GENERAL TERMS AND CONDITIONS
1. LEASE OF EQUIPMENT. By this Agreement which, together with all Lease Schedules, certificates, riders, exhibits, amendments, and other documents now or hereafter attached hereto and made a part hereof (collectively referred to as the “Lease”), Lessor leases to Lessee and Lessee leases from Lessor, subject to terms and conditions contained in this Lease, the personal property, together with all replacement parts, repairs, additions, and accessories (collectively, the “Equipment”) described above and in any Lease Schedule which shall become a part hereof.
2. PICK-UP AND RETURN OF THE EQUIPMENT. Unless otherwise agreed to by the Lessor in writing, the Equipment will be picked up and returned at the above locations at Lessee’s expense.
3. LATE CHARGES. If any Base Rent or other amount payable hereunder shall not be paid within fifteen (15) days of the date when due, Lessee shall pay as an administrative fee in the amount of $50.00 plus a late charge an amount equal to five percent (5%) of the amount of any such overdue payment.
4. PAYMENTS. All payments to be made to Lessor shall be made to Lessor at Lessor’s place of business, or at such other place as Lessor shall specify in writing.
5. POSSESSION; PERSONAL PROPERTY. No right, title or interest in the Equipment shall pass to Lessee other than the right to maintain possession and use of the Equipment for the full Lease term (provided no Event of Default has occurred) free from interference by any person claiming by, through, or under Lessor or Lessor’s control. The Equipment shall always remain personal property. In the event that the Equipment may hereafter become attached or affixed to real property, Lessee shall provide Lessor with lien waivers from the owner, landlord, and/or mortgagee of the real property and provide Lessor with other documentation as requested by Lessor, including, without limitation, fixture filings under the Uniform Commercial Code. Lessee agrees to give and record such notices and, to take such other action at its own expense as may be necessary to prevent any third party (other than an assignee of Lessor) from acquiring or having the right under any circumstances to acquire any interest in the Equipment or this Lease.
6. DISCLAIMER OF WARRANTIES. (a) LESSOR IS NOT THE MANUFACTURER OR SUPPLIER OF THE EQUIPMENT, NOR THE AGENT THEREOF, AND MAKES NO EXPRESS OR IMPLIED WARRANTIES AS TO ANY MANNER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE MERCHANTABILITY OF THE EQUIPMENT, ITS FITNESS FOR A PARTICULAR PURPOSE, ITS DESIGN OR CONDITION, ITS CAPACITY OR DURABILITY, THE QUALITY OF THE MATERIAL OR WORKMANSHIP OR CONFORMITY OF THE EQUIPMENT TO THE PROVISIONS AND SPECIFICATIONS OF ANY PURCHASE ORDER RELATING THERETO, OR PATENT INFRINGEMENTS, AND HEREBY DISCLAIMS ANY SUCH WARRANTY; (b) Lessee has made the selection of each item of Equipment and the manufacturer and/or supplier thereof based on its own judgment and expressly disclaims any reliance upon any statements or representations made by Lessor. For so long as Lessee is entitled to possession of the Equipment hereunder, Lessor acknowledges that Lessee is the beneficiary of, and shall be entitled to, all rights under any applicable manufacturer’s or vendor’s agreements and warranties with respect to the Equipment, to the extent permitted by law or under the terms of such agreements and warranties. Without limiting the foregoing, all Equipment leased hereunder is leased on an AS IS, WHERE IS basis, without representation or warranty of any kind; (c) Upon acceptance of the Equipment, if the Equipment does not operate as warranted, becomes obsolete, or is unsatisfactory for any reason whatsoever, Lessee shall not make any claims against Lessor, and Lessee shall nevertheless pay all Base Rent and other sums payable hereunder. Lessee acknowledges that neither the Manufacturer, nor any sales representative or agent thereof, is an agent of Lessor, and no agreement or representation as to the Equipment or any other matter by any such sales representative or agent of the Manufacturer shall in any way affect Lessee’s obligations hereunder.
7. LESSEE’S REPRESENTATIONS, WARRANTIES AND COVENANTS. Lessee represents and warrants to and covenants with Lessor that: (a) If Lessee is a business organization, that it is duly organized and existing in good standing under the laws of the state of Florida and is duly qualified to do business in Florida; (b) This Lease and all other documents delivered by Lessee in connection herewith have been duly authorized by all necessary action on the part of Lessee consistent with its form of organization, do not require any further shareholder or partner approval, do not require the approval of, or the giving notice to, any Federal, state, local or foreign governmental authority and do not contravene any law binding on Lessee or contravene any certificate or articles of incorporation or bylaws or partnership certificate or agreement, or any agreement, indenture, or other instrument to which Lessee is a party or by which it may be bound; (c) This Lease and all other documents delivered by Lessee in connection herewith have been duly executed and delivered by authorized officers or partners of Lessee and constitute legal, valid and binding obligation of Lessee enforceable in accordance with its terms; (d) The Equipment will be used solely in the conduct of Lessee’s business and will remain within the State of Florida unless Lessor and Lessee otherwise agree in writing and Lessee has completed all notifications, filings, recordings, and other actions in such new location as Lessor may reasonably request to protect Lessor’s interest in the Equipment; (e) There are no pending or threatened actions or proceedings before any court or administrative agency which materially adversely affect Lessee’s financial condition or operations and all credit, financial and other information provided by Lessee or at Lessee’s direction is, and all such information hereafter furnished will be, true and correct in all material respects; and (f) On the Effective Date hereof, there exists under the Lease no Event of Default or condition, which with the passage of time, the giving of notice or both, would constitute and Event of Default.
8. INDEMNITY. Upon execution hereof, except as otherwise provided herein, Lessee assumes the risk of liability for, and hereby agrees to indemnify and hold safe and harmless, Lessor, its employees, servants, and agents from and against: (a) any and all liabilities (including those arising from negligence, torts and strict liability), losses, damages, claims, and expenses (including legal expenses and attorney’s fees of every kind and nature) arising out of the manufacturing, purchase, shipment, and delivery to Lessee, acceptance or rejection, ownership, titling, registration, leasing, subleasing, possession, operations, use, return or other disposition of the Equipment, including, without limitation, any of such as may arise from patent or latent defects in the Equipment (whether or not discoverable by Lessee), any claims based on absolute tort liability or warranty and any claims based on patent, trademark or copyright infringement; (b) any and all loss or damage of or to the Equipment, except normal wear and tear consistent with construction industry standards; and (c) any obligation or liability of Lessor to the Manufacturer, (the foregoing items in subsection (a) through (c) being hereinafter being referred to as “Claims”).
9. DEFAULT. Lessee shall be in default of this Lease upon the occurrence of any one or more of the following events (each an “Event of Default”): (a) Lessee shall fail to make any payment of rent or otherwise under this Lease within fifteen (15) days after notice that such payment, of rent or otherwise is due; or (b) Any representation or warranty made by Lessee herein shall prove to be false or incorrect in any material respect; or (c) Lessee shall fail to perform or observe any non-monetary material covenant or obligation under this Lease, and such failure continues for five (5) days after notice thereof to Lessee; or (d) The commencement of any bankruptcy, insolvency, arrangement, reorganization, receivership, liquidation, or other similar proceeding by or against Lessee, or the appointment of a trustee, receiver, liquidator or custodian for Lessee or any of its properties of business, or if Lessee suffers the entry of an order for relief under Title 11 of the United States Code, or the making by Lessee of a general assignment or deed of
trust for the benefit of creditors; or (e) Lessor shall cease to have an enforceable security interest in the Equipment as a result of the actions or omissions of Lessee; or (f) Any lien, encumbrance, mortgage, pledge, attachment, or security interest is registered against the Equipment as a result of the actions or omissions of Lessee.
10. REMEDIES. Subject to the terms and conditions of the Lease Party Agreement, upon the occurrence of any Event of Default, Lessor may, at its sole option and discretion, exercise one or more of the following remedies with respect to any or all of the Equipment: (a) Cause Lessee to promptly return, upon written demand and at Lessee’s sole expense, any or all Equipment to such location as Lessor may designate in writing (but in no event more than ten (10) miles from Lessor’s place of business); (b) Lessor, at its option, may enter upon the premises where the Equipment is located and take immediate possession of and remove the same by summary proceedings or otherwise, all without liability to Lessor for or by reason of damage to property or such entry or taking possession except for Lessor’s gross negligence or willful misconduct; (c) Remedy such default, including, making repairs or modifications to the Equipment, for the account of and the expense of Lessee and Lessee agrees to reimburse Lessor for all of Lessor’s costs and expenses No remedy referred to in this Section 10 is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to above or otherwise available to Lessor at law or in equity. The exercise or beginning of exercise by Lessor of any one or more of such remedies shall not preclude the simultaneous or later exercise by Lessor of any or all such other remedies and all remedies hereunder shall survive termination of this Lease.
11. COSTS OF COLLECTION AND ATTORNEYS’ FEES. Lessee agrees to reimburse Lessor on demand for any and all costs and expenses incurred by Lessor in enforcing its rights and remedies hereunder following the occurrence of an Event of Default, including, without limitation, reasonable attorneys’ fees and the costs of repossession, storage, ensuring, reletting, selling and disposing of any and all Equipment.
12. NOTICES. Any notices and demands required or permitted to be given under this Lease shall be given in writing and by an express service of United States Postal Service and shall become effective when received by Lessor and by Lessee at the addresses hereinabove set forth. Notwithstanding the foregoing, the parties hereby agree that any notice or demand actually received by the party to be charged therewith shall be deemed effective upon receipt thereof regardless of the method by which such notice or demand was given.
12. MAINTENANCE; INSPECTIONS; LOSS AND DAMAGE. During the term of the Lease for each item of Equipment, the Lessee shall, unless the Lessor shall otherwise consent in writing; (a) Permit each item to be used only within the State of Florida by qualified personnel solely for business-related purposes and the purpose for which it was designed and maintain each item in the same condition as when received, ordinary wear and tear excepted, in serviceable condition, consistent with construction industry standards, Lessee’s own maintenance standards, and in compliance with all applicable laws, ordinances, regulations, and conditions of all insurance policies required to be maintained by Lessee under the Lease and all manuals, orders, recommendations, instructions and other written requirements as to the repair and maintenance of such item issued at any time by the vendor and/or manufacturer thereof; and (b) Make no additions, alterations, modifications or improvements without Lessor’s consent (collectively, “Improvements”) to any item that are not readily removable without causing material damage to such item or which will cause the value, utility or useful life of such item to materially decline. If any such Improvement is made and cannot be removed without causing material damage or decline in value, utility or useful life (a “Non-Severable Improvement”), then Lessee warrants that such Non-Severable Improvement shall immediately become the Lessor’s property upon being installed and shall be free and clear of all liens and encumbrances and shall become Equipment subject to all of the terms and conditions of the Lease. Lessee shall repair all damage to any item caused by the removal of any Improvement so as to restore such item to the same condition which existed prior to its installation and as required by this Lease; (c) The Lessee shall furnish to Lessor such information concerning the condition, location, use and operation of the Equipment as Lessor may reasonably request and upon forty (4) hours advance notice, shall permit any person designated by Lessor to visit and inspect any item of Equipment; (d) Lessee hereby assumes all risk of loss, damage or destruction for whatever reason to the Equipment from and after the date Lessee accepts the Equipment, and continuing until the Equipment has been returned to, and accepted by, Lessor in the condition described herein; (e) If any item of Equipment shall become lost, stolen, destroyed, damaged beyond repair or rendered permanently unfit for use for any reason, or in the event of any condemnation, confiscation, theft or seizure or requisition of title to or use of such item, Lessee shall promptly pay to Lessor an amount equal to the resale value of such item as determined by the industry standard resale book.
13. INSURANCE. Lessee shall procure and maintain insurance upon such terms as required under this Section 13 during the entire term of this Lease and until the Equipment has been returned to, and accepted by, Lessor in the condition required herein, at Lessee’s expense, in the following amounts: (a) Worker’s Compensation and Employer’s Liability Insurance, in the full statutory amounts provided by law; (b) Comprehensive General Liability Insurance including product/completed operations and contractual liability coverage, with minimum limits of the greater of (i) $1,000,000.00 each occurrence, and Combined Single Limit Bodily Injury and Property Damage, $2,000,000.00 aggregate, where applicable; or (ii) as otherwise specified in any Lease Schedule hereto; and (c) All Risk Physical Damage Insurance, including earthquake and flood, on each item of Equipment, in an amount not less than the Stipulated Loss Value of the Equipment. Lessor will be included as an additional insured and loss payee as its interest may appear. Such policies shall be endorsed to provide that the coverage afforded to Lessor shall not be rescinded, impaired or invalidated by any act or neglect of Lessee. Lessee agrees to waive Lessee’s right and its insurance carrier’s rights of subrogation against Lessor for any and all loss or damage. Upon execution of this Lease, Lessee shall furnish Lessor with a certificate of insurance or other evidence satisfactory to Lessor that such insurance coverages are in effect, provided, however, that Lessor shall not be under any duty either to ascertain the existence of or to examine such insurance coverage or to advise Lessee in the event such insurance coverage should not comply with the requirements hereof. In case of failure of Lessee to procure or maintain insurance, Lessor may at its option obtain such insurance, the cost of which will be paid by the Lessee as additional rentals. Lessee agrees to give Prime Lessor and Lessor prompt notice of any damage to, or loss of, the Equipment, or any part thereof.
14. FURTHER ASSURANCES. Lessee shall promptly execute and deliver to Lessor such further documents and take such further action as Lessor may reasonably require in order to more effectively carry out the intent and purpose of this Lease. Lessee shall execute and deliver to Lessor upon Lessor’s reasonable request such instruments and assurances as Lessor deems reasonably necessary for the confirmation, preservation, or perfection of this Lease and Lessor’s rights hereunder. In furtherance thereof, Lessor may file or record this Lease or a memorandum or a photocopy hereof (which for the purposes hereof shall be effective as a financing statement) so as to give notice to third parties. Lessee hereby authorizes Lessor to execute, sign, file and record UCC financing statements and other lien recordation documents.
15. ASSIGNMENT. LESSOR MAY ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE WITHOUT THE PRIOR WRITTEN CONSENT OF LESSEE. LESSEE SHALL NOT ASSIGN OR DISPOSE OF ANY OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE UNDER ANY CIRCUMSTANCE.
16. LESSEE’S OBLIGATIONS UNCONDITIONAL. Lessee hereby agrees: (a) That it shall not be entitled to any abatement of rents or of any other amounts payable hereunder; and (b) That its obligation to pay all Base Rent and any other amounts owing hereunder shall be absolute and unconditional under all circumstances.
17. EARLY TERMINATION AND RETURN OF EQUIPMENT. The Lessee shall return all of the Equipment on or before the Return Date to the Return Location.
18. ENFORCEABILITY, CONFLICT AND GOVERNING LAW. Any provision of this Lease which is unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such unenforceability without invalidating the remaining provisions hereof, and any such unenforceability in any jurisdiction shall not render unenforceable such provisions in any other jurisdiction without limiting the generality of the foregoing, if any payment constituting interest is made hereunder and that rate is in excess of the maximum allowed by law, then the amount of such excess shall be refunded to Lessee. To the extent permitted by applicable law, Lessee and Lessor hereby waive any provisions of law which render any provision hereof unenforceable in any respect. Any waiver of the terms hereof shall be effective only in the specific instance and for the specific purpose given. TIME IS OF THE ESSENCE IN THE PERFORMANCE OF THE OBLIGATIONS SET FORTH IN THIS LEASE.The captions in this Lease are for convenience only and shall not define or limit any of the terms hereof. THIS LEASE SHALL IN ALL RESPECTS BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA. LESSEE HEREBY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF FLORIDA AND THE FEDERAL DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA. FOR THE PURPOSES OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF ITS OBLIGATIONS HEREUNDER, AND EXPRESSLY WAIVES ANY OBJECTIONS THAT IT MAY HAVE TO THE VENUE OF SUCH COURTS. LESSEE HEREBY EXPRESSLY WAIVES TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS LEASE. Any action by Lessee against Lessor for any cause of action under this Lease shall be brought within six (6) months after any such cause of action first occurs. This Lease may not be amended, nor may any rights hereunder be waived, except by an instrument in writing signed by the party charged with such amendment or waiver. This Lease may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. This Lease will not be binding on Lessor until executed by Lessor.
END OF GENERAL TERMS AND CONDITIONS