13. Additional Rent: Lessee agrees to pay to Lessor with ten (10) days
of invoicing as additional rent, the following amounts:
A. The amount to repair or replace a trailer, or any part
thereof, (without allowance for depreciation) including tires, (except
as provided hereafter for tire wear), tools and accessories, which has
become damaged, lost or stolen while this lease is in effect. If any
such loss or damage is covered by insurance, Lessor agrees upon receipt
of the proceeds of said insurance, to rebate so much of Lessee's
payment as was covered by the insurance proceeds.
B. Any other charges which may become due hereunder.
14. No Proration: There shall be no proration of charges for partial
terms. Invoices not paid within thirty (30) days from the invoice date shall
carry interest at the rate of 1 1/2% per month from the date due until paid.
15. Insurance: Lessee at Lessee's cost and expense shall procure and
deliver to Lessor, simultaneously with or prior to delivery to Lessee of the
Equipment to be leased hereunder, a policy or policies of insurance with terms,
amounts and insurance companies satisfactory to Lessor, in Lessor's sole
discretion with premiums prepaid thereon for the current policy period, insuring
and protecting Lessor in Lessor's name as an insured party and loss payee,
against any and all loss and damages it may sustain or suffer resulting from the
use, operation and possession of each unit of Equipment by Lessee, or otherwise,
with limits of not less than One Million Dollars ($1,000,000) per occurrence for
damages arising out of bodily injury and property damage liability, or where
permitted, minimum ICC limits of Seven Hundred Fifty Thousand Dollars ($750,000)
combined single limit bodily injury and/or property damage. Lessee also agrees
to provide physical damage coverage, i.e. collision and comprehensive coverage
to the amount of the fair market value of the leased Equipment. Said insurance
shall be kept in force and effect during the entire lease term hereof and shall
contain a provision that the policy may not be cancelled without prior
notification to Lessor. Lessee shall also provide comprehensive general
liability coverage and contractual coverage for all hold harmless agreements
contained herein in amounts satisfactory to Lessor, and certificates of
insurance required to be furnished hereunder should so state.
16. Lease Term: The lease period shall commence on the date provided in
Exhibit "A", which in any event shall be no later than the date Lessee takes
possession (or if any trailer is delivered to the Lessee, on the date it is
moved from its previous location). Lessee's lease obligations shall not
terminate prior to the date of return, as specified in Exhibit "A", plus the
period of repair after return. Lessee agrees that upon request of Lessor at any
time it will provide the physical location of each trailer unit hereunder.
17. No Warranties: It is understood between the parties that Lessor
extends no warranties and expressly disclaims all express warranties and claims
of merchantability and fitness for a particular purpose or condition and of
patent and/or latent defects in material, workmanship, or capacity or that any
trailer will meet the requirements of any laws, rules, specifications or
contracts which provide for specific apparatus or special equipment. Lessee has
examined the trailers thoroughly and is satisfied with the condition.
18. Maintenance: Lessee shall maintain each trailer in good condition
and in no less than the same condition as when received, and shall pay for all
damages to each trailer, and all costs necessary to repair, reidentify, or
restore the appearance of each trailer. Tires shall be returned to Lessor in the
same condition as at the commencement (per outgoing inspection delivery report).
If brakes are not returned in same condition, Lessee will pay all costs to
repair or replace. If tires are not returned in the same condition, Lessee
agrees to pay to Lessor ____________ Dollars per 32nd of tread wear on each ply
bias tire and _______________ Dollars per 32nd of tread wear on each radial
tire.
19. Acceptance of Condition: The receipt and acceptance by the Lessee
of a trailer shall constitute conclusive acknowledgment by Lessee that the
trailer has been accepted and found by Lessee to be in good, safe and
serviceable condition, and fit for use. Unless the Lessee makes a claim to the
contrary to Lessor by registered mail, return receipt requested, within three
(3) days after receipt of said trailer, Lessee shall be forever barred from
asserting a claim regarding the condition of a trailer. Such registered letter
shall set forth in detail the complete nature and condition of the trailer
received.
In the event of notice to Lessor by the Lessee that a trailer is not in
good condition and fit for use at the commencement of the term, Lessor shall
have the right but not the obligation to put said trailer in a good, safe and
serviceable condition, and fit for use within a reasonable time and if Lessor
elects not to do so, the sole right and remedy of the Lessee shall be to return
the trailer immediately to Lessor and terminate the lease with regard to that
trailer only, or to waive any such right to return and continue leasing the
Equipment as it is without any rental abatement.
20. Repairs:
A. In the event of repairable damage to any trailer, Lessee
shall remain liable for all trailer rental charges even though the
trailer is unusable. Lessee may have the same repaired by any competent
person, firm or corporation at its own expense, or, upon notice and
redeliver to Lessor, Lessor may repair said trailer for Lessee, using
reasonable diligence to make said repairs or replacement in the
shortest possible time. Lessee agrees to pay the amount charged by
Lessor (which may include administrative overhead) for any material or
labor to make said repairs.
B. Lessee agrees to promptly and timely pay any and all
charges for repairs or maintenance to the leased Equipment and to
suffer no lien for labor, materials, or storage to be filed or attached
to said Equipment. Lessor may, at its option, refuse to do any repair
work on any trailer in time of strike, or if in the opinion of Lessor
such repairs are not advisable.
C. Lessee shall not make, suffer or permit any unlawful use or
handling of said leased Equipment. Lessee shall not, without Lessor's
prior written consent thereto, make or suffer any changes, alterations
or improvements in or to said leased Equipment or remove therefrom any
parts, accessories, attachments or other equipment.
21. Removal of Equipment: Lessor reserves the right without notice to
enter upon Lessee's premises or elsewhere and repossess or remove a trailer from
the Lessee at any time when Lessee is in default, or has become insolvent, filed
bankruptcy, or when in Lessor's opinion the trailer(s) is in danger because of
strike or any other reason. Lessee agrees to pay all costs and expenses incurred
in the repossession of any trailer(s).
22. Default: If Lessee shall fail to promptly pay any rental or other
sum due hereunder or fail to timely perform any performance required hereunder,
Lessee shall be in default. Lessor may, at Lessor's option, terminate Lessee's
right to use and possess the Equipment. Failure to terminate shall not be deemed
a waiver. In the event Lessor elects to terminate, all of the Equipment shall be
immediately returned to Lessor upon demand therefor, but Lessee shall not be
relieved of its obligation to pay rent. Lessor or its agents may, without
notice, enter the premises occupied by Lessee or any other premises where the
Equipment may be located without being a trespasser thereon and take possession
of and remove any one or more of its trailers with or without process of law. In
the event any action as hereinbefore set forth becomes necessary, the Lessee
agrees to pay in addition to other charges herein specified, all costs of
removal or return of a trailer and all other charges (including attorney's fees
and court costs) incurred by such default. In the event that Lessor takes
possession of a trailer following a default, Lessee shall not be relieved of its
obligation to pay the rental or any other charges due hereunder, including
repairs. Lessor shall be under no obligation to relet the trailer.
23. Miscellaneous:
A. No amendment or modification of this lease shall be
effective unless it shall be in writing and duly signed by both
parties.
B. Lessee shall pay and discharge or promptly reimburse Lessor
for all costs, expenses and attorney's fees, which shall be incurred
and expended by Lessor in enforcing the covenants and agreements of
this Lease Agreement whether by the institution of litigation or by the
taking of advice of counsel or otherwise.
C. This shall inure to the benefit of Lessor, its successors
and assigns. This lease shall be binding upon Lessee, its heirs,
representatives, successors and permitted assigns. Any notice given
hereunder shall be sent by delivery or certified mail, postage prepaid,
return receipt requested, and addressed to the party at the address
listed above.
D. This lease shall not be effective until approved and
accepted by an authorized officer of TRAILER LEASING COMPANY, DIVISION
OF KELLERS SYSTEMS, INC. at its corporate offices at 0000 Xxxxx Xxxxx
Xxxx, Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
E. This lease agreement is made in the Village of Arlington
Heights, County of Xxxx, State of Illinois. The parties consent to
jurisdiction in the Circuit Court of Xxxx County, Illinois. Any legal
action brought or instituted concerning this lease shall be brought in
the Circuit Court of Xxxx County, Illinois, or the United States
District Court for the Northern District of Illinois, Eastern Division.
All terms, provisions, and performances contemplated by this Lease
shall be governed by the internal laws of the State of Illinois.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
as of the day and date first written above.
LESSOR: LESSEE:
TRAILER LEASING COMPANY, XXXXXX MANUFACTURING COMPANY, INC.
DIVISION OF KELLERS SYSTEMS, INC.
By: _________________________________ By: _____________________________________
Title: Xxxxx X. Xxxxxx, Branch Manager Title: Xxxxxx Xxxx, Traffic Manager
