TRIPARTITE LEASE AGREEMENT
BETWEEN LESSOR, LESSEE AND THE GUARANTOR
[CD1]
THIS
AGREEMENT of Lease made
at……………….this......................day of………………. 20……………….between A B Co. Ltd.,
a company incorporated under the Companies Act, 1956 and having its registered
office at……………….(hereinafter referred to as "the Lessor") of the
FIRST PART and X Y Co. Ltd., a company incorporated. Under the Companies Act,
1956 and having its registered office at.................... (hereinafter
referred to as "the Lessee") of the
SECOND PART and M, son
of………………. resident of……………….(hereinafter
referred to as the "Guarantor") of the THIRD PART.
WHEREAS
(1)On the request made by
the Lessee, the Lessor has agreed to purchase the equipment, more particularly
described in the Schedule hereto (hereinafter referred to as "the
Equipment") at the price mentioned in the proposal form signed by the Lessee.
(2) The
Lessee has offered to take the equipment so purchased by the Lessor.
(3) The
Guarantor has agreed to stand surety for the payment of lease rentals and
observance and performance of covenants, stipulations and terms and conditions
of this agreement.
(4) The
Lessor has agreed to purchase and lease the said equipment to the Lessee upon
the terms and conditions hereinafter appearing.
NOW IT IS HEREBY AGREED AS
FOLLOWS:
(1)
In pursuance of the said
agreement and in consideration of the rent hereby reserved and of the
covenants, stipulations. and terms and conditions herein contained and on the
part of the Lessee to be observed and performed, the Lessor doth hereby grant
the lease of the equipment unto the Lessee upon the terms and conditions
hereinafter mentioned for the term of…………….years commencing on
the................... day of………………. 20……………….
(2)
The Lessee shall pay to the
Lessor lease rent at the rates on the days and in the manner specified in the
Schedule hereunder written without deduction or abatement in advance on the
10th day of each calendar month, the first such payment to be made on the
.................... day of and if the lease rent is not paid on the due dates,
the Lessee shall pay interest thereon at the rate of ……………….% per month from
the due date till payment.
(3)The equipment shall be
delivered to the Lessee by the manufacturer at the Lessee's factory at the
address specified in the Schedule and the Lessor will not be liable for any
loss or damage caused to the equipment before or in the process of transportation
or delivery of the equipment.
(4) The Lessee acknowledges,
declares and agrees that
(i)
the equipment is of a size,
design, capacity and manufacture selected by the Lessee;
(ii)
the Lessee has selected the
equipment and the manufacturer based on its own judgment;
(iii)
the Lessor is not the
manufacturer or supplier of the equipment and it has not made any
representations or statement about the equipment and the Lessee disclaims any
reliance on the statement made by the Lessor, if any relating to the equipment;
(iv)
the Lessee has not given any
warranties express or implied on to any matter whatsoever including the condition, fitness or
merchantability of the equipjment or suitability of the same for any purpose;
(v)
the Lessor will not be
liable to the Lessee for any liability, claim, loss, damage or expenses of any
kind or nature whatsoever arising from the leasing, installation, use or
operation of the equipment or its failure to operate or perform or otherwise
howsoever.
(5) The Lessee shall
throughout the said term:
(i)
Pay the lease rentals and
other amounts regularly and punctually payable hereunder.
(ii)
Keep and maintain the
equipment in good and substantial repair and condition (fair wear and tear
excepted) and in case the equipment is required to be repaired, to get the
equipment repaired by the person, firm or body nominated by the lessor and in
the event of the lessee failing to do so, the lessor shall be entitled to take
possession of the equipment and get the equipment repaired and in such case the
lessee will forthwith repay to the lessor the full cost of repairs incurred by
the lessor.
(iii)
Instal, use and operate the
equipment properly and carefully and in conformity with the instructions given
by the manufacturer in this behalf.
(iv)
To pay or cause to be paid
all rates, taxes, licence fees, duties, surcharges, registration charges and
other outgoings payable in respect of the equipment, or its installation, use
or operation thereof or in respect of the premises where the equipment may be
placed or kept for the time being and on demand produce the receipts thereof to
the lessor or his authorised representatives and in case of failure by the
lessee to pay the rates, taxes, etc., the lessor shall be at liberty (but not
bound) to make all or any of such payments and to recover fhe amount thereof
from the lessee forthwith.
(v)
Keep the equipment at all
times in its possession and control at the location shown herein viz and will
not remove the said equipment therefrom without the prior written consent of
the lessor.
(vi)
Not cause or permit
affixation of equipment to any immovable property.
(vii)
Insure and keep the
equipment insured during the term of the lease, at its own cost, in the name of
the lessor against loss or damage by theft, fire, accident, and other risks and
on such terms as the lessor may require with……………….Company Ltd. for an amount equal
to the full value of the equipment, in the event of the lessee failing to
insure, the lessor may do so and recover the cost thereof from the lessee
forthwith. The Lessee shall pay the insurance premiums and shall hand over the
policies of insurance and receipts of payment of premium to the lessor.
(viii)
Not to make any alteration,
addition or improvement inequipment without the prior written consent of the
lessor and any alteration, addition or improvement when made to the equipment
shall be or deemed to be part and parcel
of the equipment owned by and belonging to the lessor.
(ix)To permit lessor and all
persons authorised by him at all reasonable times to enter upon the premises
where the equipment is placed or kept for the time being in force and to
inspect and examine the condition of the equipment.
(x)
Obtain all necessary
licences, permissions, etc. for the use and operation of the equipment and not
to use the equipment in contravention of the terms and conditions of such
licences, permissions, bye-laws or regulations of any local or statutory
authority for the time being in force.
(xi)
To indemnify and keep
indemnified the lessor against any claim, demand, liabilities, proceedings or
expenses, brought, filed or incurred against him relating to the
transportation, delivery, operation and use of the equipment including injuries
to or death of persons arising from or pertaining to the transportation,
possession, installation, operation or use of the equipment.
(6)
The lessee acknowledges,
declares and confirms that it holds the equipment as a mere bailee and the
lessor is and will be having sole and exclusive right, title and interest in
the equipment and the lessee will affix or place plate or markings on the equipment
indicating the lessor's title and interest therein.
(7)
(i) If the equipment or any
part thereof is lost, destroyed or damaged, the lessee shall notify the same to
the lessor and receive the moneys from the insurance company and hold the same
on trust for the lessor and. pay or
apply the same as directed by the lessor.
(ii)
If in the opinion of the
lessor, the equipment is lost, stolen or damaged to such extent which is
incapable of repair, the insurance money will be applied to make good the
damages under the insurance policies.
(iii)
If in the opinion of the
lessor, the equipment can be repaired
then the insurance monies shall be applied in repairing or replacing the
equipment with similar type and quality and in such an event the replaced equipment
shall be held by the lessee under the terms of this lease.
(iv)
Save as provided in above
sub-clauses, the loss, theft or destruction of or damage to the equipment shall
not affect the continuance of the lease and the lessee will continue to be
liable to pay lease rentals in respect of the equipment.
(8)If the lessee
(i)
fails to pay lease rentals
or part thereof or any other payments payable hereunder for a period of one
month; or
(ii)
fails to effect insurance of
the equipment or fails to pay insurance premiums as and when due or fails to
reimburse the same to the lessor if paid. by him; or
(iii)
sells, mortgage, charge,
demise, sub-let or otherwise dispose of
or tries to sell, mortgage, charge, demise, sub-let or otherwise dispose of the
equipment; or
(iv)
fails to perform or observe
its covenants, stipulations, terms and conditions, to be performed or observed
by the lessee under this lease deed or in any other document executed by the
lessee in connection herewith and such failure or breach continues for a period
of one month after service of written notice to the lessee; or
or if a receiver shall be appointed of the
whole or part of the assets, properties or undertakings of the lessee or shall
compound with or enter into any composition with its creditors;
(vi)
do or suffer any act or
thing or omits to do or suffer any act or thing, in consequence of which the
equipment may or is likely to be distrained, endangered, attached or taken
execution under any legal process or by any public authority;
(vii)
if any judgment or order
against the lessee shall remain unsatisfied for more than fourteen days;
(viii)
if he abandons the
equipment
Then and on the occurrence
of any such event it shall be lawful for the lessor to terminate this
agreement, without prejudice to any action that it may take against the lessee
for any right or remedy under this agreement or otherwise at law or to exercise
all or any of the following rights or remedies viz.:
(i)
to take possession of the
equipment and for that purpose enter upon any premises where the equipment is or is believed by the lessor
to be for the time being situated and detach
and dismantle the equipment;
(ii)
sell, transfer, assign,
lease or dispose off the equipment or part thereof by public or private sale with or without notice to the lessee;
(iii)
require the lessee to pay to
the Lessor all sums due and payable tinder this lease, interest on the due lease rentals, liquidated damages
for loss of a bargain and not as a penalty and
other expenses incurred by the lessor due to termination of the lease
before the term of the lease;
(iv)
exercise any other right or
remedy available to the lessor under any law for the time being in force.
It is hereby declared that
the lessee shall also be liable to pay all legal fees, costs and expenses
incurred by the lessor from the foregoing defaults or the exercise of the lessors'
remedies and the remedies referred to above are not intended to be exclusive,
but shall be cumulative and shall be in addition to any other remedy available
to the lessor under any law for the time being in force.
(9)
Any express or implied
waiver, by the lessor of any default shall not constitute a waiver of any
default by the lessee or waiver of any of the lessor's right. The lessor shall
not be deemed to have waived any of the lessor's rights or any provision of
this agreement or any notice given hereunder unless such waiver be provided in
writing by lessor.
(10)
If the lessee having paid
all lease rentals and other amounts
payable under the lease deed and observed and performed all the
covenants, stipulations, terms and conditions, shall desire to renew this lease
and shall give notice of such desire not less than months prior to the expiration of the term
hereby granted, the lessor shall grant renewal of the lease for a further
period of years commencing on the date
of expiration of this lease on the same terms and conditions as those herein
contained including the right of renewal, but at a lease rental of Rs……………….per
month.
(11)
Upon expiry of the lease
term hereby granted or renewal hereof or
sooner determination in terms of this lease deed, the lessee shall at his own
cost forthwith deliver or cause to be delivered the equipment to the lessor at
such place as may be intimated by the lessor to the lessee.
(12)
Time shall be the essence of
this agreement in so far it relates to the observance or performance of all or any of its obligation,
covenants or liabilities hereunder by the lessee.
(13)
During the term of this
lease, the lessee shall submit its Balance Sheet and Profit and Loss Account as
and when they are ready and other information, reports and statements as may be
required by the lessor.
(14)
This agreement is personal
to the lessee and it shall not transfer, assign or otherwise dispose off its rights
or obligations hereunder.
(15)
The Guarantor hereby
guarantees the payment of lease rentals and other moneys payable by the lessee
to the lessor under these presents and observance and performance of the
covenants, stipulations, terms and conditions by the lessee. The Guarantor also
hereby agrees to pay on demand any money due or which becomes payable under
this agreement and not paid by the lessee. The guarantor hereby further agrees
that any time granted to the lessee or any indulgence shown to him in respect
of this agreement shall not prejudice the lessor's right or relieve the
guarantor from his guarantee, which shall be a continuing guarantee and his
liability will be co-extensive with that of the lessee and it will not be
necessary for the lessor to serve any notice to the guarantor for any default
committed by the lessee or any concession, or indulgence shown by the lessor to
the lessee.
(16)
The lessor hereby assigns to
the lessee the right of warranties provided by the manufacturer of the equipment
and the lessee shall be entitled to make
any claim for any defect or deficiency, for any breach of condition or warranty
directly against the manufacturer and for this purpose if the lessee requests
to the lessor, the lessor shall authorize the lessee for enforcing due
performance of any warranties or performance guarantees relating to the
equipment.
(17)
All disputes, questions,
differences and claims whatsoever arising from this agreement between the
parties and/or their successors or
assigns touching these presents or any right or liability arising from these
presents shall be referred to the arbitration of two arbitrators, one to be
appointed by each party and such reference shall be deemed to be reference
under and subject to the provisions of Arbitration Act, 1940 or any statutory
modification or re-enactment thereof for the time being in force and
arbitration proceedings will be held at
(18)
Any notice or letter
required to be given herein shall be given to the parties hereto in writing by
Registered Post Acknowledgment Due at the addresses above mentioned or such
other address as the parties may hereafter substitute by notice in writing to
the other parties.
(19)
All prior agreeme nts or
arrangements whether oral or written between the parties or relating to the
lease of the equipment by the essor to the lessee shall be deemed to be
cancelled and superseded by this agreement.
(20)
This lease deed shall be
executed in triplicate. The original shall be retained by the lessor, duplicate
by the lessee and triplicate by the guarantor.
(21)
The stamp duty and all other
expenses in respect of this lease deed and duplicate thereof shall be borne and
paid by the lessee.
(22)
The headings to the clauses
of this agreement are meant only for convenience of reference and shall not in
any way be taken into account in the interpretation of these presents.
(23)
It is hereby agreed between
the parties that this agreement shall be subject to the exclusive jurisdiction
of the City Civil Court at.....................
IN
WITNESS WHEREOF the parties hereto have executed these
presents and duplicate and triplicate copy thereof on the day and year
hereinabove written.
The Schedule above referred
to
WITNESSES
1 Signed and delivered by the within named A B
Co. Ltd., the lessor by the hands of Shri
…………………Managing Director
thereof.
2. Signed and delivered by the within named X Y
Co. Ltd., the lessee by the hands of Shri
.....................
Managing Director thereof.
3 Signed and delivered by the within named M, the
guarantor.
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