MASTER LEASE AGREEMENT
U.S. BANCORP
THIS LEASE, DATED AS OF SEPTEMBER 22, 1999, IS MADE BY AND BETWEEN U.S. BANCORP
LEASING & FINANCIAL, HEREAFTER REFERRED TO AS "LESSOR," AND PLM RENTAL, INC.,
HEREAFTER REFERRED TO AS "LESSEE."
LESSOR AND LESSEE COVENANT AND AGREE AS FOLLOWS:
1. PROPERTY LEASED. Lessor agrees to lease to Lessee and Lessee agrees to
lease from Lessor the personal property ("Property") together with any
replacements, additions, repairs, now or hereafter incorporated therein as
described in any Schedule to Master Lease Agreement ("Schedule") now or
hereafter executed by the parties hereto, the terms of which are incorporated
herein.
2. TERM. This Lease shall become effective on the execution hereof by
Lessor. The Term of this Lease may consist of an "Interim Term" and a "Base
Term" in regard to each Schedule. The Interim Term for each Schedule shall begin
on the date that Lessee executes a Delivery and Acceptance Certificate in
connection with any item of Property or provides to Lessor written approval for
payment for such item of Property. Each Interim Term shall continue until the
Base Term Commencement Date set forth in each Schedule. The Base Term for each
Schedule shall begin on the Base Term Commencement Date and shall continue for
the period specified in each Schedule. During each Interim Term if any, Lessee
shall pay rental ('Interim Rental") in the amount set forth in each Schedule
plus applicable tax thereon.
3. RENT, PAYMENT AND TAXES. Rental payments are specified in each Schedule.
All rents shall be payable by Lessee each month on or before the payment date
shown in each Schedule at Lessor's address herein, or as otherwise directed by
Lessor, without notice or demand and without abatement set-off or deduction of
any amount whatsoever. Lessee shall pay when due all taxes, fees, assessments,
or other charges, however designated, now or hereafter levied or based upon the
rentals, ownership, use, possession, leasing, operation, control, or maintenance
of the Property, whether or not paid or payable by Lessor, excluding Lessor's
income, franchise and business and occupation taxes, and shall supply Lessor
with proof of payment satisfactory to Lessor at least seven (7) days before
delinquency. At its option, Lessor may pay any tax, assessment insurance
premium, expense, repair, release, confiscation expense, lien, encumbrance, or
other charge or fee payable hereunder by Lessee, and any amount so paid shall be
repayable by Lessee on demand.
For any payment due hereunder which is not paid within ten (10) days after
the date such payment is due, Lessee agrees to pay a late charge calculated
thereon at a rate of five percent (5.0%) of such overdue amount. The parties
hereto agree that: a) the amount of such late charge represents a reasonable
estimate of the cost that Lessor would incur in processing each delinquent
payment by Lessee and that such late charge shall be paid as liquidated damages
for each delinquent payment; and, b) the payment of late charges and the payment
of Default Interest are distinct and separate from one another. Acceptance of
any late charge or interest shall not constitute a waiver of default with
respect to the overdue amount or prevent Lessor from exercising any other
available rights and remedies. Payments received shall be applied first to
delinquent amounts due, including late charges, then to current installments. If
any such rental payment is made by check and such check is returned to Lessor
for any reason, including without limitation, insufficient funds in Lessee's
account then Lessee shall be assessed a fee of $25.00 in addition to any other
late charge or any other fee which may be applicable.
If the Property is located in a jurisdiction which imposes any "Sales,"
"Use," or "Rental" tax, Lessor shall collect such tax from Lessee and remit such
tax to the appropriate taxing authority or Lessee shall remit such tax directly
to the appropriate taxing authority. Such requirement may only be waived if
Lessee is exempt from such tax under applicable laws or regulations. Lessee is
responsible for ensuring that such exemption is properly documented in
accordance with such laws and regulations and that such documentation is
provided to Lessor at the inception of each Schedule.
If the Property is subject to Personal Property Taxes, both Lessee and
Lessor are required to advise the proper taxing authorities of all leased
property. Lessee agrees that it will report the Property as having an original
cost as set forth on each Schedule and as Property leased from U.S. BANCORP
LEASING & FINANCIAL. If Lessor receives an invoice from the taxing authorities
for applicable Personal Property Taxes, Lessor shall pay any such taxes directly
and Lessee agrees to reimburse Lessor for all such taxes paid by Lessor. If
Lessee receives such invoice, Lessee agrees to promptly remit such tax directly
to the taxing authority and maintain proof of payment Upon termination of each
Schedule, Lessor will, if applicable, estimate Personal Property Taxes on the
Property based upon the most recent tax assessment of the Property or on the tax
rates and taxable value calculations as available from the appropriate taxing
jurisdiction. In the event that the actual personal property tax xxxx is within
$500.00 of such estimate, then Lessor shall not seek reimbursement from Lessee
for any underpayment and Lessor may retain any overpayment. If the difference
between such estimate and the actual tax xxxx exceeds $500.00, Lessor shall
refund or Lessee shall remit the entire difference.
4. LOSS OR DAMAGE. No loss or damage to the Property, or any part of it
shall impair any obligation of Lessee hereunder. Lessee assumes all risk of
damage to or loss of the Property, however caused, while in transit and during
the term hereof. If any Property is totally destroyed, Lessee may substitute
property of like kind and value (subject to approval by Lessor in its sole
discretion) or may pay to Lessor the proportionate value of that item of
Property relative to the total cost of the Property plus recovery of applicable
tax benefits, less the amount of any recovery received by Lessor from any
insurance or other source.
5. OWNERSHIP, LOCATION, MAINTENANCE AND USE. Lessee transfers to Lessor all
right title and interest, including any and all ownership interest which Lessee
may have in or to the Property. Lessee represents and wan-ants that it has the
legal right to make such transfer and that such transfer does not constitute a
transfer of all or substantially all of the assets of Lessee, and that such
transfer does not constitute all or a portion of a 'bulk transfer" under the
Uniform Commercial Code. It is agreed between the parties hereto that Lessor
shall be the owner of, and hold title to, the Property for all purposes
throughout each Schedule. At its own risk, Lessee shall use or permit the use of
the Property primarily at the location specified in the Schedule and, without
Lessor's prior written consent shall not loan, sublet remove from such location,
part with possession or otherwise dispose of the Property. Lessee shall at its
sole expense maintain the Property in good repair, appearance and functional
order and in compliance with any manufactures and regulatory maintenance and
performance standards, shall keep complete records and documents regarding its
use, maintenance and repair, shall not use or permit the use of the Property in
any unintended, injurious or unlawful manner, shall not permit use or operation
of the Property by any one other than Lessee's qualified employees and shall not
change or alter the Property without Lessor's written consent. Lessee shall not
create, cause, or permit any kind of claim xxxx, xxxx or legal process on the
Property, and shall forthwith satisfy, remove and procure the release thereof.
The Property is and always shall remain personal property. Lessee shall not
cause or permit the Property to be used or located in such a manner that it
might be deemed a fixture. Lessee shall secure from each person not a party
hereto who might secure an interest, lien or other claim in the Property, a
waiver thereof. Lessee shall affix and maintain, at its expense, in a prominent
and visible location, all ownership notices supplied by Lessor. Lessee shall
permit Lessor to xxxx the Property in a manner sufficient to identify the
Property as Lessor's Property.
6. LEASE. This is a non-cancelable contract of lease only and nothing
herein or in any other document executed in conjunction herewith shall be
construed as conveying or granting to Lessee any option to acquire any right
title or interest, legal or equitable, in or to the Property, other than use,
possession and quiet enjoyment of the Property, subject to and upon full
compliance with the provisions hereof Lessee and Lessor agree that this Lease is
a "Finance Lease" as defined by the Uniform Commercial Code Article 2A, the
Uniform Personal Property Leasing Act. Notwithstanding the foregoing, Lessee
hereby grants to Lessor a security interest in and to the Property as security
for all Lessees obligations to Lessor of every kind and nature.
Lessee hereby acknowledges that all of the leased Property was selected by
Lessee from Supplier(s) chosen by Lessee. Lessee is familiar with all Supply
Contract rights provided by the Supplier(s) and is aware that the Supplier(s)
may be contacted for a full description of any rights Lessee may have under any
Supply Contract. Providing Lessee is not in Default under this Lease, Lessor
hereby assigns to Lessee without recourse, all rights arising under any
warranties applicable to the Property provided by the manufacturer or any other
person. All proceeds of any warranty claim from the manufacturer or any other
person shall first be used to repair the affected Property.
7. GENERAL INDEMNIFICATION AND INSURANCE. Lessee assumes liability for, and
agrees to defend, indemnify and hold Lessor harmless from any claim, liability,
loss, cost expense, or damage of every nature (including, without limitation,
fines, forfeitures, penalties, settlements, and attorneys' fees) by or to any
person whomsoever, regardless of the basis, including wrongful, negligent or
improper act or misuse by Lessor, which directly or indirectly results from or
pertains to the leasing, manufacture, delivery, ownership, use, possession,
selection, performance, operation, inspection, condition (including without
limitation, latent or other defects, and whether or not discoverable),
improvements, removal, return or storage of the Property, except arising while
the Property is in the possession of Lessor.
Upon request of Lessor, Lessee shall assume the defense of all demands,
claims, or actions, suits and all proceedings against Lessor for which indemnity
is provided and shall allow Lessor to participate in the defense thereof. Lessor
shall be subrogated to all rights of Lessee for any matter which Lessor has
assumed obligation hereunder, and may settle any such demand, claim, or action
with Lessee's prior consent (which shall not be unreasonably withheld), and
without prejudice to Lessor's right to indemnification hereunder.
At its expense, Lessee shall maintain in force, at all times from shipment
of the Property to Lessee until surrender thereof, property damage insurance and
liability insurance with such deductibles and from such insurance carriers as
shall be satisfactory to Lessor. The Property must be insured against all risks
which are customarily insured against on the type of property leased hereunder.
The amount of Lessee's liability insurance shall not be less than $1,000,000.00.
Such insurance policies must name Lessor as an additional insured and loss
payee, and provide for ten (10) days advance written notice to Lessor of
modification or cancellation. Lessee shall, upon request deliver to Lessor
satisfactory evidence of the insurance coverage. In the event Lessee fails to do
so, Lessor may, at Lessor's option, in addition to any other rights available to
Lessor, obtain coverage, and any sum paid therefor by Lessor (including any
charges assessed by Lessor for such service) shall be immediately due and
payable to Lessor by Lessee.
8. INCOME TAX INDEMNITY. Lessee and Lessor hereby agree and assume as
follows:
(a) This Lease will be a lease for Federal and Oregon state income tax
purposes; Lessor will be treated as the purchaser, owner, lessor, and original
user of the Property and Lessee will be treated as the lessee of the Property
for such purposes.
(b) Lessor shall be entitled to depreciation deductions with respect to
each item of Property as provided by Section 167(a) of the Internal Revenue Code
of 1986, as amended (the "Code"), determined under Section 168 of the Code by
using the applicable depreciation method, the applicable recovery period, and
the applicable convention, all as may be specified on the applicable Schedule
for the Property, and Lessor shall also be entitled to corresponding Oregon
depreciation deductions.
(c) For purposes of determining depreciation deductions, the Property shall
have an income tax basis equal to Lessor's cost for the Property specified on
the applicable Schedule, plus such expenses of the transaction incurred by
Lessor as may be included in basis under Section 10 1 2 of the Code.
(d) The maximum federal and Oregon income tax rates applicable to Lessor in
effect on the date of execution and delivery of a Schedule with respect to an
item or items of property will not change during the lease term applicable to
such Property.
If, as the result of the acts or omissions of the Lessee, the assumptions,
representations, warranties, or covenants of Lessee contained in this Lease or
in any other agreement relating to the Property shall prove to be incorrect and
(i) Lessor shall determine that it is not entitled to claim all or any portion
of the depreciation deductions in the amounts and in the taxable yearns
determined as specified in (b) and (c), above, or (ii) such depreciation
deductions are disallowed, adjusted, recomputed, reduced, or recapture, in whole
or in part, by the Internal Revenue Service or Oregon Department of Revenue
(such determination, disallowance, adjustment, recomputation, reduction, or
recapture being herein called a "Loss"), then Lessee shall pay to Lessor as an
indemnity and as additional rent such amount as shall, in the reasonable opinion
of Lessor, cause Lessor's after-tax economic yield (the "Net Economic Return")
to equal the Net Economic Return that would have been realized by Lessor if such
Loss had not occurred. The amount payable to Lessor pursuant to this section
shall be payable on the next succeeding rental payment date after written demand
therefor from Lessor accompanied by a written statement describing in reasonable
detail such Loss and the computation of the amount so payable.
9. INSPECTION AND REPORTS. Lessor shall have the right at any reasonable
time, to enter on Lessee's premises or elsewhere and inspect the Property and
any records and documents regarding its use, maintenance and repair. Upon
Lessor's request, but in no event later than thirty (30) days after such
request, Lessee will deliver all information requested by Lessor which Lessor
deems necessary to determine Lessee's current financial condition or faithful
performance of the terms hereof. Lessee shall give Lessor immediate notice and
copy of all tax notices, reports, or inquiries, and of all seizure, attachment,
or judicial process affecting or relating to the use, maintenance, operation,
possession or ownership of the Property.
10. LESSEE'S REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants
to Lessor that as of the date of this Lease and of each Schedule:
(a) Lessee has adequate power and capacity to enter into this Lease, any
Schedule, and any other documents required to be delivered in connection with
this Lease (collectively, the "Documents"); the Documents have been duly
authorized, executed and delivered by Lessee and constitute valid, legal and
binding agreements, enforceable in accordance with their terms; there are no
proceedings presently pending or threatened against Lessee which will impair its
ability to perform under the Lease; and all information supplied to Lessor is
accurate and complete.
(b) Lessee's entering into the Lease and leasing the Property does not and
will not; (i) violate any Judgment order, or law applicable to the Lease, Lessee
or Lessees organizational documents; or (ii) result in the creation of any lien,
security interest or other encumbrance upon the Property, other than as granted
hereunder.
(c) All information and representations furnished by Lessee to Lessor
concerning the Property are accurate and correct.
(d) All financial data of Lessee or of any consolidated group of companies
of which Lessee is a member ("Lessee Group"), delivered to Lessor have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis with prior periods and fairly present the financial position
and results from operations of Lessee, or of the Lessee Group, as of the stated
date and period(s). Since the date of the most recently delivered financial
data, there has been no material adverse change in the financial or operating
condition of Lessee or of the Lessee Group.
(e) If Lessee is a business entity, it is and will be validly existing and
in good standing under laws of the state of its organization; the persons
signing the Documents are acting with all necessary authority and hold the
offices indicated below their signatures, which are genuine.
11. ASSIGNMENT. LESSEE SHALL NOT ASSIGN OR IN ANY WAY DISPOSE OF ALL OR ANY
OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR ENTER INTO ANY SUBLEASE OF ALL
OR ANY PART OF THE LEASED PROPERTY WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR
WHICH SHALL NOT BE UNREASONABLY WITHHELD. IN CONNECTION WITH THE GRANTING OF
SUCH CONSENT AND THE PREPARATION OF NECESSARY DOCUMENTATION, A FEE SHALL BE
ASSESSED EQUAL TO ONE PERCENT (1%) OF THE TOTAL REMAINING BALANCE THEN DUE
HEREUNDER.
LESSEE AGREES THAT LESSOR MAY ASSIGN OR TRANSFER THIS LEASE OR LESSOR'S
INTEREST IN THE LEASED PROPERTY WITHOUT NOTICE TO LESSEE. Any assignee of Lessor
shall have all of the rights, but none of the obligations, of Lessor under this
Lease and Lessee will not assert against any assignee of Lessor any defense,
counter claim or offset that Lessee may have against Lessor. Lessee acknowledges
that any assignment or transfer by Lessor will not materially change Lessee's
duties or obligations under this Lease nor materially increase the burdens or
risks imposed on Lessee. Lessee shall cooperate with Lessor in executing any
documentation reasonably required by Lessor or any assignee of Lessor to
effectuate any such assignment.
12. SURRENDER. On the expiration or termination of the term specified in
each Schedule, unless Lessee shall exercise any purchase option granted in
connection with such Schedule, Lessee shall, at its risk and expense and
according to manufacturer's recommendations, assemble, prepare for delivery, and
deliver the applicable Property and all manuals, records, certificates and
documents regarding its use, maintenance and repair to any location specified by
Lessor within the continental United States. To the extent that any such
purchase option specifies that the purchase price shall be the "fair market
value' of the Property, the term "fair market value" shall be defined as the
value of the Property in continued use. Upon return of the Property any upgrades
and improvements shall become the property of Lessor. Any upgrades, parts or
improvements may only be removed from the Property if their removal shall not
impair the Property's ability to operate according to any manufacturers and
regulatory performance standards and specifications. The Property shall be
delivered unencumbered and free of any liens, charges, or other obligations
(including delivery expense and sales or use taxes, if any, arising from such
delivery) and shall be in good working order, in the same condition, appearance,
and functional order as when first leased hereunder, reasonable wear excepted,
and in the condition specified or described in the applicable Schedule. At
Lessor's request Lessee shall at Lessee's expense provide Lessor with a written
certification by an independent engineer or other recognized expert acceptable
to Lessor to the effect that the Property is in the condition required
hereunder. In lieu of delivery, Lessor may, at its option, direct Lessee to
dispose of all or a portion of the Property in a proper and lawful manner at a
recognized disposal site at Lessees sole cost and responsibility.
13. DEFAULT. Time is of the essence under this Lease, and Lessee shall be
in default in the event of any of the following ("Event of Default"): (a) any
failure to pay when due the full amount of any payment required hereunder,
including, without limitation, rent, taxes, liens, insurance, indemnification,
repair or other charge; (b) any misstatement or false statement in connection
with, or non-performance of any of Lessee's obligations, agreements, or
affirmations under or emanating from, this Lease which continues for more than
ten (10) days after written notice; (c) Lessee's death, dissolution, termination
of existence; (d) if any of the following actions or proceedings are not
dismissed within sixty (60) days after commencement: Lessee's insolvency,
becoming the subject of a petition in bankruptcy, either voluntary or
involuntary, or in any other proceeding under federal bankruptcy laws; making an
assignment for benefit of creditors; or being named in, or the Property being
subjected to a suit for the appointment of a receiver, (e) any failure to pay,
as and when due, any obligation of Lessee in excess of $250,000 (which is not
disputed by Lessee in good faith), whether or not to Lessor, arising
independently of this Lease; (f) any removal, sale, transfer, sublease,
encumbrance, seizure or levy of or upon the Property; or (g) bankruptcy,
insolvency, termination, death, dissolution, or default of any guarantor for
Lessee.
14. REMEDIES. Upon the occurrence of any Event of Default pursuant to
Section 13(a) which continues for more than ten (10) days and at any time
thereafter and upon the occurrence of any Event of Default pursuant to Sections
13(b) through (g) which continues for more than ten (10) days after written
notice and at any time thereafter, Lessor shall have all remedies provided by
law; and, without limiting the generality of the foregoing and without
terminating this Lease, Lessor, at its sole option, shall have the right at any
time to exercise concurrently, or separately, without notice to Lessee (unless
specifically stated), any one or all of the following remedies:
(a) Request Lessee to assemble the Property and make it available to Lessor
at a reasonable place designated by Lessor and put Lessor in possession thereof
on demand;
(b) Immediately and without legal proceedings or notice to Lessee, enter
the premises, take possession of, remove and retain the Property or render it
unusable (any such taking shall not terminate this Lease);
(c) Declare the entire amount of rent and other sums payable hereunder
immediately due and payable; however, in no event shall Lessor be entitled to
recover any amount in excess of the maximum permitted by applicable law;
Terminate the leasing of any or all items of Property. Such termination
shall occur only upon notice by Lessor and only as to such items of Property as
Lessor specifically elects to terminate. This Lease shall continue in full force
and effect as to any remaining items.
(e) Recover the sum of. (i) any accrued and unpaid rent, plus (ii) the
present value of all future rentals reserved in the Lease and contracted to be
paid over the unexpired term of the Lease, discounted at the rate of six percent
(6%); plus, (iii) the anticipated residual value of the Property as of the
expiration of this Lease or any renewal thereof, (iv) any indemnity payment if
then determinable; (v) all commercially reasonable costs and expenses incurred
by Lessor in any repossession, recovery, storage, repair, sale, re-lease or
other disposition of the Property, including reasonable attorneys' fees and
costs incurred in connection therewith or otherwise resulting from Lessee's
default (including any incurred at trial, on appeal or in any other proceeding);
and, (vi) the value of all tax benefits lost to Lessor as a result of Lessee's
default or the enforcement by Lessor of any remedy; plus interest on each of the
foregoing at a rate of fifteen percent (15.0%) per annum ("Default Interest");
and,
(f) In an effort to mitigate its damages, Lessor shall re-lease or sell any
or all of the Property at a public or private sale on such terms and notice as
Lessor shall deem reasonable. The proceeds of any sale or lease shall be applied
in the following order of priorities: (i) to pay all of Lessor's expenses in
taking, removing, holding, repairing and disposing of Property; then (ii) to pay
any late charges and interest accrued; then (iii) to pay accrued but unpaid rent
together with the anticipated residual value, future rent, interest and all
other due but unpaid sums (including any indemnification and sums due under
other Leases or agreements in default). Any remaining proceeds will reimburse
Lessee for payments which it made to reduce the amounts owed to Lessor in the
preceding sentence. Lessor shall keep any excess. If the proceeds of any sale or
lease are not enough to pay the amounts owed to Lessor under this Section,
Lessee shall pay the deficiency.
No remedy referred to in this paragraph is intended to be exclusive, but
shall be cumulative and in addition to any other remedy referred to above or
otherwise available to Lessor at law or in equity.
15. LESSEE'S WAIVER. Upon the execution by Lessee of a Delivery and
Acceptance Certificate in connection with each Schedule hereto, to the extent
permitted by applicable law, Lessee hereby waives Lessee's rights to: (i) cancel
or repudiate this Lease; (ii) reject or revoke acceptance of the Property; (iii)
recover damages from Lessor for any breaches of warranty; (iv) claim, grant or
permit a security interest in the Property in Lessee's possession or control for
any reason; (v) deduct all or part of any claimed damages resulting from
Lessor's default if any, under this Lease; (vi) accept any partial delivery of
the property; (vii) "cover" by making any purchase or lease of or contract to
purchase or lease property in substitution for the Property; (viii) commence
legal action against Lessor for specific performance, replevin, sequestration,
claim and delivery or the like for the Property.
16. NOTICES, PAYMENTS AND G0VERNING LAW. All notices and payments shall be
mailed or delivered to the respective parties at the below address, or such
other address as a party may provide in writing from time to time. This Lease
shall be considered to have been made in the State of Oregon and shall be
interpreted, and the rights and liabilities of the parties determined, in
accordance with applicable federal law and the laws of the State of Oregon. In
the event of suit enforcing this Lease, Lessee agrees that venue may, at
Lessor's option, be laid in the county of Lessor's address below.
17. SEVERABILITY. If any of the provisions of this Lease are contrary to,
prohibited by, or held invalid under applicable laws, regulations or public
policy of any jurisdiction in which it is sought to be enforced, then that
provision shall be considered inapplicable and omitted but shall not invalidate
the remaining provisions. In no event shall this Lease be enforced in any way
which permits Lessor to charge or collect interest in excess of the maximum
lawful rate. Should interest collected exceed such rate, Lessor shall refund
such excess interest to Lessee. In such event Lessee agrees that Lessor shall
not be subject to any penalties provided by law for contracting for or
collecting interest in excess of the maximum lawful rate.
18. SURVIVAL. All of Lessor's rights, privileges and indemnities contained
herein shall survive the expiration or other termination of the Lease and any
Schedules, and the rights, privileges and indemnities contained herein are
expressly made for the benefit of, and shall be enforceable by, Lessor, its
successors and assigns.
19. LESSOR'S DISCLAIMERS. Lessor has obtained the Property based on
specifications furnished by the Lessee. Lessor does not deal in property of this
kind or otherwise hold itself or its agents out as having knowledge or skill
peculiar to the Property. Lessee acknowledges that it has relied on its own
skill and experience in selecting property suitable to the Lessee's particular
needs or purposes and has neither relied upon the skill or judgment of Lessor
nor believes that Lessor or its agents possess any special skill or judgment in
the selection of Property for Lessees particular purposes. Further, Lessee has
not notified Lessor of Lessee's particular needs in using the Property.
Lessee understands and agrees that neither the Supplier(s) nor any salesman
or any agent of the Supplier(s) is an agent of Lessor. No salesman or agent of
supplier is authorized to waive or alter any term or condition of this Lease,
and no representation as to the Property or any other matter by the Supplier
shall in any way affect Lessee's duty to pay the rent and perform its
obligations as set forth in this Lease. Lessor shall not be liable to Lessee for
any incidental, consequential, or indirect damages or for any act, neglect,
omission, breach or default by any third party.
LESSOR ASSUMES NO RESPONSIBILITY FOR AND MAKES NO REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, AS TO THE TITLE, DESIGN, COMPLIANCE WITH
SPECIFICATIONS, CONDITION, QUALITY, WORKMANSHIP, OR THE SUITABILITY, SAFETY,
ADEQUACY, OPERATION, USE OR PERFORMANCE OF THE PROPERTY OR AS TO ITS
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR AS TO PATENT, TRADEMARK
OR COPYRIGHT INFRINGEMENT. ANY DELAY IN DELIVERY SHALL NOT AFFECT THE VALIDITY
OF THIS LEASE.
LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY REPRESENTATION, CLAIM, BREACH
OF WARRANTY, EXPENSE OR LOSS DIRECTLY OR INDIRECTLY CAUSED BY ANY PERSON,
INCLUDING LESSOR, IN ANY WAY RELATED TO THE PROPERTY.
20. ENTIRE AGREEMENT, WAIVERS, SUCCESSORS, NOTICE. This Lease and any
Schedule expressly referring hereto (each, a "Transaction") contain the entire
agreement of the parties and shall not be qualified or supplemented by course of
dealing. However, in any case where the Lessor takes an assignment from a vendor
of its security interest in the same Property, the terms of the Transaction
shall be incorporated into the assigned agreement and shall prevail over any
inconsistent terms therein but shall not be construed to create a new contract.
No waiver or modification by Lessor of any of the terms or conditions hereof
shall be effective unless in writing signed by an officer of Lessor. No waiver
or indulgence by Lessor of any default or deviation by Lessee of any required
performance shall be a waiver of Lessor's right to subsequent or other full and
timely performance. This Lease shall be binding on the parties hereto and their
respective successors and assigns and shall inure to the benefit of such
successors and assigns. Paragraph headings shall not be considered a part of
this Lease.
UNDER OREGON LAW, MOST AGREEMENTS, PROMISES AND COMMITMENTS MADE BY LESSOR
AFTER OCTOBER 3, 1989, CONCERNING LOANS AND OTHER CREDIT EXTENSIONS WHICH ARE
NOT FOR PERSONAL FAMILY OR HOUSEHOLD PURPOSES OR SECURED SOLELY BY THE LESSEE'S
RESIDENCE MUST BE IN WRITING, EXPRESS CONSIDERATION AND BE SIGNED BY LESSOR TO
BE ENFORCEABLE.
BY INITIALING THIS SECTION, LESSEE ACKNOWLEDGES THAT LESSEE RAS READ THE
ABOVE PARAGRAPHS UNDER SECTION 19, LESSORS DISCLAIMERS, AND SECTION 20, ENTIRE
AGREEMENT, AND FULLY UNDERSTANDS THEIR CONTENT.
INITIALED: /s/ RKB
21. POWER OF ATTORNEY. LESSEE HEREBY AUTHORIZES AND APPOINTS LESSOR AS ITS
ATTORNEY-IN-FACT TO COMPLETE, AMEND AND EXECUTE ON LESSEE'S BEHALF FINANCING
STATEMENTS IN CONNECTION WITH THIS LEASE AND TO CONFORM THE DESCRIPTION OF THE
PROPERTY (INCLUDING SERIAL NUMBERS) IN ANY SUCH FINANCING STATEMENTS OR OTHER
DOCUMENTATION. LESSEE WILL ALSO PROMPTLY EXECUTE AND DELIVER TO LESSOR SUCH
FURTHER DOCUMENTS AND TAKE FURTHER ACTION AS LESSOR MAY REQUEST TO MORE
EFFECTIVELY CARRY OUT THE INTENT AND PURPOSE OF T'HIS LEASE.
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Master Lease
Agreement to be duly executed as of the day and year first above written.
PLM RENTAL, INC. (LESSEE)
By: /s/ Xxxxxxx X Xxxxx
Chief Financial Officer
U.S. BANCORP LEASING &
FINANCIAL (LESSOR)
By: /s/Xxxx DiStephanco
Its: Senior Vice President
Address for All Notices:
U.S. BANCORP LEASING & FINANCIAL
P.O. BOX 2177, 0000 X.X. XXXXXX XXXXXX
XXXXXXXX, XXXXXX 00000-0000
