[Wells Fargo logo - team of horses drawing pioneer carriage]
MASTER LEASE
Wells Fargo Equipment Finance, Inc.
Investors Building, Suite 300
733 Marquette Avenue
Minneapolis, MN 55479-2048
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Master Lease Number 46494 dated as April 02, 1999
Name and Address of Lessee:
PLM INTERNATIONAL, INC.
ONE MARKET STREETt
STEUART TOWER, SUITE #800
SAN FRANCISCO, CA 94105-1301
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MASTER LEASE PROVISIONS
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1. LEASE. Lessor hereby agrees to lease to Lessee, and Lessee hereby agrees to
lease from Lessor, the personal property described in a Supplement or
Supplements to this Master Lease from time to time signed by Lessor and
Lessee upon the terms and conditions set forth herein and in the related
Supplement (such property together with all replacements, repairs, and
additions incorporated therein or affixed thereto being referred to herein
as the "Equipment"). The lease of the items described in a particular
Supplement shall be considered a separate lease pursuant to the terms of
the Master Lease and the Supplement the same as if a single lease agreement
containing such terms had been executed covering such items.
2. TERM. The term of this lease with respect to each item of Equipment shall
begin on the date it is accepted by Lessee and shall continue for the
number of consecutive months from the rent commencement date shown in the
related Supplement (the "initial term") unless earlier terminated as
provided herein or unless extended automatically as provided below in this
paragraph. The rent commencement date is the 15th day of the month in which
all of the items of Equipment described in the related Supplement have been
delivered and accepted by Lessee if such delivery and acceptance is
completed on or before the 15th of such month, and the rent commencement
date is the last day of such month if such delivery and acceptance is
completed during the balance of such month. In the event Lessee executes
the related Supplement prior to delivery and acceptance of all items of
Equipment described therein, Lessee agrees that the rent commencement date
may be left blank when Lessee executes the related Supplement and hereby
authorizes Lessor to insert the rent commencement date based upon the date
appearing on the delivery and acceptance certificate signed by Lessee with
respect to the last item of Equipment to be delivered. AUTOMATIC EXTENSION.
Lessee or Lessor may terminate this lease at the expiration of the initial
term by giving the other at least 90 days prior written notice of
termination. If neither Lessee nor Lessor gives such notice, then the term
of this lease shall be extended automatically on the same rental and other
terms set forth herein (except that in any event rent during any extended
term shall be payable in the amounts and at the times provided in paragraph
3) for successive periods of one month until terminated by either Lessee or
Lessor giving the other at least 90 days prior written notice of
termination.
3. RENT. Lessee shall pay as basic rent for the initial term of this lease the
amount shown in the related Supplement as Total Basic Rent. The Total Basic
Rent shall be payable in installments each in the amount of the basic
rental payment set forth in the related Supplement plus sales and use tax
thereon. Lessee shall pay advance installments and any security deposit,
each as shown in the related Supplement, on the date it is executed by
Lessee. Subsequent installments shall be payable on the first day of each
rental payment period shown in the related Supplement beginning after the
first rental payment period; provided, however, that Lessor and Lessee may
agree to any other payment schedule, including irregular payments or
balloon payments, in which event they shall be set forth in the space
provided in the Supplement for additional provisions. If the actual cost of
the Equipment is more or less than the Total Cost as shown in the
Supplement, the amount of each installment of rent will be adjusted up or
down to provide the same yield to Lessor as would have been obtained if the
actual cost had been the same as the Total Cost. Adjustments of 10% or less
may be made by written notice from Lessor to Lessee. Adjustments of more
than 10% shall be made by execution of an amendment to the Supplement
reflecting the change in Total Cost and rent. During any extended term of
this lease, basic rent shall be payable monthly in advance on the first day
of each month during such extended term in the amount equal to the basic
rental payment set forth in the related Supplement if rent is payable
monthly during the initial term or in an amount equal to the monthly
equivalent of the basic rental payment set forth in the related Supplement
if rent is payable other than monthly during the initial term. In addition,
Lessee shall pay any applicable sales and use tax on rent payable during
any extended term. In addition to basic rent, which is payable only from
the rent commencement date as provided above, Lessee agrees to pay interim
rent with respect to each separate item of Equipment covered by a
particular Supplement from the date it is delivered and accepted to the
rent commencement date at a daily rate equal to the percentage of Lessor's
cost of such item specified in such Supplement. Interim rent accruing each
calendar month shall be payable by the 10th day of the following month and
in any event on the rent commencement date. Lessee agrees that if all of
the items of Equipment covered by such Supplement have not been delivered
and accepted thereunder before the date specified as the Cutoff Date in
such Supplement, Lessee shall purchase from Lessor the items of Equipment
then subject to the lease within five days after Lessor's request to do so
for a price equal to Lessor's cost of such items plus all accrued but
unpaid interim rent thereon. Lessee shall also pay any applicable sales and
use tax on such sale.
4. SECURITY DEPOSIT. Lessor may apply any security deposit toward any
obligation of Lessee under this lease, and shall return any unapplied
balance to Lessee without interest upon satisfaction of Lessee's
obligations hereunder.
5. WARRANTIES. Lessee agrees that it has selected each item of Equipment based
upon its own judgment and disclaims any reliance upon any statements or
representations made by Lessor. LESSOR MAKES NO WARRANTY WITH RESPECT TO
THE EQUIPMENT, EXPRESS OR IMPLIED, AND LESSOR SPECIFICALLY DISCLAIMS ANY
WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE AND ANY
LIABILITY FOR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR THE
INABILITY TO USE THE EQUIPMENT. Lessee agrees to make the rental and other
payments required hereunder without regard to the condition of the
Equipment and to look only to persons other than Lessor such as the
manufacturer, vendor or carrier thereof should any item of Equipment for
any reason be defective. So long as no Event of Default has occurred and is
continuing, Lessor agrees, to the extent they are assignable, to assign to
Lessee, without any recourse to Lessor, any warranty received by Lessor.
6. TITLE. Title to the Equipment shall at all times remain in Lessor, and
Lessee at its expense shall protect and defend the title of Lessor and keep
it free of all claims and liens other than the rights of Lessee hereunder
and claims and liens created by or arising through Lessor. The Equipment
shall remain personal property regardless of its attachment to realty, and
Lessee agrees to take such action at its expense as may be necessary to
prevent any third party from acquiring any interest in the Equipment as a
result of its attachment to realty.
7. LAWS AND TAXES. Lessee shall comply with all laws and regulations relating
to the Equipment and its use and shall promptly pay when due all sales,
use, property, excise and other taxes and all license and registration fees
now or hereafter imposed by any governmental body or agency upon the
Equipment or its use or the rentals hereunder. Upon request by Lessor,
Lessee shall prepare and file all tax returns relating to taxes for which
Lessee is responsible hereunder which Lessee is permitted to file under the
laws of the applicable taxing jurisdiction.
THIS AGREEMENT INCLUDES THE TERMS ON THE ATTACHED PAGE(S).
Lessor: Wells Fargo Equipment Finance, Inc. PLM International, Inc. Lessee
By /s/ Lisa K. Lenton By /s/ J. Michael Allgood
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Title: Assistant Vice President Title: Vice President and
Chief Financial Officer
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8. INDEMNITY. Lessee hereby indemnifies Lessor against and agrees to save
Lessor harmless from any and all liability and expense arising out of the
ordering, ownership, use, condition, or operation of each item of Equipment
during the term of this lease, including liability for death or injury to
persons, damage to property, strict liability under the laws or judicial
decisions of any state or the United States, and legal expenses in
defending any claim brought to enforce any such liability or expense.
9. ASSIGNMENT. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE WILL NOT SELL,
ASSIGN, SUBLET, PLEDGE, OR OTHERWISE ENCUMBER OR PERMIT A LIEN ARISING
THROUGH LESSEE TO EXIST ON OR AGAINST ANY INTEREST IN THIS LEASE OR THE
EQUIPMENT, or remove the Equipment from its location referred to above.
Lessor may assign its interest in this lease and sell or grant a security
interest in all or any part of the Equipment without notice to or the
consent of Lessee. Lessee agrees not to assert against any assignee of
Lessor any claim or defense Lessee may have against Lessor.
10. INSPECTION. Lessor may inspect the Equipment at any time and from time to
time during regular business hours.
11. REPAIRS. Lessee will use the Equipment with due care and for the purpose
for which it is intended. Lessee will maintain the Equipment in good
repair, condition and working order and will furnish all parts and services
required therefor, all at its expense, ordinary wear and tear excepted.
Lessee shall, at its expense, make all modifications and improvements to
the Equipment required by law, and shall not make other modifications or
improvements to the Equipment without the prior written consent of Lessor.
All parts, modifications and improvements to the Equipment shall, when
installed or made, immediately become the property of Lessor and part of
the Equipment for all purposes.
12. LOSS OR DAMAGE. In the event any item of Equipment shall become lost,
stolen, destroyed, damaged beyond repair or rendered permanently unfit for
use for any reason, or in the event of condemnation or seizure of any item
of Equipment, Lessee shall promptly pay Lessor the sum of (a) the amount of
all rent and other amounts payable by Lessee hereunder with respect to such
item due but unpaid at the date of such payment plus (b) the amount of all
unpaid rent with respect to such item for the balance of the term of this
lease not yet due at the time of such payment discounted from the
respective dates installment payments would be due at the rate implicit in
the schedule of rental payments when applied to the cost of such item plus
(c) 10% of the cost of such item as shown in the related Supplement. Upon
payment of such amount to Lessor, such item shall become the property of
Lessee, Lessor will transfer to Lessee, without recourse or warranty, all
of Lessor's right, title and interest therein, the rent with respect to
such item shall terminate, and the basic rental payments on the remaining
items shall be reduced accordingly. Lessee shall pay any sales and use
taxes due on such transfer. Any insurance or condemnation proceeds received
shall be credited to Lessee's obligation under this paragraph and Lessor
shall be entitled to any surplus.
13. INSURANCE. Lessee shall obtain and maintain on or with respect to the
Equipment at its own expense (a) liability insurance insuring against
liability for bodily injury and property damage with a minimum limit of
$500,000 combined single limit and (b) physical damage insurance insuring
against loss or damage to the Equipment in an amount not less than the full
replacement value of the Equipment. Lessee shall furnish Lessor with a
certificate of insurance evidencing the issuance of a policy or policies to
Lessee in at least the minimum amounts required herein naming Lessor as an
additional insured thereunder for the liability coverage and as loss payee
for the property damage coverage. Each such policy shall be in such form
and with such insurers as may be satisfactory to Lessor, and shall contain
a clause requiring the insurer to give to Lessor at least 10 days prior
written notice of any alteration in the terms of such policy or the
cancellation thereof, and a clause specifying that no action or
misrepresentation by Lessee shall invalidate such policy. Lessor shall be
under no duty to ascertain the existence of or to examine any such policy
or to advise Lessee in the event any such policy shall not comply with the
requirements hereof.
14. RETURN OF THE EQUIPMENT. Upon the expiration or earlier termination of this
lease, Lessee will immediately deliver the Equipment to Lessor in the same
condition as when delivered to Lessee, ordinary wear and tear excepted, at
such location within the continental United States as Lessor shall
designate. Lessee shall pay all transportation and other expenses relating
to such delivery.
15. ADDITIONAL ACTION. Lessee will promptly execute and deliver to Lessor such
further documents and take such further action as Lessor may request in
order to carry out more effectively the intent and purpose of this lease,
including the execution and delivery of appropriate financing statements to
protect fully Lessor's interest hereunder in accordance with the Uniform
Commercial Code or other applicable law. Lessee will furnish, from time to
time on request, a copy of Lessee's latest annual balance sheet and income
statement.
16. LATE CHARGES. If any installment of interim rent or basic rent is not paid
when due, Lessor may impose a late charge of up to 5% of the amount of the
installment but in any event not more than permitted by applicable law.
Payments thereafter received shall be applied first to delinquent
installments and then to current installments.
/S/ JMA, LKL
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17. DEFAULT. Each of the following events shall constitute an "Event of
Default" hereunder: (a) Lessee shall fail to pay when due any installment
of interim rent or basic rent; (b) Lessee shall fail to observe or perform
any other agreement to be observed or performed by Lessee hereunder and the
continuance thereof for 10 calendar days following written notice thereof
by Lessor to Lessee; (c) Lessee or any guarantor of this lease or any
partner of Lessee if Lessee is a partnership shall cease doing business as
a going concern or make an assignment for the benefit of creditors; (d)
Lessee or any guarantor of this lease or any partner of Lessee if Lessee is
a partnership shall voluntarily file, or have filed against it
involuntarily, a petition for liquidation, reorganization, adjustment of
debt, or similar relief under the federal Bankruptcy Code or any other
present or future federal or state bankruptcy or insolvency law, or a
trustee, receiver, or liquidator shall be appointed of it or of all or a
substantial part of its assets; (e) any individual Lessee, guarantor of
this lease, or partner of Lessee if Lessee is a partnership shall die; (f)
any financial or credit information submitted by or on behalf of Lessee
shall prove to have been false or materially misleading when made; (g) an
event of default shall occur under any other obligation Lessee owes to
Lessor; (h) any indebtedness Lessee may now or hereafter owe to Any
affiliate of Lessor shall be accelerated following a default thereunder or,
if any such indebtedness is payable on demand, payment thereof shall be
demanded; (i) if Lessee is a corporation, more than 50% of the shares of
voting stock of Lessee shall become owned by a shareholder or shareholders
who were not owners of voting stock of Lessee on the date this lease begins
or, if Lessee is a partnership, more than 50% of the partnership interests
in the Lessee shall become owned by a partner or partners who were not
partners of Lessee on the date this lease begins; and (j) Lessee shall
consolidate with or merge into, or sell or lease all or substantially all
of its assets to, any individual, corporation, or other entity.
18. REMEDIES. Lessor and Lessee agree that Lessor's damages suffered by reason
of an Event of Default are uncertain and not capable of exact measurement
at the time this lease is executed because the value of the Equipment at
the expiration of this lease is uncertain, and therefore they agree that
for purposes of this paragraph 18 "Lessor's Loss" as of any date shall be
the sum of the following: (1) the amount of all rent and other amounts
payable by Lessee hereunder due but unpaid as of such date plus (2) the
amount of all unpaid rent for the balance of the term of this lease not yet
due as of such date discounted from the respective dates installment
payments would be due at the rate of 5% per annum plus (3) 10% of the cost
of the Equipment subject to this lease as of such date. Upon the occurrence
of an Event of Default and at any time thereafter, Lessor may exercise any
one or more of the remedies listed below as Lessor in its sole discretion
may lawfully elect; provided, however, that upon the occurrence of an Event
of Default specified in paragraph 17(d), an amount equal to Lessor's Loss
as of the date of such occurrence shall automatically become and be
immediately due and payable without notice or demand of any kind.
a) Lessor may, by written notice to Lessee, terminate this lease and declare
an amount equal to Lessor's Loss as of the date of such notice to be
immediately due and payable, and the same shall thereupon be and become
immediately due and payable without further notice or demand, and all
rights of Lessee to use the Equipment shall terminate but Lessee shall be
and remain liable as provided in this paragraph 18. Lessee shall at its
expense promptly deliver the Equipment to Lessor at a location or locations
within the continental United States designated by Lessor. Lessor may also
enter upon the premises where the Equipment is located and take immediate
possession of and remove the same with or without instituting legal
proceedings.
b) Lessor may proceed by appropriate court action to enforce performance by
Lessee of the applicable covenants of this lease or to recover, for breach
of this lease, Lessor's Loss as of the date Lessor's Loss is declared due
and payable hereunder; provided, however, that upon recovery of Lessor's
Loss from Lessee in any such action without having to repossess and dispose
of the Equipment, Lessor shall transfer the Equipment to Lessee at its then
location upon payment of any additional amount due under clauses (d) and
(e) below.
c) In the event Lessor repossesses the Equipment, Lessor shall either retain
the Equipment in full satisfaction of Lessee's obligation hereunder or sell
or lease each item of Equipment in such manner and upon such terms as
Lessor may in its sole discretion determine. The proceeds of such sale or
lease shall be applied to reimburse Lessor for Lessor's Loss and any
additional amount due under clauses (d) and (e) below. Lessor shall be
entitled to any surplus and Lessee shall remain liable for any deficiency.
For purposes of this subparagraph, the proceeds of any lease of all or any
part of the Equipment by Lessor shall be the amount reasonably assigned by
Lessor as the cost of such Equipment in determining the rent under such
lease.
d) Lessor may recover interest on the unpaid balance of Lessor's Loss from the
date it becomes payable until fully paid at the rate of the lesser of 8%
per annum or the highest rate permitted by law.
e) Lessor may exercise any other right or remedy available to it by law or by
agreement, and may in any event recover legal fees and other expenses
incurred by reason of an Event of Default or the exercise of any remedy
hereunder, including expenses of repossession, repair, storage,
transportation, and disposition of the Equipment.
If any Supplement is deemed at any time to be a lease intended as security,
Lessee grants Lessor a security interest in the Equipment to secure its
obligations under this lease and all other indebtedness at any time owing by
Lessee to Lessor and agrees that upon the occurrence of an Event of Default, in
addition to all of the other rights and remedies available to Lessor hereunder,
Lessor shall have all of the rights and remedies of a secured party under the
Uniform Commercial Code.. No remedy given in this paragraph is intended to be
exclusive, and each shall be cumulative but only to the extent necessary to
permit Lessor to recover amounts for which Lessee is liable hereunder. No
express or implied waiver by Lessor of any breach of Lessee's obligations
hereunder shall constitute a waiver of any other breach of Lessee's obligations
hereunder.
19. NOTICES. Any written notice hereunder to Lessee or Lessor shall be deemed
to have been given when delivered personally or deposited in the United
States mails, postage prepaid, addressed to recipient at its address set
forth above or at such other address as may be last known to the sender.
20. NET LEASE AND UNCONDITIONAL OBLIGATION. This lease is a completely net
lease and Lessee's obligation to pay rent and amounts payable by Lessee
under paragraphs 12 and 18 is unconditional and not subject to any
abatement, reduction, setoff or defense of any kind.
21. NON-CANCELABLE LEASE. This lease cannot be canceled or terminated except as
expressly provided herein.
22. SURVIVAL OF INDEMNITIES. Lessee's obligations under paragraphs 7, 8, and 18
shall survive termination or expiration of this lease.
23. COUNTERPARTS. There shall be but one counterpart of the Master Lease and of
each Supplement and such counterpart will be marked "Original." To the
extent that any Supplement constitutes chattel paper (as that term is
defined by the Uniform Commercial Code), a security interest may only be
created in the Supplement marked "Original."
24. MISCELLANEOUS. This Master Lease and related Supplement(s) constitute the
entire agreement between Lessor and Lessee and may be modified only by a
written instrument signed by Lessor and Lessee. Any provision of this lease
which is unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such unenforceability without invalidating
the remaining provisions of this lease, and any such unenforceability in
any jurisdiction shall not render unenforceable such provision in any other
jurisdiction. If this lease shall in all respects be governed by, and
construed in accordance with, the substantive laws of the State of
Minnesota. In the event there is more than one Lessee named herein or in
any Supplement, the obligations of each shall be joint and several.
/S/ JMA, LKL
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Amendment No. 1 to
Master Lease dated April 2, 1999 ("Lease")
Between
PLM International, Inc. ("Lessee")
And
Wells Fargo Equipment Finance, Inc. ("Lessor")
Lessor and Lessee hereby agree to amend the Lease as follows:
1. Paragraph 6 is amended by adding the following to the end thereof: For
administrative convenience and as an accommodation to Lessee, Lessor agrees
that Lessee may be named as owner on certificate of titles for the
Equipment.
2. Paragraph 9 is amended by adding the following to the end thereof:
Notwithstanding anything to the contrary in this paragraph 9, Lessee may,
from time to time sublet, the Equipment without the prior consent of
Lessor, provided however that Lessee shall remain fully obligated to Lessor
under this Lease and the term of the sublease shall not extend beyond the
term of the Lease.
3. The last sentence of paragraph 12 is amended to read: Any insurance or
condemnation proceeds received shall be credited to Lessee's obligation
under this paragraph and Lessee shall be entitled to any surplus.
4. Except as modified herein, the terms and conditions of the Lease remain the
same.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Amendment this 2nd day
of April, 1999.
Wells Fargo Equipment, Inc. PLM International, Inc.
By:/s/ Lisa K. Lenton By:/s/ J. Michael Allgood
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Its:Assistant Vice President Its: Vice President and
Chief Financial Officer
SUPPLEMENT TO MASTER LEASE
TRAC
[Wells Fargo logo - team of horses drawing pioneer carriage]
Wells Fargo Equipment Finance, Inc.
Investors Building, Suite 300
733 Marquette Avenue
Minneapolis, MN 55479-2048
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Supplement Number 46494-100 dated as of April 02, 1999 to
Master Lease Number 7313 dated as of December 28, 1998
Name and Address of Lessee:
PLM International, Inc.
One Market Street
Steuart Tower, Suite #800
San Francisco, CA 94105-1301
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This is a Supplement to the Master Lease identified above between Lessor and
Lessee (the "Master Lease"). Upon the execution and delivery by Lessor and
Lessee of this Supplement, Lessor hereby agrees to lease to Lessee, and Lessee
hereby agrees to lease from Lessor, the equipment described below upon the terms
and conditions of this Supplement and the Master Lease. All terms and conditions
of the Master Lease shall remain in full force and effect except to the extent
modified by this Supplement. This Supplement and the Master Lease as it relates
to this Supplement are hereinafter referred to as the "Lease".
Equipment Description:
See attached Schedule A
Equipment Location: See Schedule A
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SUMMARY OF PAYMENT TERMS
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Initial Term in Months: 84 Total Cost: $10,017,498.34
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Payment Frequency: Monthly Total Basic Rent: $5,156,866.68
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Basic Rental Payment: $61,391.27 plus applicable sales and use tax
Interim Rent Daily Rate: N/A
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Number of Installments: 84 Interim Rent Cutoff Date: N/A
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Advance Payments: First due on signing this Lease Security Deposit: N/A
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Terminal Rental Adjustment Clause (TRAC): In accordance with Section 7701(h) of
the Internal Revenue Code of 1986, under penalty of perjury, Lessee hereby
certifies that it intends that more than 50% of the use of the Equipment is to
be in a trade or business of Lessee. Lessor and Lessee hereby agree that at the
expiration of the initial term of the Lease according to its original terms (and
not early on account of default or otherwise) the Equipment will be sold by the
Lessor (or by an agent of Lessor). The proceeds of sale (the "Proceeds") shall
be distributed as follows:
1. First, to reimburse Lessor or its agent for the cost of putting the
Equipment in a condition to be sold, sales commissions, legal fees, expenses
or repossession and all other expenses of sale.
2. Second, the balance to Lessor up to an amount equal to 25.00% of the
original cost of the Equipment.
3. Third, the balance, if any, to Lessee as an adjustment to rent previously
paid by Lessee to Lessor pursuant to the Lease.
In the event the Proceeds are less than the sum of item 1 plus item 2 above, the
Lessee shall pay to the Lessor the deficiency as additional rent pursuant to the
Lease but in any event not more than 25.00% of the original cost of the
Equipment.
Any amount paid to or by the Lessee pursuant to this Addendum shall be the
"Terminal Rental Adjustment".
To be consistent with the Terminal Rental Adjustment, Lessor and Lessee hereby
amend paragraphs 12 and 18 of the Lease (relating to casualty and default) by
amending the figure "10%" where it appears therein to "25.00%".
Provided no Event of Default occurred and is continuing under the lease, Lessor
grants to Lessee the option to purchase the Equipment at the expiration of the
initial term for the fair market value which is equal to 25.00% of the original
cost of the Equipment.
In addition, the second paragraph of paragraph 2 of the Lease relating to
automatic extension is hereby deleted. Lessee acknowledges that it has been
advised that it will not be treated as the owner of the Equipment for federal
income tax purposes.
Lessor: Wells Fargo Equipment Finance, Inc. PLM International, Inc. Lessee
By: /s/ Lisa K. Lenton By: /s/ J. Michael Allgood
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Title: Assistant Vice President Title: Vice President and
Chief Financial Officer
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Rent Commencement Date