Tripartite Lease Agreement between Lessor, Lessee and the Guarantor[CD1]
THIS AGREEMENT of Lease made
at_____________ on 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 _______200-.
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;
iii.
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;
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 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, 1996 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 RPAD 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.
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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