1. Term of
Lease: The term of this lease shall begin upon the date of delivery of the
Equipment to Lessee and shall end upon the return of the Equipment by Lessee
and the acceptance of the Equipment by Lessor.
2. Rental
Payments: Lessee shall pay the rental payment set forth on the contract
provided and other payments due Lessor under this lease to Lessor at the
address set forth on the contract provided. Such payments are of the essence of
this agreement.
3. Location
of Equipment: Lessee shall keep each item in Lessee's safe custody and control
at the location specified on the contract provided, or at such location to
which an Item may be moved only with the prior written consent of
Lessor.
4.
Inspection of Equipment: Lessor may inspect the Equipment during normal
business hours and enter the premises where the Equipment may be located for
such purpose.
5. Use of
Equipment: Each Item shall be operated in a careful and proper manner and in
compliance with all applicable governmental requirements, all requirements
under insurance policies carried by Lessor and all manufacturer's instructions
and warranty requirements. The leased Equipment shall be used only by properly
qualified persons who are employees of Lessee and Lessee's clients, and
independent contractors engaged by Lessee or by Lessee's clients.
6. Fitness
of Equipment: Lessee acknowledges that Lessee has made its own selection of the
Equipment, and has not relied upon the suggestions or representations of
Lessor. Lessor makes no express or implied warranty or representation
whatsoever with respect to the fitness of the Equipment for any particular
purpose, or the performance of operation of any Item. Lessee assumes the entire
responsibility that the Equipment selected by Lessee is the type needed for
Lessee's intended purpose.
7.
Alterations: Without Lessor's prior written consent, Lessee shall no make any
alterations, additions or improvements to an Item whatsoever.
8.
Insurance: Lessee shall, immediately upon signature hereof, insure the
Equipment for the full replacement value and keep the Equipment insured
throughout the term against loss or damage by accident, fire or theft, with an
insurance company and for a sum approved by Lessor under a comprehensive
liability policy in the name of Lessor and Lessee shall furnish to Lessor, upon
demand, copies of a certificate evidencing such insurance. Lessee hereby
irrevocably appoints Lessor as the agent for the purpose of receiving all
monies under any applicable insurance policy, to applied for Lessor's sole
benefit.
9.
Maintenance of Equipment: Lessee shall maintain the Equipment in good repair,
condition and working order, and shall pay all costs to Lessor for damages
which occur while the Equipment is in Lessee's custody. Lessee shall
immediately notify Lessor of any defect or failure of any Item to operate
properly.
10. Return
of Equipment: Upon termination of this lease by expiration of the term hereof
or of any renewal or extension or upon termination for any other cause, Lessee
will, at its own cost and expense, promptly return Equipment to Lessor at an
address specified by Lessor in the same condition as received.
11. Lessee's
Warranties: Lessee warrants (a) that this lease has been duly authorized,
executed and delivered by Lessee; (b) that the related financial and other
information now or subsequently provided Lessor shall be true and complete; and
(c) Lessee has the right, power and authority to fully perform each of Lessee
obligations as set forth herein.
12.
Indemnity: Lessor shall not be responsible to Lessee or any third party for any
tort or other liability whatsoever in connection with the Equipment, its
operation or failure of operation. Lessee shall indemnify, defend and hold
Lessor harmless against any liabilities, claims, actions and expenses,
including court costs and attorney and legal expenses, incurred by or asserted
against Lessor in any way relating to the manufacture, purchase, ownership,
delivery, lease possession, use, operation, condition, return or other
disposition of the Equipment by Lessor or Lessee or otherwise related to this
lease, including any claim alleging latent or other defects or loss of profits
in connection with the use or failure of operation of any Item.
13. Default:
Any of the following shall constitute an event of default hereunder (a)
Lessee's failure to pay when due any amount hereunder, which failure shall
continue for five (5) days; (b) Lessee's default in performing any other
obligations hereunder or under any other agreement between Lessor and Lessee or
breach of any warranty or agreement hereunder; (c) Lessee's failure to maintain
the insurance required; (d) death or judicial declaration of incompetency of
Lessee; if an individual; (e) the filing by or against Lessee of a petition
under the Bankruptcy Act or under any other insolvency law or law providing for
the relief of debtors, including, without limitation, a petition for
reorganization, arrangement or extension, or the commission by Lessee of an act
of bankruptcy; (f) Lessee's making of an assignment for the benefit of
creditors, appointment of a receiver or trustee for Lessee or for any of
Lessee's assets, instituted by or against Lessee of any other type of
insolvency proceeding or of any proceeding contemplating settlement of claims
against or winding up of the affairs of Lessee or the making by Lessee of a
transfer of a material portion of Lessee's assets not in the ordinary course of
business; or (g) the occurrences of an event described in parts (d), (e) or (f)
hereinabove as to a guarantor or other surety of Lessee's obligations
hereunder.
14.
Remedies: Upon an event of default, Lessor may do any one or more of the
following: (a) declare any or all remaining rental fees due; (b) take
possession of any items without demand or notice, wherever located, without any
court order or other process of law and without liability for damages
occasioned by such taking without thereby terminating this lease; and (c)
utilize any other remedy available to Lessor at law or in equity. All such
remedies are cumulative of every other right or remedy conferred hereunder or
at law or in equity, by statute or otherwise, and may be exercised concurrently
or separately from time to time. Lessee shall pay Lessor all costs and
expenses, including court costs and attorney and legal fees, incurred by Lessor
in exercising any of its remedies hereunder otherwise enforcing this lease. Any
waiver by Lessor of a provision of this lease must be in writing, and
forbearance by Lessor shall not constitute a waiver.
15.
Ownership: Lessee acknowledges that the Equipment is owned by Lessor and Lessee
will do nothing whatsoever that will repudiate, damage, derogate, or otherwise
affect Lessor's right, title or interest in and to the Equipment.
16.
Assignment: Without the prior written consent of Lessor, Lessee shall not
sublease any Item or otherwise assign, transfer or hypothecate this lease, any
Item or permit the Equipment or Lessee's rights under this lease to be subject
to any lien, charge or encumbrance of any nature. Any sublease an assignment
made or purportedly made be Lessee without Lessors express written consent will
be void and of no legal force and effect. All rights of Lessor hereunder in and
to the Equipment may be assigned, pledged or otherwise disposed of by Lessor,
in whole or in part, without notice to Lessee, but subject to the rights of
Lessee hereunder. Lessee shall acknowledge receipt of any notice of assignment
in writing and shall thereafter pay any amounts designated in such notice as
directed therein. If Lessor assigns this lease or any interest herein, no
default by Lessor hereunder or under any other agreement between Lessor and
Lessee shall excuse performance by Lessee of any provision hereof. In the event
of such default by Lessor, Lessee shall pursue any rights on account thereof
solely against Lessor and shall pay the full amount of the assigned payments to
the assignee. No such assignee shall be obliged to perform any duty under the
terms of this lease. Subject to the foregoing, this lease inures to the benefit
of, and binds the heirs, legatees, personal representatives, successors and
assigns of the parties.
17.
Additional Documents: Lessee shall provide Lessor with such documents as Lessor
shall reasonably request to confirm or protect Lessor's interests in the lease
and the Equipment.
18.
Additional Provisions: This lease constitutes the entire agreement between
Lessor and Lessee and shall not be amended except by a writing signed by both
parties. Nothing contained in this lease shall be construed to constitute a
partnership or joint venture between the parties, and neither shall be bound by
any representation, act or omission of the other. The failure of Lessor to
insist upon strict adherence to any provision of this agreement shall not be
construed as a waiver or deprive Lessor of the right thereafter to insist upon
strict adherence to that provision or any other provision of this agreement.
This agreement constitutes the entire agreement between the parties. This
agreement shall be governed by and construed in accordance with the laws of the
State of New York.
19.
Collection and Legal Fees: Lessee will be responsible for all legal and
collection fees incurred by the Lessor in respect of any default as described
in paragraph 13.
