Tripartite Lease Agreement
between Lessor, Lessee and the Guarantor [CD1]
This Agreement of Lease made
at .................... this .................. day of ................, 2000, between
ABC 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 XYZ 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 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.
And Whereas the Lessee has
offered to take the equipment so purchased by the lessor.
And Whereas 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.
And Whereas 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 lease 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 ...................., 2000.
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
1Oth 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 equipment 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.
Install, 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 the 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 premiums
to the lessor.
viii.
Not to make any alteration,
addition or improvement in equipment without the prior written consent of the
lessor and any alteration, addition or improvement when made to the equipment
shall be 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 it 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 statuary
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 or 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 makings on the
equipment indicating the lessor’s title and therein.
7.
i.
If the equipment or any part
thereof is lost, destroyed or damaged, the lessee shall notify you 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
v.
pass a resolution of
winding-up or have a petition for winding- up presented against 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 of the equipment or part thereof by public or private sale
with or without notice to the lessee;
v.
require the lessee to pay to
the Lessor all sums due and payable under 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;
vi.
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 its 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 of 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 coextensive 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 authorise 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 agreements or
arrangements whether oral or written between the parties or relating to the
lease of the equipment by the lessor 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.
22.
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
Signed and delivered by the
within named ABC Co. Ltd.,
the lessor by the hands of
Shri .....................
Managing Director thereof
Signed
and delivered by the within named XYZ Co. Ltd., the
lessee by the hands of Shri ............... Managing
Director thereof
Signed and delivered by the
within named M, the guarantor
WITNESSES;
1.
2.
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