chapter 28 rental and lease of goods

Sample from Florida Legal Forms, Volume 9, Specialized Forms Copyright 1990, 2019 James W. Martin, Esq. All rights reserved. Provided for background information only, not legal advice.I www.jamesmartinpa.com

CHAPTER 28

RENTAL AND LEASE OF GOODS

Table of Sections

Sec. 28.1 In General. 28.2 Rental of Goods Agreement. 28.3 Lease of Personal Property. 28.4 Lease of Personal Property With Purchase Option. 28.5 Lease of Goods-With Option to Purchase. 28.6 Lease of Furniture-Without Option to Purchase. 28. 7 Lease of Machinery. 28.8 Lease of Machinery With Option to Buy. 28.9 Lease of Aircraft. 28.10 Lease of Aircraft With Option to Purchase. 28.11 Lease of Equipment. 28.12 __ Another Form. 28.13 Equipment Leasing by Financial Institution. 28.14 Lease Agreement for Motor Vehicles. 28.15 Equipment Lease-Basic Form With Purchase Option. 28.16 __ Another Form. 28.17 Agreement of Lease-Sale and Lease Arrangement. 28.18 Lease of Horse.

Library References: C.J.S. Bailments §§ 2-24, 31. West's Key No. Digests, Bailment e=>l, 2.

§ 28.1 In General A contract for the rental or lease of personal property is a contract

of bailment. Possession is delivered by the owner or bailor, to the renter/lessee or bailee, for a compensation to be paid by the latter, the ownership remaining in the bailor. 1 Agreements are sometimes drawn in the form of a contract for lease in which the owner undertakes that the goods shall become the property of the lessee conditionally on his making certain rent payments which he obligates himself to make. These agreements are generally held to be security agreements within Article 9 of the Uniform Commercial Code.2 A contract for lease giving the lessee a mere option to purchase for a stipulated price, does not

§ 28.1 § 1-201(37); see generally, C.J.S. Secured 1. C.J.S. Bailments § 8. Transactions § 10.

2. F.S.A. § 671.201(37); UCC § 9-102(2) and Comment 1; UCC § 10-102(1}; UCC

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§ 28.1 RENTAL AND LEASE OF GOODS Ch. 28

itself make the lease one intended as security, just as an agreement that upon compliance with the terms of the lease the lessee shall have an option to become the owner of the property for no additional consideration or nominal additional consideration does make the lease one intended for security. 3

Florida has adopted Article 2A of the Uniform Commercial Code effective January 1, 1991. The Florida Uniform Commercial Code-Leases is contained in Chapter 680, Florida Statutes. This statute codifies the law of leasing goods. Goods are generally defined in the law as being tangible personal property (all things that are movable or are fixtures, excluding intangible personal property). 4

Consumer Lease Disclosures The Federal Truth in Lending Simplification and Reform Act 5

applies to "consumer leases" defined as follows:

"Consumer lease" means a contract in the form of a bailment or lease for the use of personal property by a natural person primarily for personal, family or household purposes, for a period of time exceeding four months, for a total contractual obligation not exceeding $25,000, whether or not the lessee has the option to purchase or otherwise become the owner of the property at the expiration of the lease. It does not include a lease which meets the definition of a credit sale in Regulation Z, 12 CFR part 226.2(a), 15 U.S.C.A. § 1602(g) nor does it include a lease for agricultural, business or commercial purposes or one made to an organization. 6

The specific disclosure requirements for "consumer leases" under the Act state that the following items, as applicable, shall be disclosed:

(1) A brief description of the leased property, sufficient to identify the property to the lessee and lessor.

(2) The total amount of any payment, such as a refundable security deposit paid by cash, check or similar means, advance payment, capitalized cost reduction or any trade-in allowance, appropriately identified, to be paid by the lessee at consummation of the lease.

3. F.S.A. § 671.201; C.J.S. Sales§ 554; C.J.S. Bailments § 42; UCC § 1-201(37), see 9-408 of the 1972 UCC; J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code § 23 (3d ed. 1988).

4. F.S.A. § 680.1011.

5. Pub.L. 96-221, Title VI, § 601, Mar. 31, 1980, 94 Stat. 168. See Regulation M, Consumer Leasing, 12 CFR Pt. 213, effective April 1, 1981 (formerly part of Regulation z. 12 CFR Pt. 226).

6. 12 CFR § 213.2(a)(6). See also 15 U.S.C.A. § 1667. 12 CFR § 213.3, Exempted Transactions, states:

This regulation does not apply to lease transactions of personal property which are incident to the lease of real property and which provide that (a) the lessee has no liability for the value of the property at the end of the lease term except for abnormal wear and tear, and (b) the lessee has no option to purchase the leased property.

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Cb. 28 RENTAL AND LEASE OF GOODS § 28.1 (3) The number, amount, and due dates or periods of payments

scheduled under the lease and the total amount of such periodic payments.

(4) The total amount paid or payable by the lessee during the lease term for official fees, registration, certificate of title, license fees, or taxes.

(5) The total amount of all other charges, individually itemized, payable by the lessee to the lessor, which are not included in the periodic payments. This total includes the amount of any liabilities the lease imposes upon the lessee at the end of the term, but excludes the potential difference between the estimated and realized values, required to be disclosed under paragraph (g)(13) of this section.

(6) A brief identification of insurance in connection with the lease including (i) if provided or paid for by the lessor, the types and amounts of coverages and cost to the lessee, or (ii) if not provided or paid for by the lessor, the types and amounts of coverages required of the lessee. ·

(7) A statement identifying any express warranties or guarantees available to the lessee made by the lessor or manufacturer with respect to the leased property.

(8) An identification of the party responsible for maintaining or servicing the leased property together with a brief description of the responsibility, and a statement of reasonable standards for wear and use, if the lessor sets such standards.

(9) A description of any security interest, other than a security deposit disclosed under paragraph (g)(2) of this section, held or to be retained by the lessor in connection with the lease and a clear identification of the property to which the security interest relates.

(10) The amount or method of determining the amount of any penalty or other charge for delinquency, default, or late payments.

(11) A statement of whether or not the lessee has the option to purchase the leased property and, if at the end of the lease term, at what price, and, if prior to the end of the lease term, at what time, and the price or method of determining the price.

(12) A statement of the conditions under which the lessee or lessor may terminate the lease prior to the end of the lease term and the amount or method of determining the amount of any penalty or other charge for early termination.

(13) A statement that the lessee shall be liable for the difference between the estimated value of the property and its realized

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value at early termination or the end of the lease term, if such liability exists.

(14) Where the lessee's liability at early termination or at the end of the lease term is based on the estimated value of the leased property, a statement that the lessee may obtain at the end of the lease term or at early termination, at the lessee's expense, a professional appraisal of the value which could be realized at sale of the leased property by an independent third party agreed to by the lessee and the lessor, which appraisal shall be final and binding on the parties.

(15) Where the lessee's liability at the end of the lease term is based upon the estimated value of the leased property:

(i) The value of the property at consummation of the lease, the itemized total lease obligation at the end of the lease term, and the difference between them.

(ii) That there is a rebuttable presumption that the estimated value of the leased property at the end of the lease term is unreasonable and not in good faith to the extent that it exceeds the realized value by more than three times the average payment allocable to a monthly period, and that the lessor cannot collect the amount of such excess liability unless the lessor brings a successful action in court in which the lessor pays the lessee's attorney's fees, and that this provision regarding the presumption and attorney's fees does not apply to the extent the excess of estimated value over realized value is due to unreasonable wear or use, or excessive use.

(iii) A statement that the requirements of paragraph (g) (15)(ii) of this section do not preclude the right of a willing lessee to make any mutually agreeable final adjustment regarding such excess liability. 7

7. 12 CFR § 213.4(g). As to general requirements 12 CFR § 213.4(a) states:

(1) Any lessor shall, in accordance with this regulation and to the extent applicable, make the disclosures required by paragraph (g) of this section with respect to any consumer lease. Such disclosures shall be made clearly, conspicuously, in meaningful sequence, and in accordance with the further requirements of this section. All numerical amounts and percentages shall be stated in figures and shall be printed in not less than the equivalent of 10-point type, .075 inch computer type, or elite size typewritten numerals, or shall be legibly handwritten.

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(2) Disclosures shall be made prior to the consummation of the lease on a dated written statement which identifies the lessor and the lessee, and a copy of the statement shall be given to the lessee at that time. All of the disclosures shall be made together on either (i) the contract or other instrument evidencing the lease on the same page and above the place for the lessee's signature; or (ii) a separate statement which identifies the lease transaction.

(3) In any lease of multiple items, the description required by paragraph (g)(l) of this section may be provided on a separate statement or statements which are incorporated by reference in the dis-

Ch. 28 RENTAL AND LEASE OF GOODS § 28.2 § 28.2 Rental of Goods Agreement

This contract, . entered into on the date below written, by and between ___ hereinafter called Owner, and ___ whose ad-dress is ___ hereinafter called Renter, witnesseth that:

1. The Owner lets and the Renter rents a [describe goods] bearing the name of ___ and No. ___ upon the terms and conditions following:

2. The Renter shall pay to the Owner, so long as the Renter thinks fit to continue the rental agreement, the sum of ___ Dollars per calendar month in advance, the first of such payments to be made on the signing hereof, and the payment for each succeeding month to be made at the expiration of each preceding month.

3. The Renter shall keep the said [describe goods] in good and substantial order, damage by fire included, in his own custody at his address, as given herein, shall not, and shall have no authority to, sell, mortgage, subject to or place lien upon, remove, or part with the possession of the same without the previous consent in writing of the Owner, and shall permit persons authorized by the Owner at all reasonable times to inspect the condition of said [describe goods].

4. If the Renter shall cease to pay the monthly installments above specified or shall fail to pay any one of the same promptly, or shall fail to observe and perform all and every of the terms and conditions of this agreement, or shall do or suffer any act or thing whereby the Owner's rights shall or may be prejudiced, it shall be lawful for the Owner to terminate the rental agreement and resume possession of the said [describe goods], and for such purpose to enter any premises occupied by the Renter or wherein such [describe goods ] may be, without liability for trespass or other tort therein.

5. The Renter may put an end to the rental agreement by returning the said [describe goods ] at his own cost to the Owner.

6. If the rental agreement is terminated by either party as hereinbefore provided, all rent, to the date of such termination, as well as any damage suffered by the Owner, shall be paid by the Renter to the Owner, and no repayment or credit on account of amounts previously paid shall be made or allowed.

closure statement required by paragraph (a) of this section.

(4) All disclosures required to be given by this regulation shall be made in the English language except in the Commonwealth of Puerto Rico, where disclosures may be made in the Spanish language with English language disclosures pro-

vided upon the customer's request, either in substitution for the Spanish disclosures or as additional information in accordance with paragraph (b) of this sec-tion. ·

As to additional information which may be supplied, see 12 CFR § 213.4(b).

9 Fla.Legal Form&-Speciallzed Form&-21 605


Witness our hands and seals this ___ day of __ _, 19_.

§ 28.3 Lease of Personal Property This agreement, made the ___ day of __ _, 19_, between

___ of ___ Lessor, and __ _, of Lessee:

Witnesseth:

Lease, Term and Rent 1. The Lessor leases to the Lessee the following described personal

property [description ] for the term of ___ months, commencing on the ___ day of ___ 19_, the Lessee paying therefor to the Lessor the sum of ___ dollars on the ___ day of each month of the said term.

Lessee's Covenants 2. The Lessee agrees to pay the said rent at the times and in the

manner provided, and if the said rent or any part thereof shall at any time be unpaid, the Lessee will pay interest at the rate of ___ per cent per year from the date of default, together with reasonable charges and expenses of collection; to pay all taxes which may be imposed upon the said property while in the possession of the Lessee; to use the said property in a careful and prudent manner; not to sublet, mortgage, or in any manner dispose of the same to any person, or remove or attempt to remove the same, or suffer the same to come into the custody or control of any person other than the Lessee, without the consent in writing of the Lessor; not to suffer any legal process to be levied upon the same; to permit the Lessor at all reasonable times to enter upon the premises to inspect the said property; and to surrender the said property up to the Lessor at the expiration of the said term in as good condition as when he received the same, reasonable wear excepted.

Lessor's Remedies on Default 3. It is agreed that if any rent shall be due and unpaid, or if

default shall be made in any of the covenants on the part of the Lessee, then the Lessor may, immediately or any time thereafter, take possession of the said property wherever it may be found, forcibly, if necessary, without being deemed guilty of trespass, and without rendering himself liable to refund any sums received as rent, and thereupon this lease shall terminate, but without prejudice to any remedies which he might otherwise use for arrears of rent or any breach of the covenants of the Lessee.

In Witness Whereof, etc.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.4

§ 28.4 Lease of Personal Property With Purchase Option 1. Parties. This agreement is made 19_, between

___ of ___ herein called "Lessor," and ___ of __ _

herein called "Lessee."

2. Lease of Equipment. For and in consideration of the covenants and agreements hereinafter contained, to be kept and performed by Lessee, Lessor has leased and does hereby lease to Lessee the personal property known and described as follows: [specifically describe or reasonably identify property], hereafter designated as equipment, to have and to hold the same unto Lessee for the period of __ _ months commencing from the date of shipment by Lessor and upon the conditions and agreements hereinafter stipulated.

3. Delivery and Return of Property. Lessor shall ship equip-ment to ___ freight prepaid. At the end of the term hereof Lessee shall return equipment freight prepaid to Lessor at the place from which equipment was shipped in as good condition as exists at the commencement of the term, reasonable wear and tear in respect thereto excepted. Equipment shall be subject to inspection by Lessor before returned to Lessor and in case a reasonable price for restoring the equipment to such condition cannot be agreed upon, each party will appoint an appraiser, and the two appraisers appoint a third. The price of reconditioning as fixed by the three appraisers shall be binding upon both parties.

4. Rent. Lessee shall pay as rent for the leasing the sum of $---- which includes interest at $ ___ per cent ( ____ %) at the office of Lessor at ___ in ___ successive monthly install-ments of $--- each, payable in advance on the first day of the month beginning with ___ 19_, plus $ ___ to be paid as the last payment.

5. Reservation of Title. Equipment and all parts thereof shall, unless a purchase thereof is made as is herein provided and until full payment of such purchase price and all interest which may be due thereon is made in cash to the Lessor, retain its character as personal property and the title thereto shall not pass to Lessee but shall remain in Lessor. Lessee shall not remove, conceal or otherwise interfere with the title or ownership plate of Lessor affixed to equipment until and unless equipment is purchased and full payment therefor is made as herein provided.

6. Option to Purchase. Lessor does hereby grant to Lessee the option to purchase equipment at any time during the term of this lease upon payment of$.___ Should Lessee exercise this option one hundred per cent (100%) of moneys paid by way of rent herein shall be deemed to be moneys paid on account of such purchase price and the balance of such purchase price shall be paid in cash. The parties agree that THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE APPEARING IN

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THIS AGREEMENT AND THERE ARE NO IMPLIED WARRANTIES, EITHER OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN CONNECTION WITH EITHER THE LEASE OF THE EQUIPMENT OR ANY EXERCISE OF THE OPTION TO PURCHASE HEREUNDER.

7. Repossession. If Lessee shall sell, assign or attempt to sell or assign, equipment or any interest therein, or if Lessee defaults in any of the covenants, conditions or provisions of this lease, it is agreed that Lessor may immediately and without notice take possession of equipment wheresoever found and to remove and keep or dispose of the same and any unpaid rentals shall at once become due and payable. If any step is taken by legal action or otherwise by Lessor to recover possession of equipment or otherwise enforce this agreement or to collect moneys due hereunder Lessee shall pay Lessor the equivalent of the moneys expended or charges incurred by Lessor in such behalf, including reasonable attorney's fees.

8. Location and Use. Lessee shall use equipment only in ___ and shall not at any time remove the same from the place except in returning the same to Lessor or except as may be permitted by Lessor by consent thereto in writing. Lessee shall use equipment at all times in a workmanlike manner and in such manner as will not injure the same except by the ordinary wear and tear of such equipment when in good workmanlike use and shall at Lessee's costs and expense replace with new parts any and/ or all parts which may require replacement during the term of this lease. In the installation, location and use of equipment Lessee shall comply fully with all the laws of the State in which equipment is located and with all county or municipal ordinances thereto likewise appertaining.

9. Indemnification of Lessor. Lessee shall and does hereby agree to protect and save Lessor harmless against any and all losses or damage to equipment by fire, flood, explosion, tornado or theft and Lessee shall and does hereby assume all liability to any person whomsoever arising from the location, condition or use of equipment, and shall indemnify and does indemnify Lessor of and from all liability, claim and demand whatsoever arising from the location, condition, or use of equipment whether in operation or not, and growing out of any cause, including alleged imperfect or defective equipment, and from every other liability, claim and deqiand whatsoever during the term of this lease or arising while equipment is in the possession of Lessee. Lessee also agrees to promptly reimburse Lessor, in cash, for any and all personal property taxes levied against equipment and paid by Lessor.

10. Time of Essence. Time is the essence of this agreement.

11. No Assignment. Neither this lease and agreement nor any right or interest thereunder shall be assigned by Lessee in any respect whatsoever.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.5 12. Choice of Law. This lease and agreement shall be deemed to

have been executed and entered into in the State of Florida and shall be construed, enforced and performed in accordance with the laws thereof. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

13. Exclusion of Oral Statements. This instrument contains all of the agreements of the parties. No oral or other statements, proposals or agreements shall be binding on either of the parties hereto.

14. Guaranty. All parts of this equipment are guaranteed against defective parts or workmanship for a period of ninety (90) days from date of delivery and any parts returned to factory freight prepaid will be replaced free of charge if found defective.

[Name of Lessor] [Name of Lessee]

By ___________ By------------------ [Title] _______ [Title]

COMMENT

A lease of personal property may be a true lease or one intended for security. See F.S.A. § 671.201.

§ 28.5 Lease of Goods-With Option to Purchase* I, the undersigned, __ _, of ___ in the county of __ _

[City] of Florida, residing at No. ___ on ___ street, in said city, hereby lease and hire of ___ of __ _, in the county of ---[City] of Florida, the following article of personal property, to wit: [Here describe the property], upon the conditions and terms following:

I agree to pay to __ _, in ___ installments of __ _ Dollars each, the first installment being paid upon the signing hereof and each subsequent installment to be promptly paid on the __ _ day of each succeeding month.

I agree, in case of default in the punctual payment of any install-ment, or in case the said ___ shall be removed from my said residence without the consent in writing of said ___ or in case I shall be adjudicated a bankrupt, or become insolvent, or compromise with my creditors, or attempt or purport to assign, mortgage, pledge, or part with the possession of said ___ or in case the same shall be seized or attached as my property, that the installments previously paid shall be of right retained by said ___ as rent for the use of said article [or articles], and that said ___ shall thereupon be entitled to

§ 28.5

• See F.S.A. § 671.201.

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enter into any premises wherein same may be and resume possession of said ___ it being understood that the said ___ shall remain the sole and absolute property of ___ and that the same is only lent or hired to the undersigned.

At the expiration of the term of this lease I agree to surrender and return the above-described articles in good order and condition. After such surrender it is agreed, however, that I may, at my option purchase the same upon a further payment of the sum of ___ Dollars provided all the rentals above referred to have been promptly paid.

I further agree that I will take all reasonable care of said __ _ during the hiring, and in case of damage, by fire or otherwise, will bear the loss and risk.

This will become a binding contract between said ___ and myself upon its being agreed to below by the said __ _

Dated at __ _, this ___ day of ___ 19_.

[Signature of Lessee]

Agreed to, and the above described article (or articles) delivered to the said ___ under terms of above agreement, on the date above written.

[Signature of Lessor]

§ 28.6 Lease of Furniture-Without Option to Purchase This contract, made this ___ day of __ _, 19_, between

__ _, herejnafter called the owner and ___ hereinafter called the lessee witnesseth that:

1. The owner leases to lessee the following described articles of furniture, to wit: [description ], for the term of ___ from the ___ day of __ _

2. The owner shall deliver the said articles at his own expense at the house of the lessee at ___ on the ___ day of __ _

3. The lessee shall pay to the owner for the lease of the said furniture a rent of ___ dollars for each month of the said term, payable on the ___ day of each month, the first payment to be made on the ___ day of ___ next.

4. The lessee shall during the said term keep and maintain the said furniture in good state of condition and repair, reasonable wear and tear excepted, and shall at the determination of the said term of leasing agreement replace such of the said articles as may be broken or damaged, otherwise than by reasonable wear and tear, and such of them as may be lost, by others of a similar nature and of equal value (or, shall pay to the owner compensation on account of any of the said

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.7 articles which may be broken or damaged, otherwise than as aforesaid, or lost].

5. The lessee shall during the said term keep the said furniture insured against fire in the sum of ___ dollars [and against burglary in the sum of ___ dollars] in companies to be approved by the owner, making the loss, if any, payable to him, and shall deliver the policies and premium receipts to him.

6. The lessee shall promptly pay all taxes which shall become payable upon the said furniture during the said term.

7. The lessee shall not cause or suffer any of the said articles to be affixed to the said house in such a way that they shall become fixtures.

8. The lessee shall not during the said term remove the said furniture or any thereof from the said house or suffer the same to go out of his possession, except with the written consent of the owner.

9. It shall be lawful for the owner or his agent at all reasonable times to enter the said house for the purpose of viewing the state and condition of the said furniture.

10. Upon any breach by the lessee of any of the stipulations herein contained, or if any execution or other legal process shall be levied upon any of the said articles, the owner shall be at liberty without notice to determine this agreement.

11. Upon the determination of this agreement, whether by lapse of time or under the preceding clause, the owner shall be at liberty to enter the said house and remove and carry away the said articles and for that purpose to do all things reasonably necessary for such removal without liability for any damage caused thereby and without prejudice to the rights of the owner in respect to any rents due from the lessee under this agreement or any damages for lessee's breach of contract.

Witness our hands and seals this ___ day of __ _, 19_.

§ 28. 7 Lease of Machinery This Agreement made this ___ day of __ _, 19_, between

the ___ Machinery Corporation, a corporation duly organized un-der Florida law, hereinafter referred to as the ___ Corporation, and ___ of ___ in the State of Florida, hereinafter referred to as the lessee:

Witnesseth, that the ___ Corporation, in consideration of the covenants and agreements on the part of the lessee herein contained, does hereby lease to the lessee the machine or machines of the __ _ Corporation now or hereafter delivered to the lessee and designated by number or numbers in the following schedule:

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Schedule of Machines

L II. m. IV. v. VL vn Month-ly pay- Mini- Pay-

Pay- ment mum ment ment for use num- upon

in case Pay- less bers of expira-of loss Initial ment than pairs tion or by f'll'e, pay- per mini- per termi-

etc. ment Rental pair mum month nation (See (See (See (See (See (See (See

Article Article Article Article Article Article Article 3) 6) 7) 8) 8) 8) 14)

and any duplicate parts, extras, mechanisms and devices relating thereto, or used in connection therewith, now attached to or delivered with the said designated machine or machines, or which may at any time hereafter be obtained from the ___ Corporation, or be added thereto by or with the consent of the ___ Corporation (the whole of which machine or machines, duplicate parts, extras, mechanisms and devices, held by the lessee under these presents, whether now or hereafter delivered to or in the possession of the lessee, is hereinafter referred to as the "leased machinery"), subject to the conditions hereinafter contained.

And that the following are . agreed to as conditions of the lease hereby granted, all of which the lessee covenants and agrees to observe, keep and perform:-

Property Rights, etc. 1. The leased machinery shall at all times remain and be the sole

and exclusive property of the ___ Corporation, and the lessee shall have no right of property therein, but only the right to use the same, upon the conditions herein contained. The leased machinery shall be used only by the lessee himself or by operatives in his direct employ, and only in the factory now occupied by him at ___ in the State of

The leased machinery shall not be transferred or delivered or sublet to any other person or corporation, and neither this agreement nor the lease hereby granted can be assigned by the lessee by his own act or by operation of law. The ___ Corporation and its agents and employees shall at all times have free access to the leased machinery for the purpose of inspecting it or watching its use and operation, or of altering, repairing, improving, or adding to it, or determining the nature or extent of its use, and the lessee shall afford all reasonable facilities therefor.

Machinery To Be Kept in Good Condition; Parts, etc. 2. The lessee shall at all times and at his own expense keep the

leased machinery in good and efficient working order and condition, and shall not permit any one to injure or deface or remove any plate, or dates, numbers, or other inscriptions now or hereafter impressed on or

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.7 affixed to the leased machinery by the ___ Corporation. The lessee shall obtain from the ___ Corporation exclusively, and shall pay therefor at the regular prices from time to time established by the ___ Corporation, all duplicate parts, extras, mechanisms and devices, of every kind needed or used in operating, repairing, or renewing the leased machinery, and the same shall form part of the leased machinery, and the lessee shall not otherwise make or allow to be made any addition, subtraction or alteration to, from, or in the leased machinery without the consent in writing of the ___ Corporation, nor interfere with the proper operation of the same. In case at any time any of the leased machinery shall not, in the opinion of tµe ___ Corporation, be in good and efficient working order and condi-tion, the ___ Corporation without prejudice to any other of its rights or remedies may give written notice to the lessee to put such machinery in good and efficient working order and condition and to replace all broken or missing parts; and in case the lessee does not within fifteen (15) days from the date of such notice comply with the requirements thereof, as herein set forth, the ___ Corporation may cause such machinery to be put in such good and efficient working order and condition, and may supply such broken or missing parts, and the lessee shall forthwith pay to the ___ Corporation the expense of making such repairs and the cost at the regular prices established by the ___ ~rporation therefor of all parts so supplied.

Loss by Fire, etc. 3. The leased machinery at all times, until redelivered to the

___ Corporation as hereinafter provided, shall be held at the sole risk of the lessee from injury, loss, or destruction, and in case the same or any thereof shall be destroyed by fire or otherwise before such redelivery the lessee shall pay to the ___ Corporation in respect to each machine so destroyed the sum (if any) set opposite the name of such machine in column I in the foregoing Schedule of Machines as partial reimbursement to the ___ Corporation for such destruction, and the lessee shall forthwith return whatever remains of the machin-ery so destroyed· to the ___ Corporation at [city] Florida.

Taxes 4. At all times until redelivery of the leased machinery to the

___ Corporation the lessee shall pay all taxes and assessments which shall be assessed upon or in respect to the leased machinery or any interest therein or the rights to payments hereunder, upon whomsoever the same may be assessed.

Machine Use 5. The leased machinery shall be used for no other purposes than

for performing the operations for which it is designed in the manufacture of boots, shoes or other footwear made by or for the lessee.

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Full Capacity Subject to the foregoing limitations, the lessee shall use the leased

machinery to its full capacity upon all boots, shoes or other footwear or portions thereof made by or for the lessee in the manufacture or preparation of which such machinery is capable of being used, and the provision herein contained shall not be construed to be limited in any way by the number of pairs designated in column VI in the foregoing Schedule of Machines.

Initial Payment 6. The lessee shall pay to the ___ Corporation immediately

after the execution hereof, as an initial payment for each machine hereby leased, the amount (if any) set opposite the name of such machine in column II in the foregoing Schedule of Machines.

Monthly Rentals 7. The lessee shall pay to the ___ Corporation as monthly

rental in respect to each machine hereby leased the amount (if any) set .. opposite the name of such machine in column III in the foregoing Schedule of Machines. Such rental in respect to each calendar month shall be due and payable on the last day of the next ensuing calendar month.

Unit Charge 8. The lessee for each machine hereby leased shall pay to the

___ Corporation in respect to each pair of boots, shoes or other footwear or portions thereof operated upon by such machine the amount (if any) set opposite the name of such machine in column IV in the foregoing Schedule of Machines, and in addition, for each calendar month in respect to each machine hereby leased such proportion (if any) of the amount set opposite the name of such machine in column V as the number by which the number of pairs operated upon by such machine in such calendar month falls short of the number of pairs set opposite the name of such machine in column VI bears to the number in column VI. Such payments in respect to each calendar month, and in respect to all operations performed in such calendar month, shall be due and payable on the last day of the next ensuing calendar month.

Payments Independent of Other Leases 9. All payments in this agreement provided for are payments in

respect to the specific machines hereby leased only and are independent of, and in addition to all payments provided for the use of machines held under any other leases or agreements between the ___ Corpo-ration and the lessee. No payment made under any other agreement shall relieve the lessee from any payment hereunder, and no payment made hereunder shall be held to apply in whole or in part as payment

614

Ch. 28 RENTAL AND LEASE OF GOODS § 28.7 in respect to other machines than those hereby leased, or to relieve the lessee from any payment under any other lease or agreement or for the use of any other machine or machines of the ___ Corporation.

Indicators 10. The ___ Corporation may attach to each machine hereby

leased an indicator or indicators to register the number of revolutions or movements of any part or parts thereof, and the lessee shall not allow any person (other than the ___ Corporation or its agents) to disturb or interfere with such indicator or indicators. In case any indicator thus attached shall from any cause cease to correctly indicate or register, or shall be disturbed or out of repair, or if the glass covering any such indicator shall be removed or broken or injured, then and as often as the same shall happen the lessee shall immediately give written notice thereof to the ___ Corporation and at the same time explain the circumstances under which the same has happened.

Reports of Use, etc. 11. The lessee, independently of any indicators which may be

attached to the leased machinery, shall keep full and accurate records of all work done by the aid of each machine hereby leased, and shall report all such work to the ___ Corporation in su'ch detail as the ___ Corporation may request. The lessee, if so requested by the ___ Corporation, shall require each of his operators upon any machine hereby leased to keep upon blanks or blank books to be furnished by the ___ Corporation accurate daily records of the number of boots, shoes or other footwear· or portions thereof in the manufacture or preparation of which he has used such machine, and shall require his operators to sign such records. The lessee shall send to the office of the ___ Corporation in [city] on or before the fifth day of each calendar month the original records for the next preceding calendar month kept by his operators as above provided for and in case in any calendar month any machine hereby leased has been entirely idle the lessee on or before the fifth day of the next succeeding calendar month shall send to the office of the ___ Corporation in [city] the blank for said month for such idle machine marked "Not in use" and signed by the lessee. The lessee shall also furnish in such form as may be called for by the ___ Corporation any further information requested by the ___ Corporation in relation to the leased machin-ery or the use thereof or to enable the ___ Corporation to deter-mine the amount due it hereunder.

Term of Lease 12. The lease hereby granted in respect to each machine hereby

leased shall continue, unless sooner terminated by the ___ Corpo-ration because of breach thereof on the part of the lessee or otherwise as herein provided, for the period of ten years from the date hereof.

615


The lease hereby granted or any extension thereof in respect to each machine shall however be subject to termination in accordance with the following provisions:-

Termination for Breach, Insolvency, etc. (A) In case any breach or default shall be made in the observance

or performance of any one or more of the conditions herein contained, or if the lessee shall become insolvent, or if a sale, mortgage, lease or removal of the leased machinery, or any thereof, be made or attempted, or if any distress, execution or attachment be levied thereon, then and in each such case the ___ Corporation shall have the right, by notice in writing to the lessee, to terminate forthwith the lease hereby granted in respect to any or all machinery hereby leased, and this notwithstanding that previous breaches or defaults may have been unnoticed, waived or condoned by or on behalf of the ___ Corpora-tion.

Bankruptcy, etc. (B) In case the lessee becomes bankrupt, or has a receiving order

made against him, or makes or executes any bill of sale, deed of trust or assignment for the benefit of creditors, the lease hereby granted in respect to all • machinery hereby leased shall thereupon cease and determine unless the ___ Corporation shall upon notice thereof elect otherwise.

Surplus Machines (C) In case the lessee, at any time, shall have in his factory more

machines adapted for doing the same work as any machine or machines hereby leased than in the opinion of the ___ Corporation are sufficient for performing the work which the lessee has in his factory, based upon the capacity of such machines and the number and kind of boots, shoes, and other footwear made by the lessee for any period of twelve (12) consecutive months next preceding, the ___ Corpora-tion may, at its option, upon thirty (30) days notice in writing to the lessee, terminate the lease herein contained in respect to such of the said machines as in the opinion of the ___ Corporation are unnec-essary.

Extension of Term 13. If, upon the expiration of the full term of ten years above

provided for, the lessee does not immediately return the leased machin-ery to the ___ Corporation and the ___ Corporation does not request its return, then the leased machinery shall continue to be held and used under and in accordance with the conditions in this agreement contained and this agreement and the lease herein contained shall thereupon be extended indefinitely as to term, but thereafter either the lessee or the ___ Corporation upon sixty days notice in

616

Ch. 28 RENTAL AND LEASE OF GOODS § 28.7 writing to the other may terminate this agreement and the lease herein contained whereupon the lessee shall forthwith deliver the leased machinery to the ___ Corporation as herein provided.

Return of Machines 14. Upon the termination in any manner whatever of the lease

hereby granted or any extension thereof in respect to any machine hereby leased the lessee shall forthwith deliver such machine to the ___ Corporation, at [city] Florida, complete and in good order and condition, reasonable wear and tear alone excepted, and shall pay to the ___ Corporation in respect to each such machine the amount (if any) set opposite the name thereof in column VII in the foregoing Schedule of Machines. The lessee shall also pay to the Corporation such sum as may be necessary to cover replacement at the regular prices established by the ___ Corporation therefor of all broken or missing parts.

Right of Entry

15. Upon the termination in any manner of the lease hereby granted in respect to any machine or machines hereby leased the ___ Corporation by its agents is hereby authorized to enter upon any premises where such machinery or any thereof may be and to take possession of and to remove such machine or machines.

Notice of Termination, etc. 16. Whenever any right of termination hereunder has accrued to

the ___ Corporation a notice in writing, signed by the president, a vice-president, the treasurer or an assistant treasurer of the __ _ Corporation or by any assignee of the ___ Corporation's rights hereunder, and posted by prepaid letter, addressed to the lessee or delivered at his usual or last known place of abode or business, that the lease hereby granted is terminated or shall be terminated at ~he expiration of a certain period, shall be a sufficient termination of the lease from the time of posting or delivering such notice, or from the expiration of the period therein mentioned, as the case may be. The termination in respect to any machine of the lease hereby granted shall not release the lessee from his obligation to make all payments for the period prior to such termination and shall be without prejudice to any other rights or remedies which the ___ Corporation may have for violation of contract, use of machines without right or otherwise.

Change of Terms 17. None of the conditions or provisions of this agreement shall be

held to have been waived by any act or knowledge of the __ _ Corporation, its agents or employees, but only by an instrument in writing, signed by the president, a vice-president, the treasurer or an assistant treasurer of the ___ Corporation.

617


Definitions, etc. 18. The term "--- Corporation" shall include the said

___ Corporation and its successors and assigns. All the conditions and provisions binding on the lessee shall be binding on and enforceable against his legal representatives. In the construction of this instrument, words relating to the number and gender of the parties shall be read according to their real number and gender. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

Prior Leases Superseded 19. This lease agreement as to each machine hereby leased super

sedes any and all prior leases or agreements heretofore made for such machine.

In Witness Whereof, the parties hereto have duly executed this instrument in duplicate, the day and year first above written.

___ Machinery Corporation,

By------------[Assistant Treasurer]

By----------[Title]

[If lessee is a corporation, add corporate seal here]

§ 28.8 Lease of Machinery With Option to Buy This agreement made this ___ day of ___ 19_, between

___ of ___ Lessor, and __ __, Lessee, witnesseth:

Lease 1. The Lessor leases to the Lessee from the date hereof the

machinery specified in the schedule hereto annexed.

Receipt of Option Money 2. The Lessor acknowledges the receipt of the sum of __ _

dollars for the option to purchase hereinafter contained. If the Lessee shall exercise such option, credit will be given to him for such sum, but otherwise such sum shall belong absolutely to the Lessor.

Rent 3. So long as the Lessee thinks fit to continue the lease he shall

pay to the Lessor without demand the sum of ___ dollars on the ___ day of every calendar month as rent for said machinery, the first of such payments to be made on the ___ day of ___ 19_.

618

Ch. 28 RENTAL AND LEASE OF GOODS § 28.8 Obligations of Lessee

4. The Lessee shall keep the said machinery in serviceable condition and make good all damage, whether by fire or accident or otherwise; shall not sell, assign, mortgage, or part with the said machinery, or suffer the same to go out of his possession; shall keep the same free from all legal process; shall permit the Lessor or his agent at all reasonable times to have access to the said machinery; shall duly and punctually pay all taxes payable in respect to the said machinery; and shall not without the written consent of the Lessor execute or suffer any mortgage or other incumbrance of the premises upon which the said machinery may be.

Termination by Lessee 5. The Lessee may at any time terminate this lease by delivering

the said machinery at his own risk and cost to the Lessor.

Termination by Lessor 6. If the Lessee shall be in default in punctually paying any

installment of rent, or shall fail to perform any of the agreements and conditions on his part to be performed, then it shall be lawful for the Lessor immediately to put an end to the lease, and for that purpose to enter upon any premises in which the said machinery may be and to seize and carry away the same.

Arrears of Rent and Damages to Be Paid 7. If this lease shall be terminated either by the Lessee or by the

Lessor, no credit or repayment shall be allowed or made to the Lessor, but the Lessee shall pay to the Lessor all arrears of rent with interest thereon at the rate of ___ per cent per year and any damages for the breach of this agreement up to the date of such termination.

Option to Purchase 8. The Lessee shall have the option of purchasing the said ma

chinery at any time during the term of this lease by paying the sum of ___ dollars, and if the Lessee shall exercise such option the Lessor shall give to the Lessee credit against such purchase price for all payments theretofore made by him for rent, and also the sum paid on the signing of this agreement. Until such price shall have been paid in full the said machinery shall remain the property of the Lessor.

Insurance by Lessor 9. During the term of this lease the Lessor may for his own

benefit insure the said machinery against loss or damage by fire in any sum not exceeding ___ dollars, and the Lessee shall pay to the Lessor on demand all sums which he may pay for effecting such insurance. If the Lessor shall receive under such insurance a sum in

619


excess of the balance of the said sum of [purchase price ] after deducting all sums theretofore paid by the Lessee for rent and the amount paid on the signing of this agreement, then such excess shall be paid by the Lessor to the Lessee.

10. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

In Witness Whereof, etc.

COMMENT

Where the lessor gives the lessee an option to buy the property, the problem may arise whether the agreement is to be treated for income tax purposes as a sale. If the agreement is a lease of property used in a trade or business, the payments made thereunder as rent are deductible. However, if the transaction is interpreted to be a sale, such payments would not be deductible being deemed part of the purchase price. No general rule can be laid down to resolve the problem and each case must be decided on its own facts. See F.S.A. § 671.201.

See discussion in J. White and R. Summers, Handbook of the Law Under the Uniform Commercial Code § 23-3 (3d ed. 1988).

§ 28.9 Lease of Aircraft This lease of Aircraft, made this ___ day of ___ 19_, by

and between ___ whose address is hereinafter called Lessor, and ___ whose address is hereinafter called Less-ee,

Witnesseth: 1. That Lessor hereby leases to Lessee, and Lessee leases from

Lessor, subject to the terms and conditions herein set forth, the following described Aircraft:

Aln:raft Make 811d Model I Manufactur,,,'s Serial No. I FAA Registration No.

Together with all equipment and accessories attached thereto or used in connection therewith including the following:

All of which are included in the term Aircraft as used herein. Lessee hereby acknowledges delivery and acceptance of the aforesaid Aircraft upon the terms and conditions of this lease.

2. Lessor hereby leases to Lessee said Aircraft for the purpose of

3. The term of this lease is ___ beginning this day and ending __ _, 19_.

4. In consideration of said lease of Aircraft, Lessee covenants and agrees as follows:

620

Ch. 28 RENTAL AND LEASE OF GOODS § 28.9 (a) To pay to Lessor for the possession and use of said Aircraft for

the purpose aforesaid ___ dollars, payable as follows:

(b) To safely keep and carefully use the Aircraft, and not sell or attempt to sell, remove or attempt to remove, the same or any part thereof from ___ except reasonably for the purpose aforesaid.

(c) Lessee shall, during the term of this lease and until return and delivery of the Aircraft to Lessor, abide by and conform to, and cause others to abide by and conform to, all laws and governmental and airport orders, rules and regulations, including any future amendments thereto, controlling or in any manner affecting operation, use or occupancy of said Aircraft or use of airport premises by said Aircraft.

(d) Lessee shall pay all truces, assessments and charges on said Aircraft or its use during the time he is in possession of the same, imposed by federal, state, municipal or other public, or airport, authority; save Lessor free and harmless therefrom; and to these ends reimburse Lessor on a pro rata basis for such taxes or charges paid by Lessor hitherto or hereafter.

(e) Lessee accepts the Aircraft in its present condition, and during the term of this lease and until return and delivery of the Aircraft to Lessor the Lessee shall maintain it in its present condition, reasonable wear and tear occuring despite standards of good maintenance of Aircraft excepted, and shall repair at his own expense any damage to said Aircraft caused by operation or use by lessee or by others during the term of this lease and until delivery of the Aircraft to Lessor.

(f) Neither Lessee nor others shall have the right to incur any mechanic's or other lien in connection with the repair, maintenance or storage of said Aircraft, and Lessee agrees that neither he nor others will attempt to convey or mortgage or create any lien of any kind or character against the same or do anything or take any action that might mature into such a lien.

(g) Lessee shall be responsible and liable to Lessor for, and indemnify Lessor against, any and all damage to the Aircraft, which occurs in any manner from any cause or causes during the term of this lease or until return and delivery of the Aircraft to Lessor. Lessee shall be responsible and liable for, indemnify Lessor against, hold Lessor free and harmless from any claim or claims of any kind whatsoever for or from, and promptly pay any judgment for, any and all liability for personal injuries, death or property damages, or any of them, which arise or in any manner are occasioned by the acts or negligence of Lessee or others in the custody, operation or use of, or with respect to, said Aircraft, during the term of this lease or until return and delivery of the Aircraft to Lessor.

(h) Lessee will keep insured from and including this day until return and delivery of the Aircraft to Lessor, in such company or

621


companies as Lessor shall approve, according to applicable standard forms of policy, and for the benefit of Lessor, (1) against loss or damage from any cause or causes to the Aircraft for the full value thereof in the amount of ___ dollars, and (2) against liability for personal inju-ries, death, or property damages, or any of them, arising or in any manner occasioned by the acts or negligence of Lessee or others in the custody, operation or use of, or with respect to said Aircraft, in the amount of ___ dollars relative to personal injuries and/or death and ___ dollars relative to property damages.

(i) Lessee shall return and deliver, at the expiration of the term herein granted, the whole of said Aircraft to the Lessor, at ___ in as good condition as the same now is, reasonable wear and tear excepted.

G) [Insert other desired provisions. ] (k) It is mutually agreed that in case Lessee shall violate any of the

aforesaid covenants, terms and conditions Lessor may at his option without notice terminate this lease and take possession of said Aircraft wherever found.

[Signatures]

ACKNOWLEDGMENT BY LESSOR

STATE OF FLORIDA On this ___ day of ___ 19_, before COUNTY OF me personally appeared the above-named les

sor, to me known to be the person described in and who executed the foregoing contract of lease, and acknowledged that he executed the same as his free act and deed, and, if said contract of lease be that of a corporation swore that he was duly authorized to execute the same. Given under my hand and official seal the day and year written above.

[Seal] My commission expires __ _

(Signature of notary public [In ink])

ACKNOWLEDGMENT BY LESSEE

STATE OF FLORIDA COUNTY OF

On this ___ day of __ _, 19_, before me personally appeared the above-named lessee, to me known to be the person described in and who executed the foregoing contract of lease, and acknowledged that he executed the same as his free act and deed, and, if said

622

Ch. 28

[Seal]

RENTAL AND LEASE OF GOODS § 28.10 contract of lease be that of a corporation swore that he was duly authorized to execute the same. Given under my hand and official seal the day and year written above.

§ 28.10 Lease of Aircraft With Option to Purchase

Agreement entered into for the lease of airplane by and between the parties mentioned below, dated at ___ State of Florida, this ___ day of ___ 19_.

Lessor: ___ address __ _

Lessee: __ _, address __ _

1. Consideration~ Lessee shall pay to lessor for the use of the airplane hereby leased the sum of $--- per hour of actual flying time used, as shown by pilot's log, and in any event regardless of extent of use a minimum of$ ___ per month [week or day] and a maxi-mum of$. ___ per month [week or day], due and payable on the first day of each and every month [or week].

2. Property Leased. One ___ known as ___ manufac-tured by __ _, containing ___ H.P. motor, cruising speed ___ miles, in good repair and in safe operating condition for the transportation of persons and property, bearing FAA Registration No.

For further identification airplane leased is more particularly described as follows:

3. Place to Be Used. airport, for sightseeing tours and special trips not to exceed ___ miles in any direction from said airport.

4. Title to Plane. Retained by lessor, lessee being in possession as lessee only and not as purchaser and claiming no right, title, or interest otherwise.

5. Duration of Lease. One year from date hereof, unless sooner terminated by mutual agreement or on account of defaults hereinafter mentioned. Upon the happening of any of the defaults mentioned herein either party may elect to terminate this lease by giving to the other ___ days' written notice of such intention.

6. Repair and Maintenance. Lessee shall, at its own cost and expense, repair and maintain the leased plane so as to keep the same in as good and safe operating condition as when delivered by lessor to lessee, ordinary wear and tear from use and ordinary deterioration excepted. Lessee shall pay all costs and expenses of new parts and accessories for replacement, including the transportation charges thereon. Lessee shall be entitled to any and all salvage from broken or worn out parts. In the making of said repairs, inspections and maintenance

623


the workmen engaged therein shall not be considered as employees of the lessor but shall at all times be employees of the lessee or independent contractors, and lessor shall have no control over nor authority to direct, employ, discharge, or pay compensation to said employees. Lessee agrees to indemnify and hold harmless the lessor from any liability arising out of the negligent repair and maintenance of said plane, and from defective work and materials, as well as from the failure to repair and maintain the same, and also from any claim or liability arising out of the work while being done and the delivery of material to and from the place where such repair and maintenance work is performed.

7. Operation of Plane. Plane shall be at all times in charge of a ___ pilot, regularly licensed by the ___ who shall be under the sole control of and paid by the lessee. Lessee shall carry sufficient workmen's compensation insurance to comply with the laws of __ _ and sufficient public liability insurance to protect the lessee against loss, liability and damages to persons or property arising out of the operation, possession, management and control of said plane, whether during flight, taking off, or landing, taxiing, or otherwise, without restriction; and the lessee shall, at its own cost and expense, insure said plane, in the name of and for the benefit of the lessor, against storm, collision, fire, theft, pilferage, crack-ups, and all damage or destruction of plane, however caused. Lessee agrees to indemnify and hold harmless the lessor against any loss, liability or damage, by reason of or arising out of the possession, operation, management and control of said plane, for the actual damage sustained, but not to exceed $. ___ for damage to or destruction of plane.

8. Restrictions on Use. Lessee shall not use the said plane in violation of any federal, state or municipal law or regulation and shall be solely responsible for any fines, penalties or forfeitures occasioned by any violation thereof. Said plane shall not be sublet nor its use or possession by anyone, other than a regularly licensed transport pilot, be permitted. Lessee will not use nor permit said plane to be used in any trip to any foreign country nor for the carriage of any persons or property prohibited by law, nor for transporting any explosive or inflammable articles nor any person insane, or of sabotage or other destructive propensities, nor any animal or pets; nor shall it be used during the existence of any known defect or in unfavorable weather.

9. Defaults. Discoverable defects in the plane or any of its parts or accessories at the time of delivery to lessee or becoming apparent within ___ flying hours thereafter shall entitle the lessee to termi-nate this lease, unless upon notice the lessor shall remove said defect to the satisfaction of the lessor within ___ days.

Any failure or neglect of the lessee to pay the rental herein agreed at the time or times specified herein, or to comply with and perform any of the covenants herein contained, shall constitute a default enti-

624

Ch. 28 RENTAL AND LEASE OF GOODS § 28.10 tling the lessor to terminate this lease and to repossess said property upon ___ days' notice in writing served personally or by mail, without legal process, and the lessor, during said period, shall be entitled to an injunction restraining the lessee, its agents, servants, employees and assigns from operating said plane.

10. Return of Plane t.o Owner. Upon the termination of this lease by expiration or otherwise, lessee shall return said plane t.o the lessor at ___ in as good operating condition and appearance as when received, ordinary wear, t.ear and det.erioration excepted, and shall hold harmless the lessor against any claim for liability, loss or damage occurring prior to the actual physical delivery of said plane to lessor.

11. Option to Purchase. Lessee is hereby given the option to purchase said plane at any time upon payment, in cash or its equiva-lent, of the sum of$. ___ less the aggregate amount of rental theretofore paid by the lessee to the lessor, but plus an amount equal to ___ % interest per annum on the purchase price from the date of this lease to the date of said purchase. In the event of the exercise of this option the lessor shall execute any and all title and transfer papers and shall do all necessary acts and things for complying with the state or federal laws, if any, regulating the transfer of airplanes and licenses.

12. Taxes. During the continuance of this lease the lessor shall pay or cause to be paid all taxes and imposts levied or imposed upon said plane, including property tax and license of plane, but the lessee shall pay all operating taxes and licenses, including gasoline sales tax and any tax or license fee or lease charges for the use of any airport or facilities or for the use of premises occupied in forced landings. Sales and use taxes imposed by reason of the exercise of the option to purchase, hereinabove mentioned, shall be paid by the lessor as seller, unless otherwise provided by law, and the sale shall be considered as completed at the place of delivery.

13. Construction of Lease. This lease shall be construed accord-ing to the laws of ___ regardless of the place where the leased property is to be used and operated, and the lessee in the repair and maintenance of said plane shall have no right to consent to any mechanic's, materialmen's nor storage or salvage lien or liens, except as provided by the law of the place where such services, storage or materials are supplied, and any such liens shall be removed at the cost and expense of the lessee, who shall hold harmless the lessor against any such lien or liens. If there is any conflict between· a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

14. Report of Accidents, Defects and Repairs. Lessee shall make immediate report to lessor of any defect, repair or accident involving said plane, and shall obtain, in so far as possible, the names and addresses of all witnesses.

625


This indenture made and executed by the parties hereto, acting by their officers hereunto duly authorized, the day and year hereinabove written.

[Lessor]

By

[Seal]

Attest:

Secretary

Lessee]

COMMENT

As to whether a lease with option to purchase is a security transaction subject to UCC Article 9, see §§ 9-102 and 1-201(37), F.S.A. § 679.102 and § 671.201(37).

§ 28.11 Lease of Equipment ___ Corp. (hereinafter called the "Lessor") for valuable consid

eration, the receipt of which is hereby acknowledged, hereby leases and delivers to ___ (hereinafter called the "Lessee") the following described property, and parts, accessories, additions and replacements:

(hereinafter called the "Equipment"), upon the following terms and conditions:

1. The title to the aforesaid described property shall remain in Lessor, the Lessee having only the right to possession and the use thereof during the term of the lease, except as is otherwise provided herein.

2. The lease of said property shall be for a term of five (5) years on the following basis:

The sum of$, ___ shall be paid as an advance security deposit upon execution of this lease. On the ___ day of __ _, 19_, and on the ___ of each and every month during a period of thirty-six (36) months from date hereof, the sum of $, ___ shall be paid. Should Lessee make all of said thirty-six (36) monthly payments on or before the due date, with no default, then at the expiration of said thirty-six (36) month period, the security deposit shall be refunded to Lessee. Rental for the term after said thirtysix (36) month period, shall be as follows:

626

Ch. 28 RENTAL AND LEASE OF GOODS § 28.11 4th year $. ___ per month

5th year $---- per month

Lessee shall have the right to renew this lease for an additional five (5) year period at a rental of$ ___ per month. In the event Lessee wishes to exercise this option of renewal, it shall notify Lessor of the same not less than thirty (30) days prior to the expiration of the term of this lease.

3. Lessor shall maintain the leased property in good operating condition and shall repair the same within a reasonable time after receipt of notice by Lessee; provided, however, that Lessee shall be responsible for any loss or damage to said property from casualty or misuse; and provided, further, that nothing contained in this paragraph shall be construed to relieve Lessee from making the rental payments as herein provided.

4. Lessee affirms and represents that it is the owner of the real estate to which the said equipment is to be attached.

5. At the termination of this lease, Lessee shall return said equipment, freight prepaid, to Lessor at an Address designated by Lessor, in good condition, reasonable wear and tear excepted. Lessee shall not change or alter said equipment except on written consent of Lessor.

6. Lessor shall obtain and pay for public liability insurance, in reasonable amounts, and furnish a copy of the policy to Lessee. Lessee agrees to keep the leased property insured in the name of Lessor, at Lessee's expense, in a responsible insurance company, against fire and other casualties usually insured against by operators of like businesses to the extent of the new replacement cost of the equipment. Lessee shall furnish Lessor with certificates to evidence the insurance coverage provided for herein. Each policy shall require ten (10) days prior written notice to Lessor in the event of cancellation for any reason. Upon breach of the foregoing, Lessor, at its option, has the right to acquire such insurance, and sums expended therefor shall become additional rent due.

7. ___ agrees to pay all property taxes levied against said equipment; provided, however, that if said taxes are to be paid by Lessor, Lessee shall cause said equipment to be assessed separately from any other property located upon the real estate upon which said equipment is installed, and upon the failure of Lessee to have said equipment so assessed, Lessee shall be liable for such taxes.

8. If Lessee should fail to pay any rental payment or otber sums as herein provided to be paid by Lessee, when the same shall become due, or if a receiver shall be appointed for Lessee or any proceeding instituted by or against Lessee under the Bankruptcy Act including any proceeding for reorganization or arrangement or if Lessee should otherwise become financially unable to continue its obligations under this

627


Lease, Lessor, at its option, may by notice to Lessee, declare the entire unpaid rental and other sums payable by Lessee hereunder to be immediately due and payable, and in addition to and without prejudice to any other remedies, may, without court order or other legal process and without notice to Lessee, enter upon Lessee's premises and repossess and remove the equipment. Such repossession shall not constitute a termination of this lease unless Lessor so notifies Lessee in writing. Lessor at its option may (1) lease the repossessed equipment or any part thereof to any third party upon such terms and conditions as Lessor may determine, or (2) sell the equipment or any part thereof, to the highest bidder at public or private auction. The net proceeds of such leasing or sale, less Lessor's expenses incurred in connection therewith, including attorney's fees, shall be applied to the total unpaid rental and other sums payable by Lessee hereunder, and Lessee shall be obligated to pay Lessor any deficiency. If the amount obtained by Lessor or its assigns upon a subsequent lease or sale of the property is less than the balance of unpaid rental and all other amounts due hereunder plus the expense incurred in repossessing, removing, repairing, storing am;l disposing of property, Lessee shall pay over the amount of such deficiency. Lessee shall pay all costs and attorney's fees incurred in collecting, or attempting to collect, any sums owed under the lease or in securing possession of property and costs of reconditioning the property.

9. Lessor's failure to enforce strict performance by Lessee_ of any terms, warranties, covenants and promises herein, at any one instance shall not be construed as a waiver of any terms or conditions contained herein. This lease agreement shall be binding upon the parties hereto, their representatives and/ or successors in interest.

10. Lessee shall not lease, sublease, transfer, assign or otherwise encumber or remove the equipment from [address ] or part with possession thereof.

11. Lessee shall comply with any governmental statute, ordinance or regulation and hereby indemnifies Lessor against any liability arising from a breach of the same and agrees to defend any action brought at Lessee's sole expense.

12. Lessor may assign this lease and such Assignee shall succeed to the rights of Lessor. Upon notification of such assignment, all payments required hereunder shall be made directly to Lessor's assignee.

13. Lessor shall install said equipment at Lessor's expense, upon the following terms and conditions:

A. Any ovJrtime, premium or bonus payments made by Lessor at Lessee's request to expedite installation, will be charged to Lessee as an extra expense to the contract price.

B. Lessor shall not be liable for any loss or delay caused by factors beyond Lessor's reasonable control.

628

Ch. 28 RENTAL AND LEASE OF GOODS § 28.12 C. This installation shall not include installation of foundation,

unless so indicat.ed, and where so included, the installation of foundations shall be based upon installation of foundation to a depth as required by soil conditions. Lessee shall furnish complete load bearing characteristics of the soil where the foundation is to be installed.

D. Where installation of the foundation is included, an extra charge will be made on a time-and-material basis for whatever labor, equipment or material is required for the removal of any obstruction encountered during excavation, such as old foundations, structural steel work, sewer pipes, water pipes, rock, boulders, quicksand, water, etc.

E. It is understood that this instrument constitutes the entire lease agreement between the parties, and no representations or understandings not contained herein shall be binding upon the parties. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this docuinent] [Article 2A] shall control. Additional Covenants:

[Lessor] [Lessee]

COMMENT

As to warranty disclaimers, see Uniform Commercial Code §§ 2-316, 2-302, 1-201(10) (West's F.S.A. §§ 672.316, 672.302, 671.201); as to applying the UCC by analogy, see UCC §§ 1-102 Comment 1, 2-313 Comment 2.

§ 28.12 Lease of Equipment-Another Form . Agreement of lease, dated as of __ _, 19_, between __ _, a

___ having a place of business at ___ ['-:Lessor"], and __ _ having a place of business at ___ ['7'essee"].

1. Lease of Equipment. Lessor hereby leases to Lessee, and Lessee hereby hires and takes from Lessor the following-described personal property (together with all replacement parts, additions, repairs and accessories):

[Describe equipment fully, including make, kind of unit, serial and model numbers, and any other pertinent information ]

2. Term. This lease is for a term of ___ years, beginning __ _, 19_, and ending ___ 19_.

3. Rentals. For said term, or any portion thereof, Lessee shall pay to Lessor rentals aggregating $ ___ of which $--- shall be due on or before __ _, 19_, (the date on which Lessor estimates the leased equipment will be shipped to Lessee), and the balance of the rental, $ ___ shall be payable in ___ equal successive monthly

629


rental payments of $ ___ each, of which the first is due __ _, 19_, and the others on a like date of each month thereafter, until fully paid. All rent shall be paid at Lessor's place of business shown above, or such other place as the Lessor may designate by written notice to the Lessee. All rents shall be paid without notice or demand and without abatement, deduction or set-off of any amount whatsoever. The operation and use of the leased equipment shall be at the risk of Lessee, and not of Lessor and the obligation of Lessee to pay rent hereunder shall be unconditional.

4. Destruction of Leased Equipment. If any leased equipment is totally destroyed, the liability of the Lessee to pay rent therefor may be discharged by paying to Lessor all the rent due thereon, plus all the rent to become due thereon less the net amount of the recovery, if any, actually received by Lessor from insurance or otherwise for such loss or damage. Lessor shall not be obligated to undertake, by litigation or otherwise, the collection of any claim against any person for loss or damage of the leased equipment. Except as expressly provided in this paragraph, the total or partial destruction of any leased equipment, or total or partial loss of use or possession thereof to Lessee, shall not release or relieve Lessee from the duty to pay the rent herein provided.

5. No Warranties by Lessor. LESSOR, NOT BEING THE MANUFACTURER OF THE LEASED EQUIPMENT, NOR MANUFACTURER'S AGENT, MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, DESIGN OR CONDITION OF, OR AS TO THE QUALITY OR CAPACITY OF THE MATERIAL, EQUIPMENT OR WORKMANSHIP IN THE LEASED EQUIPMENT, NOR ANY WARRANTY THAT THE LEASED EQUIPMENT WILL SATISFY THE REQUIREMENTS OF ANY LAW, RULE, SPECIFICATION OR CONTRACT WHICH PROVIDES FOR SPECIFIC MACHINERY OR OPERATORS, OR SPECIAL METHODS, IT BEING AGREED THAT ALL SUCH RISKS, AS BETWEEN THE LESSOR AND THE LESSEE ARE TO BE BORNE BY THE LESSEE AT ITS SOLE RISK AND EXPENSE.

No oral agreement, guaranty, promise, condition, representation or warranty shall be binding; all prior conversations, agreements or representations related hereto and/ or to the leased equipment are integrated herein, and no modification hereof shall be binding unless in writing signed by Lessor.

6. Shipping Charges, Compliance With Laws, Insurance. Lessee agrees, at its own cost and expense; (a) to pay all shipping charges and other expenses incurred in connection with the shipment of the leased equipment by the Seller to the Lessee; (b) to pay all charges and expenses in connection with the operation of each item of leased equipment; (c) to comply with all governmental laws, ordinances, regulations, requirements and rules with respect to the use, maintenance and operation of the leased equipment; (d) to maintain at all times public liability, property damage,

630

Ch. 28 RENTAL AND LEASE OF GOODS § 28.12 fire, theft and comprehensive insurance in an amount satisfactory t.o Lessor, protecting Lessor's interest as it may appear, delivering t.o Lessor evidence of such insurance coverage; and (e) t.o make all repairs and replacements required t.o be made t.o maintain the leased equipment in good condition, reasonable wear and tear excepted.

7. Taxes. Lessee agrees that, during the term of this lease, in addition t.o the rent provided herein to be paid, it will promptly pay all taxes, assessments and other governmental charges levied or assessed upon the interest of the Lessee in the leased equipment or upon the use or operation thereof or on the earnings arising therefrom, and as additional rent will promptly pay or reimburse the Lessor for all taxes (other than sales taxes paid by Lessor with respect to its purchase of the leased equipment), assessments and other governmental charges (including fees for titling and registration of leased equipment, if required) levied or assessed against and paid by the Lessor on account of its ownership of the leased equipment or any part thereof, or the use or operation thereof or the leasing thereof to the Lessee, or the rent herein provided for or the earnings arising therefrom, exclusive, howev-er, of any taxes based on net income of Lessor and ___ taxes on gross receipts or gross income of Lessor.

8. Identification of Leased Equipment. Each item of leased equipment shall have plainly, distinctly and permanently affixed to it, at the expense of the Lessee, a metal plate bearing the following words: " __ _, Owner and Lessor".

9. Title of the Lessor. Title to the leased equipment shall at all times remain in the Lessor and Lessee will at all times protect and defend, at its own cost and expense, the title of the Lessor from and against all claims, liens and legal processes of creditors of the Lessee and keep all leased equipment free and clear from all such claims, liens and processes. The leased equipment is and shall remain personal property. Upon the expiration or termination of this lease, the Lessee at Lessee's sole expense shall return the leased equipment unencumbered to Lessor at __ _, or to such other place as Lessor and Lessee agree upon, and in the same condition as when received by Lessee, reasonable wear and tear resulting from use thereof alone excepted.

10. Possession, Place of Use, Changes in Location. So long as Lessee shall not be in default under this lease it shall be entitled to the po~ion and use of the leased equipment in accordance with the terms of this lease. The leased equipment shall be used in the conduct of the lawful business of the Lessee, shall be kept at ___ County of __ _ State of __ _, and shall not be removed from such location without the prior written consent of the Lessor. The Lessee shall not, without Lessor's prior written consent, part with possession or control of the leased equipment or attempt t.o sell, pledge, mortgage or otherwise encumber any of the leased equipment or attempt to purport to sell, pledge, assign, transfer or otherwise dispose of or encumber any interest under this lease.

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§ 28.12 RENTAL AND LEASE OF GOODS· Ch. 28

11. Performance of Obligations of Lessee by Lessor. In the event that the Lessee shall fail duly and promptly to perform any of its obligations under the provisions of articles 5, 6, 7, and 8 of this lease to be performed by the Lessee, the Lessor may, at its option, immediately or at any time thereafter perform the same for the account of Lessee without thereby waiving such default, and any amount paid or expense or liability incurred by Lessor in such performance, together with interest at the rate of 6% per annum thereon until paid by the Lessee to the Lessor, shall be payable by the Lessee upon demand as additional rent for the leased equipment.

12. Right of Inspection. Lessor shall have the right from time to time during reasonable business hours to enter upon the Lessee's premises or elsewhere for the purpose of confirming the existence, condition and the proper maintenance of the leased equipment. The foregoing rights of entry are subject to any applicable governmental laws, regulations and rules concerning industrial security.

13. Default. There shall be deemed to be a breach of this lease (a) if Lessee shall default in the payment of any rent hereunder and such default shall continue for a period of 10 days, (b) if Lessee shall default in the performance of any of the other covenants herein and such default shall continue uncured for 15 days after written notice thereof to Lessee by Lessor, or (c) if Lessee ceases doing business as a going concern, or if a petition is filed by or against Lessee under the Bankruptcy Act or any amendment thereto (including a petition for reorganization, arrangement or an extension), or if Lessee attempts to remove or sell or transfer or encumber or sublet or part with possession of the leased equipment or any part thereof. In the event of a breach of this lease, as herein defined, (a). the leased equipment shall upon Lessor's demand forthwith be delivered to Lessor at Lessee's expense at such place as Lessor shall designate and Lessor and/or its agents may, without notice or liability or legal process, enter into any premises of or under control or jurisdiction of Lessee or any agent of Lessee where the leased equipment may be or by Lessor is believed to be, and repossess all or any part of the leased equipment, disconnecting and separating all thereof from any other property, Lessee hereby expressly waiving all further rights to possession of the leased equipment and all claims for injuries suffered through or loss caused by such repossession, and (b) all sums due and to become due hereunder shall, at Lessor's option, become payable forthwith, and the Lessor, in addition to being entitled to take possession of the leased equipment as hereinbefore described, also shall be entitled to recover immediately as and for damages for the breach of this lease and not as a penalty, an amount equal to the difference between the aggregate rent reserved hereunder for the unexpired term of the lease (hereinafter called "Remaining Rentals") and the then aggregate rental value of all leased equipment for the unexpired term of the lease (hereinafter called "Unexpired Rental Value of Leased Equipment"), provided, however, that

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.12 if any statute governing the proceeding in which such damages are t.o be proved, specifies the amount of such claim, Lessor shall be entitled to prove as and for damages for the breach an amount equal t.o that allowed under such statute. The provisions of this paragraph shall be without prejudice to any rights given t.o the Lessor by such statute t.o prove for any amounts allowed thereby. Lessor, upon any breach of this lease, may sell the leased equipment or may re-lease such equipment for a term and a rental which may be equal to, greater than or less than the rental and term herein provided, and any proceeds of such sale received within sixty days after Lessor receives possession of the leased equipment or any rental payments received under a new lease made within such sixty days for the period prior to the expiration of this lease, less Lessor's expenses of taking possession, st.orage, reconditioning and sale or releasing, shall be deemed and considered for the purposes of this paragraph as being the Unexpired Rental Value of Leased Equipment. If the Unexpired Rental Value of Leased Equipment exceeds the Remaining Rentals, Lessor shall be entitled to the excess. The provisions of this paragraph shall be without prejudice to Lessor's right to recover or prove in full damages for unpaid rent that accrued prior to the breach of the lease. In the event of a breach of this lease, Lessor, at its option, may enforce by appropriate legal proceedings specific performance of the applicable covenants of this lease as well as any other remedy herein provided. Should any legal proceedings be instituted by Lessor to recover any moneys due or to become due hereunder and/ or for possession of any or all of the leased equipment, Lessee shall pay a reasonable sum as attorneys' fees.

14. Indemnity. Lessee shall indemnify and save Lessor harmless from any and all liability, loss, damage, expense, causes of action, suits, claims or judgments arising from injury to person or property resulting from or based upon the actual or alleged use, operation, delivery or transportation of any or all of the leased equipment or its location or condition; and shall, at its own cost and expense, defend any and all suits which may be brought against Lessor, either alone or in conjunction with others upon any such liability or claim or claims and shall satisfy, pay and discharge any and all judgments and fines that may be recovered against Lessor in any such action or actions, provided, however, that Lessor shall give Lessee written notice of any such claim or demand.

15. Assignment. This lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee's consent, but Lessee shall not be obligated to any assignee of the Lessor except after written notice of such assignment from the Lessor. Without the prior written consent of Lessor, the Lessee shall not assign this lease or its interests hereunder or enter into any sublease with respect to the leased equipment covered hereby, it being agreed Lessor will not unreasonably withhold its consent to a sublease of the leased equipment.

16. No Purchase Option. Lessee shall have no option to purchase or otherwise acquire title to or ownership of any of the leased

633


equipment and shall have only the right to use the same under and subject to the terms and provisions of this lease.

17. Further Assurances. Lessee shall execute and deliver to Lessor, upon Lessor's request, such instruments and assurances as Lessor deems necessary or advisable for the confirmation or perfection of this lease and Lessor's rights hereunder.

18. Notices. All notices relating hereto shall be delivered in person to an officer of the Lessor or Lessee, or shall be mailed registered to Lessor or Lessee at its respective address above shown or at any later address last known to the sender.

19. Remedies, Waivers. No remedy of Lessor hereunder shall be exclusive of any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default.

20. Irrevocability. This lease is irrevocable for the full term hereof as set forth in paragraph 2 hereof and for the aggregate rentals herein reserved in paragraph 3 and the rent shall not abate by reason of termination of Lessee's right of possession and/or the taking of possession by the Lessor or for any other reason, and delinquent installments of rent shall bear interest at the highest lawful contract rate or 1 % per month, whichever be the lesser.

21. Option to Renew. Lessee shall have the option, if Lessee is not in default hereunder, upon giving written notice to Lessor at least 30 days prior to the termination of the original or any renewal term of this lease, to renew this lease for such annual terms as may be specified in such written notice at an annual rent of $. __ -Y payable in advance at the beginning of each such annual renewal term.

22. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

If Lessee is a corporation, this lease is executed by authority of its Board of Directors.

In Witness Whereof, Lessor and Lessee have caused this lease to be executed by their duly authorized representatives as of the day and year first above written.

_________ [Lessor]

By _________ _

__________ [Lessee]

[Signature of Individual or name of Corporation or Partnership ]

By ________ [Seal] Its _________ _

[If Corporation, have signed by President, Vice-Presi-dent or Treasurer and give official title. If Owner or Partner, state which ]

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.13

§ 28.13 Equipment Leasing by Financial Institution

1. Equipment Leased. [Financial Institution Leasing Corporation ], a Florida corporation hereinafter called LESSOR hereby leases to [name of lessee] hereinafter called LESSEE, and LESSEE, hereby leases from LESSOR the Equipment [-personal property] described as follows: [describe equipment leased], upon the following terms and conditions:

2. Term. The term of this lease shall commence on the date that the Equipment is delivered to LESSEE and, unless sooner terminated as set forth in the lease, shall expire on [date].

3. Rent. As rent for the Equipment, LESSEE shall pay LESSOR at [address] the sum of ___ Dollars ($. ___ ) payable in [number] successive installments of $.___ each, beginning [date ] and each subsequent installment to be promptly paid on the ___ day of each succeeding month. Any past due payment of rent shall bear interest at the rate of ___ percent ( ___ %) per annum.

4. Use. LESSEE shall use the Equipment in a careful and proper manner and shall comply with and conform to all national, state, municipal, and other laws, ordinances and regulations in any way relating to the possession, use or maintenance of the Equipment. If at any time during the term hereof LESSOR supplies LESSEE with labels, plates or other markings, stating that the Equipment is owned by LESSOR, LESSEE shall affix and keep the same upon a prominent place on the Equipment.

5. Inspection by Lessee. LESSEE shall inspect the Equipment within [number] (_) hours after receipt thereof. Unless LESSEE within said period of time gives written notice to LESSOR specifying any defect in or other proper objection to the Equipment, LESSEE agrees that it shall be conclusively presumed, as between LESSOR and LESSEE, that LESSEE has fully inspected and acknowledged that the Equipment is in good condition and repair, and that LESSEE is satisfied with and has accepted the Equipment in such good condition and repair.

6. Inspection by Lessor. LESSOR shall at any and all times during business hours have the right to enter into and upon the premises where the Equipment may be located for the purpose of inspecting the same or observing its use. LESSEE shall give LESSOR immediate notice of any attachment or other judicial process affecting any item of Equipment and shall, whenever requested by LESSOR, advise LESSOR of the exact location of the Equipment.

7. Alterations. LESSEE is hereby given the right to make alterations, additions or improvements to the Equipment, so long as the value of the Equipment is not reduced thereby. All additions and improvements of whatsoever kind or nature made to the Equipment shall immediately become the property of LESSOR and subject to the terms of this lease.

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8. Maintenance and Repair. LESSEE, at its own cost and expense, shall keep the Equipment in good repair, condition and working order and shall furnish any and all parts, mechanisms and devices required to keep the Equipment in good mechanical and working order.

9. Loss and Damage. LESSEE hereby assumes and shall bear the risk of loss and damage to the Equipment from any and every cause whatsoever, whether or not insured. No loss or damage to the Equipment or any part thereof shall impair any obligation of LESSEE under this lease which shall continue in full force and effect.

In the event of loss or damage of any kind whatever to the Equipment, or any part thereof, LESSEE at the option of LESSOR shall:

(a) Place the same in good repair, condition and working order; or (b) Replace the same with like property in good repair, condition

and working order; which property shall thereupon become subject to this lease;

(c) Pay LESSOR therefor in cash the "Stipulated Loss Value" of the Equipment during the successive years of the lease terms, as follows: 1st Yr. $ ________ _ 6th Yr. $, ________ _ 2nd Yr. $ _______ _ 7th Yr. $, ________ _ 3rd Yr. $ _______ _ 8th Yr. $, ________ _ 4th Yr. $ ________ _ $ ______ _

5th Yr. $ _______ _ $ _____ _

The Stipulated Loss Value ,of each item of Equipment shall be that portion of the total Stipulated Loss Value which equals the percentage which the cost of that item bears to the total cost of the Equipment. Upon such payment this lease shall terminate with respect to the Equipment or part thereof so paid for and LESSEE thereupon shall become entitled thereto.

10. Surrender of Equipment. Upon the expiration or earlier termination of this lease, with respect to the Equipment or any part thereof, LESSEE shall (unless LESSEE has paid LESSOR in cash the "Stipulated Loss Value" of the Equipment or any part thereof pursuant to Paragraph 9 hereof) return the same to LESSOR in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted, in the following manner as may be specified by LESSOR:

(a) By delivering the Equipment at LESSEE's cost and expense to such place as LESSOR shall specify within the county in which the same was delivered to LESSEE or to which same was moved with the written consent of LESSOR; or

(b) By loading the Equipment at LESSEE's cost and expense on board such carrier as LESSOR shall specify and shipping the same, freight collect, to the destination designated by LESSOR.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.13 11. Insurance. LESSEE, at its own expense, shall maintain the

Equipment insured for such risks and in such amounts as LESSOR shall require with carriers acceptable to LESSOR, shall maintain a loss payable endorsement in favor of LESSOR affording to LESSOR such additional protection as LESSOR shall require, and shall maintain liability insurance satisfactory to LESSOR. All such insurance shall name LESSOR and LESSEE as insured, and the policies shall provide that they may not be cancelled or altered without at least [number] (_) days' prior written notice to LESSOR and the loss payable endorsement shall provide that all amounts payable by reason of loss of or damage to the Equipment shall be payable only to LESSOR. LESSEE shall deliver to LESSOR evidence satisfactory to LESSOR of all such insurance. If loss or damage occurs under circumstances in which LESSEE is not in violation of the terms of any such policies, and if LESSEE has fulfilled its obligations under Paragraph 9 of this lease, and is not otherwise in default under this lease, LESSOR will pay to LESSEE so much of any insurance proceeds received by LESSOR as a result of such loss or damage as will fully reimburse LESSEE for the net expense .it incurs in fulfilling its obligations under said Paragraph 9.

12. Taxes. LESSEE shall pay and discharge all license fees, assessments and sales, use, property and other tax or taxes now or hereafter imposed by any State, Federal or local government upon the Equipment ownership, leasing, renting, sale, possession or use of the Equipment whether the same be assessed to LESSOR or LESSEE, together with any penalties or interest in connection therewith, excepting Federal, State or local government taxes, or payments in lieu thereof, imposed upon or measured by income of the LESSOR. If any tax is, by law, to be assessed or billed to LESSOR, LESSEE at its expense will do any and all things required to be done by LESSOR in connection with the levy, assessment, billing or payment of such taxes and is hereby authorized by LESSOR to act for and on behalf of LESSOR in any and all ·such respects; LESSEE will cause all billings of such taxes to LESSOR to be made to it in care of LESSEE and will from time to time, on request of LESSOR, submit written evidence of the payment of all of the governmental obligations mentioned in this paragraph. LESSEE will, on any property tax returns required to be filed by it, include the property covered by this lease or any substitutions or additions thereto as property owned by the LESSEE for purposes of tax assessments. It is expressly agreed that LESSEE will not, without obtaining prior written permission of LESSOR assert on its behalf, or on behalf of LESSOR, any immunity from taxation.

13. Lessee's Failure to Pay Taxes, Insurance, etc. Should LESSEE fail to make any payment or do any act as herein provided, then LESSOR shall have the right, but not the obligation, without notice to or demand upon LESSEE, and without releasing LESSEE from any obligation hereunder, to make or do the same, and to pay,

9 Fla.Legal Forms-Specialized Forms-22 637


purchase, contest or compromise any encumbrance, charge or lien which in the judgment of LESSOR appears to affect the Equipment, and in exercising any such rights, incur any liability and expend whatever amounts in its absolute discretion it may deem necessary therefor. All sums so incurred or expended by LESSOR shall be without demand immediately due and payable by LESSEE ~d shall bear interest at the rate of ___ percent ( ____ %) per annum.

14. Indemnity. LESSEE shall indemnify LESSOR against, and hold LESSOR harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney's fees, arising out of, connected with, or resulting from the Equipment, including without limitation the manufacture, selection, delivery, possession, use, operation or return thereof. Without limiting the generality of the preceding sentence, LESSEE expressly and unequivocally agrees to indemnify LESSOR against and hold LESSOR harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including attorney's fees, arising out of or relating to any negligent acts of LESSOR, or any claim of negligent acts of LESSOR, or arising out of or related to any strict liability in tort, or any claim of strict liability in tort, imposed upon LESSOR for placing the Equipment on the market having any defect, or claimed to have any defect, it being agreed that LESSEE shall inspect the Equipment and remedy any defect whatsoever. LESSEE expressly and unequivocally agrees to be held responsible for any and all negligent acts of LESSOR in failing to discover and remedy any and all defects and for the strict liability in tort imposed upon LESSOR for placing the Equipment on the market in a defective condition.

15. Deposit of Security. The amount which LESSEE has depos-ited with LESSOR as security is the sum of ___ dollars ($ ___ ). Said sum may, at LESSOR's option, be applied to satisfy any such obligation which may be in default, but the making of such deposit shall not excuse LESSEE from any such obligation. Any portion of said sum which has not been so applied by LESSOR will be returned to LESSEE at the termination of this lease.

16. Default. The occurrence of any of the following events shall, at the option of LESSOR, terminate this lease and LESSEE's right to possession of the Equipment:

(a) The nonpayment by LESSEE for a period of ten (10) days of any sum required hereunder to be paid by LESSEE.

(b) The default by LESSEE under any other term, covenant or condition of this lease which is not cured within ten (10) days after notice thereof from LESSOR.

(c) Any affirmative act of insolvency by LESSEE, or the filing by LESSEE of any petition or action under any bankruptcy, reor-

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.13 ganization, insolvency or moratorium law, or any other law or laws for the relief of, or relating to, debtors.

(d) The filing of any involuntary petition under any bankruptcy statute against LESSEE, or the appointment of any receiver or trustee to take possession of the properties of LESSEE, unless such petition or appointment is set aside or withdrawn or ceases to be in effect within sixty (60) days from the date of said filing or appointment.

(e) The subjection of any of LESSEE's property to any levy, seizure, assignment, application or sale for or by any creditor or governmental agency.

Upon the happening of any of the above events, LESSOR may without notice to or demand upon LESSEE:

(a) Take possession of the Equipment and lease the same or any portion thereof, for such period, rental, and to such persons as LESSOR shall elect and apply the proceeds of any such renting, after deducting all costs and expenses incurred in connection with the recovery, repair, storage and renting of the Equipment, in payment of the rent and other obligations due from LESSEE to LESSOR hereunder, LESSEE remaining responsible for any deficiency.

(b) Take possession of the Equipment and sell the same or any portion thereof at public or private sale and without demand or notice of intention to sell, and apply the proceeds of any such sale, after deducting all costs and expenses incurred in connection with the recovery, repair, storage, and sale of the Equipment and any rentals and other obligations of LESSEE then due hereunder, against the "Stipulated Loss Value" of the Equipment sold. If the proceeds, after the permitted deductions, are less than the "Stipulated Loss Value," LESSEE shall immediately pay LESSOR the difference.

17. Offset. LESSEE hereby waives any and all existing and future claims and offsets against any rent or other payments due hereunder, and agrees to pay the rent and other amounts due hereunder regardless of any offset or claim which may be asserted by LESSEE or on its behalf.

18. Effect of Waiver. No delay or omission to exercise any right, power or remedy accruing to LESSOR upon any breach or default of LESSEE under this lease shall impair any such right, power, or remedy of LESSOR nor shall it be construed to be a waiver of any such breach or default, or any acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of LESSOR of any breach

639


or default under this lease, or any waiver on the part of LESSOR of any provision or condition of this lease, must be in writing and shall be effective only to the extent in such writing specifically set forth. All remedies, either under this lease or by law, or otherwise afforded to LESSOR, shall be cumulative and not alternate.

19. Attorney's Fees. In the event of any action at law or suit in equity in relation to this lease, LESSEE, in addition to all other sums which LESSEE may be called upon to pay, will pay to LESSOR a reasonable sum for its attorneys' fees.

20. Assignment. Without the prior written consent of LESSOR, LESSEE shall not (a) assign, transfer, pledge or hypothecate this lease, the Equipment or any part thereof, or any interest therein, (b) sublet or lend the Equipment or any part thereof, or (c) permit the Equipment or any part thereof to be used by anyone other than LESSEE or LESSEE's employees. LESSOR may assign its interest, or a part thereof, in this lease.

21. Location of Equipment. LESSEE will not, without the prior written consent of LESSOR, permit the Equipment to be removed from [location].

22. Ownership. The Equipment is and shall at all times be and remain, the sole and exclusive property of LESSOR, and LESSEE shall have no right, title or interest therein or thereto except as expressly set forth in this lease.

23. Personal Property. The Equipment is, and shall at all times be and remain, personal property notwithstanding that the Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached to, or imbedded in, or permanently resting upon, real property or any building thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise.

24. Applicable Law. This lease shall be governed by, and construed under the laws of the State of Florida. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

25. Suspension of Obligations of Lessor. The obligations of LESSOR hereunder shall be suspended to the extent that it is hindered or prevented from complying therewith because of labor disturbances, including . strikes and lockouts, acts of God, fires, storms, accidents, governmental regulations or interference or any cause whatsoever beyond the control of LESSOR.

26. Books and Records. LESSEE shall keep books and records in accordance with good accounting practice and shall deliver to LESSOR financial and profit and loss statements in such form and at such times as LESSOR may require. LESSEE shall permit LESSOR to examine and audit the books of the business of LESSEE.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.13 27. Warranties. LESSEE ACKNOWLEDGES THAT THE

EQUIPMENT IS OF A SIZE, DESIGN, CAPACITY, AND MANUFACTURE SELECTED BY LESSEE. LESSOR IS NOT A MANUFACTURER OF THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, DOES NOT INSPECT THE EQUIPMENT PRIOR TO DELIVERY TO LESSEE AND HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT, WITH RESPECT TO THE CONDITION, QUALITY, DURABILITY, SUITABILITY, OR MERCHANTABILITY OF THE EQUIPMENT IN ANY RESPECT, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT, EXPRESS OR IMPLIED. LESSOR WILL, HOWEVER, TAKE ANY STEPS REASONABLY WITHIN ITS POWER TO MAKE AVAILABLE TO LESSEE ANY MANUFACTURER'S OR SIMILAR WARRANTY APPLICABLE TO THE EQUIPMENT. LESSOR SHALL NOT BE LIABLE TO LESSEE FOR ANY LIABILITY, LOSS, OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDffiECTLY BY THE EQUIPMENT BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN OR BY ANY INCIDENT WHATSOEVER IN CONNECTION THEREWITH.

28. Notices. Any communications between LESSOR and LESSEE, payments, and notices provided herein to be given or made may be given or made by mailing the same to LESSOR at ______ and to LESSEE at ______ or to such other addresses as either party may in writing hereafter indicate.

29. Renewal Option. LESSEE is hereby given [number] successive options to renew the lease for a one (1) year period, upon the same terms and conditions of the lease; provided, however that the rent for the Equipment during any such renewal period shall be as follows: 1st Yr. $________ 3rd Yr. $, _______ _

2nd Yr. $-------- 4th Yr. $-------payable annually in advance. Said options must be exercised by the giving of a written notice by LESSEE to LESSOR of LESSEE's intention to exercise the same, not less than sixty (60) days before the expiration of the term of this lease, or any renewal of the lease.

In Witness Whereof, the parties hereto have executed this lease as of this ___ day of __ _, 19_.

[Lessor]

By----------

By ----------

[Lessee]

By---------

By ----------

By---------

By ----------641


COMMENT

Note: The lessee acknowledges that the equipment is of a size, design, capacity and manufacture selected by lessee; that the lessor is not a manufacturer of the equipment. See paragraph numbered 27.

§ 28.14 Lease Agreement for Motor Vehicles LEASE AGREEMENT made as of __ _, 19_, between __ _,

hereinafter called "Lessor", and __ _, INC., a Florida corporation, hereinafter called "Lessee".

In consideration of their mutual promises made herein, Lessor hereby leases to Lessee and Lessee hires · from Lessor that certain __ _, vehicle identification number __ _, herein referred to as the "vehicle", on the following terms and conditions:

1. Rental. Lessee shall pay as rent for the vehicle the amount of ___ DOLLARS ($. ___ ) per month, in advance on the first day of each month during the term hereof. Lessor may direct Lessee to make payment directly to someone other than Lessor.

2. Use of Vehicle. Lessee agrees that it will not use or permit the use of the vehicle leased hereunder in a negligent or improper manner or in violation of any law, or so as to void any insurance covering the same, or permit the vehicle to become subject to any lien, charge, or encumbrance, unless approved by Lessor.

3. Licensing and Registration. The vehicle subject to this lease shall have license plates and titles registered in the name of Lessor. The annual registration or license fees shall be paid by Lessee. Unless otherwise specified, Lessor shall, where required, register the vehicle in conformance with the laws of the State of Florida. Local registration or registration in other states shall also be at the expense of Lessee.

4. Maintenance and Repairs. Unless otherwise agreed in writing by the parties, all service, materials, and repairs in connection with the use and operation of the vehicle during the lease term hereof, including but not limited to gasoline, oil, batteries, repairs, maintenance, tires, tubes, and towing necessary for their proper use and operation are at Lessee's expense. Lessee agrees that the oil in the crankcase shall at all times be kept at proper level and shall be completely changed and the vehicle lubricated at intervals recommended in the manual provided by the manufacturer of the vehicles. Lessor shall not be liable for repairs, nor shall any such repairs be charged to Lessor.

5. Insurance. Lessee shall obtain and pay for fire, extended coverage and liability insurance on the vehicle satisfactory to Lessor and insuring Lessor's interest as well as Lessee's. In the event Lessee shall fail to provide or pay for such insurance, Lessor at its option may pay for such insurance and add the amount paid to the next monthly

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.14 rental payment due from Lessee. Lessee shall promptly notify Lessor of any accident, loss or incident that may result in an insurance claim.

6. Taxes and Charges. Lessee agrees to pay all storage charges, parking charges and fines. Lessee will pay any fees including vehicle registration and inspection fees and taxes which may be imposed with respect to the vehicle as the result of Lessee's use or intended use of the vehicle.

7. Risk of Loss and Damage. Lessee shall bear all risks of damage or loss of the vehicle or any portion thereof not covered by insurance. All replacements, repairs, or substitution of parts or equipment shall be at the cost and expense of Lessee and shall be accessions to the vehicle owned by the Lessor. Lessee shall at all times and at its expense keep the vehicle in good working order, condition, and repair, reasonable wear and tear excepted. The rent on the vehicle shall not be prorated or abated while it is being serviced or repaired.

8. Indemnity of Lessor. Lessee agrees to indemnify Lessor against all claims, losses, causes of action, and expenses, including but not limited to attorneys fees and other legal expenses, arising from the use, maintenance or operation of the vehicle.

9. Termination of Lease. This lease will terminate upon thirty days' notice by either party to the other party.

10. Termination by Default. Time is of the essence of this agreement. Lessor may, at its option, by written notice to Lessee declare this lease in default on the happening of any of the following: (a) any failure to pay when due any rent or other payment due under this lease; (b) any failure to perform or observe any term or agreement herein; (c) any of Lessee's property is seized or levied upon under any legal or other governmental process against Lessee or against Lessee's property; (d) Lessee becomes insolvent or is the subject of an insolvency proceeding or has any property placed in the control of a custodian; or (e) Lessee fails to maintain its corporate existence in good standing. Upon declaration by Lessor that the lease is in default, the vehicle shall be surrendered and delivered to Lessor, and Lessor may take possession of the vehicle wherever they may be found, with or without process of law, and for that purpose may enter on the premises of Lessee. Upon default, Lessee and Lessee's successors in interest, whether by operation of law or otherwise, shall have no right, title or interest in the vehicle, or the possession or use thereof, and Lessor shall retain all rents and other sums paid by Lessee hereunder. Lessee shall pay reasonable attorneys fees incurred by Lessor.

11. Return of Vehicles. Upon expiration of the lease term, or earlier termination of the lease as herein provided, Lessee shall return to Lessor the vehicle in the same condition as when received, less reasonable wear and tear and free from collision or upset damage.

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12. Assignment. Lessee agrees not to assign, transfer, sublet, pledge, or encumber any of its rights under this lease, or the lease itself. Lessee hereby consents to and authorizes Lessor's assignment of all rentals, charges, and other amounts payable by Lessee to Lessor, or to become payable hereunder. If Lessor so assigns the sums agreed to be paid by Lessee hereunder, the rights of assignee to receive the same shall be free from all defenses, setoffs, and counterclaims of every kind that Lessee may be entitled to assert against Lessor, but Lessee may separately assert such claims against Lessor. Notwithstanding such assignment, assignee shall not assume any of the obligations of Lessor. This lease and the rights and interests of Lessee hereunder are subordinate to any security agreement executed by Lessor covering the vehicle.

13. Waiver. Failure of Lessor in any one or more instances to insist on the performance of any of the terms of this lease or to exercise any right or privilege conferred herein, or the waiver of any breach of any term of this lease, shall not be construed as a waiver of any subsequent breach.

14. Limitation of Warranties. There are no warranties, expressed or implied, by Lessor to Lessee, and Lessor shall not be liable for any loss or damage to Lessee, nor to anyone else, of any kind and however caused, whether by any vehicle or by the repair, maintenance, or parts thereof, or by any failure thereof, or by interruption of service or use of the vehicle.

15. Construction of Instrument. This agreement is one of leasing only and Lessee does not acquire hereby any right, title or ownership interest to the vehicle leased hereunder other than the right of possession of a lessee.

16. Choice of Law. This lease shall be governed by and construed under the laws of the State of Florida. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F:S.A. Ch. 680), then [this document] [Article 2A] shall control.

IN WITNESS WHEREOF, the parties hereto have signed this Lease Agreement, as of the day and year first above written.

Signed, sealed and delivered in the presence of:

Witnesses

LESSOR:

________ (SEAL)

LESSEE: ___ INC.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.15 By: _________ _

__ _, President

Witnesses

(Corporate Seal)

§ 28.15 _Equipment Lease-Basic Form With Purchase Option *

LESSOR: ADDRESS: PHONE:

LESSEE: ADDRESS: PHONE: CONTACT:

SUPPLIER: ADDRESS: PHONE: CONTACT:

EQUIPMENT: QUANTITY: DESCRIPTION: (manufacturer, model, serial number, color)

(* See paragraph 7 below)

LOCATION OF EQUIPMENT (if other than Lessee's above Address):

TERM OF LEASE: ___ months

COMMENCEMENT DATE OF LEASE: (* See paragraph 3 below)

__ _, 19_

RENTAL PAYMENTS AND SCHEDULE: ___ monthly rental payments of $ ___ each plus sales tax of $ ___ (for a total monthly rental payment of $ ___ )

INITIAL PAYMENT (Check for this amount must accompany signed lease and will be applied toward the first month's rent and the balance toward the security deposit): $---

§ 28.15

• F.S.A. § 671.201.

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TERMS AND CONDITIONS-PLEASE READ CAREFULLY BEFORE SIGNING

1. Entire Agreement. This Lease, which includes the provisions on the reverse side hereof and any other schedule made a part hereof by the parties, constitutes the entire agreement between Lessor and Lessee.

2. Lease. Lessee hereby leases from Lessor, and Lessor leases to Lessee, the personal property described above and in any other schedule made a part hereof by the parties (hereinafter called "Equipment" or "equipment").

3. Term of Lease; Renewal Term. This Lease is irrevocable until expiration or termination as provided herein and Lessee's obligations hereunder shall not abate by reason of Lessor's taking possession of the equipment after default or for any other reason. The term of this Lease shall begin upon the delivery of the equipment to Lessee, shall continue for the number of months specified above (the term) following the delivery of the equipment to Lessee, and shall be automatically renewed for additional one month terms at the expiration of the term and at the expiration of each renewal term thereafter, until Lessor or Lessee shall notify the other in writing of its intent not to renew this Lease, which notice shall be given at least thirty (30) days prior to the expiration of the term or the renewal term. All of the terms and conditions of this Lease remain in full force and effect until this Lease expires or is terminated as provided herein.

• Lessee hereby authorizes Lessor to fill the actual date of delivery of the equipment in the Commencement Date of Lease with to Lessee.

4. Rent. Lessee agrees to pay during the term of this Lease total rent equal to the total number of rental payments specified above, multiplied by the amount of each payment specified above, plus sales taxes. The security deposit specified above is payable at the time of the signing of this Lease. The due date of the initial rental payment is the date upon which the equipment is delivered to Lessee, or any later date selected by Lessor. All rent shall be paid to Lessor at the address set forth above, or as otherwise directed by Lessor. Rent shall be payable monthly in advance.

5. No Warranty. Lessor makes no warranties or representations, expressed or implied, with respect to the leased equipment, including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose, whether arising from statut.e, common law, custom or otherwise. Lessee acknowledges that the leased equipment is select.ed solely by Lessee as suitable for its purpose, and that Lessor has made no representation or warranty with respect to the fitness, quality, suitability or durability of the equipment. Lessee acknowledges that neither the Supplier, nor any salesman, employee, representative or agent or the Supplier, is an agent or representative of the Lessor, and that no one is

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.15 authorized to make any representation or warranty with respect to this Lease or the equipment leased hereunder, and that no warranty or representation of any kind has been made.

6. Jurisdiction. This Lease, regardless of situs of final signature, shall be deemed to be executed in the County of ___ State of Florida, and shall be governed by and construed in accordance with the laws of the State of Florida. Lessee hereby consents and submits to the jurisdiction of the courts of ___ County, Florida, for purposes of enforcement and interpretation of this Lease and agrees that __ _ County, Florida, is a proper venue. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

7. Equipment Delivery. Lessee has requested equipment of the type and quantity specified herein and has selected the Supplier named herein. Lessor agrees to order such equipment from said Supplier, but Lessor shall have no liability to Lessee, to the Supplier or to any other person for transportation, delivery or installation of the equipment or for failure by the Supplier to fill the purchase order or meet the conditions thereof. No defect in, delay in delivery of, or unfitness or non-compliance of the equipment with the conditions of the order shall relieve Lessee of the obligation to pay rent or any other obligation under this Lease.

• Lessee hereby authorizes Lessor to add to this Lease the serial number of each item of equipment so delivered.

8. Location. The equipment shall be delivered and thereafter kept, maintained and located at the location specified herein and shall not be removed therefrom without Lessor's prior written consent.

9. Ownership of Equipment. Title to the equipment shall remain with Lessor and no title or right in the equipment shall pass to Lessee except the lease rights herein expressly granted. If requested by Lessor, plates or other markings shall be affixed to or placed on the equipment indicating that Lessor is the owner thereof and Lessee will not alter, deface, cover or remove the such plates or markings. Lessee, at its expense, will protect and defend Lessor's title to the equipment and will keep the equipment free and clear of any and all claims, liens, encumbrances and legal processes by Lessee's creditors or other persons. Lessor assumes no liability and makes no representation to Lessee as to the treatment of this Lease, the equipment or the rental payments for accounting, financial or tax purposes. The equipment shall always remain and be deemed to be personal property, even if attached to realty. All replacement parts, repairs, or accessories made to or placed in or upon the equipment shall become a component part thereof and title thereto shall be immediately vest in Lessor and shall be included under the terms hereof. Lessee shall not make any

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alterations, additions or improvements to the equipment without the prior written consent of Lessor.

10. Assignment. Lessor may assign this Lease in whole or in part and may sell the equipment, and its assignee may also do the same. All rights and obligations of Lessor hereunder shall be succeeded to and assumed by an assignee hereof and said assignee's title to this Lease, to the rental herein provided for to be paid and to the equipment shall be free from all defenses, setoffs or counterclaims of any kind or character which Lessee may be entitled to assert against Lessor. Upon such assignment, the assignee shall automatically assume any obligations of the Lessor named herein, whether the assignment expressly states that such obligations are assumed, and Lessor shall be fully released from any and all obligations hereunder. Lessee may not, without Lessor's written consent, by operation of law or otherwise, assign, transfer, pledge, hypothecate or otherwise dispose of this Lease or any interest of Lessee therein.

11. Indemnity. Lessee hereby indemnifies Lessor against and holds Lessor harmless from any and all claims, actions, suits, proceedings, costs, expenses, attorneys fees, damages and liabilities arising out of or connected with the equipment or the use thereof, including but not limited to its manufacture, selection, delivery, possession, use, leasing, fitness, operation, or latent or other defects, whether or not discoverable, or arising out of any failure by Lessee to perform or comply with . any of the terms and conditions of this Lease. The indemnities contained in this paragraph shall continue in full force and effect notwithstanding the termination of this Lease, whether by expiration of the term, by operation of law, or otherwise. Lessee is an independent contractor and nothing contained in this Lease shall authorize Lessee or any other person to operate or use any equipment so as to incur any obligation on behalf of Lessor or impose any liability on Lessor.

12. Loss or Damage. Lessee shall bear the entire risk of loss, theft, destruction or damage of the equipment or any part thereof from any cause whatsoever. No loss, theft, destruction or damage of the equipment shall relieve Lessee of the obligation to pay rent or any other obligation under this Lease. In the event of loss, theft, destruction or damage of any kind to any item of equipment, Lessee, at the option of Lessor, shall (a) place the same in first-class condition and repair, or (b) replace the same with like equipment in first-class condition and repair. Lessee will promptly notify Lessor.in reasonable detail in writing of any lien asserted against the equipment, of any damage to or material change in the equipment, and of the occurrence of any other event which has had or may have a material effect on the value of the equipment.

13. Insurance. Lessee agrees to keep the equipment insured to protect all interests of Lessor, at Lessee's expense, for such risks, in

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.15 such amounts, in such forms and with such companies as Lessor may require, including but not limited to fire and extended coverage insurance, explosion and collision coverage, and personal liability and property damage liability insurance. Lessee shall also insure the Lessor and Lessee with respect to liability for personal injuries, death, damage to or loss of use of property resulting from the ownership, use or operation of the leased Equipment with insurers satisfactory to Lessor in amounts of at least $100,000.00/$300,000.00 for personal injuries and $50,000.00 for property damage and deliver the policies thereof to Lessor. Lessor may, but shall not be obligated to, insure the equipment at the expense of Lessee. Any insurance policies relating to loss or damage to the equipment will name Lessor and Lessor's lenders, if any, as loss payees as their interests may appear and the proceeds may be applied toward the replacement or repair of the equipment or the payment of the obligations of Lessee hereunder, at the option of Lessor. Any such policies shall contain a provision that they may not be cancelled or the coverage reduced without ten (10) days prior written notice to Lessor and Lessor's lenders, if any. All liability insurance policies will name Lessee and Lessor as co-insureds and the coverage shall be applied first to Lessor to the extent of its liability, if any, and 'the balance to Lessee. Lessee shall furnish certificates, policies or endorsements to Lessor as proof of such insurance. Lessee hereby appoints Lessor as Lessee's attorney-in-fact to make claim for, receive payment of and execute or endorse all documents, checks or drafts for loss or damage or return premiums under any insurance policy issued on the equipment and hereby assigns to Lessor all of its right, title and interest in and to such insurance policies and the proceeds thereof. If Lessee shall default in obtaining any insurance to be provided, Lessor may place such insurance. Any premiums paid therefor by Lessor shall be additional rent payable on demand with interest at the highest legal rate from the date of payment.

14. Taxes, Maintenance, Use, and Inspection of Equipment. Lessee agrees to use, operate and maintain the equipment in accordance with all laws, regulations and ordinances and in accordance with the provisions of any policies of insurance covering the equipment, not to sublet the same or permit the same to be used by anyone other than Lessee or Lessee's employees, to pay all licensing or registration fees for the equipment, and to pay all taxes, assessments and governmental charges levied on or in relation to the equipment or the use thereof including, but not limited to, sales tax and ad valorem tangible personal property tax. Lessee agrees to keep the equipment in first-class condition and repair at its own expense, to repair and house the same in a suitable shelter, and to permit Lessor and its lenders, if any, to inspect the equipment at any time and to otherwise protect their interests therein. Lessee shall use the equipment in a careful and proper manner, in accordance with the manufacturer's instructions, and only for the purpose contemplated by the manufacturer. The

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equipment shall be used in the conduct of the lawful business of Lessee. Property taxes due for the last year of the Lease will be paid for by Lessee when the lease expires or terminates. Lessee shall not have authority to incur any expense for Lessor's account.

15. Late Fee. If Lessee fails to pay a rental payment within ten (10) days after it is due, Lessee shall be in default of this Lease and, in addition, Lessee shall pay Lessor a late charge of five cents per dollar on the amount of the unpaid rent payment, with a minimum of $5.00 late charge per late payment.

16. Waivers. No delay or omission to exercise any right, power or remedy accruing to Lessor upon any breach or default by Lessee under this Lease shall impair any such right, power or remedy of Lessor, nor shall it be construed as a waiver of any such breach or default, nor of any similar breach or default thereafter occurring. No waiver of a single breach or default shall be deemed to be a waiver of any subsequent breach or default. All waivers by Lessor under this Lease must be in writing signed by Lessor and shall be effective only to the extent specifically set forth therein.

17. Collection Expenses, Interest, and Advances. If Lessee fails to pay any part of the rent or any other sum required to be paid by Lessee to Lessor hereunder, Lessee shall pay Lessor interest on such delinquent payment at the highest legal contract rate from the date when such payment was due until paid, and the fees and expenses of any collection agency or attorney or service employed by Lessor to collect said payments. In the event Lessor employs the services of an attorney to enforce or interpret any of the terms or provisions of this Lease, Lessee agrees to pay reasonable attorneys' fees and court costs so incurred by Lessor. All advances made by Lessor to preserve the equipment or to pay insurance premiums for insurance thereon or to discharge or pay any taxes, liens or encumbrances thereon shall be added to the unpaid balance of rentals due hereunder and shall be immediately repaid by Lessee to Lessor together with interest thereon at the highest legal contract rate until paid.

18. Default; Remedies. If any of the following occurs, Lessee shall be in default of this Lease: (a) Lessee defaults in the payment of any rent or in making any other payment hereunder when due, or (b) Lessee defaults in the payment when due of any indebtedness of Lessee to Lessor arising independently of this Lease, or (c) Lessee defaults in the performance of any other term or provision herein, or (d) Lessee or any guarantor becomes insolvent or makes an assignment for the benefit of creditors, or (e) Lessee or any guarantor applies for or consents to the appointment of a receiver, trustee or liquidator of Lessee or of all or a substantial part of the assets of Lessee, or such a receiver, trustee or liquidator is appointed for Lessee or any guarantor without the application or consent of said Lessee or guarantor, or (f) any proceeding is commenced or other action taken by or against Lessee or any guarantor

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.15 for reorganu.ation, arrangement or extension or under any other insolvency law or law providing for the relief of debtors, or (g) any of Lessee's or any guarantor's property is subject to any levy, seizure, assignment, application, or sale for or by any creditor or governmental agency, or {h) Lessee dies or is judicially declared incompetent, if Lessee is an individual, or any guarantor dies or is declared incompetent, or (i) any event described in Paragraph (d), (e), (f), (g) or (h) above occurs with respect to_ any guarant.or or any other party liable for payment or performance of this Lease, or (j) any financial statement heretofore or hereafter furnished by or on behalf of Lessee or any guarantor pursuant t.o or in connection with this Lease was false in any material respect or omitted to state a material fact necessary to make the statements contained therein not misleading as of the date furnished, or (k) Lessee discontinues business, dissolves, sells or otherwise disposes of substantially all of its assets, enters into any consolidation or merger with any other person or entity, or the existence of the Lessee terminates, or (1) Lessor otherwise deems it.self insecure or the equipment unsafe. UPON DEFAULT, Lessor shall have the right to exercise any one or more of the following remedies, independently or concurrently, as Lessor may choose at any time and from time to time: (1) to declare the entire amount of unpaid total rent for the balance of the term of this Lease immediately due and payable, (2) without demand or legal process, to enter onto the premises where the equipment may be found and take possession of and remove the same, without any liability to Lessee, (3) to sell, lease, assign or otherwise dispose of the equipment or any part thereof at public or private sale, with or without notice to Lessee (provided that if notice is required by law, Lessor and Lessee agree that ten (10) days notice in writing to Lessee shall constitute reasonable notice to Lessee) and with or without having the equipment at the sale, at which sale Lessor may purchase all or any of the equipment and without any right of redemption to Lessee, (4) to hold or use the equipment without affecting the obligations of Lessee under this Lease, (5) to proceed by appropriate action at law or in equity to specifically enforce the performance by Lessee of its obligations under this Lease, (6) to cause Lessee at Lessee's expense to promptly return the equipment to Lessor, (7) to terminate this Lease as to any or all items of the equipment, (8) to retain and apply the security deposit toward the amount due Lessor, and (9) to pursue any other remedy available to Lessor at law or in equity. Lessor shall not be obligated to sell, lease or otherwise dispose of the item of repossessed equipment hereunder if it would impair the sale, lease or other disposition of similar equipment in the ordinary course of Lessor's business or similar equipment which was previously repossessed by Lessor from any person. Any repossession or subsequent sale or lease by Lessor of any item of equipment shall not bar an action for a deficiency as herein provided, and the bringing of an action or the entry of judgment against Lessee shall not bar Lessor's right to repossess any or all items of equipment.

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19. Surrender. On or before the expiration or termination of this Lease, Lessee, at its expense, shall return the equipment in firstclass condition and repair, ordinary wear and tear from proper use excepted, by delivering it, packed and ready for shipment, to such place or on board such carrier as Lessor may specify. The risk of loss during shipment back to Lessor shall be upon Lessee. Lessee shall, upon demand by Lessor, pay to Lessor all amounts expended by Lessor to restore the equipment to first-class condition and repair, ordinary wear and tear from proper use excepted. This obligation of Lessee shall survive the expiration or termination of this Lease.

20. Notices. For the purpose of this Lease, any notices required to be given shall be given to the parties hereto in writing by actual delivery or by certified mail at the address herein set forth, or to such other addresses as each party may substitute by written notice to the other, which notice shall be effective as to Lessor upon its receipt by Lessor and shall be effective as to Lessee when deposited in U.S. Mail duly addressed, postage prepaid.

21. Remedies Cumulative. Lessor's rights and remedies are cumulative and may be exercised concurrently or separately. No such right or remedy of Lessor is exclusive of any other right or remedy provided or permitted by this Lease or by law or in equity.

22. Notices and Financing Statements. Lessee shall execute and deliver to Lessor, upon Lessor's request at any time and from time to time, · such notices of lease, UCC financing statements and other documents as Lessor deems necessary or advisable for the confirmation, notice, protection and perfection of Lessor's interest in this Lease, and Lessee shall pay all costs for same. Lessee does hereby authorize Lessor to prepare, execute and sign, on behalf of Lessee and in Lessee's name, any such notices of lease, UCC financing statements or other instruments, with the same force and effect as if signed by the Lessee itself and Lessee does hereby declare such financing statements signed only by the Lessor shall be binding upon Lessee and its .heirs, successors and assigns forever. Lessee shall also obtain such furtlier notices, UCC financing statements, and further assurances, including, but not limited to, waivers of interest of owners or mortgagees of real estate upon which the equipment is located, as Lessor deems necessary or advisable for the confirmation, protection or perfection of this Lease and Lessor's rights hereunder, and Lessee will pay all costs incident thereto. The parties agree that a carbon, photographic, xerographic or other reproduction of this Lease may be filed as a UCC financing statement. The filing of a UCC fmancing statement shall be for the purpose of placing the public upon notice of the existence of this Lease and shall not be construed as an indication that title to the Equipment has passed from Lessor to Lessee, it being expressly understood that this Lease is only a lease and that Lessor remains the owner of the Equipment at all times.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.15 23. Option to Purchase or Renew. Lessor hereby grants to

Lessee the option to purchase all (not part) of the equipment at the expiration of the term of this Lease for its then fair market value, payable in cash to Lessor. This option may be exercised by written notice delivered to Lessor not more than one hundred eighty (180) days nor less than sixty (60) days prior to the expiration of the term of this Lease. If such purchase option is exercised, Lessee will, at the expiration of the term of this Lease, pay the purchase price in cash to Lessor and Lessor will execute and deliver to Lessee a bill of sale for the equipment, free from all liens, encumbrances, assignments or hypothecations created by Lessor. If Lessor and Lessee are unable to agree upon the fair market value of the equipment as of the expiration of the term of this Lease, Lessee and Lessor shall each select a qualified appraiser to value such equipment. If the two appraisers so selected are unable to agree upon a fair market value, such appraisers shall mutually select a third appraiser and the average of the fair market values determined by each of the three appraisers shall be binding upon Lessor and Lessee.

24. Statement of Purpose. Lessee hereby warrants and represents that the equipment will be used for business purposes, and not for personal, family, household or agricultural purposes. Lessee acknowledges that Lessor has relied upon this representation in entering into this Lease.

25. Authorization. Lessee and the persons signing this Lease for Lessee represent and warrant to Lessor that Lessee has complete and unrestricted power to enter into this Lease and that the persons executing this Lease for Lessee have been duly authorized to execute the same on behalf of Lessee.

26. No offset. This Lease is a net lease and all of Lessee's obligations under this Lease shall be paid and performed by Lessee irrespective of any setoff, counterclaim, recoupment, defense, or other right which Lessee may have against Lessor, the supplier of the equipment or any other person.

27. No Third Party Beneficiary. Lessor and Lessee agree that this Lease is not intended to benefit any person or entity not a signatory hereto.

28. Financial Information. Upon the written request of Lessor, at any time and from time to time, Lessee shall furnish Lessor with a copy of the most recent annual and monthly financial statements (consisting of a balance sheet and an income and expense statement) of Lessee and of the guarantors, and such other financial information as Lessor may request about Lessee and the guarantors.

29. Miscellaneous. Time is of the essence of this Lease. This Lease may not be modified, amended, altered or changed except by a written agreement signed by the party against whom enforcement is

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sought. In the event any provision hereof shall be fmally determined by a court to be invalid or unenforceable, the remaining provisions hereof shall remain in full force and effect. The descriptive headings hereof do not constitute a part of this Lease and no inferences shall be drawn therefrom. Whenever the context of this Lease requires, the masculine gender includes the feminine or neuter, and the singular number includes the plural, and whenever the word Lessor is used herein, it shall include all assignees of Lessor. If there are more than one Lessee named in this Lease, the liability of each shall be joint and several. The liability of each guarantor of this Lease shall be primary and shall be joint and several with the Lessee. This Lease is binding upon and inures to the benefit of Lessor and its successors and assigns. This Lease is binding upon and inures to the benefit of Lessee and such heirs, successors and assigns as are approved in accordance with this Lease. THE UNDERSIGNED AGREE TO ALL OF THE TERMS AND CONDITIONS ABOVE AND ON THE REVERSE SIDE WHICH ARE MADE A PART OF THIS LEASE. THIS IS A NON-CANCELLABLE LEASE FOR THE FULL TERM SHOWN ABOVE.

LESSEE:

By: ______ (SEAL)

Title:

Date: _______ _, 19_

THIS LEASE IS NOT BINDING UPON LESSOR UNTIL IT HAS BEEN ACCEPTED BY AN OFFICER OF LESSOR SIGNING THIS LEASE.

ACCEPTED BY LESSOR:

By: ______ (SEAL)

Title:

Date: -------- 19_

UNCONDITIONAL GUARANTY

This guaranty is executed for the benefit of Lessor and its successors and assigns, to induce Lessor to enter into the above Lease with the above named Lessee. The undersigned guarantors, jointly and severally, unconditionally guarantee the full performance by Lessee of the above Lease, including but not limited to the prompt payment when due of each monthly rental payment due and payable under such Lease. The undersigned guarantors agree to pay all costs and expenses, includ-

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.16 ing but not limited to attorneys' fees, incurred by Lessor in enforcing the foregoing Lease and this guaranty. To enforce the liability of guarantors under this guaranty, Lessor shall not be required (a) to give guarantors notice of Lessee's default, (b) to repossess the equipment, (c) to accept late payments of rental, or (d) to pursue its rights against the Lessee first. The undersigned guarantors have primary liability on this Lease, jointly and severally, with Lessee.

The term of the foregoing Lease may be extended and the Lease may be amended from time to time without notice to guarantors and without defeating or diminishing this continuing guaranty agreement, which shall continue in full force and effect with respect to the Lease as extended or amended.

This guaranty agreement shall be governed and construed in accordance with the laws of the State of Florida. Guarantors hereby consent and submit to the jurisdiction of the courts of ___ County, Florida, for purposes of enforcement and interpretation of this guaranty and agree that ___ County, Florida, is a proper venue.

GUARANTORS:

________ (SEAL)

________ (SEAL)

§ 28.16 Equipment Lease-Another Form

LEASE

Cover Sheet

Lease No. __ _

EQUIPMENT Quantity Serial No. Description

Supplier Name: Address: ________ _

Approved and Accepted by:

LESSOR

Commitment Date __ _ Rental Commencement Date __ _

LEASE TERMS

Initial Terms Amt. of Each Rental Tax on Rental Total Rental Period: Mo. _ Qtr. _

Other __ _

$. __ $. __ $ __

Initial Term (months) __ _ Initial No. of Rentals __ _

After Initial Term Annual Renewal Rental $. __ _

LESSEE

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§ 28.16 Name:

RENTAL AND LEASE OF GOODS

Name:

Ch. 28

Address: _______ _ Address: _______ _

Telephone No.: Telephone No.:

Equipment Location:

By _________ _ By _________ _

[Name] [Title]

Date:

[Name] [Title]

Date:

THIS IS A NON-CANCELLABLE LEASE FOR THE TERM INDICATED

Terms and Conditions

LESSOR and LESSEE are defined and described on the cover sheet of this Lease.

LESSOR hereby leases to LESSEE, and LESSEE hereby leases and rents from LESSOR, the personal property described below, or if separately scheduled, in the Schedule hereto annexed, marked "Schedule A" and made a part hereof, together with all replacement parts, repairs, additions, accessories, and systems incorporated therein and/ or affixed and pertaining thereto (this personal property and other items herein collective referred to as "Equipment") upon the following terms and conditions.

1. No Warranties by Lessor or Any Assignee of Lessor. LESSEE ACKNOWLEDGES THAT LESSEE HAS SELECTED BOTH (A) THE EQUIPMENT LISTED IN THIS LEASE AND (B) THE SUPPLIER NAMED IN THIS LEASE FROM WHOM LESSOR IS TO PURCHASE THE EQUIPMENT. IN THIS RESPECT, LESSEE ACKNOWLEDGES THAT LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT NOR THE AGENT OF THAT MANUFACTURER. LESSEE FURTHER ACKNOWLEDGES THAT LESSOR HAS NOT MADE, AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESSED OR IMPLIED, OR ANY KIND WHATSOEVER WITH RESPECT TO THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO: (1) AS TO THE FITNESS, DESIGN, OR CONDITION OF THE EQUIPMENT; (2) AS TO THE MERCHANTABILITY OF THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE; (3) AS TO THE QUALITY OR CAPACITY OF THE EQUIPMENT, THE MATERIALS IN THE EQUIPMENT, OR WORKMANSHIP IN THE EQUIPMENT; (4) AS TO ANY LATENT DEFECTS IN THE EQUIPMENT; (5) AS TO ANY PATENT

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.16 INFRINGEMENT; AND (6) AS TO THE COMPLIANCE OF THE EQUIPMENT WITH ANY REQUffiEMENTS OF ANY LAW, RULE, SPECIFICATION, OR CONTRACT PERTAINING THERETO. LESSEE FURTHER ACKNOWLEDGES THAT LESSEE IS LEASING THE EQUIPMENT FROM LESSOR IN AN "AS IS" CONDITION AND THAT NO DEFECT OR UNFITNESS OF THE EQUIPMENT SHALL RELIEVE LESSEE OF LESSEE'S OBLIGATION TO PAY RENT OR ANY OTHER OBLIGATION LESSEE MAY HAVE TO LESSOR UNDER THE TERMS OF THIS LEASE. IT IS AGREED THAT LESSOR SHALL HAVE NO OBLIGATION TO INSTALL, ERECT, TEST, ADJUST, REPAIR, OR SERVICE THE EQUIPMENT.

If the Equipment is not properly installed, does not operate as represented or warranted by the manufacturer or the supplier or is unsatisfactory for any reason, LESSEE shall make a claim on account thereof solely against the supplier or manufacturer and shall, nevertheless, pay LESSOR all rent payable hereunder. As between LESSEE and LESSOR, and only in those instances where the manufacturer of the Equipment has provided any warranty or guarantee of any nature whatsoever applicable to the Equipment, LESSOR hereby assigns to LESSEE whatever assignable interest LESSOR may have in such warranty or guarantee. The aforesaid assignment shall not in any way be deemed to limit, negate, or otherwise affect the disclaimer of warranties contained in the preceding paragraph, and LESSOR shall not incur any duties arising out of any manufacturer's warranties or guarantees. Further, LESSOR shall not incur any liability whatsoever arising out of any breach of any manufacturer's warranties or guarantees applicable to the Equipment.

2. No Oral Agreement, Guarantee, Promise, Condition, Representation, or Warranty, Nor Any Oral Modification Hereof Shall Be Binding. ALL PRIOR CONVERSATION, AGREEMENT, OR REPRESENTATIONS RELATED TO THIS LEASE OR TO THE EQUIPMENT ARE INTEGRATED HEREIN. NONE OF THE TERMS OF THIS LEASE SHALL BE CHANGED OR MODIFIED EXCEPT IN WRITING EXECUTED BY THE LESSOR AND THE LESSEE.

3. Supplier Not an Agent. LESSEE UNDERSTANDS AND AGREES THAT NEITHER SUPPLIER, NOR ANY SALESMAN OR OTHER AGENT OF SUPPLIER, IS AN AGENT OF LESSOR. NO SALESMAN OR AGENT OF SUPPLIER IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE AND NO REPRESENTATION AS TO EQUIPMENT OR ANY OTHER MATTER BY SUPPLIER SHALL IN ANY WAY AFFECT LESSEE'S DUTY TO PAY RENT AND PERFORM ITS OTHER OBLIGATIONS AS SET FORTH IN THIS LEASE.

4. Non-Cancellable Lease. THIS LEASE CANNOT BE CANCELLED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN.

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5. Ordering Equipment. LESSOR agrees to order the Equipment from supplier. LESSEE agrees to arrange for delivery of Equipment so that it can be accepted in accordance with Paragraph 6 of this Lease within 180 days after the date on which LESSOR accepts LESSEE's offer to enter into this Lease (which date LESSOR is authorized to fill in the Lease as "Commitment Date"). LESSEE hereby authorizes LESSOR to insert in this Lease the serial numbers, and other identification data, of Equipment when determined by LESSOR.

6. Delivery and Inspection. LESSEE will inspect the Equipment within five (5) business days after its delivery to LESSEE. Unless within such five (5) day period LESSEE gives LESSOR written notice specifying any defect in or other proper objection to the Equipment, LESSEE agrees that it will be conclusively presumed, as between LESSOR and LESSEE, that (a) LESSEE has fully inspected the Equipment; (b) the Equipment is in full compliance with the terms of this Lease; (c) the Equipment is in good condition (operating and otherwise) and repair; and (d) LESSEE has accepted the Equipment from the supplier thereof. If LESSOR shall request, LESSEE shall furnish LESSOR a written statement setting forth the matters stated in (a), (b), (c), and (d) of this paragraph and also approving the invoice of the Equipment or portion thereof. Notwithstanding the aforesaid, in the event the usual time of installation of the Equipment exceeds the aforesaid five (5) business day period, then so long as the Equipment is properly installed by LESSEE or supplier as may be applicable, the aforesaid five (5) business day period shall begin to run on the date following the completion of this installation, provided further, however, that in no event shall this five (5) business day period begin to run later than thirty (30) days after the Equipment has been delivered to LESSEE. In any event, if LESSEE shall execute such written statement as described above in this paragraph, LESSEE shall conclusively be deemed to have acknowledged satisfaction of the requirements stated in (a), (b), (c), and (d) of this paragraph.

7. Termination By Lessor. LESSOR shall have the exclusive option to terminate this Lease and LESSOR's obligations thereunder, if within 180 days after the "Commitment Date," Equipment has not been delivered to LESSEE or LESSEE has not accepted Equipment as provided in Paragraph 6 of this Lease. This option may be exercised by giving LESSEE written notice of termination pursuant to this paragraph any time within ten (10) business days after the expiration of this 180 day period.

8. Term. The term of this Lease commences upon the date on which the Equipment is delivered to LESSEE (whether or not accepted) and ends upon the expiration of the number of months specified above under "Initial Term" after the "Rental Commencement Date" stated in this Lease. LESSEE hereby authorizes LESSOR to insert in this Lease

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.16 as the "Rental Commencement Date" the date upon which Equipment is delivered to LESSEE or any later date selected by LESSOR.

9. Rent. During the term of this Lease, LESSEE agrees to pay rent equal to the "Amount of Each Rent Payment" multiplied by the "Number of Rental Payments" indicated in this Lease. The first rental payment shall be due on the "Commitment Date" and shall be applicable to the rental period commencing on the "Rental Commencement Date." Subsequent rental payments shall be due in advance on the same date each month (or other calendar period as indicated in this Lease) thereafter. Rent shall be due whether or not LESSEE has received any notice that such payments are due. All rent shall be paid to LESSOR at the address indicated in this Lease, unless otherwise directed in writing by LESSOR. No portion of any rent payment shall be deemed to constitute payment for any equity interest in the Equipment.

10. Use. LESSEE COVENANTS AND REPRESENTS TO LESSOR THAT THE EQUIPMENT WILL BE USED EXCLUSIVELY FOR AGRICULTURAL, BUSINESS, OR COMMERCIAL PURPOSES, AND WILL NOT BE USED AT ANY TIME DURING THE TERM OF THIS LEASE FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES.

11. Renewal. LESSEE shall have the option to renew this Lease on the terms and conditions hereof from year to year for a maximum period of tweJve (12) years including the "Initial Term of Lease" set forth in this Lease, if and only if an amount is specified in the space "Renewal Rental" in this Lease. LESSEE must give LESSOR written notice of LESSEE's intention to exercise the option together with payment of the "Renewal Rental" at least thirty (30) days before expiration of the Lease or any renewal term. Should LESSEE fail to notify LESSOR as indicated in this paragraph or fail to return the Equipment in accordance with Paragraph 14 of this Lease, at LESSOR's exclusive option, this Lease may be continued on a month to month basis until thirty (30) days after LESSEE returns the Equipment to LESSOR. In the event that this Lease is continued on a month to month basis, LESSEE, shall pay LESSOR rental in the same periodic amounts as indicated under the "Initial Term of Lease" in this Lease.

12. Location; Lessor's Inspection; Labels. Equipment shall be delivered and thereafter kept at the location specified in this Lease or if no location is specified, at LESSEE's address set forth in this Lease, and shall not be removed therefrom without LESSOR's prior written consent. LESSOR shall have the right to inspect the Equipment at any reasonable time. If LESSOR supplies LESSEE with labels stating that the Equipment is owned by LESSOR, LESSEE shall affix and keep these labels in a prominent place on each item of Equipment.

13. Repairs; Use; Alterations. LESSEE, at LESSEE's expense, shall keep Equipment in good working condition and shall repair and furnish all labor, parts, mechanisms, and devices required therefor.

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LESSEE shall use Equipment in a careful and lawful manner. LESSEE shall not make any alterations, additions, or improvements to Equipment without LESSOR's prior written consent. All additions, repairs, replacement parts, accessories, or improvements made to Equipment shall not be removed without LESSOR's prior written consent.

14. Surrender. AT THE EXPIRATION OR OTHER TERMINATION OF THIS LEASE OR UPON DEMAND BY LESSOR MADE PURSUANT TO PARAGRAPH 22 OF THIS LEASE, LESSEE, AT LESSEE'S EXPENSE, SHALL IMMEDIATELY RETURN THE EQUIPMENT IN AS GOOD CONDITION AS RECEIVED LESS NORMAL WEAR, TEAR, AND DEPRECIATION, BY DELIVERING THE EQUIPMENT PACKED AND READY FOR SHIPMENT TO SUCH PLACE OR ON BOARD SUCH CARRIER AS LESSOR MAY SPECIFY.

15. Loss or Damage. LESSEE shall bear the entire risk of loss, theft, destruction, or damage of Equipment or any portion thereof from any cause whatsoever. If any Equipment is totally destroyed, the liability of LESSEE to pay rent therefor may be discharged by paying the LESSOR all the rent due and to become due thereon, less the net amount of the recovery, if any, actually received by LESSOR from insurance or otherwise for such loss or damage. Except as provided in the preceding sentence, the total or partial destruction of any Equipment, or total or partial loss of use or possession thereqf by LESSEE, shall not release or relieve LESSEE from the duty to pay the rent herein provided. LESSOR shall not be obligated to undertake, by litigation or otherwise, the collection of any claim against any person for loss or damage of the Equipment.

16. Insurance. LESSEE shall, at LESSEE's own expense, insure the Equipment at all times against all hazards requested by LESSOR including but not limited to fire, theft, and extended coverage insurance, and such policies shall be payable to LESSOR as LESSOR's interest may appear. This insurance shall be reasonably satisfactory to LESSOR as to form, amount, and insurer, and shall provide for at least ten (10) days written notice of cancellation to LESSOR. Such insurance policies or certificates thereof shall be delivered by LESSEE to LESSOR. In addition, LESSEE shall, at LESSEE's own expense, carry occurrence type public liability insurance with respect to the Equipment and the use thereof in such amounts and with such insurers as are reasonably satisfactory to LESSOR, and such insurance policies shall also name LESSOR as an insured thereunder.

17. Liens; Taxes. LESSEE shall keep the Equipment free and clear of all levies, liens, and encumbrances. LESSEE shall, in the manner directed by LESSOR: (a) make and file all declarations and returns in connection with all charges and taxes (local, state, and federal), which may now or hereafter be imposed upon or measured by the ownership, leasing, rental, sale, purchase, possession, or use of

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.16 Equipment, excluding, however, all taxes on or measured by LESSOR's net income; and (b) pay all such charges and taxes. In the event that LESSOR shall elect to make and file any or all declarations and returns in connection with such charges and taxes to pay them, then the LESSEE shall reimburse the LESSOR, upon demand of the LESSOR, for any and all such charges and taxes applicable to the Equipment herein leased by LESSOR to LESSEE.

LESSOR's good faith acceptance of a tax exemption certificate does not represent an assurance that the State will also accept the certificate as valid at the time of audit review. LESSEE is responsible for any future audit adjustment if the certificate is not accepted. LESSEE agrees to reimburse LESSOR for the amount of audit adjustment and the aggregate of tax, interest, and penalty, if a certificate is subsequently denied.

18. Lessor's Performance of Lessee's Obligations. If LESSEE fails to duly and properly perform any of its obligations under this Lease with respect to the Equipment, LESSOR may (at LESSOR's option) perform any act or make any payment which LESSOR deems necessary for the maintenance and preservation of the Equipment and LESSOR's title thereto, including payment for satisfaction of liens, repairs, taxes, levies, and insurance, and all sums so paid or incurred by LESSOR, together with interest, and any reasonable legal fees incurred by LESSOR in connection therewith, shall be additional rent under this Lease and payable by LESSEE to LESSOR on demand. The performance of any act or payment by LESSOR as aforesaid shall not be deemed a waiver or release of any obligation or default on the part of LESSEE.

19. Indemnity. LESSEE assumes the risk of liability arising from or pertaining to the possession, operation, or use of the Equipment. LESSEE does hereby agree to indemnify, hold safe and harmless against, and defend LESSOR from, any and all claims, costs, expenses, damages, and liabilities arising from or pertaining to the use, possession, or operation of the Equipment.

20. Assignment; Offset. Without LESSOR's prior written consent, LESSEE shall not (a) assign, transfer, pledge, hypothecate, or otherwise dispose of this Lease, the Equipment, or any interest therein; or (b) sublet or lend Equipment or permit it to be used by anyone other than LESSEE or LESSEE's employees.

LESSOR may assign this Lease and/ or mortgage Equipment, in whole or in part, without notice to LESSEE. However, if LESSEE is given notice of such assignment, LESSEE agrees to acknowledge receipt thereof in writing. Each such assignee and/ or mortgage shall have all of the rights, but none of the obligations of LESSOR under this Lease. LESSEE shall not assert against assignee and/ or mortgagee any defense counterclaim, or offset that LESSEE may have against LESSOR. Notwithstanding any such assignment, LESSOR warrants that LESSEE

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shall quietly enjoy use of the Equipment subject to the terms and conditions of this Lease. Subject to the foregoing, this Lease inures to the benefit of and is binding upon the heirs, legatees, personal representatives, successors, and assigns of the parties hereto.

21. Service Charge and Interest. If LESSEE fails to pay when due any rent or other amount required herein to be paid to LESSOR, LESSEE shall pay to LESSOR a service charge of ___ percent (.---%) of each installment or part thereof for which said rent or other amount shall be delinquent, or $. __ _, whichever is less, plus interest on such delinquent rent or other amount from the due date thereof until paid, at the maximum rate allowed by law.

22. Default.

(a) If LESSEE fails to pay when due any rent payment or other amount required herein to be paid by LESSEE, or if LESSEE makes an assignment for the benefit of creditors, whether voluntary or involuntary, or if LESSEE shall make a bulk transfer of any of LESSEE's assets, or if LESSEE discontinues LESSEE's normal business operation for period of ten (10) days or more, or if a petition is filed by or against LESSEE under the bankruptcy laws of the United States, LESSOR shall have the right to exercise any one or more of the following remedies in order to protect the interest and reasonably expected profits and bargains of LESSOR:

(1) LESSOR may recover from LESSEE all rent payments and other amounts then due and as they shall thereafter become due hereunder;

(2) LESSOR MAY TAKE POSSESSION OF ANY OR ALL ITEMS OF EQUIPMENT, WHEREVER THESE ITEMS MAY BE LOCATED, WITHOUT DEMAND OR NOTICE, WITHOUT ANY COURT ORDER OR OTHER PROCESS OF LAW, AND WITHOUT LIABILITY TO LESSEE FOR ANY DAMAGES OCCASIONED BY SUCH TAKING OR POSSESSION, AND IN REMOVING ALL SUCH EQUIPMENT, LESSOR MAY, IF PERMITTED BY LAW, USE AN¥ OF LESSEE'S LICENSES IN RESPECT TO ALL SUCH EQUIPMENT (ANY SUCH TAKING OR POSSESSION SHALL NOT CONSTITUTE A TERMINATION OF THIS LEASE).

(3) LESSOR may recover froin LESSEE, with respect to any and all items of Equipment that had been used and maintained as provided in this Lease, provided, however, that upon repossession or surrender of Equipment, LESSOR shall sell, lease, or otherwise dispose of Equipment in a commercially reasonable manner with or without notice, on public or private bid, at LESSOR's place of business as indicated in this Lease, or at such other place as LESSOR shall determine, and apply the net proceeds thereof (after

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.16 deducting all expenses, including attorneys fees, incurred in connection therewith) to the sum of (1) and (2) above.

(4) LESSOR may pursue any other remedy at law or in equity.

(b) If LESSEE fails to perform any of the provisions under this Lease or any other agreement with LESSOR, or if LESSEE makes a bulk transfer of furniture, furnishings, fixtures, or other equipment or inventory, LESSOR shall have the right to exercise any remedy available at law or in equity, including but not limited to seeking damages or specific performance and/ or obtaining an injunction.

(c) No right or remedy herein conferred upon or reserved to LESSOR is exclusive of any right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time, but LESSOR shall not be entitled to recover a greater amount in damages than LESSOR could have gained by receipt of LESSEE's full, timely, and complete performance of LESSEE's obligations pursuant to the terms of this Lease plus accrued delinquent payments under Paragraph 21 of this Lease.

23. Lessor's Expenses. LESSEE shall pay LESSOR all costs and expenses including reasonable attorneys fees, the fees of collection agencies, and other expenses such as telephone and telegraph charges incurred by LESSOR in enforcing any of the terms, conditions, or provisions of this Lease.

24. Ownership; Personal Property. The Equipment is, and shall at all times remain, the property of LESSOR, and LESSEE shall have no right, title, or interest in or to the Equipment except as expressly set forth in this Lease. The Equipment is, and shall at all times remain, personal property notwithstanding that Equipment or any part of the Equipment may now be or hereafter become in any manner affixed or attached to real property or any building thereon.

25. Notices. Service of all notices under this Lease shall be sufficient if given personally or mailed to the party involved at its respective address set forth in this Lease, or at such other addresses as said party may provide in writing from time to time. Any such notice mailed to said address shall be effective when deposited in the United States mail, duly addressed and with postage prepaid.

26. Security Deposit. When this Lease provides for a security deposit, LESSOR may, but shall not be obligated to apply the security deposit to cure any default of LESSEE under this Lease, in which event, LESSEE shall promptly restore the security deposit to the full amount specified in this Lease. Upon termination of this Lease, all the remaining balance of this security deposit actually made by LESSEE shall be returned to LESSEE.

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27. Severability. If any provision of this Lease or the application thereof to any party or circumstance is held invalid or unenforceable, the remainder of this Lease and the application of such provision to other parties or circumstances will not be affected thereby and to this end, the provisions of this Lease are declared severable.

28. Amendments and Waivers. This Lease and any Schedules to this Lease executed by both LESSEE and LESSOR constitute the entire agreement between the LESSEE and LESSOR with respect to the Equipment which is the subject matter of this Lease. No express or implied waiver by LESSOR of any event of default hereunder shall in any way be or be construed to be a waiver of any future or subsequent event of default whether similar in kind or otherwise.

29. Miscellaneous. No provision of this Lease can be waived except by the written consent of LESSOR. LESSEE shall provide LESSOR with such corporate resolution, opinions of counsel, financial statements, financing statements, and other documents as LESSOR shall request from time to time. If more than one LESSEE is named in the Lease, the liability of each LESSEE shall be joint and several. Titles to the paragraphs of this Lease are solely for convenience and are not intended for interpretation or construction of this Lease. This Lease shall be governed by and construed in accordance with the laws of the State of Florida. LESSEE agrees that any actions or proceedings to which LESSOR is a party arising directly or indirectly from this Lease shall be litigated in any state or federal court having situs within the State of Florida and that that Court shall have jurisdiction thereof. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

§ 28.17 Agreement of Lease-Sale and Lease Arrangement AGREEMENT OF LEASE, by and between __ _, whose address

is _____ _, Florida ___ as lessor (hereinafter called "Les-sor"), and ___ Inc., a Florida corporation, whose address is ______ Florida ___ (hereinafter called "Lessee").

IN CONSIDERATION of the mutual agreements hereinafter set forth and the payment of rent as herein provided, the parties hereto agree as follows:

1. Definitions. 1.1 "Equipment" means the equipment which Lessor purchased

from ___ Inc. ("Seller") pursuant to a certain Purchase Agreement dated ___ 19_, ("Purchase Agreement"), between Seller, as seller, and Lessor, as buyer, as more particularly described in Schedule A annexed hereto.

1.2 "Security Agreement" means the security agreement between the Seller, as Secured Party, and Lessor, as Debtor, securing, among other things, payment and performance of the Trust Note.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 1.3 "Rent" means the Interim Rent, the Base Rent, the Supple

mental Rent and the Additional Rent payable by Lessee to Lessor pursuant to Section 5 hereof.

1.4 "Base Rent" means the rent payable by Lessee to Lessor pursuant to Section 5.l(b) hereof.

1.5 "Additional Rent" means the rent payable by Lessee to Lessor pursuant to Section 5.2 hereof.

1.6 "Lease Term" means the term of this Lease as provided in Section 3 hereof.

1. 7 "Base Lease Term" means the term of this Lease from __ _, 19_ through __ _, 19_.

1.8 "Liens" mean collectively the Initial Seller's Lien, the Seller's Lien and the Bank Lien, all as defined in the Purchase Agreement.

1.9 "Initial User Leases" mean the equipment leases referred to as such in the Purchase Agreement and any subsequent user leases of the Equipment.

2. Property Leased. Lessor, consideration of the Rent to be paid by Lessee and the

covenants and agreements of Lessee hereinafter set forth, hereby demises and lets to Lessee, subject and subordinate to the Liens and Initial User Leases, the Equipment, "AS IS" and "WHERE IS".

3. Term. The term of this lease shall commence on __ _, 19_ and shall

terminate on __ _, 19_; provided, however, that such term may be shortened pursuant to provisions contained in Section 14.2 hereof, or extended by agreement of the parties.

4. Delivery and Redelivery. As of the date hereof, each item of Equipment shall be located in

the place designated on Schedule A. Upon expiration or termination of the Lease Term, Lessee, at Lessee's expense, shall give Lessor 10 days notice of delivery and shall, upon the passage of such 10 days, immediately deliver or cause the delivery of each item of Equipment to Lessor in the same state of repair and condition as on the date hereof (reasonable wear and tear excepted) to a place within 500 miles of its last installation and specified by Lessor; subject, however, to (a) the rights of any lessee under an Initial User Lease and the lessee under any sublease entered into pursuant to Section 7.3 hereof and (b) the interest of the Bank (as defined in the Purchase Agreement) and of the banks or other financial institutions referred to in Section 7 .2 hereof.

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5. Rent.

5.1 Base Rent.

Lessee shall pay to Lessor as Base Rent for the Equipment during the Base Lease Term the amount identified as Base Rent in Schedule· A, payable monthly in arrears~

5.2 Additional Rent.

(a) Lessee shall pay the Lessor the amount identified in Schedule A, Section 5.

(b) Lessee shall pay, or cause to be paid, as Additional Rent, any and all taxes, fees, imposts, levies, duties and assessment dues, assessments levied against, arising out of or connected with the Equipment ownership, delivery, return, leasing, use or operation thereof on the rentals or receipts with respect to this Lease, including all property use, value added and ad valorem on personal property and any penalties or interest in connection therewith (except penalties or interest arising out of the acts or failures to act of Lessor but not any act or failure to act of Lessee), or amounts in lieu thereof, paid or payable by Lessor with respect to the foregoing, but excluding taxes based on or measured by Lessor's net income or right to do business. Lessor agrees to file, or cause to be filed, including on behalf of Lessor, all required tax returns and reports concerning amount required to be paid by Lessee hereunder with all appropriate governmental agencies and, upon the written request of Lessor, to send Lessor copies and confirmation of such filings.

(c) Lessor shall have the right, upon notice to Lessee, to cure any default or breach by Lessee hereunder, and the amount of all reasonable expenses incurred by Lessor in connection therewith shall be paid by Lessee, as Additional Rent, with the installment of Base Rent next payable under this Lease following the giving of such notice unless such notice shall be given on or after the expiration or the termination of this Lease, in which event such amount shall be immediately due and payable by Lessee.

5.3 Past Due Amounts. Interest on any Base Rent due hereunder, but unpaid for more than 10 days after written notices of it being past due, shall accrue at the rate of one (1 % ) percent per month, or if such rate shall exceed the maximum rate allowed by law, then at such maximum rate, and shall be payable on demand.

5.4 Miscellaneous Charges. It is specifically understood and agreed that this Lease is intended to be a net lease, and as between Lessor and Lessee, Lessee shall be responsible for all costs and expenses arising out of or in connection with or related to the Equipment or the lease thereof.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 5.5 Manner of Payment. All Fixed Rent and other sums payable

hereunder are expressed and shall be payable to Lessor in lawful money of the United States at its address set forth in Schedule A hereto, or at such other place as Lessor shall designate in writing.

5.6 Security for the Payment of Rent. Provided that the loan in connection with the Bank Lien (as defined in the Purchase Agreement) has been funded to Lessee, Lessee shall assign to Lessor its right, title and interest in and to all payments due, or to become due, to Lessee, under the Initial User Leases, pursuant to an assignment in the form of Schedule B hereto, to secure the performance of its obligation to pay Rent (the "Collateral Assignment"), subject however to the rights of the holder of the Bank Lien.

6. Maintenance and Risk of Loss.

6.1 Maintenance. During the Lease Term, Lessee, at its sole cost and expense, shall keep or cause to be kept each item of Equipment in good working order and condition, and make or cause to be made all necessary adjustments, repairs, and replacements thereto.

6.2 Risk of Loss; Insurance. Until the Equipment is redelivered to Lessor in accordance with Section 4 hereof, Lessee shall be responsible for (and hereby relieves Lessor of responsibility for) all risk of physical damage to, or loss or destruction of, the Equipment, howsoever caused, unless caused by the negligence of Lessor. During the Lease term, Lessee shall, at its own cost and expense, keep each item of Equipment insured, at not less than the full replacement value thereof, against loss by fire, windstorm and explosion with extended coverage and against such other risks as are customarily insured against by companies owning property of a character similar to the Equipment ("Insurance Requirement"). All such insurance shall cover both the interest of Lessor and Lessee in the Equipment and shall be payable to Lessor, the parties holding any lien or any lien permitted by Section 7.2 hereof, and Lessee, as their respective interests may appear. If any items of Equipment are rendered unusable as a result of loss, damage or destruction, Lessee shall give to Lessor immediate notice thereof, but this Lease shall continue in full force and effect and Lessee shall repair or replace (subject to 6.3 below) such Equipment to its condition immediately prior thereto at its own cost and expense. Lessee shall, at Lessor's request, provide Lessor with a certificate or certificates evidencing the existence of the insurance required by this Section 6.2 and which shall provide that such insurance shall not be cancelled without giving Lessor not less than ten (10) days prior notice thereof. Lessee shall be relieved of the obligation to insure imposed hereunder during the term of any permitted sublease of the Equipment including the User Lease, which imposes on the sublessee the obligation to insure the Equipment (whether by self-insurance or otherwise) and which provides

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§ 28.17 RENTAL AND LEASE OF GOODS Cb. 28

that losses shall be payable to such sublessee, Lessee, Lessor and the parties holding any Lien as their respective interests may appear.

6.3 It is understood and agreed that if an Initial User Lessee or any sublessee elects to pay an amount· representing the agreed upon payment as compensation for the destruction of the Equipment such election shall be binding as to Lessor and Lessee. In such event the proceeds of such payment, after all Liens are satisfied, shall be paid to Lessor in accordance with the percentage set forth in Schedule A. In the event that a lessee pursuant to an Initial User Lease or sublessee elects to replace the Equipment, such election shall be binding to Lessor and Lessee.

7. Assignment, Sublease and Future Financing. 7 .1 By Lessor. Lessor shall not, without first obtaining the writ

ten consent of Lessee (which shall not be unreasonably withheld or delayed) sell, assign, transfer, encumber or hypothecate any or all of its rights or interest in, under and to this Lease of the Equipment. Any such sale, assignment, transfer, encumbrance or hypothecation by Lessor with such consent shall not relieve Lessor of any obligations thereafter becoming due hereunder.

7 .2 Future Financing. Lessee may wish to obtain, upon the early termination of the Initial User Lease or the upgrading by Lessee of the Equipment, or subsequent to the expiration of the Initial User Lease, a loan that may be secured by the subsequent sublease of the Equipment ("Sublease"), and the lender may require a security interest in the Equipment and in all of the right, title and interest of Lessor in, or otherwise relating to, the Equipment and such subsequent Sublease of the Equipment. Lessee hereby agrees that such future financing of the Equipment is not permitted, except with written approval from Lessor.

7.3 Sublease. Nothing herein contained shall be deemed to limit or restrict Lessee's right to sublease any or all of the Equipment, provided, that any such sublease (or any right of renewal or extension provided for therein) (i) shall not extend beyond Lease Term, and (ii) shall be a bona fide third party lease. Lessee shall furnish Lessor with complete copies of each such sublease and all documents executed and delivered in connection therewith within thirty (30) days after execution by Lessee and subleases thereof. Any rent or other proceeds arising during the Lease Term under the Initial User Lease or any other sublease of the Equipment shall be the sole property of the Lessee and Lessor shall have no claim with respect thereto, other than as set forth in 5.1 of Schedule A and in the Collateral Assignment.

8. Lessee to Hold Harmless. Lessee shall indemnify Lessor from and hold it harmless against,

any loss, cost, damage or expense (including, without limitation, reasonable attorney's fees and court costs) by reason of any claim which is in

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 any manner connected with the delivered, warehousing, transportation, use, condition, possession or removal of the Equipment, howsoever arising and whether or not alleged to be attributed to any default or defect in the Equipment; provided, however, that Lessee shall be subrogated to all of Lessor's rights against third parties, including, but not limited to, the vendors or manufacturers or transporters of the Equipment, with respect to any such claims. Lessor shall give Lessee and Lessee shall give Lessor notice of any claim or liability in respect of which indemnification is provided for hereunder promptly after Lessor or Lessee, as the case may be, learns thereof, and Lessee shall be entitled to control the defense thereof. Notwithstanding the foregoing, Lessee shall not be required to indemnify Lessor for any loss, cost, damage or expense (including attorney's fees and court costs) arising out of or as a result of Lessor's negligence.

9. Protection of Title. Lessee agrees that title to all of the Equipment shall remain in

Lessor and that Lessee will at all times protect and defend, at its own cost, the title and interest of Lessor in and to the Equipment from and against any and all claims, liens, charges, encumbrances, and legal processes of Lessee's or any sublessee's creditors or other persons having claims against Lessee or any sublessee, other than the Bank Liens or any financing pursuant to Section 7.2 hereof.

10. Use of the Equipment. Lessee covenants to cause each item of the Equipment at all times

during the term of this Lease to be used and operated under and in compliance with all applicable laws, ordinances, order and regulations of the jurisdictions in which such time may be operated; provided, however, that Lessee may in good faith contest (at its own expense) in any reasonable manner the application of any such regulation or order if such contest or the result of non-compliance during the pendency thereof does not adversely affect or threaten to affect the title of Lessor to any item of Equipment or subject Lessor to any criminal or civil liability whatsoever.

11. Ownership; Quiet Enjoyment. Lessee acknowledges and agrees that upon the execution hereof it

does not have and will not obtain, and by payment and performance hereunder it does not and will not have or obtain, any title to the Equipment, legal or equitable, except as expressly set forth in this Lease. Lessee will, at Lessor's request, affix tags, decals or plates to the Equipment indicating Lessor's ownership, and Lessee shall not permit their removal or concealment. So long as Lessee shall not be in default of any of the provisions of this Lease, Lessor will take no action to interfere with Lessee's quiet and peaceful possession of the Equip-

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ment, and Lessee's right to have full uninterrupted use and enjoyment of the Equipment for its stated purpose pursuant hereto.

12. Right of Examination; Reports. Lessee agrees that it will at all times during the Lease Term

permit Lessor or its agents and representatives to make such examination of the Equipment as Lessor may reasonably request, and, upon request, shall inform Lessor of the location of the Equipment and shall facilitate such examination; provided, however, that any such examination shall be made in conformity with the provisions of the Initial User Lease or any other sublease of the Equipment. Lessee shall at all times keep Lessor advised of any change in the location of the Equipment, and lien permitted by Section 7 .2 hereof (and the indebtedness secured thereby).

13. Change in Location of Equipment. Lessee, at its expense and upon not less than 15 days' prior notice

to Lessor, may move all items of the Equipment to such locations within the Continental United States of America as it deems fit; · provided, however, that all items of Equipment, except those items of Equipment which, while under the control of Lessee or its authorized agent, shall be adequately identified as the property of Lessor, shall at all times be located in premises owned or leased by Lessee or Lessee's authorized agent or sublessee, and Lessee shall pay the actual expenses of Lessor in connection with such a move.

14. Events of Default. 14.1 "Event of Default" means any of the following events:

(a) If Lessee shall default in the payment of any installment of Rent as and when the same becomes due and payable, and such default shall continue for a period of ten (10) days after written notice; or

(b) If Lessee shall (i) default in making any other payment hereunder, or (ii) default in any material way in the performance or observance, when due, or any other covenant, agreement or obligation of Lessee or Lessor hereunder or otherwise relating in any manner to the purchase or leasing of the Equipment and such default, misrepresentation or breach shall continue for a period of ten (10) days after written notice; or

(c) If Lessee shall assign, mortgage or encumber its interest under this Lease in violation of the provisions of this Lease, or

(d) If Lessee shall:

(i) admit in writing its inability to pay its debts generally as they come due;

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 (ii) file a petition in bankruptcy or a petition to take

advantage of any insolvency act;

(iii) make an assignment for the benefit of its creditors;

(iv) consent to the appointment of a receiver for itself or for the whole or any substantial part of its property;

(v) on petition in bankruptcy filed against it, be adjudicated a bankrupt; or

(vi) file a petition or answer seeking reorganization or arrangement under the bankruptcy laws or any other state or federal law or a law of the authority having jurisdiction for the relief of debtors; or

(e) If a court or other body or agency of competent jurisdiction shall enter an order, judgement or decree appointing, without the consent of Lessee, a receiver for Lessee of the whole or any substantial part of its property, or approving a petition filed against it seeking reorganization or arrangement of Lessee under the bankruptcy laws or any other state or federal law for the relief of debtors, and such order, judgement or decree shall not be vacated or set aside or stayed within sixty (60) days from the date or entry thereof; or

(0 If under the provisions of any other law for the relief of debtors, any court of competent jurisdiction shall assume custody or control of Lessee or of the whole or any substantial part of its property, and such custody or control shall not be terminated or stayed within sixty (60) days from the date of assumption of such custody or control; or

' (g) If Lessee shall accept prepayment of any rent due from any sublessee which are payments to be made to the holder of the Bank Lien or any lien permitted by Section 7.2 hereof, without simultaneously paying the same to the holder of the Bank Lien or any lien permitted under Section 7.2 hereof, if any, in reduction thereof.

14.2 If an Event of Default occurs and is continuing, Lessor at its option, may do any or all of the following: (i) by written notice to Lessee signed by the Lessor, terminate this Lease; (ii) whether or not this Lease is so terminated, take immediate possession of any or all of the Equipment wherever situated, and for such purposes, enter upon any premises without any liability for so doing; (iii) sell, dispose of, hold, use or lease any or all of the Equipment as Lessor in its sole discretion shall decide, without any obligation to account to Lessee; (iv) Lessor may declare immediately due and payable the greater of (a) all monies due to be paid by Lessee during the Lease Term, including, without limitation, all Rent, and thereupon Lessee shall be obligated to pay such monies to Lessor immediately, less a discount by reason of the acceleration of payment thereof, calculated at the rate of 6% per annum on the average balance of such amounts which would otherwise

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remain outstanding over the Lease Term or (b) the Fair Market Value of the Equipment; provided, however, that Lessor shall not interfere with the possession and use of the Equipment by a lessee pursuant to the Initial User Lease or any other sublease, as the case may be and provided that the amount of rent paid under such sublease satisfy the obligations to Lessor under this Lease. Lessee shall in any event remain fully liable for such damages as provided by law and for all costs and expenses incurred by Lessor on account of the pertinent Event or Events of Default, including, without limitation, all court costs and reasonable attorney's fees.

15. Obligation to Pay Rent. Provided Lessor has title to the Equipment and such title is not

subject to a suit or threat of foreclosure, Lessee agrees that its obligations under this Lease are absolute and shall continue in full force and effect regardless of any disability of Lessee to use the Equipment because of any reason whatsoever, except due to the negligence of Lessor, and that its obligations shall not abate due to any claim or setoff against Lessor.

16. Remedies. No course of dealing of Lessor nor any delay or omission of Lessor

to exercise any right or remedy granted under this Lease shall operate as a waiver of any rights of Lessor, and every right and remedy of Lessor provided for herein, and shall be in addition to every other right or remedy provided for herein or now or hereafter existing in law or in equity or by statute or otherwise. The exercise or attempted exercise by Lessor of any such rights or remedies shall not preclude the simultaneous or later exercise by Lessor of any or all other such rights or remedies. Such rights or remedies may be exercised from time to time and as often as shall be deemed expedient. All rights, remedies and powers provided for in this Lease may be exercised only to the extent that the exercise thereof does not violate any applicable provision of law, and all provisions of this Lease are intended to be subject to all applicable mandatory provisions of law and be limited to the extent necessary so that they will not render this Lease invalid or unenforceable in whole or in part under the provisions of applicable law. Any provision of this Lease prohibited by law or in any jurisdiction shall, in or with respect to such jurisdiction, be ineffective to the extent of such prohibition without invalidating the remaining provisions of this Lease.

17. Performance by Sublessee. To the extent that a sublessee hereunder has obligated itself to

perform the obligations and duties essentially similar in nature to those of Lessee hereunder, such obligation shall be deemed to be performance thereof by Lessee.

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 18. Successors and Assigns. All covenants and agreements contained in this Lease shall bind,

and shall inure to the benefit of, the successors, assigns and heirs of Lessee and Lessor, respectively, in the same manner and to the same extent and with like effect as if such successors, assigns and heirs were named in such covenants and agreements and were made parties to this Lease. Notwithstanding anything herein to the contrary, Lessor agrees that it shall not transfer or assign its right to receive rent hereunder to any party without the prior written consent of Lessee, which consent shall not be unreasonably withheld.

19. Notices. Any notice, request or other communication to either party by the

other as provided for herein shall be given in writing and shall be deemed given on the earlier of the dates the same is (i) actually received and acknowledged or (ii) ten (10) days after mailing by certified mail, return receipt requested, postage prepaid, and addressed to the party for which intended at its address as set forth in Schedule A. The person and the place to which notices or copies of notices are to be mailed to either party may be changed from time to time by written notice to the other party.

20. Disclaimer of Warranties. THE EQUIPMENT IS BEING LEASED HEREUNDER "AS IS"

AND "WHERE IS". ACCORDINGLY, EXCEPT AS SET FORTH HEREIN, LESSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE SELECTION, QUALITY, CONDITION OF THE EQUIPMENT, ITS MERCHANTABILITY, ITS SUITABILITY, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE OPERATION OR PERFORMANCE OF THE EQUIPMENT OR THE MAINTENANCE THEREOF. Lessor shall, in no event, be liable to Lessee for any indirect, special or consequential damages caused, directly or indirectly, by the Equipment or any inadequacy thereof for any purpose, or any deficiency or defect therein, or the use or maintenance thereof, or any repairs, servicing or adjustments thereto.

21. Performance by Lessee. Lessee agrees to perform all its obligations as Lessor under an

Initial User Lease or any other sublease and under the Bank Lien or any substitute loan made pursuant to Section 7 .2 hereof, unless failure so to perform is waived by the party entitled to such performance.

22. Applicable Law and Jurisdiction. This Agreement shall be governed by and interpreted under the

internal laws of the State of Florida applicable to contracts made and to

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be performed therein, without giving effect to the principles of conflict of laws. Except in respect of an action commenced by a third party in another jurisdiction or an action required by nature of the remedy sought to be maintained in the jurisdiction in which the Equipment is located and provided clause (ii) herein is enforceable, Lessor and Lessee (i) agree that any legal suit, action or proceeding arising out of or relating to this Lease must be instituted in a State or Federal Court in the State of Florida and (ii) irrevocably submit to the jurisdiction of any such Court in any such suit, action or proceeding. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A1 shall control.

23. Further Assurances. Each party hereto shall execute and deliver all such further in

structions and documents as may reasonably be requested by the other party in order to carry out fully the intent and accomplish the purposes of this Lease and the transactions referred to herein.

24. Captions. The captions of the sections of this Lease are inserted for conve

nience only and shall not affect the interpretation or construction of this Lease.

25. Counterparts. This Lease may be executed in one or more counterparts, each of

which shall be deemed an original, but all of which shall constitute one and the same agreement.

IN WITNESS WHEREOF, the parties hereto executed this Lease as of the ___ day of __ _, 19_.

1. LESSOR:

Delta Business Services, Inc.

By------------

LEASE SCHEDULE A

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.17 2. LESSEE:

3. Description of Equipment:

4. Base Rent: Base rent of $ ___ per month shall be due and payable within twelve months of the 1st calendar day of each month commencing a full month of use beginning with __ _, 19_, except that no amount shall remain outstanding following cessation of use. In the event that an acceleration of rent occurs under the preceding sentence, the amount of rent to be paid by the Lessee shall be discounted at the rate of ___ % per annum.

5. Additional Rent: 5.1 Commencing with the expiration of each Initial User Lease,

and thereafter until Lease expiration on ___ 19_, Lessee shall pay, on a monthly basis as and when received, ___ % of any net rentals received from sublessees. Prior to payment of such amounts, Lessee shall be entitled to be reimbursed for any reasonable out-ofpocket remarketing costs paid to third parties.

5.2 To the extent that any User or Sublessee applies any rental credits granted to it by Lessee to reduce the rental payable by it under any User Lease during the period that Supplemental Rent is payable hereunder, Lessee shall pay Lessor the difference between ___ % of the Fair Market rental for the Items of Equipment with respect to which such credits are granted and ___ % of the actual cash rentals received from the User or Sublessee.

COLLATERAL ASSIGNMENT

SCHEDULE B

By these presents, ___ Inc., a Florida corporation, (the "As-signor") hereby assigns all of its right, title, and interest in the collateral listed in Exhibit 1 hereto, (the "Collateral") to ___ an individual residing at ______ Florida ___ (the "Assign-ee"). The Collateral consists of certain existing leases that encumber equipment that the Assignee owns and has leased to the Assignor (the "Equipment").

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This Collateral Assignment secures the obligation of the Assignor pursuant to the lease agreement between the Assignor and Assignee with respect to the Equipment. The Collateral has not been assigned to secure any other obligation, except a loan from a bank used to purchase the Equipment.

Executed as of the ___ day of ___ 19_.

By------------

§ 28.18 Lease of Horse LEASE AGREEMENT made as of __ _, 19_, between __ _,

hereinafter called "Lessor", and Inc., a Florida corporation, hereinafter called "Lessee".

In consideration of their mutual promises made herein, Lessor and Lessee hereby agree as follows:

1. Lease. Lessor hereby leases to Lessee and Lessee hires from Lessor the horse described as follows, herein referred to as the "horse", on the terms and conditions set forth herein:

2. Rental. Lessee shall pay as rental for the horse the sum of $ ___ per month plus sales tax, in advance on the first day of each month during the term hereof. All rentals shall be paid by Lessee on behalf of Lessor to such person or organization as Lessor shall designate.

3. Term. The term of this Lease is ___ (. ___ ) year beginning the date first above written.

4. Use of Horse. Lessee agrees that it will not use or permit the use of the horse in a negligent or improper manner or in violation of any law, or so as to void any insurance covering the same, or permit the horse to become subject to any lien, charge, or encumbrance unless approved by Lessor.

5. Care. Unless otherwise agreed in writing by the parties, all feed, medical care and other expenses in connection with the use and care of the horse during the lease term hereof necessary for its proper use and care are at Lessee's expense. Lessor shall not be liable for such expenses, nor shall any such expenses be charged to Lessor.

6. Obligation to Insure. Lessee shall, at Lessor's request, obtain and pay for insurance on the horse satisfactory to Lessor and insuring Lessor's interest as· well as Lessee's. In the event Lessee shall fail to pay for or provide any insurance specified as the responsibility of

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Ch. 28 RENTAL AND LEASE OF GOODS § 28.18 Lessee, Lessor at its option may pay for such insurance and add the amount paid to the next monthly rental payment due from Lessee. Lessee will promptly notify Lessor of any accident, loss or incident that may result in an insurance claim.

7. Obligation to Pay Miscellaneous Taxes and Charges. Lessor agrees to pay all charges, fees and taxes which may be imposed with respect to the horse by any duly constituted governmental authority as the result of Lessee's use or intended use of the horse.

8. Risk of Loss and Damage. Lessee shall bear all risks of damage or loss of the horse not covered by insurance. Lessee shall, at all times and at its expense keep the horse in good care and condition.

9. Indemnity of Lessor. Lessee agrees to indemnify Lessor against all claims, losses, causes of action, and expenses, including legal expenses, arising from the use, maintenance or operation of the horse.

10. Termination by Default. Time is of the essence of this agreement. Lessor may, at its option, by written notice to Lessee declare this lease in default on the happening of any of the following:

(a) Default by Lessee in payment or performance of any of its obligations hereunder;

(b) A proceeding in bankruptcy or under any law for relief of debtors involving Lessee or any horse;

(c) Voluntary assignment of Lessee's interest herein; (d) Involuntary transfer of Lessee's interest herein by opera

tion of law;

(e) Expiration or cancellation of any policy of insurance or the cessation in force according to its original terms of such insurance, or of any extension or renewal thereof.

On declaration by Lessor that the lease is in default, the horse shall be surrendered and delivered to Lessor, and Lessor may take possession of the horse wherever it may be found, with or without process of law, and for that purpose may enter on the premises of Lessee. On default, Lessee and Lessee's successors in interest, whether by operation of law or otherwise, shall have no right, title or interest in the horse, or the possession or use thereof, and Lessor shall retain all rents and other sums paid by Lessor hereunder. Lessee shall pay reasonable attorneys fees incurred by Lessor.

11. Return of Horse. Upon expiration of the lease term, or earlier termination of the lease as herein provided, Lessee shall return to Lessor the horse.

12. Assignment. Lessee agrees not to assign, transfer, sublet, pledge, or encumber any of its rights under this lease, or the lease itself. Lessee hereby consents to and authorizes Lessor's assignment of all rentals, charges, and other amounts payable by Lessee to Lessor, or to become payable hereunder. If Lessor so assigns the sums agreed to

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be paid by Lessee hereunder, the rights of assignee to receive the same shall be free from all defenses, setoffs, and counterclaims of every kind that Lessee may be entitled to assert against Lessor, but Lessee may separately assert such claims against Lessor. Notwithstanding such assignment, assignee shall not assume any of the obligations of Lessor. This lease and the rights and interests of Lessee hereunder are subordinate to any security agreement executed by Lessor and any such assignee, covering the horse. ·

13. Waiver. Failure of Lessor in any one or more instances to insist on the performance of any of the terms of this lease, or to exercise any right or privilege conferred herein, or the waiver of any breach of any terms of this lease shall not thereafter be construed as a waiver of such terms, which shall continue in force as if no such waiver had occurred.

14. Limitation of Warranties. There are no warranties, expressed or implied, by Lessor to Lessee, and Lessor shall not be liable for any loss or damage to Lessee, nor to anyone else, of any kind and however caused, whether by the horse itself or by any failure thereof or by interruption of use of the horse.

15. Construction of Instrument. This agreement is one of leasing only and Lessee does not acquire hereby any right, title or ownership interest in the horse leased hereunder other than the right of possession of a lessee.

16. Choice of Law. This lease shall be governed by and construed under the laws of the State of Florida. If there is any conflict between a provision of this document and Article 2A of the Florida Uniform Commercial Code-Leases (F.S.A. Ch. 680), then [this document] [Article 2A] shall control.

17. Retained Right to Show. Notwithstanding the foregoing, Lessor hereby retains and reserves the right to show the horse, but Lessor agrees not to show the horse more than an average of __ _ ( ___ ) days a month, measured at the end of the lease term.

IN WITNESS WHEREOF, the parties hereto have signed this Lease Agreement, as of the day and year first above written.

Signed, sealed and delivered in the presence of:

LESSOR:

Witnesses

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Witnesses

Witnesses

RENTAL AND LEASE OF GOODS § 28.18

LESSEE: __ _, Inc., a Florida corporation

By:

Title:

(Corporate Seal)

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Documents