Exhibit 10.61
MOTOR VEHICLE LEASE
This lease agreement is made this 1st day of January, 2005 by and between
Xxxxx Asset Management Company, LLC., a corporation organized and existing under
the laws of the State of Minnesota (hereinafter referred to as "Lessor"), and
XxxxxXxx Technologies of Minnesota, Inc., a corporation organized and existing
under the laws of the State of Minnesota (hereinafter referred to as "Lessee").
Whereas XxxxxXxx desires to lease a semi tractor described herein from Xxxxx
Asset Management Company, LLC for the purpose of hauling tires and tire derived
products, the Lessor and the Lessee now agree as follows:
1. MOTOR VEHICLES COVERED Subject to the terms and conditions of this
lease, Lessor leases to Lessee and Lessee leases from Lessor the
motor vehicle described herein as follows:
2004 East End Dump Trailer VIN# 0X0X0X0000XX00000 (Unit # 232)
For the purposes of this lease, motor vehicle shall be defined as an
end-dump trailer listed above. Such vehicle is to be used in the
normal and ordinary course of Lessee's business at the location set
forth herein.
2. NATURE OF CONTRACT This is a contract of leasing only. Lessee does
not, by this lease, acquire any right, title or interest in or to
the property described in this leasing agreement.
3. SERVICES COVERED Lessee, at its own cost and expense, unless
otherwise expressly provided in this lease shall:
a. Provide suitable and adequate repair and maintenance services,
including changing oil, lubricating, inspecting the vehicle;
b. Maintain the vehicle in good repair, mechanical condition, and
running order;
c. Furnish all necessary fuel, oil, and other lubricants
necessary for the operation of the vehicle;
d. General maintenance including regular brake inspections and
changes, tires, and all other mechanical maintenance. Said
maintenance shall take place while the vehicle is not in use.
4. SERVICES NOT COVERED Lessee, at its own cost and expense, unless
otherwise expressly provided in this lease shall:
a. Pay for comprehensive, physical damage, and liability
insurance as provided for herein;
b. Provide vehicle registration plates for the respective vehicle
(or reimburse lessor);
c. Pay all applicable fuel tax;
d. Provide and pay for their own drivers;
e. Pay all heavy road use tax assessed on the vehicle starting
January 2004 (or reimburse lessor);
f. Pay for any extraordinary damages or expenses incurred.
5. VEHICLE CONDITION The vehicle shall be in a neat and proper
appearance, good repair, mechanical condition and in good working
running order when delivered to Lessee and said condition shall be
accepted by Lessee as such unless immediate written notice to the
contrary is given at the time of acceptance.
6. TIRES Lessee shall provide, at its own cost and expense, all
necessary tires for the vehicle. Lessee's drivers will not operate
any of the vehicles on a flat tire or on any tire or tires that do
not contain sufficient air pressure so as to prevent damage to the
tires other than normal and ordinary wear and tear. Any damage to
tires which occurs because of a drivers or Lessee's negligence,
carelessness, recklessness or abusive handling of the vehicle; or
replacement/repair of the tires shall be borne by Lessee.
7. INSPECTION Lessee shall deliver or make available the vehicles for
inspection by Lessor as reasonably requested by Lessor. Said
inspections shall be made at reasonable places and times so as to
eliminate, insofar as possible, any interruptions to Lessee's
service.
8. REPAIRS All vehicle repairs shall be the responsibility of the
lessee.
9. FUEL AND LUBRICANTS Lessee shall procure and provide all fuel and
other lubricants required for the operation of vehicles under this
lease. Lessee shall use the supplies or suppliers designated or
approved by vehicle manufacturer.
10. LEASE AND RENTAL CHARGES As consideration for this lease, Lessee
agrees to pay Lessor a deposit of $0.00 dollars includes no
maintenance, which will be held by Lessor and which can be used as
rent or for damages caused to the vehicle by Lessee. After placing
the deposit, Lessee shall pay as base rent for the vehicle for the
entire original term set forth herein in a minimum amount of per
month. This sum is a minimum fixed rental charge per month for the
use and operation of the vehicle and does not include any other
extra-ordinary charges or costs which may be added as allowed under
this lease. This base rent of $1500.00 dollars per month, shall be
paid the first day of each month or next business day should the
first fall on a weekend, each month commencing January 1st 2005 to
and including November 1st, 2008.
11. BUY-OUT PROVISION: As of December 1, 2008; the optional fixed
purchase price is $12,000.00.
12. MILEAGE RECORDS Lessee shall furnish to Lessor the mileage readings
for the vehicle upon request.
13. LEASE TERM This lease shall be for a period of 47 months beginning
at 12:01 a.m. local time on January 1st, 2005 and expiring at 12:01
a.m. local time on November 30th, 2008.
14. OBLIGATION TO INSURE Lessee, at its sole cost, shall provide and
maintain during the term of this lease, a policy of comprehensive
and liability insurance containing the coverage, exceptions, and
exclusions that are ordinarily contained in liability policies for
vehicles of this nature and written for the locality where the
vehicle is operated. Such policy shall insure Lessor and Lessee and
their respective agents and employees with respect to liability as a
result of the ownership, maintenance, use or operation of the
vehicle furnished by Lessor to Lessee. Such insurance shall be
primary and not excess or contributory, with respect to any accident
involving the vehicle and shall afford bodily injury liability
limits of not less than Three Hundred Thousand Dollars ($300,000.00)
for injury or death of one person in any one accident and subject to
such limit per person to a total liability of Ten Million Dollars
($10,000,000.00) for all persons injured or killed in the same
accident and coverage for physical damage, destruction or loss of
use of the of asset(s) as a result of one accident, except that
Lessor shall not be liable for damage to property owned by or rented
to Lessee. Comprehensive insurance coverage shall be in an amount
equal to the replacement value of the vehicle and all policies
herein shall list Lessor as the owner and secondarily insured.
15. CERTIFICATE OF INSURANCE Lessee shall provide or cause the insurer
to provide or furnish to Lessor a certificate of insurance showing
the amounts of coverage listed herein and further showing Lessor as
listed in the coverage. Said certificate shall also provide that
said policy shall not be cancelled or modified without first
providing written notice to Lessor within sixty (60) days from the
expiration of the policy.
16. LIABILITY IN EXCESS OF INSURANCE Lessee shall further indemnify and
hold Lessor and its agents and employees harmless from and against
all loss, liability and expense, including attorney fees and court
costs, in excess of any insurance coverage provided for herein, as a
result of bodily injury, death or property damage caused by or
arising out of the ownership, use or operation of the vehicle or
vehicles subject to this lease.
17. REPORTS OF ACCIDENTS If a vehicle furnished by Lessor to Lessee
pursuant to this agreement is involved in any accident, Lessee shall
cause its agents and employees to notify Lessor as soon as available
with respect to XxxxxXxx'x accident reporting policies. Lessee
understands the employee is to report the incident to Police/Rescue
Service as may be necessary first and foremost, to ensure the safety
of personnel and property, then XxxxxXxx'x Safety
department/Supervisor upon which, XxxxxXxx'x Safety department will
coordinate with Lessee. Thereafter, as soon as practical, Lessee
shall supply to Lessor a written report, giving all information
relative to the accident. Lessee shall cooperate fully in any
investigation and defense of all claims made which arise out of the
accident. Lessee shall promptly deliver to Lessor any and all
papers, notices, summonses, processes and documents whatsoever
served upon or delivered to Lessee or Lessee's agents in connection
with any claim, suit or action relative to Lessee, which arises out
of the use of the vehicle.
18. DRIVERS OF VEHICLE All vehicles leased to Lessee under this lease
shall be operated by safe, careful, legally qualified and properly
licensed and insured drivers. Such drivers shall be selected,
employed, controlled and paid by Lessee. Such drivers are
conclusively presumed to be the employees of Lessee only. Lessee
shall cause the vehicle to be operated with reasonable care and
precaution to prevent loss, injury or damage to such vehicle or
other property. Lessee's drivers shall comply with all reasonable
regulations, state, federal or local, and all reasonable regulations
required by Lessor insofar as such regulations relate to the safe
and proper use of the vehicle provided for in this lease.
19. COMPLIANCE WITH LAWS The leased vehicle, while in possession, care,
custody and control of the Lessee will not be operated in excess of
its respective rated maximum weights or capacity. If it is damaged
in any way due to overloading, Lessee shall immediately pay to
Lessor the amount of any and all damages and losses it may sustain.
No vehicles subject to this lease shall be used in violation of any
federal, state or local statute, regulation or ordinance applicable
to the operation of said vehicle. As to the use or operation of any
said vehicles, Lessee shall hold Lessor harmless from any and all
fines, forfeitures or penalties for traffic violations or the
violation of any statute, law, ordinance, rule or regulation from
any constituted public authority. Lessee shall not use or allow the
vehicle to be used for any unlawful purpose or for the
transportation of any property or material deemed extra-hazardous by
reason of being explosive, inflammable or fissionable.
20. RETURN OF VEHICLE Upon the termination of this lease, Lessee shall
return the vehicle to Lessor in as good a condition and running
order as when first received by Lessee, ordinary wear and tear
excepted. If Lessee fails to return the vehicle within a reasonable
time, Lessor shall have the right to enter onto Lessee's or Lessee's
agents premises for the purpose of taking possession of the vehicle
and remove it from Lessee.
21. BANKRUPTCY This lease shall terminate automatically without notice
to Lessee if Lessee files a voluntary petition in bankruptcy, makes
an assignment for the benefit of creditors, or is voluntarily or
involuntarily adjudicated bankrupt by any court of competent
jurisdiction, or if a petition for reorganization of Lessee, or for
an arrangement with creditors is filed by or against Lessee, or if a
receiver is appointed for Lessee's business, or if Lessee permits or
suffers any distress, attachment, levy or execution to be made or
levied against any or all of Lessee's property.
22. LIQUIDATED DAMAGES ON BANKRUPTCY If this lease is terminated as
provided in Section 21, Lessee shall comply with and Lessor shall
have all the rights set forth in Section 20. If this lease is
terminated Lessor shall also be entitled to damages, liquidated for
all purposes, including claims or suits against Lessee's assets in
bankruptcy or reorganization, said liquidated damages being the sum
of all base monthly rental payments due and unpaid from the date to
the execution of the lease until its termination. In arriving at
such liquidated damages, the parties have considered, among other
factors, the substantial expense of Lessor in purchasing the vehicle
for Lessee's service and the difficulty in arriving at a damage
figure in the future.
23. DEFAULT BY LESSEE If Lessee shall be in default of any of the
payments or other terms and conditions of this lease, Lessor may, at
Lessor's sole option, notify Lessee of the breach or default in
writing. If Lessee fail. to correct the default within ten (10) days
of said written notice then at any time Lessor may enter any premise
where the vehicle subject to this lease is located and remove said
vehicle or otherwise obtain its possession without being liable to
any suit, action or defense or other proceedings.
24. TAXES AND LICENSE FEES Any increases in any taxes and license fees
in effect on the effective date of this lease and any new and
additional taxes and license fees applicable on or with respect to,
the leased vehicles or by the reason of the leasing as well as, any
increased cost of any equipment or accessories required by any
change in laws relating thereto shall be paid by Lessee to Lessor
within fifteen (15) days after being invoiced.
25. SUCCESSION This lease, together with all schedules now and hereafter
made a part shall be binding on the respective parties and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
26. AMENDMENT No amendment, modification, or alteration of the terms of
this lease agreement shall be binding unless the same shall be in
writing dated subsequent to the date hereof and duly executed by the
parties hereto.
27. ASSIGNMENT Neither this lease or any interest herein may be assigned
by Lessee without the express written consent of the Lessor nor by
operation of law. No vehicle may be sublet or encumbered nor
possession or use given to other than Lessee's employees without
Lessor's express written consent.
28. NOTICES Any notice given under this lease by Lessor to Lessee shall
be in writing and shall be given personally or by registered mail
addressed as follows:
XxxxxXxx Technologies of MN, Inc.
Attn: Xxxxxx Xxxxx, CEO or Xxxx Xxxxx, President
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Any notice given under this lease by Lessee to Lessor shall be
writing and shall be given personally or by registered mail
addressed as follows:
Xxxxx Asset Management Company, LLC
Attn: Xxxx Xxxxx, Owner
0000 Xxxxxxxx Xxxx
Xxxxx Xxxx, XX 00000
29. WAIVERS The failure of either party in any one or more instances to
insist on the performance of any of the terms, covenants, or
conditions of this lease, or to exercise any right or privilege in
this lease conferred or the waiver of any breach of any of the
terms, covenants or conditions of this lease, shall not be construed
as thereafter waiving any such terms, covenants, conditions, rights
or privileges, but such terms shall continue and remain in full
force and effect as if no such forbearance or waiver had occurred.
30. GOVERNING LAW This lease shall be governed by the laws of the State
of Minnesota and constitutes the entire agreement between Lessor and
Lessee with respect to the furnishing of a motor vehicle by Lessor.
31. COLLECTION EXPENSES Lessee shall be liable to Lessor for all costs
and expenses, including, but not limited to, reasonable attorney
fees, incurred in collecting payments due or to become due from
Lessee to Lessor or in enforcing any rights of Lessor pursuant to
this lease.
This lease agreement constitutes the sole agreement of the parties hereto and
supercedes any prior understandings, written or oral agreements or
representations between the parties respecting the subject matter within it.
In case any one or more of the provisions contained in this lease agreement
shall, for any reason, be held to be invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability shall not affect any provision
thereof and this lease agreement shall be construed as if such invalid, illegal
or unenforceable provision had never been contained herein.
IN WITNESS WHEREOF, the parties have hereto executed this lease on the date
first written above.
Xxxxx Asset Management Company, LLC. XxxxxXxx Technologies of MN, Inc. Lessee
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxx Xxxxx, Owner Xxxxxx Xxxxx, CEO
XxxxxXxx Technologies, Inc.
