Lease of Computer Equipment with Equipment Schedule and
Option to Purchase
Computer Equipment Lease (this Agreement) made on the day of
, 20 , between of
(Name of Lessee)
, referred to herein as Lessee, and
(Street Address, City, County, State, Zip Code)
, a corporation organized and existing under the laws
(Name of Lessor)
of the state of , with its principal office located at ,
(Name of State) (Street Address)
, referred to herein as Lessor.
(City, County, State, Zip Code)
1. Leased Equipment. Subject to the terms and conditions set forth below, Lessor agrees to
lease to Lessee and Lessee agrees to lease from Lessor the equipment and other personal
property described in any Schedule or Schedules which may be executed from time to time by
the parties to this Lease and identified as a Schedule of this Lease (individually a Schedule and
collectively the Schedules) (which property, together with any replacement parts, replacements,
additions, repairs and accessories incorporated in or affixed to it, is referred to in this lease
individually as an Item of Equipment and collectively as the Equipment) , upon the terms and
conditions set forth in this Lease, supplemented by the terms and conditions set forth in the
applicable Schedule. All Schedules shall be incorporated by reference in this Lease and this
Lease and all Schedules which may be executed pursuant to it shall constitute a single Lease of
Equipment.
2. Term of Lease. The Lease term for any item of Equipment shall commence upon the
earlier of (a) the date on which Lessor, at the request of Lessee, acquires an interest in or incurs
any obligation with respect to such item of Equipment; or (b) the date on which such item of
Equipment is delivered to Lessee. Unless sooner terminated pursuant to the terms of this Lease,
the Lease term for any item of Equipment for which an acceptance certificate has been executed,
pursuant to Section 5 below, shall terminate upon payment of all rent and other sums due or to
become due with respect to such item of Equipment and the complete satisfaction of all other
obligations of Lessee with respect to such item of Equipment. Lessor may terminate this Lease
with respect to any item of Equipment for which an acceptance certificate has not been executed
(i) on or at any time subsequent to the commitment expiration date, as provided in the Equipment
Lease commitment with respect to such item of Equipment; (ii) upon the occurrence of a
material adverse change in Lessee's financial condition or credit rating; (iii) if, prior to the
execution of such acceptance certificate, any event or condition exists which, with notice or the
passage of time or both, would constitute a default under this Lease or under any agreement
between the parties; or (iv) if Lessor is otherwise not obligated to lease such Equipment to
Lessee.
Lease of Computer Equipment Page 1 of 12
3. Commencement Date and Rent. Rent for each item of Equipment shall be as provided
in the applicable Schedule. Lessee shall pay all rent and other sums due under this Lease to
Lessor at the address set forth above, or to such other person or place as Lessor from time to time
may designate in writing. The first rent payment shall be due when the relevant schedule is
executed by Lessee and returned to Lessor. Interim rent, if any, specified in such schedule shall
commence on the date Lessor advances any funds to manufacturers, suppliers, vendors or others
in connection with the acquisition of any item of Equipment, shall be payable monthly in arrears
on the first day of each subsequent month, and shall accrue on the entire amount so advanced
outstanding from time to time through and including the commencement date. The
commencement date with respect to any schedule shall be established as follows: schedules for
which acceptance certificates are received and processed by Lessor between the first and the
fifteenth of the month shall have a commencement date of the first of the month in which
received, and those received after the fifteenth of any month shall have a commencement date of
the first day of the month immediately following.
4. Disclaimer of Warranties; Representations and Warranties. Lessee acknowledges
that Lessor is not the manufacturer of the Equipment, nor manufacturer's agent, and Lessee
represents that Lessee has selected the Equipment Leased under this Agreement based upon
Lessee's judgment prior to having requested Lessor to purchase the Equipment for leasing to
Lessee, and Lessee agrees that the Equipment Leased under this Lease is of a design, size, fitness
and capacity selected by Lessee and that Lessee is satisfied that such Equipment is suitable and
fit for its intended purposes. Lessee further agrees that Lessor Leases and Lessee takes the
Equipment "as is" and that Lessor has not made, does not make and shall not be deemed to make
any representation or warranty, either expressed or implied, of any kind whatever with respect to
the Equipment, including, but not limited to, the title, value, condition, workmanship, design,
operation, merchantability or fitness for a particular use or purpose of the Equipment, the
absence of latent or other defects, whether or not discoverable, the absence of any infringement
of any patent, trademark or copyright, the absence of any violation or conflict with any law,
governmental regulation, contract or specification. Lessee specifically waives all rights to make
claim against Lessor for breach of any warranty of any kind and Lessor also passes to Lessee all
warranties, if any, received by Lessor by virtue of its ownership of the Equipment. Lessor shall
not be liable to Lessee for any loss, damage or expense of any kind or nature caused directly or
indirectly by any Equipment leased under this Lease or for the use or maintenance of it, or for
the failure of operations of it, or for the repairs, service, or adjustment to it, or by any delay or
failure to provide any of it, or by any interruption of service or loss of use of it or for any loss of
business or any other damage whatever and however caused. No defect or unfitness of the
Equipment shall relieve Lessee of the obligation to pay rent with respect to such Equipment, or
any other obligation under agreement to Lessor.
Lessee represents and warrants that:
A. If it is an entity other than an individual or sole proprietorship, it is duly organized
and validly existing in good standing under the laws of the jurisdiction of its
organization;
B. The execution, delivery and performance of this Lease and all related documents
have been duly authorized by all necessary action on the part of the Lessee and do not
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and will not contravene any law, governmental rule, regulation or order binding on
Lessee or, if Lessee is a corporation, contravene the articles of incorporation, by-laws or
other constituting documents of the Lessee or contravene the provisions of, or constitute a
default under, or result in the creation of any lien, security interest or other encumbrance
upon the property of Lessee under any indenture, mortgage, contract or other agreement
to which Lessee is a party or by which it or any of its property may be bound;
C. Neither the execution and delivery by the Lessee of this Lease nor the
consummation by the Lessee of any of the transactions contemplated by this Lease
require the consent or approval of, the giving of notice to, the registration with, or the
taking of any other action in respect of the registration with, or the taking of any other
action in respect of any governmental authority or agency;
D. This Lease and all related documents have been duly executed and delivered by
Lessee and constitute legal, valid and binding obligations of Lessee enforceable against
Lessee in accordance with their terms;
E. There are no pending or threatened actions or proceedings before any court,
governmental authority, administrative body or tribunal which, if adjudicated against
Lessee, would materially adversely affect the ability of Lessee to perform its obligations
under this Lease; and
F. Any financial information furnished to Lessor by Lessee in connection with this
Lease is true and correct and any balance sheet or statement of income of Lessee
furnished to Lessor by Lessee in connection with this Agreement fairly presents the
financial position of Lessee as of the date of such balance sheet and the results of
operations of Lessee for the period covered by such statement of income, all in
accordance with generally accepted accounting principles applied on consistent basis.
5. Acceptance of Equipment; Non-Cancellable . Lessee's acceptance of any item of
Equipment shall be conclusively and irrevocably evidenced by Lessee signing the acceptance
certificate in the form of the Lease Agreement acceptance certificate attached to the Schedule
covering such item of Equipment, and upon such acceptance this Agreement shall be non-
cancellable with respect to such item of Equipment. If Lessee cancels or terminates this
Agreement prior to delivery of an item of Equipment or if Lessee fails or refuses to sign the
certificate of acceptance as to all or any part of such item of Equipment within a reasonable time,
not to exceed days after such item of Equipment has been delivered, tested and
(Number)
ready for use, in which event Lessee will be deemed to have canceled this Agreement, then
Lessee shall automatically assume all of the Lessor's purchase obligations for such item of
Equipment and Lessee agrees to indemnify and defend Lessor from any claims, including any
demand for payment of the purchase price for such item of Equipment, by the manufacturer or
seller of such item of Equipment. In addition, Lessee shall pay Lessor (1) all of Lessor's out-of-
pocket expenses relating to such item of Equipment; and (2) compensate Lessor for credit
review, document preparation, ordering Equipment and other administrative expenses. Lessor
may apply any advance rent payments to sums due from Lessee under (1) and (2) above. Nothing
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contained in this Section 5 shall be construed as inconsistent with or diminishing the effect of the
disclaimer of warranty contained in Section 4 of this Lease.
6. Surrender. Unless Lessee has acquired the Equipment pursuant to Section 8 or Section
18 below, Lessee, at its expense but at Lessor's option, shall, at the expiration or earlier
termination of this Lease with respect to any item of Equipment, return such item of Equipment
properly packed and crated with freight prepaid, to Lessor at such place and by such reasonable
means as may be designated by Lessor in the same repair, condition and working order as at the
commencement of the term of this Lease with respect to it, except for reasonable wear and tear
resulting from permitted use. If requested by Lessor, Lessee, prior to returning any Equipment to
Lessor, shall provide suitable and adequate storage space for a period not to exceed
(Number)
days at the Equipment location shown in the applicable schedule or such location to which such
Equipment may have been moved with the written consent of Lessor, during which time Lessee
shall insure that Lessor will be allowed reasonable access to it. If Lessee shall fail to return any
item of Equipment as provided in this Lease, Lessee shall pay to Lessor during the period of such
failure rent for such item of Equipment in the same amount and at the same frequency as the
amount and frequency of rent payable during the Lease term with respect to such item of
Equipment.
7. Possession; Use; Location; Maintenance; and Inspections . Lessor covenants to Lessee
that as long as Lessee shall not be in default under this Lease, Lessee may possess and use the
Equipment in accordance with this Lease. Lessee warrants that the Equipment will not be used or
operated in violation of any law, ordinance or governmental regulation. Lessee will not make or
suffer any changes, alterations, improvements or remove any parts, accessories or attachments to
or from the Equipment other than in the course of routine maintenance. Lessee shall, at its sole
cost, maintain the Equipment in good operating order, repair and condition excepting normal
wear and tear resulting from permitted use. Lessee shall perform maintenance on the Equipment
in the manner recommended by the manufacturers of the Equipment. Lessee shall not move the
Equipment from the location specified on the applicable schedule without Lessor's prior written
consent. Lessee shall not operate or use the Equipment in such a way, including use outside the
United States or by a tax-exempt entity, as defined by Section 168(h) of the Internal Revenue
Code , or its successor provisions, as to exclude the Equipment from qualifying or continuing to
qualify for depreciation deductions under the Internal
(e.g., accelerated cost recovery system)
Revenue Code (the Code) , except to the extent Lessee established to the prior satisfaction of
Lessor that such use will not increase the federal or state income tax payable by Lessor
(including, but not limited to, any increase by reason of recapture of tax benefits as such term is
defined in Section 13 below). Lessor, or its designated agent, may during normal business hours
with prior notice to Lessee inspect the Equipment and the maintenance records pertaining to it.
At its expense, Lessee shall make all modifications to the Equipment which are required by law,
governmental rule or regulation. Lessee will not, without the prior written consent of Lessor,
affix or install any accessory, Equipment, or device on any Equipment if such addition will
impair the originally intended function or use of such Equipment or diminish its value or utility.
All additions, repairs, parts accessories, Equipment and devices furnished or affixed to any
Equipment shall become the property of Lessor except such as may be removed, and which are
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in fact removed, without in any way damaging the Equipment or without in any way affecting or
impairing the originally intended function or use of such Equipment. Lessee, without the prior
consent of Lessor, shall not affix any Equipment to any real property. Lessee agrees not to waive
its right to use and possess the Equipment in favor of any party other than Lessor and further
agrees not to abandon the Equipment to any party other than Lessor.
8. Risk of Loss . Lessee assumes and shall bear all risk of any loss, theft, damage to, or
destruction of the Equipment from any cause whatever (casualty occurrence) . No casualty
occurrence shall relieve Lessee from its obligations under this Lease; however, the Lessee's
obligation to pay rent with respect to any item of Equipment that has suffered a casualty
occurrence may be discharged by compliance with the terms of this Section 8, if, at the Lessor's
option, Lessee is required to replace destroyed or damaged Equipment, then any insurance
proceeds paid either to the Lessor or Lessee, or Lessor and Lessee jointly, shall be used to
replace such Equipment. In the event of a casualty occurrence to any item of Equipment, Lessee
shall give Lessor prompt notice of it and shall place such item of Equipment in good repair,
condition and working order; provided that if Lessor reasonably determines such item of
Equipment to be lost, stolen, destroyed or damaged beyond repair, then Lessee, at Lessor's
option, shall either (a) replace such item of Equipment with like Equipment in the condition
required by Section 7 which has a market value at least equal to that of the replaced item of
Equipment immediately prior to the casualty occurrence; or (b) pay to the Lessor not later than
days after notification by Lessor, the casualty value of such item of Equipment as
(Number)
such term is defined in this Lease. The casualty value of any item of Equipment shall be equal to
a total of (i) all matured by unpaid rent and other amounts, if any, due at the time of such
payment; plus (ii) the sum of the present values of unmatured rent payments with respect to such
item of Equipment, with the present value of each such unmatured rent payment being calculated
by discounting the amount of it at a discount rate of % per annum from the date
such rent payment would otherwise be due to the date of payment of the casualty value; plus (iii)
any sums due or to become due because of the loss of tax benefits as provided in Section 13 of
this Lease; plus (iv) the reversionary value of the item of Equipment less the net amount of the
recovery, if any, actually received by Lessor from insurance or otherwise for such loss, theft,
damage or destruction. For purposes of this Section 8, reversionary value shall be the estimated
fair market value of the item of Equipment (determined on the basis described in Section 18 ) as
of the end of the Lease term, as though such casualty occurrence had not occurred. Upon such
replacement or payment, as appropriate, this Lease shall terminate with, and only with, respect to
the item of Equipment or portion of it so replaced or paid for and Lessee shall become entitled to
such replaced or paid for item of Equipment or portion of it as is, where is.
9. Insurance . During the Lease term of any Equipment, Lessee shall, at its expense, keep in
effect an "all risk" property insurance policy covering the Equipment in an amount not less than
the full replacement cost of the Equipment. In addition, Lessee shall also carry a public liability
insurance policy (comprehensive general liability or other similar form of third party liability
coverage acceptable to Lessor) in an amount not less than $ combined single limit per
occurrence, unless Lessor specifies otherwise. All insurance policies shall be in form and amount
and with insurers acceptable to Lessor. The all risk property insurance policy shall name the
Lessor and its assigns as loss payee, and the public liability insurance policy shall name the
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Lessor as an additional insured. Each policy shall provide (i) for no less than 30-days' prior
written notice of modification, cancellation or non-renewal to Lessor; (ii) that such policy shall
not be invalidated as against Lessor or its assigns for any violation of any term of the policy or
Lessee's application for it; and (iii) that such insurance is primary insurance and any other
insurance covering Lessor or its assigns shall be secondary and excess of such policy. Lessee
shall pay the premiums and deliver to Lessor at the commencement of the Lease term of any
item of Equipment, a certificate of insurance, or other evidence satisfactory to Lessor, stating
that coverage is in effect, provided, however, Lessor shall be under no duty either to ascertain the
existence of or to examine such insurance policy or to advise Lessee if such insurance shall not
comply with the requirements of this Lease. Proceeds from any public liability insurance policy
shall be made payable first on behalf of the Lessor to the extent of its liability, if any. Lessee
shall promptly notify any appropriate insurer and Lessor of each occurrence which may become
the basis of a claim or cause of action against the insureds and provide Lessor with all data
pertinent to such occurrence. The proceeds of casualty insurance, at the option of Lessor, shall be
applied toward (a) the repair or replacement of the appropriate Equipment; (b) payment of the
casualty value of it; or (c) the payment of any other accrued obligation of Lessee under this
agreement. Any excess of such proceeds remaining shall belong to Lessee. Lessee appoints
Lessor as Lessee's attorney-in-fact with full power and authority to do all things, including, but
not limited to, making claims, receiving payments and endorsing documents, checks or drafts,
necessary or advisable to secure payments due under any policy contemplated by this Lease on
account of a casualty occurrence to the Equipment.
10. Taxes . Lessee shall pay as and when due, and indemnify and hold harmless Lessor from
and against all present and future taxes and other governmental charges (including, but not
limited to, sales, use, leasing, stamp and personal property taxes and license and registration
fees), and all amounts in lieu of such taxes and charges and any penalties and interest on any of
the foregoing, imposed, levied or based upon, in connection with or as a result of the purchase,
ownership, delivery, leasing, possession or use of the Equipment or the exercise by Lessee of any
option under this Lease, or based upon or measured by rentals or receipts with respect to this
Lease, and Lessee shall file all returns required and furnish copies of them to Lessor upon its
request; provided, however, that the foregoing shall not apply to any federal or state income or
franchise taxes measured by net income of Lessor. If any of the Equipment Leased under this
Lease is a motor vehicle, Lessee shall register and title, where permissible, the vehicle in the
name of Lessor.
11. Performance of Obligations by Lessor. If Lessee shall fail to make any payment or
perform any act or obligation required of Lessee under this Lease, Lessor may, but need not, at
any time make such payment or perform such act or obligation at the expense of Lessee. Any
expense so incurred by Lessor shall constitute supplemental rent due under this Lease and shall
be payable by Lessee to Lessor upon demand. Such action by Lessor shall not be deemed a cure
or waiver of any default of Lessee.
12. Indemnification. Lessee agrees to indemnify, defend and hold Lessor, and its
employees, officers, directors, successors and assigns harmless from and against any and all
liabilities, damages, claims, actions, suits, proceedings, penalties, costs and expense, including
reasonable attorney's fees and costs, of whatever kind and nature (" claims ") arising out of the
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use, condition (including, but not limited to, latent or other defects and whether or not
discoverable by Lessee or Lessor), operation, acquisition, ownership or leasing of any item of
Equipment, including but not limited to the manufacture, selection, purchase, delivery,
acceptance, rejection, possession, return or disposition of any item of Equipment, and including
but not limited to claims arising by contract or tort including negligence, strict liability or
otherwise, regardless of where, how and by whom the Equipment was operated or any failure on
the part of Lessee to perform or comply with any of its obligations under this Lease. If any claim
is made against Lessee or Lessor, the party receiving notice of such claim shall promptly notify
the other, but the failure of such person receiving notice so to notify the other shall not relieve
Lessee of any obligation under this Lease. This indemnity shall survive the expiration or other
termination of this Lease.
13. Assignment. Without Lessor's prior written consent, Lessee shall not transfer, assign,
sell, sublet, or otherwise dispose of any of Lessee's interest in any Equipment of this Lease, and
any attempt by Lessee to accomplish the same without Lessor's consent shall be void. Lessor
may, at any time, without notice to Lessee, mortgage, grant security interest in or otherwise
transfer, sell or assign all or any part of its interest in this Lease or any Equipment or any rent or
other sums due or to become due under this Lease, except that the interest of any such
mortgagee, transferee or assignee shall be subject to Lessee's rights of use and possession,
renewal rights and purchase options, if any, under this Lease so long as no event of default has
occurred and is continuing under this Lease.
14. Supplemental Rent and Late Charges , All sums due or to become due under this Lease
in addition to the rent provided for on the schedules shall be payable by Lessee as supplemental
rent under this Lease. Any sum due under this Lease which is past due more than
(Number)
days shall accrue late charges from the due date at the lower of (a) Lessor's then prevailing late
charge rate; or (b) the highest rate permitted by applicable law. All payments made under this
Lease shall be applied first to any charges or expenses due under this Lease, then to any
supplemental rent due under this Lease, and the remaining balance to any rent then due.
15. Default. The occurrence of any of the following shall, at the option of Lessor and with
due notice other than provided in this Lease, constitute an event of default under this Lease:
A. Lessee fails to pay any rent or other sums due under this Lease and such failure
shall continue for days;
(Number)
B. Lessee fails to perform any other covenant in this Lease and such failure
continues for days after written notice by Lessor to Lessee;
(Number)
C. Lessee shall be in default in the payment of any other indebtedness or obligation
owed by Lessee to Lessor or an affiliate of Lessor under any other agreement or
instrument;
D. Lessee files a petition in bankruptcy, or for reorganization, or for an arrangement
pursuant to the U.S. Bankruptcy Code, or any similar federal or state or foreign law, or it
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is adjudicated bankrupt or insolvent, or makes an assignment for the benefit of creditors,
or admits in writing to its inability to pay its debts generally as they become due, or is
dissolved, or suspends payment of any of its obligations, or takes any corporate action in
furtherance of any of the foregoing;
E. A petition or answer proposing the adjudication of Lessee as a bankrupt, or its
reorganization under the U.S. Bankruptcy Code, or any similar federal or state or foreign
law is filed in any court, and (1) Lessee shall consent to such filing, or (2) such petition or
answer is not discharged or denied within days after such filing;
(Number)
F. A receiver, trustee or liquidator (or other similar official) is appointed for or takes
possession or charge of Lessee, substantially all of its assets, or any Equipment;
G. Lessee's interest in any Equipment is levied upon or attached in any proceeding,
and such process is not vacated or discharged within days;
(Number)
H. Lessee attempts to sell, transfer, mortgage, pledge, or otherwise encumber, sublet
or part with possession of any Equipment without Lessor's prior written consent;
I. A material adverse change in Lessee's financial condition or credit rating;
J. If Lessee is an individual, the death or judicial incompetence of Lessee;
K. Any representation or warranty made by Lessee in this Agreement or in any
document or certificate furnished by Lessee in connection with this Lease or pursuant to
this Lease shall prove to have been incorrect in any material respect at the time made; or
L. The occurrence of any event described in Paragraphs C, D, E, F, I, J or K
with respect to any guarantor or other party liable for the payment or performance of this
Lease or the termination or adverse modification of any instrument, agreement or
document by which such guarantor or other party is liable for the obligations of Lessee
under this Lease.
16. Remedies. Upon the occurrence of any event of default, or at any subsequent time,
Lessor, at its sole option, may exercise one or more of the following remedies:
A. Declare all accrued and unpaid rent immediately due and payable;
B. Terminate this Lease as to any or all items of Equipment upon written notice to
Lessee, without prejudice to any other remedies under this Lease;
C. Enter with Lessee's permission any premises where the Equipment may be located
with or without legal process and take possession of it without such action constituting a
termination of the Lease unless Lessor notifies Lessee in writing to such effect;
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D. Proceed by appropriate action either at law or in equity to enforce performance by
Lessee of the applicable covenants of this Lease or to recover damages for breach of it;
and
E. Exercise any and all rights available to Lessor under applicable law upon a default
by Lessee. Lessee, upon default under this Lease, shall pay to Lessor (a) as liquidated
damages for the loss of the bargain and not as a penalty an amount equal to the casualty
value of the Equipment, as defined in Section 8 above, as of the date of occurrence to the
date of payment; and (b) all costs and expenses (including reasonable attorney's fees)
incurred by Lessor in connection with collecting any amounts due under this Lease or
enforcing any right or remedy of Lessor under this Lease. After repossession of the
Equipment by Lessor, Lessor shall attempt to mitigate Lessee's damages as provided
below. Lessor shall attempt to sell or release (the choice being reserved for may be the
purchaser. The proceeds of such sale or Lease, if any, shall be applied first (i) to all of
Lessor's costs, charges and expenses incurred in taking, removing, holding, repairing and
selling or leasing the Equipment; then (ii) to the extent not previously paid by Lessee, to
pay Lessor any amounts or damages (including any casualty value) then remaining
unpaid under this Lease; then (iii) to reimburse Lessee any such sums previously paid by
Lessee as damages under this Lease; and (iv) any surplus shall be retained by Lessor.
Lessee shall pay Lessor any deficiency in (i) and (ii) within days of written
(Number)
request for same. Lessor's remedies provided for in this Lease shall be in addition to any
and all other remedies provided, existing or available in its favor under any other
provisions of this Lease, at law, in equity or under statute. Lessor's remedies may be
exercised concurrently or separately, and the exercise of one remedy shall not be deemed
to be an election of such remedy or to preclude the exercise of any other remedy. No
failure or delay on the part of Lessor in exercising any right or remedy provided under
this Lease shall operate as a waiver of it. Waiver of default shall not be a waiver of any
other or subsequent default. Lessee waives notice of place of sale or Lease and manner
and place of any advertising.
17. Option to Purchase.
A. Lessee shall have the option to purchase, at the price determined as set forth
below, all but not less than all the Equipment covered by any schedule on the date of the
last rent payment due with respect to it; provided that Lessee is not then in default under
this Lease. Such option shall be exercised by giving Lessor written notice of same no
sooner than days nor less than days prior to the due date of the
(Number) (Number)
last rent payment. Lessee shall take title to the Equipment "as is, where is."
B. The option price shall be the then fair market value of the Equipment mutually
agreed upon by Lessee and Lessor; provided that if Lessee and Lessor are unable to agree
upon the fair market value of the Equipment or any portion of it within
(Number)
days after receipt by Lessor of Lessee's notice of election to purchase, such fair market
value shall be determined by arbitration as set forth in Paragraph 29 . For purpose of this
Lease of Computer Equipment Page 9 of 12
Lease, fair market value shall be determined on the basis of, and shall be equal in amount
to, the value which would be the basis of, and shall be equal in amount to, the value
which would be obtained in an arms-length transaction between an informed and willing
buyer who intends to use the Equipment and an informed and willing seller under no
compulsion to sell and in such determination, costs of removal of the Equipment from its
location of current use shall not be a deduction from such value.
18. Notices Unless provided herein to the contrary, any notice provided for or concerning
this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified
or registered mail if sent to the respective address of each party as set forth at the beginning of
this Agreement.
19. Liens and Title to Equipment. Title to all Equipment Leased under this Lease shall at
all times remain in Lessor, and Lessee shall have no right, title or interest in the Equipment
except as expressly set forth in this Lease. Lessee, at its sole expense, will protect and defend
Lessor's title to the Equipment and will keep the Equipment free from any and all claims, liens,
encumbrances and legal processes of Lessee's creditors and other persons other than those
claiming by and through Lessor. Lessor shall have the right to display notice of its ownership of
the Equipment by affixing, or by requesting Lessee to affix, in which case Lessee agrees to affix
an appropriate notice to each piece of Equipment in a conspicuous place and Lessee shall not
obscure, deface or remove such ownership notice. The Equipment is, and shall at all times during
the term of this Lease remain, personal property notwithstanding that any such Equipment may
now or afterwards be affixed to realty, with or without the consent of Lessor. It is agreed that for
all purposes this agreement is intended to be a Lease and that, subject to Section 18, Lessee does
not and shall not acquire any right, title or interest in any Equipment Leased under this Lease
except the right to use the Equipment under the terms provided in this Lease.
20. Survival; Net Lease; and Offset. This Lease is a net lease and Lessee shall not be
entitled to any abatement of rent or other payments due under this Lease or any reduction of
them under any circumstances or for any reason whatever. Lessee waives any and all existing
and future claims as offsets against any rent or other payments due under this Lease and agrees
to pay the rent and other amounts due under this Lease as and when due regardless of any offset
or claim which may be asserted by Lessee or on its behalf. This Lease shall not terminate, or the
respective obligations of Lessor or Lessee be otherwise affected or Lessor have any liability
whatever to Lessee by reason of any failure or delay in delivery of any or all of the Equipment,
any defect in or damage to or loss or destruction of any of the Equipment from whatever cause,
the prohibition of Lessee's use of the Equipment, the interference with such use by any
government, person or corporation, the invalidity or unenforceability or lack of due authorization
or other infirmity of this Lease, any lack of right, power or authority of Lessor or Lessee to enter
into this Lease or any other cause whether similar or dissimilar to the foregoing. The obligation
and liabilities of Lessee under this Lease shall survive the expiration or earlier termination of this
Lease.
21. Financial Statements. Lessee will, within days of the close of each fiscal
(Number)
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year of Lessee, deliver to Lessor Lessee's balance sheet and statement of income certified by a
recognized firm of certified public accountants or by the chief financial officer of Lessee. Upon
request, Lessee will deliver to Lessor, within days of the close of each fiscal
(Number)
quarter of Lessee, copies of Lessee's quarterly financial report certified by the chief financial
officer of Lessee.
22. Additional Documents; Further Assurances. Lessee further agrees to execute or obtain
and deliver to Lessor, at Lessor's request, such additional documents as Lessor may reasonably
deem necessary to protect Lessor's interest in the Equipment or in this Agreement, including, but
not limited to, financing statements, landlord's waivers, and mortgagee's waivers. Lessee shall
pay to Lessor upon demand as supplemental rent any filing fees or expenses incurred in
connection with such additional documents. The execution of financing statements or the filing
of same shall be for information purposes only and shall not be construed as an intention by the
parties that the Equipment is being sold to Lessee under this Agreement.
23. Severability. The invalidity of any portion of this Agreement will not and shall not be
deemed to affect the validity of any other provision. If any provision of this Agreement is held to
be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and
effect as if they had been executed by both parties subsequent to the expungement of the invalid
provision.
24. Governing Law. This Agreement shall be governed by, construed, and enforced in
accordance with the laws of the State of .
(Name of State)
25. Attorney’s Fees. In the event that any lawsuit is filed in relation to this Agreement, the
unsuccessful party in the action shall pay to the successful party, in addition to all the sums that
either party may be called on to pay, a reasonable sum for the successful party's attorney fees.
26. Entire Agreement. This Agreement shall constitute the entire agreement between the
parties and any prior understanding or representation of any kind preceding the date of this
Agreement shall not be binding upon either party except to the extent incorporated in this
Agreement.
27. Modification of Agreement. Any modification of this Agreement or additional
obligation assumed by either party in connection with this Agreement shall be binding only if
placed in writing and signed by each party or an authorized representative of each party.
28. Assignment of Rights. The rights of each party under this Agreement are personal to that
party and may not be assigned or transferred to any other person, firm, corporation, or other
entity without the prior, express, and written consent of the other party.
29. Mandatory Arbitration. Notwithstanding the foregoing, and anything herein to the
contrary, any dispute under this Agreement shall be required to be resolved by binding
arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select
one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall
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arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration
Association then in force and effect.
30. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all of which together shall constitute but one and the
same instrument.
Witness our signatures this the day of , 20 .
(Name of Lessor) (Name of Lessee)
By: By:
(Signature of Officer) (Signature of Officer)
(Printed Name and Title of Officer) (Printed Name and Title of Officer)
Attach Schedule(s)
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