THIS EQUIPMENT LEASE AGREEMENT (herein this “Lease Agreement”) is made and entered into by and between Accutech Refrigeration Contractors LLC, a Oregon based LLC, doing business as Tundra Cold Box, and the Lessee identified above with regard to the following:
LEASE OF EQUIPMENT. Pursuant to the terms of this Lease Agreement, Lessor hereby leases to Lessee and Lessee hereby leases from Lessor that equipment listed and specified above (herein collectively the “Equipment”).
TERM OF LEASE. The term of this Lease shall be for that period of time set forth above, commencing and terminating on those dates set forth above (herein the “Lease Term”).
USE/MAINTENANCE. Lessee shall use the Equipment in the conduct of its business only and not for any improper or unlawful purposes. The Equipment shall only be used by Lessee and its employees or agents. Lessee shall not rent or sublease the Equipment to any third party and shall not allow the Equipment to be used for any purpose other than for the conduct of Lessee’s business. Lessee shall operate and use the Equipment in a safe and responsible manner and shall comply with all laws, ordinances, regulations, requirements and rules with respect to the use, maintenance and operation of the Equipment. Lessee shall not make any modification, alteration or addition to the Equipment without the written consent of Lessor. Lessee warrants and represents that the Equipment shall be domiciled at the address listed above when not in use. If Lessee detects any maintenance problem with, or damage to, the Equipment, or suspects that such a maintenance problem or damage exists, Lessee shall not operate or use the Equipment and shall immediately notify Lessor. Lessee shall not undertake to perform any maintenance of the Equipment other than as specified herein.
RENT. Commencing on the date identified above, Lessee shall pay to Lessor a rental payment in the amount identified above (the “Rent”) plus sales tax thereon at the prevailing sales tax rate, plus any other taxes, fuel charges, pick-up and delivery charges, and standby charges that may be imposed. The Rent shall be paid to Lessor in accordance with the schedule set forth above. Lessee shall be unconditionally obligated to pay the Rent during the Lease Term. Lessee shall pay the Rent, without notice or demand, when and as due, without deduction, set-off, reduction or abatement of any nature or for any reason or purpose. In the event that any Rent payment is not paid within five (5) days of the due date Lessee shall be in default under the terms of this Lease Agreement and a late fee of five percent (5%) of the delinquent amount shall automatically be due and payable and shall be paid by Lessee to Lessor as a condition to the cure of the default by Lessee. Any Lease Payment not paid within five (5) days of the due date shall also bear interest at the rate of twelve percent (12%) per annum. Lease Payments shall be deemed to have been made by Lessee when actually received by Lessor.
RISK OF DAMAGE AND LOSS.
1 Care and Repairs: Lessee shall be solely responsible for the maintenance and repair of the Equipment and for any damage, liability or injury to the Equipment. At the end of the Lease Term, Lessee shall redeliver the Equipment to Lessor in as good a condition, appearance, mechanical condition and running order as when originally delivered to Lessee, reasonable wear expected. If Lessor shall be required to make any repairs or maintenance to restore the Equipment or any part thereof to said good condition, then Lessee shall be responsible for the cost of said repairs or maintenance, at the current shop rate of $125.00 per hour plus materials. The Equipment shall be subject to mechanical inspection with a reasonable time after return and defects that are Lessee’s responsibility shall be paid by Lessee upon demand, notwithstanding payment of any other amounts computed and paid as of date of return.
2 Damage or Destruction. Lessee assumes and shall be solely responsible for the entire risk of all or any of the Equipment being lost, destroyed, damaged, stolen or confiscated, from whatever source, from the date Lessee takes possession of the Equipment until the date the Equipment is returned to and accepted by Lessor upon expiration of the Lease Term. In the event that damage or destruction to any of the Equipment is such as to render it impractical to repair the Equipment so damaged, Lessee shall pay to Lessor the fair market value (FMV) of the Equipment so damaged as of the date of the execution of this Lease Agreement. Such payment shall be due and payable within thirty (30) days of the date of the loss or destruction. At Lessor’s option, all funds paid to Lessor by Lessee may be applied first to handling, transportation, repair or other charges accruing under the terms of this Lease Agreement prior to applying the same upon amounts due for Lease Payments.
3 No guarantee. Lessor does not guarantee that all equipment leased under this agreement is water tight at all times and as such, shall not be liable for losses or damage to cargo; and Lessor does not guarantee the proper operation of all refrigeration units at all times and as such, shall not be liable for losses or damage resulting from unit failures.
INDEMNIFICATION AND HOLD HARMLESS. Lessor shall not be responsible for any losses, expenses, injuries, damages, lost profits, overhead, consequential damages, or any other loss, directly or indirectly, whether caused or occasioned to Lessee or any third parties, whether to person or property, due to faulty Equipment, down time or failure to deliver when due and Lessee assumes full risk therefore. To the fullest extent permitted by law, Lessor shall not be liable for any personal injury or death or the loss of or damage to any property, inventory or equipment (including property of Lessee and others) occurring as the direct or indirect use or application of the Equipment. Lessee hereby expressly releases Lessor, its officers, directors and shareholders from any and all such liability. Lessee shall indemnify, hold harmless and defend Lessor, its officers, directors, shareholders, employees and agents, from and against all claims, expenses, injuries, damages, liabilities, losses or suits, including attorney fees and costs from any and all, attorney’s fees, damages or liability of any kind or nature whatsoever incurred in connection with or arising out of the maintenance, performance, location, operation, or use of the Equipment, including such claims for injuries to or death of any and all persons and all damages to property or arising out of or in any way connected with the use, performance or operation of the Equipment by any person or entity, including Lessee, its employees or agents. Lessee shall defend, at Lessee’s own expense, in the name of and on behalf of, Lessor all such claims for which Lessor is liable or alleged to be liable by and through such legal counsel as may be approved by Lessor. The provisions of this Section 6 shall survive the expiration or termination of this Lease Agreement. The indemnification obligations set forth in this Section 6 shall include claims and demands by Lessee’s employees; Lessee shall be deemed to have waived all limitations on its liability to its employees that may be granted it under the Official Annotated code of Arizona and for all purposes Lessee shall protect Lessor from liability arising from, relating to or associated with the use, application, maintenance, repair or condition of any of the Equipment.
INSURANCE. Lessee, at its own expense, shall at all times from date it takes possession of the Equipment until the Equipment is returned to Lessor at the end of the Lease term, maintain an occurrence form commercial general liability insurance policy insuring the activities of Lessee and Lessee’s employees, agents, licenses, servants, assignees, concessionaires, suppliers, contractors, invitees and customers with respect to the Equipment and its use and application against loss, damage or liability for personal injury or death or loss or damage to property with a limit of not less than $300,000 combined single limit per accident for bodily injury and property damage. Lessee shall be named as an additional insured on such policy. Lessee shall also secure and maintain at its own cost and expense a policy of property insurance, including coverage for all loss from whatever nature of the Equipment, including fire, theft and vandalism, in an amount equal to not less than one hundred percent (100%) of the fair market value thereof. For purposes of this Lease Agreement, the FMV of the Equipment is listed on Page 1 under description of Equipment and FMV. Lessor shall be named as a property loss payee on such policy. In no event shall the limits of such policies be considered as limiting the liability of Lessee under this Lease Agreement.
LICENSES. Lessee shall maintain all licenses necessary for the operation of the Equipment, including a valid State Driver’s License. Lessee shall provide to Lessor a true and correct copy of his or her State Driver’s Licenses for each and every person whom Lessee anticipates may operate the Equipment under this Agreement. Lessee shall immediately notify Lessor if a license provided pursuant to this Section 8 is suspended or revoked for any reason.
DEPOSIT. Prior to taking delivery of the Equipment, Lessee shall pay to Lessor a Reservation Deposit in the amount set forth above, as security for Lessee’s full performance of all of the terms and conditions of this Agreement. The Reservation Deposit shall be nonrefundable if this Agreement is cancelled by Lessee for any reason. Lessor shall have the right to apply the Reservation Deposit to Lessee’s account if Lessee has not fully performed all of the terms and conditions of this Agreement. Lessor shall not be subject to any restrictions or limitations whatsoever with respect to its use or commingling of Lessee’s Reservation Deposit, nor shall Lessee be obligated to pay any interest on such Reservation Deposit.
ATTORNEY FEES. In the event Lessor places this Lease Agreement in the hands of an attorney or attorneys for collection, investigation, suit or other legal proceedings, to enforce or defend any of the terms or conditions of this
Lease Agreement for which Lessee is responsible, then Lessee shall pay all reasonable attorney fees, costs, expenses and disbursements incurred by Lessor. The venue of any legal proceeding shall be in Multnomah County, Portland Oregon Superior Court or in such other county or venue as may be determined by Lessor.
RETURN OF EQUIPMENT. Lessee shall be responsible for returning the Equipment to Lessor on or before the Termination Date set forth above. If Lessee wishes to extend the Lease Term, Lessee must provide at least two (2) days prior written notice of Lessee’s desire to extend. Lessor, in Lessor’s sole discretion, may elect to extend the Lease Term or may reject Lessee’s request and require the return of the Equipment by the Termination Date. If Lessee retains the Equipment for any reason beyond the termination of the Lease Term, as such Term may be extended hereunder, and then Lessee shall pay to Lessor a per diem rental rate of FIVE HUNDRED DOLLARS AND NO/100THS ($500.00). Lessee acknowledges and understands that there are no exceptions to this holdover rate. Additionally, to the extent that Lessor is required to pick up the Equipment, Lessee shall be responsible for the pickup fee identified above.
1 No Title/Ownership Rights. This Lease Agreement is a lease only and the Lessee acquires no title or ownership rights to the Equipment.
2 Binding. This Lease Agreement is binding on the parties, their successors, legal representatives and assigns.
3 Modifications. This Lease Agreement may be modified only in writing signed by duly-authorized representatives of both parties. The parties expressly reserve the right to modify this Lease Agreement, from time to time, by mutual agreement.
4 Applicable Law and Venue. This Lease Agreement shall be construed and interpreted in accordance with the laws of the State of Oregon. The venue of any action brought under this Lease Agreement shall be Multnomah County Superior Court, Portland, Oregon .
5 Waiver. No waiver of full performance by either party shall be construed, or operate, as a waiver of any subsequent default or breach of any of the terms, covenants or conditions of this Lease Agreement.
6 Severability. The invalidity, in whole or in part, of any term of this Agreement does not affect the validity of the remainder of the Agreement.
7 Entire Agreement. This Lease Agreement contains the entire written agreement of the parties and supersedes all prior discussions.
8 No Assignment. This Lease Agreement shall not be assigned by Lessee to any person or entity without the express written permission of Lessor, which permission may be withheld by Lessor in its sole discretion.
9 Counterparts. This Lease may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. The date of the last signature hereto shall be the date of mutual execution hereof.
Tundra Cold Box is a Subsidiary of Accutech Refrigeration Contractors, LLC