DaimlerChrysler LEASE AGREEMENT Truck Financial (Open-End)
Exhibit
10.3
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FORM
OF
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DaimlerChrysler
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Truck
Financial
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(Open-End)
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LESSOR:
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LESSEE:
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This
Lease Agreement (hereinafter "Lease") is entered into on the _____day of
____________by and between the Lessor named above (hereinafter "Lessor")
and the Lessee named above (hereinafter "Lessee").
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ASSIGNEE: Daimler Trust, and its
successors, transferees and assigns.
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TAX
STATEMENT
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Lessee
hereby represents and certifies, under penalty of perjury, that, with
respect to all Schedules now or hereafter executed in connection with the
Lease:
(i)
Lessee intends that more than 50 percent of the use of the Equipment is to
be in its trade or business; and
(ii)
Lessee has been advised that LESSEE WILL
NOT BE TREATED AS THE OWNER OF THE EQUIPMENT FOR FEDERAL INCOME TAX
PURPOSES.
Lessee
agrees to indemnify Lessor pursuant to the Lease for any claims, losses,
costs, damages, and expenses, of whatsoever kind and nature, including
legal fees, resulting
from Lessee's breach of the above representation and
certification.
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NOTICE
TO LESSEE:
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WARNING:
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(1)
DO NOT SIGN THIS LEASE BEFORE READING IT OR IF IT CONTAINS ANY BLANK
SPACES TO BE FILLED IN; (2) LESSEE IS ENTITLED TO A COMPLETELY FILLED-IN
COPY OF THIS LEASE.
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Important
consumer protections may not apply if this agreement indicated that Lessee
is leasing the vehicle primarily for agriculture, business or commercial
use.
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LESSEE
ACKNOWLEDGMENT
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LESSOR
ACKNOWLEDGMENT
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BY
SIGNING BELOW, LESSEE ACKNOWLEDGES THAT LESSOR'S SIGNATURE ON THIS LEASE
WILL HAVE THE EFFECT OF ASSIGNING ALL RIGHT, TITLE AND INTEREST OF LESSOR
IN AND TO THIS LEASE AND THE EQUIPMENT TO ASSIGNEE, Lessee agrees that
Lessee received a completely filled-in copy of this Lease and agrees to
all the provisions of the Lease, including the terms and conditions on
this and the following page.
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BY
SIGNING BELOW, LESSOR ACCEPTS THE TERMS AND CONDITIONS OF THIS LEASE AND
ASSIGNS ALL RIGHT, TITLE AND INTEREST TO AND IN THIS LEASE AND THE
EQUIPMENT TO ASSIGNEE, PURSUANT TO THE TERMS OF THE EQUIPMENT PURCHASE AND
LEASE ASSIGNMENT AGREEMENT BY AND BETWEEN LESSOR AND
ASSIGNEE.
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Lessee:
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Lessor:
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Siqnature
X:
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By:X:
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Title:
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Title:
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GUARANTY
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The
undersigned guarantor(s) ("we") hereby, jointly, severally and
unconditionally guarantee payment of all of Lessee's obligations under
this Lease, and all extensions and substitutions thereof, and agree to the
Lease's terms and conditions. We waive any rights that we may have to
require the Lessor or Assignee to first exhaust its remedies against the
Lessee(s), the Equipment, or any other guarantor, before collecting under
this Guaranty,
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Guarantor
Name:
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Guarantor
Name:
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Guarantor Signature X:
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Guarantor Signature X:
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TERMS
& CONDITIONS
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1. EQUIPMENT LEASED. Lessor agrees to lease
to Lessee and Lessee agrees to lease from Lessor the equipment described
in each Schedule A now or hereafter executed pursuant to this Lease
(hereinafter "Schedule" or "Schedules"), together with any attachments or
accessories now or hereafter incorporated in or attached to said equipment
(hereinafter "Equipment"). Additional Equipment may be leased hereunder by
the execution of additional Schedules by Lessor and Lessee and each such
Schedule shall constitute a separate Lease of the Equipment described
therein. Except as specifically modified in any Schedule, all of the terms
and conditions of this Lease shall govern the rights and obligations of
Lessee and Lessor with respect to the Equipment described in the
Schedules. Whenever reference is made herein to "this Lease" or "the
Lease" it shall be deemed to include all Schedules now or hereafter
executed under this Lease.
2. TERM. This Lease shall commence on the
delivery ▇▇▇▇ stated on the applicable Schedule(s) and shall continue
until all rental payments as hereinafter described, and all of Lessee's
other obligations hereunder, have been satisfied in full by
Lessee.
3. RENTAL; LATE CHARGE; ADDITIONAL CHARGES.
Lessee agrees to pay Lessor monthly payments in an amount and for the term
indicated in the Schedule(s) without reduction or set off for any reason,
except as otherwise provided in this Lease. The first payment shall be due
on the date stated in the Schedule(s). If
Lessee fails to pay in full any rental payment, or any other sum required
to be paid hereunder by Lessee, within ten (10) days of its due date,
Lessor may, without declaring Lessee to be in default, charge Lessee an
amount equal to five percent (5%) of such past due amounts or the maximum
allowed by applicable state law. In addition, Lessor may collect from
Lessee a charge of $25, or such lesser amount as may be limited by law,
for each check, draft or similar instrument presented to Lessor that is
returned or dishonored for any reason.
4. FEES AND TAXES. Lessee agrees to pay when
due all fees, sales and use taxes, duties, assessments, highway use taxes,
or other taxes and charges, however designated, now or hereafter levied or
based upon the purchase, rental, ownership, use, possession, leasing,
operation, control, maintenance or sale of the Equipment, whether or not
paid or payable by Lessor (excluding Lessor's net income, franchise and
business and occupation taxes), and shall supply Lessor with proof of
payment upon written demand therefor by Lessor.
5. USE, INSPECTION AND ALTERATIONS. Lessee
at its sole expense shall have the Equipment serviced in accordance with
the manufacturer's approved maintenance schedules, ensure that maintenance
records are available for review by Lessor at reasonable times and places
and maintain the Equipment in good repair, appearance, functional order,
and good lawful operating condition. Lessee shall not (a) sell, lease,
transfer or assign the Equipment or Lessee's interest in this Lease or any
Schedule without Lessor's prior written consent; (b) use or permit the use
of the Equipment in any unintended, injurious or unlawful manner; (c) use
or permit the use of the Equipment primarily for personal, family,
household or agricultural purposes; (d) subject the Equipment to unusual,
extreme or severe operating condition; (e) remove the Equipment from the
state in which Lessee resides or has its principal offices, other than in
the ordinary course of business, for a period in excess of sixty (60)
consecutive days, without first obtaining Lessor's prior written consent;
or (f) change or alter the Equipment without Lessor's prior written
consent, except that Lessee shall make such alterations and improvements,
at Lessee's expense, as may be required from time to time to meet the
requirements of law or of any federal, state or local governmental
authority having jurisdiction over the Equipment. To ensure compliance
with the foregoing, Lessor shall have the right, at any lime, to enter
Lessee's premises or elsewhere to inspect the Equipment or to observe its
use. All improvements and alterations, other than improvements which can
be readily removed without causing damage to the Equipment and without
rendering the Equipment unable to comply with law, shall become part of
the Equipment and shall be the property of Lessor.
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6. INSURANCE. Lessee agrees to keep the
Equipment continuously insured by an insurance company and with
deductibles as specified by Lessor from time to time. At a minimum, Lessee
must provide Lessor with proof of: (i) collision and comprehensive
insurance coverage in an amount equal to the value of the Equipment and
(ii) liability insurance for bodily injury or death and property damage in
an amount as specified by Lessor. Lessee agrees to provide Lessor with
written proof of a paid policy and subsequent renewals, showing Lessor as
loss payee and additional insured, which will require at least thirty (30)
days prior written notice to Lessor before such insurance may lapse, be
reduced, canceled or terminated. Lessee assigns to Lessor all proceeds
from insurance policies covering the Equipment, including, but not limited
to, refunds of unearned premiums of any credit life, credit disability,
property or other insurance financed by Lessor, and directs said insurance
companies to pay such amounts directly to Lessor, Lessor may apply any
Insurance proceeds and returned premiums received to Lessee's unpaid
obligations under this Lease. Should Lessee fail to purchase and maintain
adequate insurance on the Equipment, as determined by Lessor, then Lessor
may purchase such insurance as Lessor deems necessary to protect its
interest. Lessee agrees to reimburse Lessor for the cost of such insurance
within ten (10) days of demand, and if Lessee fails to do so, then Lessor
may charge a late fee in accordance with this Lease. All insurance
policies financed under this Lease, unless a shorter period is specified
in the policy, end upon the original due date of the last payment due
under the applicable Schedule. If Lessee is due any insurance refund,
Lessee must seek same from the insurance company. Lessor does not require
Lessee to have credit life insurance. Lessee authorizes Lessor to release
to third parlies any information necessary to facilitate insurance and tax
monitoring and insurance placement. Lessee and its agents and employees
will cooperate with Lessor and any insurer in the reporting,
investigation, prosecution or defense of any accident, claim or suit
related to the Equipment and will promptly deliver to Lessor copies of all
papers or notices served upon or delivered to Lessee, its agents or
employees and will otherwise comply with the notification requirements of
any insurance carrier.
7. LOSS AND DAMAGE. Lessee hereby assumes
all risk of loss, including theft or destruction, and the risk of damage
to the Equipment, from any and every cause whatsoever, whether or not such
loss is covered by insurance. Loss or damage to the Equipment, or any part
thereof, shall not relieve Lessee of any obligation under this Lease. If
the Equipment is damaged or destroyed in an accident or other occurrence
or confiscated by any governmental authority or subjected to any lax lien
or is stolen, abandoned or subjected to undue peril, Lessee will notify
Lessor within ten (10) days of such occurrence or condition. If any item
of Equipment is damaged and in a condition which Lessor believes may be
reasonably repaired, Lessee shall repair the same to good working order.
If the Equipment is damaged and in a condition which Lessor believes is
beyond reasonable repair, or with respect to any other occurrence or
condition set forth above, Lessor may terminate this Lease with respect to
that Equipment immediately. If the Lease is terminated, Lessee's
termination liability shall be the sum of the following: (1) any Lease
payments or other amounts due and owing as of the date of termination;
plus (2) the balance of the Lease payments Lessee would have made had the
lease gone to full term (less a deduction for the time value of such
payments computed in accordance with The simple interest method); plus (3)
the Residual Value as set forth in the Schedule(s) (less a
deduction for the time value of such payments computed in accordance ▇▇▇▇
the simple interest method); plus (4) an amount equal to one monthly Lease
payment; plus (5) any and all commissions, fees or other amounts paid by
Lessor as consideration for assignment of this Lease; less the proceeds
Lessor receives from the insurance provided by Lessee, if any. Lessee
expressly understands and agrees that in the event of a total loss,
Lessee's insurance policy may not be sufficient to completely satisfy
Lessee's termination liability set forth above, and Lessee agrees that in
such event Lessee shall be liable for, and shall pay Lessor upon demand
therefor, the amount of any such
deficiency.
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DaimlerChrysler
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Truck
Financial
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TERMS & CONDITIONS (Continued)
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8. SPECIAL
REPRESENTATIONS, WARRANTIES AND COVENANTS OF
LESSEE.
Lessee
represents, warrants and covenants to Lessor that: (a) the Equipment will
not be used outside of the United States during more than 50 percent of
any calendar year or partial calendar year (during the term of this Lease;
(b) Lessee is not and will not become an organization exempt from the tax
imposed by Chapter 1 of the Internal Revenue Code of 1986 nor will Lessee
allow any such entity to use the Equipment; and (c) Lessee is not the
United States, any State (including the District of Columbia) or political
subdivision thereof, or any agency or instrumentality of the United
States, any State or political subdivision thereof or any international
organization, nor will Lessee allow any such entity to use the Equipment.
Lessee acknowledges that if any representation, warranty or covenant
herein is false or if it takes any action or omits to take any action
which causes any such representation, warranty or covenant to be false or
to be breached, Lessor, or the affiliate group of which it is a member,
may suffer adverse tax consequences. Accordingly, Lessee agrees that if it
breaches any such representation, warranty or covenant or if the same
shall be or become false, this Lease shall be deemed to be in default and
Lessee shall be liable to Lessor in the manner and for the amounts set
forth in this Lease.
9 . DISCLAIMER OF WARRANTIES. LESSOR IS NOT THE
PRODUCER, MANUFACTURER OR DESIGNER OF THE EQUIPMENT, AND LESSOR MAKES NO
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS LEASE OR THE
EQUIPMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE. LESSOR SPECIFICALLY
DISCLAIMS ANY AND ALL LIABILITY FOR CONSEQUENTIAL
DAMAGES.
Lessor
agrees, however, to assign to Lessee all of the manufacturer's standard
warranties applicable to the Equipment, together with any rights and
remedies afforded thereunder, to the extent that those warranties, rights
and remedies are assignable, Lessee's obligations to Lessor under this
Lease are absolute, unconditional and non-cancelable with no right of
offset, counterclaim or defense against Lessor or any
assignee.
10. INDEMNIFICATION. Lessee agrees to defend,
indemnify and hold harmless Lessor from and against any and all loss or
damages to the Equipment and from all claims, losses, suits, actions,
liabilities, costs and expenses (including, but not limited to, reasonable
attorneys' fees) related to and/or arising from the purchase, rental,
ownership, use, possession, leasing, operation, control, maintenance or
sale of the Equipment or any breach of any representation or warranty
contained in this Lease. This section shall inure to the benefit of any
successor or assign of Lessor and shall survive termination of this
Lease.
11. DEFAULT. Time is of the essence in this
Lease, and Lessor may declare this Lease to be in default and terminated
upon the occurrence of any of the following events: (a) Lessee's failure
to pay when due the full amount of any payment required hereunder or under
any other lease (or under any loan or retail installment contract) with
Lessor or any affiliate of Lessor, or Lessee's default. In the performance
of any of the obligators or covenants hereunder or thereunder; or (b) the
making of any false or misleading statement by Lessee prior to or in
connection with this Lease; or (c) Lessee's death, dissolution, insolvency
or other termination of existence; or (d) a significant change in the
management, ownership or control of Lessee, without Lessor's consent; or
(e) the merger, transfer, acquisition or consolidation by Lessee with any
other entity, without Lessor's consent; or (f) Lessee's becoming the
subject of a petition in bankruptcy, either voluntarily or involuntarily,
or making an assignment for the benefit of creditors, or being named or
subjected to a suit for the appointment of a receiver; or (g) seizure of
or levy upon the Equipment by reason of any legal or governmental process;
or (h) any bankruptcy, insolvency, termination or default of any guarantor
of Lessee; or (i) if any guaranty supporting Lessee's obligations
hereunder shall fail to remain in full force and effect.
12. LESSOR'S REMEDIES. Upon Lessee's default,
Lessee shall be liable for, and shall pay Lessor
upon demand, the sum of the following as liquidated damages: (1) any Lease
payments or other amounts due and owing as of the ▇▇▇▇ of default; plus (2) the balance of the
Lease payments Lessee would have paid had the Lease gone to full term
(less a deduction for the time value of such payments computed in
accordance with the simple interest method); plus (3) the Residual Value as
set forth in the Schedule(s) (less a deduction for the time value of such
payments computed in accordance with the simple interest method); plus (4) an amount equal to one
monthly Lease payment; plus (5) any and all
commissions, fees or other amounts paid by Lessor as consideration for the
assignment of this Lease (collectively, the "Default Liability"). In the
event of Lessee's default, Lessee agrees to surrender the Equipment to
Lessor at such location as Lessor may designate, and agrees that Lessor
may lake possession of the Equipment wherever the same may be found,
whether on Lessee's premises or elsewhere, in accordance with applicable
law. Lessee further agrees that any and all rights or interests Lessee may
have in the Equipment shall be extinguished upon Lessee's default. If
Lessor obtains possession of the Equipment following Lessee's default,
Lessor shall dispose of the Equipment by public or private sale in the
wholesale or retail market, and such disposition may be with or without
notice to Lessee. Lessor may advertise and sell repossessed Equipment
through ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or
other internet websites through which equipment or motor vehicles similar
to the Equipment is sold and such disposition shall be deemed in
conformity with reasonable commercial practice among dealers of the type
of property that was the subject of the disposition. Following any such
sale, Lessor shall deduct from the Default Liability the amount of any
proceeds obtained upon disposition of the Equipment, less any costs or
expenses incurred by Lessor in connection with the repossession, storage,
restoration and/or disposition of the Equipment. Lessor may assess, and
Lessee will be liable for, interest on the total amounts Lessee may owe to
Lessor from time to time by reason of Lessee's default at the rate of
eighteen percent (18%) per annum, unless a lower rate is required by
applicable law, in which case that rate shall apply, both before and after
judgment. Lessee understands and agrees that the remedies provided under
this Lease in favor of Lessor upon default shall not be exclusive, but
shall be cumulative and in addition to any other remedies available to
Lessor, whether existing in law, equity or bankruptcy. Further, upon any
event of default, Lessee authorizes Lessor to notify anyone using the
Equipment to pay Lessor directly for any of Lessee's
obligations.
13. END OF LEASE TERMINATION LIABILITY. Upon
the expiration of this Lease, Lessee shall, at Lessee's expense, assemble
and return the Equipment unencumbered at Lessor's place of business, or at
such other place as Lessor specifies, in the same condition, appearance
and functional order as received, reasonable and ordinary wear and tear
excepted. Upon the return of the Equipment, Lessor will sell the Equipment
at a public (including, but not limited through ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ or other
internet website through which equipment or motor vehicles similar to
Equipment is sold) or private sale with or without notice to Lessee. If
the amount received from the sale (less sales tax payable, reasonable
sales commissions and restoration and storage costs, if any) exceeds the
Residual Value of the Equipment as set forth in the Schedule(s), the
amount of such surplus shall be paid to Lessee. If the amount received
from the sale (less sales tax payable, reasonable sales commissions and
restoration and storage costs, if any) is less than the Residual Value of
the Equipment as set forth in the Schedule(s), Lessee shall be liable for,
and shall pay upon demand, the amount of such deficiency to Lessor. Lessee
acknowledges that the potential benefit or liability herein contemplated
is not intended to create any equity interest in the Equipment for Lessee,
but rather are designed as incentives for Lessee to properly maintain the
Equipment as required by this Lease. If Lessee fails to return the
Equipment on or before the last day of the Lease term, Lessee shall be
obligated to pay, as holdover lease payments, an amount equal to two times
the monthly payment for each month (or portion thereof) that the Lessee
fails to return the Equipment. For example, if the monthly payment prior
to the expiration of the lease was $200 per month, the holdover monthly
lease payment shall be $400 per month. Notwithstanding the foregoing,
receipt of the monthly holdover payment shall not constitute consent or
permission by Lessor to retain possession of the
Equipment.
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14. PURCHASE OPTION. If Lessee is not in
default of its obligations to Lessor hereunder or under any other
agreement with Lessor, Lessee has the option to purchase the Equipment at
any lime. The purchase price for the Equipment prior to expiration of the
Lease term is the following: (1) any Lease payments or other amounts due
and owing as of the date Lessee exercises its purchase option; plus (2) the balance of the
Lease payments Lessee would have made had the Lease gone to full term
(less a deduction for the time value of such payments computed in
accordance with the simple interest method); plus (3) the Residual Value as
set forth in the Schedule(s) (less a deduction for the time value of such
payments computed in accordance with the simple interest method); plus (4) an amount equal to one
monthly Lease payment; plus (5) any and all
commissions, fees or other amounts paid by Lessor as consideration for
assignment to this Lease; plus (6) any official fees and
taxes assessed in connection with the purchase. The purchase price for the
Equipment upon expiration of the Lease term is the amount described in the
preceding sentence less items (4)
and (5) and the Residual Value will not be present valued. If Lessee
wishes to exercise this purchase option, Lessee agrees to provide to
Lessor sixty (60) days prior written notice of its intent to purchase the
Equipment, Lessee expressly understands that Lessee shall have absolutely
no equity or other ownership rights in the Equipment unless and until
Lessee purchases the Equipment as provided herein.
15. OWNERSHIP/TITLE/LIENS. Lessor and Lessee
intend for this agreement to be a true lease; consequently; ownership of
and title to all Equipment shall be and remain in Lessor, notwithstanding
possession and use thereof by Lessee. Lessee has not acquired, and will
not acquire by its acceptance of this Lease, any proprietary rights or
interest in the Equipment. Lessee acknowledges that unless and until
Lessee purchases the Equipment in accordance with the Lease, Lessee's
interest shall be that of lessee and not owner, Lessee shall keep the
Equipment free from all liens and encumbrances during the term of this
Lease.
16. ASSIGNMENT. This Lease shall be binding
upon and inure to the benefit of any permitted successors and assigns of
Lessor and Lessee. All right, title and interest in and to this Lease, any
Schedules and the Equipment may be assigned at any lime by Assignee or any
subsequent assignee without Lessee's consent. Upon notice of any
assignment by Lessor, Lessee shall make all payments coming due hereunder
without offset, counterclaim or defense of any kind. It is expressly
understood that any reference in this Lease to "Lessor" shall be construed
to mean Lessor, Assignee or any subsequent assignee, and their successors.
Lessee's interest hereunder shall not inure to the benefit of any trustee,
receiver, creditor or successor of Lessee or its property, whether or not
in bankruptcy, or whether by operation of law or otherwise.
17. POWER OF ATTORNEY. To the extent
permitted by law, Lessee hereby appoints Lessor as Lessee's
attorney-in-fact, Lessee's grant of this power of attorney is coupled with
an interest and is irrevocable until all obligations Lessee owes under
this Lease are paid in full. As Lessee's attorney-in-fact, Lessor can; (a)
sign on Lessee's behalf all Certificates of Ownership, Registration cards,
applications, affidavits or any other documents required to register and
properly perfect Lessor's security interest in the Equipment; (b) transfer
Lessee's entire interest in the Equipment as part of a repossession and
sale; and (c) act on Lessee's behalf in insurance matters relating to the
Equipment, including, but not limited to, the power to endorse insurance
proceeds checks or drafts on Lessee's behalf and cancel any credit life,
credit disability, guaranteed automotive protection coverage, extended
warranty or other optional insurance financed under this Lease and apply
the refunded premium or cost to Lessee's outstanding balance.
18. ADDITIONAL SECURITY. To
further secure the performance of Lessee's obligations to Lessor,
hereunder or otherwise, Lessee hereby grants to Lessor a first security
interest in (a) each and every vehicle leased by Lessee from Lessor or an
affiliate of Lessor ("Leased Vehicles'') (Lessees interest in said
equipment being assigned to the full extent of Lessee's interest therein);
and (b) each and every vehicle purchased by Lessee and financed by Lessor
or an affiliate of Lessor ("Financed Vehicles"); and (c) all accessions,
replacements and additions to the Leased Vehicles and Financed Vehicles,
and in all leases, lease payments, rentals, chattel paper and rights
relating to the Leased Vehicles and Financed Vehicles, and in all proceeds
derived from the Leased Vehicles and Financed Vehicles, including
insurance proceeds and refunds of insurance premiums; and (d) any
additional equipment or inventory described in an exhibit or schedule
attached hereto or to any Lease Schedule. If Lessor permits Lessee to
allow others to use or lease the Equipment, Lessee agrees to stamp any
agreement between Lessee and Lessee's lessee with language approved by
Lessor and to provide and update Lessor with all current contact
information of any user or lessee.
19. GOVERNING LAW; JURISDICTION. This Lease
shall be deemed to have been made in the state named in Lessor's address
above, and shall be interpreted, and the rights and liabilities of the
parties determined, by the laws and courts of that state, to the exclusion
of the courts of any other state or country; provided, however, that
Lessor shall have the right, but not the obligation, to litigate in any
state or country in which Lessee, the Equipment, or any of Lessees or any
guarantor's assets are located. LESSEE
WAIVES ANY AND ALL RIGHT TO A JURY TRIAL REGARDING ANY DISPUTE ARISING
HEREUNDER.
20. AUTHORIZATION TO SHARE INFORMATION.
Lessor may collect non-public information from Lessee and any guarantor
which may consist of information on credit applications or other forms,
information regarding transactions with Lessor, affiliates or others and
information that Lessor receives from consumer or credit reporting
agencies and other outside sources during the time period that a line of
credit is in effect or that any balance is due to Lessor under any lease
or loan agreement ("Information"). Lessee and guarantors agree that Lessor
may disclose any of the Information to affiliates, assignees or agents of
Lessor.
21. SEVERABILITY. If any of the provisions of
this Lease are prohibited by or held invalid under applicable laws or
regulations of any jurisdiction in which this Lease is sought to be
enforced, then that provision shall be considered inapplicable and omitted
but shall not invalidate the remaining provisions.
22. COSTS AND ATTORNEY'S FEES. If Lessor
employs an agent or other party for purposes of collection or
repossession, or refers this Lease to an attorney for purposes of
collection, repossession or enforcement of Lessor's interests herein,
Lessee agrees to reimburse Lessor upon Lessor's demand for all of Lessor's
repossession costs, attorney's fess and expenses to the extent permitted
by applicable state law.
23. ENTIRE AGREEMENT; WAIVER. This Lease and
the Schedule(s) referred to herein constitute the entire agreement of the
parties hereto. No waiver or modification of this lease or any Schedule
shall be effective unless in writing and signed by both parties. No waiver
by Lessor of any obligation of Lessee under this Lease shall be deemed a
waiver of Lessor's right to subsequent or other full and timely
performance.
24. NOTICES. All notices
and payments shall be mailed to the respective parties at the addresses
set forth above or such other address as a party may provide to the other
party in writing.
25. LIKE-KIND EXCHANGE, As part of a
like-kind exchange program, Assignee has engaged MBF Account Services LLC
as a qualified intermediary. The originating Dealer/Lessor is hereby
notified that the Assignee has assigned to MBF Account Services LLC its
rights (but not its obligations) for the purchase of the Equipment
described in any Leases. In the event the Lessee or originating
Dealer/Lessor purchases any Equipment, such purchaser is hereby notified
that the Assignee has engaged MBF Account Services LLC as a qualified
intermediary and has assigned to MBF Account Services LLC its rights (but
not its obligations) for the sale of Equipment described in such
Leases.
26. HEADINGS. Headings at the beginning of
each section are solely for the convenience of the parties and shall not
be considered when interpreting this Lease.
27. COLLATERAL AGENT. Daimler Trust grants a
security interest in the Equipment to Daimler Title Co., as collateral
agent pursuant to the Collateral Agency Agreement dated as of
___________________.
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