TRUCK LEASE AGREEMENT
(TRAC/Non-Maintenance)
THIS LEASE AGREEMENT is made as of August 25, 1999 by and between Associates
Leasing, Inc. (hereinafter called "Lessor"), an Indiana corporation with a place
of business located at 6160 Stoneridge Mall Rd., Stuite #280, Pleasanton, CA
94588 and PLM International, Inc., (hereinafter "Lessee"), a Delaware
corporation with its principal place of business located at One Market, Steuart
Street Tower, Suite 800, San Francisco, CA 94105.
IN CONSIDERATION of the mutual covenants hereinafter contained, Lessor hereby
leases to Lessee, and Lessee hereby leases from Lessor, one or more vehicles as
shall from time to time be described in Schedules, Vehicle Purchase Orders or
Delivery Receipts executed by authorized employees and agents of Lessee and
accepted by Lessor, at its sole discretion, for the rental and lease term and
upon the terms and conditions set forth below:
1. THIS AGREEMENT is a contract of leasing only and shall consist of the general
terms and conditions stated herein which shall be applicable to every Vehicle
leased hereunder, any Schedule which may hereafter be attached hereto describing
certain Vehicles either individually or as a class and the specific terms for
each, and Delivery Receipts or other evidences of ordering or delivery for each
Vehicle delivered to Lessee by Lessor. without limiting the generality of the
above, it is agreed that the terms hereof may be changed for specific Vehicles
by the Schedules relating thereto. All of said Schedules, Delivery Receipts and
evidences of ordering or delivery are hereby incorporated by reference and made
a part hereof. Wherever used herein, the term "Vehicle" or "Vehicles" shall mean
such passenger automobiles, trucks and other vehicles and trailers as are leased
hereunder from time to time, together with all additional equipment and
accessories thereon. Vehicles shall at all times remain the property of, and
shall be registered in the name of Lessor, but shall be under the full and
complete control of Lessee. During the term of this lease renewal of
registration in the name of Lessor shall be the responsibility and expense of
Lessee, and Lessor will, upon Lessee's request, furnish to Lessee a power of
attorney to this end. Lessee recognizes that it has acquired no right, title,
option or interest in or to any of the Vehicles and agrees that it shall not
assert any claim in or to an interest in any Vehicle other than that of a
lessee. Lessee shall at all times, and at its sole expense and cost, keep the
Vehicle(s) free from all levies, attachments, liens and encumbrances and other
judicial process other than those arising solely from acts of Lessor. Lessee
shall give Lessor immediate written notice of any action taken by a third party
which may jeopardize Lessor's rights in any Vehicle and shall indemnify and hold
Lessor harmless from any loss or damages caused thereby.
2. LESSEE AGREES to pay Monthly Rental for each Vehicle in the amounts stated in
the Schedule "A" applicable to such Vehicle. Such amounts shall be equal to the
product of the Monthly Rental Factors stated in such Schedule for such Vehicle
multiplied by the Schedule "A" Value of such vehicle stated in such Schedule.
The Monthly Rentals are subject to final depreciation adjustment as provided in
Section 9 of this Lease, using a Final Adjustment Percentage which is stated in
the Schedule "B" applicable to such Vehicle.
"Schedule "A" Value" as used herein shall mean the amount designated as such in
the Schedule "A" of such Vehicle, representing the value of such Vehicle as
determined by Lessor.
Lessee acknowledges that Schedule "A" Values set forth in the Schedules are
based upon the manufacturer's price and the amount of required equipment in
effect on the date the Schedule is executed. The "Residual Value" assigned to
each Vehicle represents the product of (a) the Schedule "A" Value multiplied by
(b) the Final Adjustment Percentage corresponding to expiration of the Maximum
Term for such Vehicle, and is provided for informational purposes only.
In addition to the Monthly Rental, Lessee shall pay to Lessor upon demand and as
Additional Rental all other charges payable by Lessee which have been paid by
Lessor. Lessor shall provide Lessee with documentation of any such charges
sufficient to enable Lessee to account for such payments.
3. THE TERM of this Lease in relation to each Vehicle shall extend for a period
not in excess of the Maximum Term noted in the Schedule 'A" relating to such
Vehicle. The Lease Term shall commence on the earlier of (i) the date when such
Vehicle is delivered to Lessee or (ii) forty-eight hours after Lessee has been
notified, orally or in writing, that the Vehicle is ready for delivery
(hereinafter called the "Delivery Date"). If the Delivery Date for such Vehicle
is on or before the fifteenth day of a month, the Monthly Rental for such
Vehicle shall commence as of the first day of such calendar month and if the
Delivery Date for such Vehicle is on or after the sixteenth day of a month, the
Monthly Rental for such Vehicle shall commence as of the first day of the next
succeeding calendar month. Lessee may terminate this Lease as to any Vehicle on
any anniversary of the Delivery Date for such Vehicle by (i) giving notice to
Lessor; and either (ii) returning such Vehicle to Lessor on such anniversary
date in accordance with Section 8 hereof; and paying to Lessor any amount owing
pursuant to Section 9 hereof relating to such Vehicle; or (iii) paying to Lessor
the Final Adjustment Amount relating to such Vehicle. For each Vehicle so
terminated, the term of this Lease shall end on the earlier of (i) the date
Lessee pays to Lessor the Final Adjustment Amount relating to such Vehicle; (ii)
the date such Vehicle is sold in accordance with Section 8 hereof or (iii)
forty-five days after the later of (a) such anniversary date or (b) the date the
Vehicle is actually returned to Lessor and for each Vehicle as to which the
Maximum Term has expired, the term of this Lease shall end on the earlier of (i)
the date such Vehicle is sold in accordance with Section 8 hereof or (ii)
forty-five days after the later of (a) the last day of the Maximum Term or (b)
the date the Vehicle is actually returned to Lessor. if such date is before the
fifteenth day of a month, no Monthly Rental for such Vehicle shall be payable
for such month; if such date is on or after the fifteenth day of a month, a full
Monthly Rental shall be payable for such month without proration. Lessee may
terminate this Lease as to any Vehicle effective at any other time only upon
terms hereafter agreed to by Lessor.
Lessor's failure to deliver vehicles at the time and places specified, by reason
of labor disorders or other circumstances or events beyond the control of
Lessor, shall not impute liability of any kind to Lessor.
4. THIS LEASE MAY BE TERMINATED by either party regarding vehicles not then
ordered or under lease by giving written notice thereof to the other party at
least five days in advance of the proposed termination date. After the giving of
such notice no additional or replacement vehicles will be delivered for lease
hereunder. Notwithstanding expiration or termination, all of the provisions of
the Lease shall continue in full force and effect with respect to each Vehicle
then ordered pursuant to request of Lessee or then under lease until the end of
the lease term for such Vehicle as provided in Section 3 hereof.
5. USE OF VEHICLES under this Lease is permitted only in the conduct of Lessee's
business in the United States and occasionally in Canada and only for lawful
purposes. The conduct of Lessee's business shall consist of subleasing the
Vehicles from time to time to various third-party sublessess. When not
subleased, the Vehicles shall be stored at any of Lessee's *number rental
business locations throughout the United States. Lessee shall require all
sublessees of the Vehicles to comply with all relevant provisions of this Lease
Agreement. No Vehicle shall be used off an improved road or for transportation
of passengers or of material designated as extra-hazardous, radioactive,
flammable or explosive. Lessee will permit the Vehicles to be operated only by
safe and careful drivers who are qualified and properly licensed in accordance
with the laws of the jurisdiction where such Vehicles are used. All operators of
the Vehicles will be conclusively presumed to be the agents, employees or
servants of Lessee and not of Lessor. Upon any complaint from Lessor specifying
illegal, negligent, reckless, careless or abusive handling of the Vehicles,
Lessee shall promptly take such steps as may be necessary to stop and prevent
the recurrence of any such practice. Lessee shall in all respects comply, and
cause all persons operating the Vehicles to comply, with all applicable
requirements of law (including but not limited to rules, regulations, statutes
and ordinances) relating to the licensing maintenance and operation of the
Vehicles (including weight limitations, tire requirements, load, axle and spring
limits) and with all terms and conditions of policies of insurance relating to
the Vehicle. Lessee agrees that it will not load any Vehicle in excess of the
lesser of (i) the payload capacity noted in the manufacturer's specifications
for such Vehicle or (ii) the maximum amount permitted by applicable law.
6. MONTHLY RENTAL and all other amounts owing by Lessee shall be paid to Lessor
at its address stated on page one hereof or at such other place as Lessor shall
hereafter notify Lessee in writing.
Monthly Rentals shall be due and payable in advance on the first day of each and
every month during the term hereof; provided, however, that the first Monthly
Rental for a Vehicle with a Delivery Date on or before the fifteenth day of a
month shall be due and payable on the Delivery Date, whether or not Lessee shall
have received a statement for such amount. Lessor will render to Lessee monthly
statements of the amounts payable on all Vehicles under this Lease and Lessee
shall, within ten (10) days after receipt of such statements, make payment by
one wire transfer for each such statement to the order of Lessor for the Monthly
Rental, Additional Rent and other sums, if any, covered by such statements
without abatement, off-set or counterclaim arising out of any circumstance
whatsoever. Lessee hereby waives any and all existing or future claims of
off-set against the Monthly Rentals, Additional Rents and Adjusted Rents due
hereunder, and agrees to make such payments regardless of any off-set or claim
which may be asserted by Lessee or on its behalf. For each Monthly Rental or
other sum due hereunder which is not paid when due, Lessee agrees to pay Lessor
a delinquency charge calculated thereon at the rate of 1 1/2% per month for the
period of delinquency or, at Lessor's option, 5% of such Monthly Rental or other
sum due hereunder, provided that such a delinquency charge is not prohibited by
law, otherwise at the highest rate Lessee can legally obligate itself to pay
and/or Lessor can legally collect.
7. FEES, TAXES, GOVERNMENTAL ASSESSMENTS AND CHARGES (INCLUDING INTEREST AND
PENALTIES THEREON) of whatsoever nature, by whomsoever payable, (other than
federal, state or local taxes levied on the net income of Lessor) levied,
assessed or incurred during the entire term of the Lease in connection with the
Vehicles including, but not limited to, the titling and registration of the
Vehicles in all jurisdictions required by the nature of Lessee's business and
the purchase, sale, ownership, rental, use, inspection and operation thereof,
shall be paid by Lessee. In the event any of said fees, taxes, governmental
assessments and charges shall have been paid by Lessor, or if Lessor is required
to collect or pay any thereof, Lessee shall reimburse Lessor therefor, upon
demand, as Additional Rent, to the end that Lessor shall receive the rental as
provided in Sections 2 and 9 hereof as a net return on the Vehicles. If
requested by Lessor, Lessee agrees to file, or to refrain from filing, on behalf
of Lessor in form satisfactory to Lessor and before the due date thereof, all
required tax returns and reports concerning the Vehicles with all appropriate
governmental agencies and to mail a copy thereof to Lessor concurrently with the
filing thereof. Lessee further agrees to keep or cause to be kept and made
available to Lessor any and all necessary records relative to the use of the
Vehicles and/or pertaining to the aforesaid fees, taxes, goverrmental,
assessments and charges. Lessee's obligations under this Section shall survive
the expiration or termination of this Lease.
8. LESSEE SHALL RETURN each Vehicle to Lessor, at Lessee's expense, at the
expiration or termination of this Lease in relation to such Vehicle at the
location where delivery was made or at such other location as is designated by
Lessor in the same working order, condition and repair as when received by
Lessee, excepting only reasonable wear and tear caused by normal usage of such
Vehicle, together with all license plates, registration certificates, or other
documents relating to such Vehicle. Upon request of Lessee, Lessor may at its
sole discretion allow Lessee to retain some or all of such license plates or
other documents. Unless otherwise agreed by Lessor, Lessee shall give Lessor at
least sixty, and not more than ninety, days notice of the return of any Vehicle.
After said return, Lessor shall cause such Vehicle to be sold at public or
private sale, at wholesale, for the highest cash offer received and still open
at the time of sale. The "net sale proceeds" for said Vehicle shall be the net
amount received and paid to Lessor after deducting the cost of sale, the cost of
cleaning, repairing, equipping or transporting said vehicle and any other
expenses of Lessor in connection therewith. Alternatively, Lessee may purchase
each Vehicle for the Final Adjustment Amount. Upon receipt of payment of the
Final Adjustment Amount together with any and all applicable sales or other
taxes due in connection therewith, and any and all remaining sums or other
amounts payable under this Lease Agreement or a relevant Schedule, Lessor shall
transfer all its right, title and interest in and to the Vehicle to Lessee. The
Vehicle shall be transferred AS-IS and WHERE-IS without any express or implied
representations or warranties.
9. FINAL ADJUSTMENT for each Vehicle will be made upon receipt of the net sale
proceeds therefor and, unless any default shall have occurred and except as
provided below; Lessor shall pay to Lessee the amount, if any, by which the sum
of (a) the net sale proceeds, and (b) surplus insurance recoveries, if any, on
such Vehicle, exceeds (c) a Final Adjustment Amount, as defined herein, for such
vehicle calculated as of the rental payment date next preceding the date such
Vehicle was returned to Lessor (referred to hereafter as the "Calculation
Date'). The Final Adjustment Amount for any Vehicle as of a Calculation Date
shall be computed by multiplying the Schedule 'Al Value for such Vehicle by that
percentage ("Final Adjustment Percentage") opposite the respective Calculation
Date as set forth in the Final Adjustment Table attached hereto as Schedule B.
If the sum of items (a) and (b) is less than item (c), Lessee shall, within ten
days after notice thereof, pay the deficiency to Lessor as Adjusted Rental
without abatement, off-set or counterclaim arising out of any circumstance
whatsoever. Lessor shall promptly determine the aforesaid amounts and shall
render statements therefor to Lessee. Lessor may apply any sums received as
proceeds from any vehicle which would otherwise be due to Lessee hereunder
against any other obligation of Lessee and Lessor may off-set the amount of any
such rental adjustment against any claim it may have against Lessee.
10. LOSS OF OR DAMAGE TO EACH VEHICLE and loss of use thereof, from whatsoever
cause, are risks hereby assumed by Lessee from the date hereof until such
Vehicle is returned to and sold by Lessor. If any Vehicle is lost, stolen,
damaged or destroyed, Lessee shall promptly notify Lessor thereof. Lessor shall
have no obligation to repair or replace any such Vehicle. There shall be no
abatement of rental otherwise due hereunder during the period a vehicle is
stolen or missing or during the time required for any repair, adjustment,
servicing or replacement of a Vehicle and Monthly Rentals will continue to
accrue until Final Adjustment is made. Final Adjustment in relation to lost,
stolen or destroyed Vehicles shall be made as provided in Section 9, promptly
upon payment of the Final Adjustment Amount or after sale of the salvage and/or
receipt of insurance proceeds, as applicable or within forty-five days after
such loss, theft or destruction; whichever is earlier. For purposes of Final
Adjustment, lost or stolen Vehicles shall be deemed to have been sold as of the
date of such loss or theft, and the amount of net sale proceeds therefor shall
be deemed to be zero. In no event shall Lessor be liable to Lessee, its
employees or agents for business or other losses by reason of loss, theft,
destruction, repair, servicing or replacement of any Vehicle.
ll.A LIABILITY AND PHYSICAL DAMAGE INSURANCE, for bodily injury and property
damage to others, and damage to or loss of vehicles by collision, fire, theft,
or otherwise, from the time each Vehicle is delivered to Lessee until the
Vehicle is sold after return to Lessor and legal title passes to the purchaser
thereof, shall be purchased and maintained by Lessee. Lessor shall not be
required to order vehicles for Lessee's use until binders disclosing insurance
coverage as herein provided have been delivered to Lessor. All insurance
policies shall provide primary coverage, shall name Lessor as additional
insured, shall be in such amounts and with such insurers as shall be approved by
Lessor, shall provide for a minimum of 15 days prior written notice to Lessor
before cancellation or material change for any reason, and shall provide that no
act or default of any person other than Lessor shall affect Lessor's right to
recovery under such policies. The minimum requirement shall be a combined single
limit of $1,000,000 and actual cash value for fire, theft, comprehensive and
collision. Lessor may from time to time by notice to Lessee specify higher
minimum requirements or additional risks to be insured against. Lessee shall
deliver the policies or other satisfactory evidence of insurance required
hereunder to Lessor, but Lessor shall be under no duty to examine such evidence
of insurance nor to advise Lessee in the event said insurance is not in
compliance with this Lease. Evidence of renewal of all expiring policies will be
delivered to Lessor at least 60 days prior to their respective expiration dates.
Lessor does not assume any liability for loss of or damage to the contents or
personal property contained in any Vehicles, and Lessee hereby releases and
saves Lessor free from any and all liability for loss of or damage to any
contents or personal property contained in said Vehicles regardless of the
circumstances under which such loss or damage may occur.
ll.B INDEMNITIES: The term "Liabilities" as used herein shall include any and
all liabilities, obligations, losses, damages, penalties, claims, actions,
suits, costs, expenses and disbursements of whatsoever kind and nature,
including legal fees and expenses, (whether or not any of the transactions
contemplated hereby are consummated), imposed on, incurred by or asserted
against Lessor (which term as used herein shall include Lessor's successors,
assigns, agents, employees and servants) or the Vehicles (whether by way of
strict or absolute liability or otherwise), and in any way relating to or
arising out of this lease or the selection, manufacture, purchase, acceptance,
ownership, delivery, non-delivery, lease, possession, use, operation, condition,
servicing, maintenance, repair, improvement, alteration, replacement, storage,
return other disposition of the Vehicles including, but not limited to, (i)
claims as a result of latent, patent or other defects, whether or not
discoverable by Lessor and Lessee; (ii) claims for patent, trademark or
copyright infringement; (iii) tort claims of any kind, (whether based on strict
liability, on Lessor's alleged negligence or otherwise), including claims for
injury or damage to property or injury or death to any person (including
Lessee's employees); and (iv) claims for any interruption of service or loss of
business or anticipatory profits, or consequential damages. Lessor shall have no
responsibility or liability to Lessee, its successors or assigns, or any other
person with respect to any and all Liabilities and, irrespective of any
insurance coverage and commencing on the date each Vehicle is ready for delivery
to Lessee, Lessee hereby assumes liability for, and hereby agrees, at its sole
cost and expense, to indemnify, defend, protect, save and keep harmless Lessor
from and against any and all Liabilities. Where a Vehicle is operated by Lessee
with a trailer or other equipment not covered by this Lease, then in such event,
Lessee warrants that such trailer or other equipment will be in good operating
condition, compatible in all respects with the Vehicles with which such trailer
or other equipment is to be used, and in all respects in full compliance with
all federal, state and local statutes, ordinances, rules or regulations covering
said trailer or other equipment, including but not limited to all licensing and
operating requirements. Lessee hereby assumes liability for, and hereby agrees,
at its sole cost and expense, to indemnify, defend, protect, save and keep
harmless Lessor from and against any and all costs, expenses, damages,
(including damages for loss of any Vehicles leased hereunder) and Liabilities
resulting from Lessee's failure to properly connect, operate or maintain such
trailer or other equipment or to comply with any of the foregoing requirements
or from any other cause. Lessee agrees to give Lessor prompt written notice of
any claim or liability hereunder indemnified against.
ll.C LESSEE'S TAX RELATED INDEMNITIES to Lessor are as follows:
(1) General Indemnity. Lessee agrees to pay and to indemnify and hold Lessor
harmless, on an after-tax basis, from and against all sales, use, personal
property, leasing, leasing use, stamp or other taxes, levies, imposts, duties,
charges or withholdings of any nature (together with any penalties, fines or
interest thereon) now or hereafter imposed against Lessor, Lessee or the
Vehicles or any part thereof or upon the purchase, ownership, delivery, leasing,
possession, use, operation, return or other disposition thereof, or upon the
rentals, receipts or earnings arising therefrom, or upon or with respect to this
Lease (excluding, however, Federal and State taxes on, or measured by, the net
income of Lessor). Lessee agrees to file, on behalf of Lessor, all required tax
returns concerning the Vehicles with all appropriate governmental agencies and
to furnish to Lessor a copy of each such return, including evidence of payment,
promptly after the due date of each such filing; provided, that, in the event
Lessee is not permitted to file any such return on behalf of Lessor, then Lessee
agrees to prepare and forward each such return to Lessor in a timely manner with
instructions to Lessor with respect to the filing thereof.
(2) Income Tax Indemnity. Lessee and Lessor agree that Lessor shall be entitled
to accelerated cost recovery (or depreciation) deductions with respect to the
Vehicles, and if and only if as the result of the acts or omissions of the
Lessee, either the United States government or any state tax authority disallow,
eliminate, reduce, recapture, or disqualify, in whole or in part, any benefits
consisting of accelerated cost recovery (or depreciation) deduction with respect
to any Vehicle, Lessee shall then indemnify Lessor by payment to Lessor, upon
demand, of a sum which shall be equal to the amount necessary to permit Lessor
to receive (on an after-tax basis over the full term of this Lease) the same
after-tax cash flow and after-tax yield assumed by Lessor in evaluating the
transactions contemplated by this Lease (referred to hereafter as 'Economic
Return") that Lessor would have realized had there not been a loss or
disallowance of such benefits, together with, on an after-tax basis, any
interest or penalties which may be assessed by the governmental authority with
respect to such loss or disallowance. In addition, if Lessee shall make any
addition or improvement to any Vehicle, and as a result thereof, Lessor is
required to include an additional amount in its taxable income, Lessee shall
also pay to Lessor, upon demand, an amount which shall be equal to the amount
necessary to permit Lessor to receive (on an after-tax basis over the full term
of this Lease) the same Economic Return that Lessor would have realized had such
addition or improvement not been made.
(3) Payment and Enforceability. All amounts payable by Lessee pursuant to
subsection ll.C.(l) or ll.C.(2) shall be payable directly to Lessor except to
the extent paid to a governmental agency or taxing authority. All the
indemnities contained in subsection ll.C.(l) or ll.C.(2) shall continue in full
force and effect notwithstanding the expiration or other termination of this
Lease in whole or in part and are expressly made for the benefit of, and shall
be enforceable by, Lessor. Lessee's obligations under subsection ll.C.(l) and
ll.C.(2) shall be that of primary obligor irrespective of whether Lessor shall
also be indemnified with respect to the same matter under some other agreement
by another party.
(4) Duration. The obligations of Lessee under subsection ll.C. are expressly
made for the benefit of, and shall be enforceable by, Lessor without necessity
of declaring this Lease in default and Lessor may initially proceed directly
against Lessee under this subsection ll.C. without first resorting to any other
rights of indemnification it may have. In the event that, during the continuance
of this Lease, an event occurs which gives rise to a liability pursuant to this
subsection ll.C., such liability shall continue, notwithstanding the expiration
or termination of this Lease, until all payments or reimbursements with respect
to such liability are made.
ll.D ALL OF LESSEE'S obligations, indemnities and liabilities under this Section
11 shall survive the expiration or termination of this Lease. Notwithstanding
anything else herein to the contrary, in the event that Lessee fails to procure
or maintain insurance as above provided or fails to perform any other of
Lessee's duties or obligations as set forth in this Lease, Lessor may, but shall
have no obligation to, obtain such insurance at Lessee's expense and perform
such other duties and obligations of Lessee and any amounts expended therefor
shall be due and payable immediately as Additional Rent. Lessee shall not use or
permit the use of any Vehicle at any time when the insurance described above is
not in effect.
12.A EXPENSE OF OPERATION AND MAINTERNCE of Vehicles in accordance with
manufacturer's recommendations and in condition satisfactory to Lessor,
including but not limited to, cost of fuel, oil, grease, repairs, maintenance,
tires, tubes, storage, parking, tolls, fines and penalties shall be the
responsibility and obligation of Lessee. Lessee shall reimburse Lessor if Lessor
shall pay any of such operating or maintenance expenses. If tires or parts are
removed from a Vehicle, Lessee shall provide comparable replacements therefor
and such replacements shall become part of the Vehicles by accession. Lessor may
inspect the Vehicles and Lessee's books and records relating thereto at any time
during Lessor's usual business hours. Lessee agrees to remove all markings from
the Vehicles, at Lessee's expense, prior to the return of the Vehicles to
Lessor.
12.B ADDITIONAL EQUIPMENT REQUIRED BY LAW. In the event that subsequent to the
Delivery Date of a Vehicle any federal, state or local law, ordinance, rule or
regulation shall require the installation of any additional equipment or
accessories, including but not limited to anti-pollution and/or safety devices,
or in the event that any other modifications of the Vehicles shall be required
by virtue of such law, ordinance, rule or regulation, then and in any of such
events, Lessee shall pay the full cost thereof, including installation expenses.
Lessor may, at its option, arrange for the installation of such equipment or the
performance of such modifications, and Lessee agrees to pay the full cost
thereof as Additional Rent, immediately upon receipt of an invoice for same.
13. NO WARRANTIES; LIMITATION ON LIABILITY: Lessee acknowledges and agrees (i)
that the Vehicles are of a size, design, capacity and manufacture selected by
Lessee, (ii) that the Lessor is not the manufacturer or seller of the Vehicles
or the manufacturer's or seller's agent and (iii) that LESSEE LEASES THE
VEHICLES "AS-IS" AND THAT LESSOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE VALUE, CONDITION,
QUALITY, MATERIAL, WORKMANSHIP, DESIGN, CAPACITY, MERCHANTABILITY, DURABILITY,
FITNESS OR SUITABILITY OF THE VEHICLES FOR ANY USE OR PURPOSE OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED WITH RESPECT TO THE
VEHICLES. IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS OF OR DAMAGE TO CARGO,
LOSS OF PROFITS OR BUSINESS OR FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES
OF ANY NATURE, HOWSOEVER CAUSED. Provided Lessee is not in default hereunder,
during the term of this Lease as to any Vehicle, Lessor hereby assigns to Lessee
any rights Lessor may have under any manufacturer's or seller's warranty, to the
extent that such assignment may be made without impairing Lessor's ability to
assert such rights in its own name under such warranty.
14.A DEFAULT under this Lease shall occur in the event (i) Lessee shall fail to
pay when due any part of the Monthly Rentals, Additional Rents or Adjusted Rents
payable hereunder or to provide or maintain the insurance required hereby; (ii)
any of Lessee's warranties or representations shall be or become untrue or
breached; (iii) Lessee shall fail, after fifteen days notice thereof, to correct
any failure in the due performance and observance of any other of the covenants
and obligations of Lessee hereunder; (iv) Lessee shall default under any other
agreement with Lessor or its affiliates; (v) Lessee transfers a substantial
portion of its assets other than in the ordinary course of business; (vi) a
voluntary or involuntary petition under any statute relating to bankruptcy,
reorganization or receivership or under any other statute relating to the relief
of debtors shall be filed by or against Lessee or any guarantor of Lessee's
obligations hereunder; or (vii) Lessee or any guarantor of Lessee's obligations
hereunder shall make an assignment for the benefit of creditors, admit in
writing to being insolvent or, if Lessee or such guarantor is a natural person,
if such person shall die.
14.B LESSOR'S REMEDIES:
(1) In the event of such default described above, Lessor shall have no further
obligation to lease vehicles to Lessee and, at the option of Lessor, all rights
of Lessee hereunder and in and to the Vehicles shall forthwith terminate. Upon
such termination Lessee agrees that Lessor may, without notice to Lessee, either
take possession of any or all Vehicles (with or without legal process) or
require Lessee to return all Vehicles forthwith to Lessor at such location as
Lessor shall designate. Lessee authorizes Lessor and Lessor's agents to enter
any premises where the Vehicles may be found for the purpose of repossessing the
same. If Lessor retakes possession of any of the Vehicles and at the time of
such retaking there shall be in, upon, or attached to the Vehicles any property,
goods, or things of value belonging to Lessee or in the custody or control of
Lessee, Lessor is hereby authorized to take possession of such property, goods,
and things of value and hold the same for Lessee or to place such property,
goods, or things of value in public storage for the account of, and the expense
of, Lessee. Lessor may at its option (i) sell any or all of the vehicles which
are returned or repossessed pursuant to this Section and hold Lessee liable for
Adjusted Rental as provided in Section 9, or (ii) lease any or all of the
Vehicles to a person other than Lessee for such term and such rental as Lessor
may elect in its sole discretion, and apply the proceeds of such lease, after
first deducting all costs and expenses relating to the termination of this Lease
and the retaking of the vehicles, to Lessee's obligations hereunder; provided,
however, that Lessee shall pay to Lessor immediately upon demand, as liquidated
damages for loss of bargain and not as a penalty, a sum with respect to each
such Vehicle which represents the excess of the present value at the time of
termination of all Monthly Rentals which would otherwise have accrued hereunder
to the end of the Maximum Term for such Vehicle over the present value at the
time of termination of all Monthly Rentals which would otherwise have accrued
hereunder to the end of the Maximum Term for such Vehicle over the present value
of the aggregate of the rentals to be paid for such Vehicle by such third party
for such period (such present values to be computed in each case on the basis of
a discount factor equal to the per annum lending rate publicly announced from
time to time by Continental Illinois National Bank and Trust Company of Chicago
as its prime rate, base rate or reference rate for unsecured loans of the
shortest maturity to corporate borrowers in effect on the date this Lease is
terminated by Lessor, from the respective dates upon which such Monthly Rentals
would have been payable hereunder had this Lease not been terminated). In
addition to the other remedies set forth herein, if any vehicle is not returned
to Lessor, or if Lessor is prevented from taking possession thereof, Lessee
shall pay to Lessor immediately upon demand the Final Adjustment Amount as
provided in Section 9, as if such vehicle had been sold on the date this Lease
was terminated, and the amount of net sale proceeds therefor were zero.
(2) Whether or not the Vehicles are returned to, sold or leased by Lessor,
Lessor shall also recover from Lessee all unpaid Monthly Rentals, Additional
Rents and Adjusted Rents then due or owing together with all costs and expenses,
including attorneys' fees, incurred by Lessor in the enforcement of its rights
and remedies under this Lease. In addition, Lessor may retain as liquidated
damages all Monthly Rentals and Additional Rents and sale proceeds received,
including any refunds and other sums which otherwise would be payable to Lessee,
and a sum equal to the aggregate of all Monthly Rentals and other amounts,
including but not limited to any early termination fee customarily charged by
Lessor, (the due dates of which Rentals and other amounts Lessor may accelerate
at its option) which would have been due during the period ending, for each
Vehicle, on the earliest date on which Lessee could have effectively terminated
this Lease as to such Vehicle pursuant to Section 3 if Lessee had not defaulted,
in sum total not to exceed the Economic Return.
(3) The remedies in this Lease provided in favor of Lessor shall not be deemed
exclusive or alternative, but shall be cumulative and shall be in addition to
all other remedies in its favor existing at law or in equity. Lessee hereby
waives any right to trial by jury in any action relating to this Lease, as well
as any requirements of law, now or hereafter in effect, which might limit or
modify any of the remedies herein provided, to the extent that such waiver is
permitted by law. The failure of Lessor to exercise any of the rights granted it
hereunder shall not constitute a waiver of any such right or establish a custom
or course of dealing. Except as expressly allowed in Section 5, above,
15. EXCEPT AS EXPRESSLY allowed in Section 5, above, neither this lease, any
rights or obligations hereunder, nor any rights in or to the Vehicles may be
assigned or subleased by Lessee without the prior written consent of Lessor and
no such assignment or sublease shall be valid or binding on Lessor. Lessor may
assign this Lease or an interest hereunder or in the Vehicles for any purpose
without consent of or notice to Lessee.
16. LESSEE AGREES that at any time and from time to time, after the execution
and delivery of this Lease, it shall, upon request of Lessor, execute and
deliver such further documents and do such further acts and things as Lessor may
reasonably request in order fully to effect the purposes of this Lease and to
protect Lessor's interest in the vehicles, including, but not limited to,
furnishing any and all information necessary to enable Lessor or its insurer to
defend itself in any litigation arising in connection herewith. Lessee hereby
authorizes Lessor to insert serial numbers, delivery and Monthly Rental due
dates, and other data on the Schedules, Delivery Receipts and other documents
relating hereto when such numbers, date and data become known to Lessor.
17. NOTICES required or permitted to be given hereunder shall be given in
writing either personally or by registered or certified mail addressed to the
respective party at its address listed on page one hereof or, if such party has
previously given notice of a change of address, to the address specified in the
last such notice of change of address. Notices shall be deemed received when
delivered if personally delivered or, if mailed, two business days after deposit
postage prepaid in the United States mails.
18. THIS LEASE will become effective only upon acceptance by Lessor. This form
is intended for general use throughout the United States. Any provision of this
Lease which is prohibited or unenforceable in any jurisdiction shall be
ineffective in such jurisdiction to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, any such
prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. It is the
intention of the parties hereto that this contract constitute a lease for tax
and other purposes; however, if for purposes of perfection, this contract is
interpreted by any court as a lease intended as security, Lessee hereby grants
to Lessor a security interest in the vehicles. THIS AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. This Lease and any Schedules
and other documents relating hereto may be modified only in a writing signed by
the party against whom enforcement is sought. No vehicle dealer nor any employee
or agent of any dealer or of any other person has authority to make any
representations to Lessee on Lessor's behalf as to the performance of the
Vehicles, or as to any provision of this Lease or as to any other matter
whatsoever. Lessee has no authority to, and shall not, make any warranty or
representation concerning the Vehicles to any person on Lessor's behalf.
Date: August 25, 1999 LESSEE:
PLM International, Inc.
LESSOR: Associates Leasing, Inc. By: /s/ Richard K Brock
By: /s/ Joseph M. Pitch Title: Acting Chief Financial
Officer
Title: Vice President