Master Lease Agreement: KAirFree Plant Plan
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LESSEE AND LESSOR AGREE TO THE TERMS SET FORTH ABOVE AND THE TERMS AND CONDITIONS SET FORTH BELOW. IN ELECTRONICALLY SIGNING BELOW, LESSEE ACKNOWLEDGES THAT IT HAS REVIEWED, UNDERSTANDS, APPROVES, AND AGREES TO BE IRREVOCABLY BOUND BY ALL SUCH TERMS AND CONDITIONS.
This contract is a Master Lease Agreement (“Lease”) between the above-named Lessee and Kaeser Compressors, Inc. (“Lessor”) with respect to the personal property described above along with any components included therewith (individually an “Item,” and collectively the “Equipment”. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Equipment, and the parties mutually agree as follows: 1. Rent. The first rent payment shall be the Access Fee and shall be paid upon execution of this Lease. The Access Fee is non-refundable. Should Equipment need to be right-sized, Lessor will credit or charge to Lessee’s account any reduction or increase, respectively, in the Access Fee for right-sized equipment. Additional rent shall be due on the same date each month following the equipment start-up date during the term of this Lease, and shall be the Hourly Rate times the number of operating hours on the Equipment for the month immediately preceding the date an invoice is generated (minimum monthly billing of 40 hours). Payments shall be due regardless of whether Lessee has received notice of sums due. Lessor will charge the invoiced amount to Lessee and will automatically initiate and process payment within 5-7 days after each invoice date in accordance with the method of payment indicated on Lessee’s account. Lessee shall permit Lessor entry to Lessor’s facility from time to time to measure usage of Equipment. 2. Lease Term. The term of this Lease shall commence on the date of start-up of the Equipment to Lessee or at least 30 days from shipment, whichever is sooner, and continue for 12 consecutive months or until the date the Equipment is returned to Lessor, whichever is sooner. Lessee may terminate this Lease at any time by providing 30 days written notice. 3. Insurance. Lessee shall provide, maintain and pay for (a) insurance against the loss or theft of or damage to Equipment, for the full replacement value thereof and in an amount not less than the insurance value set forth above, and naming Lessor as a loss payee, and (b) public liability and property damage insurance naming Lessor as an additional insured. Lessee shall supply a Certificate of Insurance upon Lessor’s request. 4. Title. Title to the Equipment shall remain with Lessor at all times and Lessee shall have no right, title or interest therein except as expressly set forth in this Lease. The Equipment shall remain severable from the Premises and shall not become or be deemed a fixture at the Premises. 5. Loss or Damage. Lessee shall bear the entire risk of loss, theft, destruction of or damage to Equipment from any cause, including without limitation vandalism. 6. Lessee’s Responsibilities. Lessee shall be responsible for all electrical disconnect, discharge piping, connections to the Equipment, proper care and maintenance of the Equipment during the term of the Lease. 7. Maintenance and Repairs. Lessor shall perform all routine maintenance and repairs to Equipment at no cost to Lessee except for damages caused by negligence or improper operation of Equipment by Lessee or its agents or contractors, in which case Lessor shall repair such damages and charge all related costs to Lessee. Lessor will provide up to two weeks’ notice prior to performing routine maintenance and repairs and shall perform same during Lessee’s normal business hours. Lessee acknowledges that Equipment must be offline for a minimum of four hours during normal maintenance and repairs. 8. Right-sizing Equipment. Lessor is entitled to right-size all Equipment selections for performance. 9. Cellular Data Requirement. Cellular data coverage is a requirement of this Lease. If for any reason, wireless or cellular data coverage is not available at the Lessee’s premises at time of startup, this Lease will be terminated and Lessee’s Access Fee will be refunded. 10. NO WARRANTIES BY LESSOR. LESSOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER INCLUDING THE CONDITION OF EQUIPMENT, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES EQUIPMENT “AS IS”. THE ONLY EXCEPTION TO THIS WARRANTY IS OUR SERVICE WARRANTY AS DETAILED IN SECTION 11. 11. Service Warranty. Lessor warrants to Lessee, should the Equipment have a component malfunction or failure, Lessor shall promptly initiate measures, at its expense, to repair as quickly as reasonably possible. In the event that Lessor is unable to repair within two hours of the service interruption, Lessee’s sole and exclusive remedy shall be a Service Warranty Reimbursement credit to Lessee’s account in the amount equal to the Service Warranty Reimbursement Rate listed on the Equipment Schedule for each hour after the second full hour of service interruption. Lessee’s maximum credit per occurrence is not to exceed a total Service Warranty Reimbursement of thirty-six hours. Service interruptions as a result of acts of God; earth movement; fire; flood; storm; virus, bacteria, any other infectious agent, disease, contamination; terrorist activity; or any activity involving the use or threatened use of any nuclear, biological, chemical, or radioactive agent, material, device or weapon; modifications to equipment made by Lessee, failure to follow operating instructions, external perils including but not limited to weather, fire, collapse, collision, failure or disruption of any utility service, blocked airways or plant shutdown are specifically excluded from this Service Warranty. 12. Location; Inspection and Photography; Labels. The Equipment shall be delivered to, and shall not be stored at a location other than, Lessee’s address listed above as Lessee’s Stored Location without Lessor’s prior written consent. Lessor shall have the right to inspect and photograph the Equipment at any time during Lessee’s normal business hours, without prior notice to Lessee. 13. Surrender. Upon expiration or termination of the Lease, Lessee shall surrender Equipment to Lessor. Lessor, at its expense, shall arrange for removal and return of all Equipment. 14. Quiet Enjoyment. Lessor shall not disturb Lessee’s quiet enjoyment of Equipment so long as no Event of Default has occurred and is continuing. 15. Events of Default. Any of the following shall constitute an “Event of Default” under this Lease: a. Lessee fails to pay any rent or other amount required herein to be paid by Lessee when due and payable, including without limitation if any attempt by Lessor to initiate payment as described in Section 1, above, is rejected, reversed, prevented, or otherwise not completed. b. Lessee ceases doing business as a going concern, is insolvent, makes an assignment for the benefit of creditors, admits in writing its inability to pay its debts as they become due, files a voluntary petition in bankruptcy, is subject to an involuntary petition in bankruptcy which is not dismissed within sixty (60) days of the institution thereof, under any present or future statute, law or regulation; c. Lessee allows or causes a levy, lien, or encumbrance to be recorded or filed against the Equipment or any Item, and does not within 15 days secure a written release of such levy, lien, or encumbrance; or d. Lessee fails to perform any other term, covenant or condition of this Lease and does not cure such failure, or if not curable within such time frame, has not diligently pursued the cure thereof within ten days after written notice from Lessor. 16. Remedies. If an Event of Default occurs and is continuing beyond the applicable cure period, Lessor shall have the right, with or without notice or demand upon Lessee, to pursue and enforce, successively or concurrently, any one or more of the following remedies in order to protect the interests and reasonably expected profits and bargains of Lessor: a. Lessor may cease operation of Equipment and/or retrieve Equipment from Lessee, for which Lessee shall permit Lessor entry; b. Lessor may charge Lessee up to $1,000 for the cost of removal and return of Equipment; c. Lessor may charge Lessee up to $500 to restart Equipment; d. Lessor may terminate this Lease upon written notice to Lessee with respect to any Item or Items, or all or any part of the Equipment; e. Lessor may (1) recover from Lessee all accrued and unpaid rents and other amounts then due and owing under the terms hereof, (2) recover from Lessee from time to time all rents and other amounts as and when becoming due hereunder, (3) accelerate and cause to become immediately due and payable all rents and other amounts due and/or likely to become due hereunder and recover from Lessee the then worth to Lessor of such amounts, (4) cause to become immediately due and payable and recover from Lessee (i) Lessor’s then net after-tax investment in Equipment, plus (ii) the then worth to Lessor of its anticipated remaining loss of bargain; and f. Lessor may pursue any other remedy available at law or in equity, including but not limited to seeking damages, specific performance, and/or an injunction. No right or remedy herein conferred upon or reserved to Lessor is exclusive of any right or remedy herein, by law, by equity, by statute or otherwise provided or permitted; but each shall be cumulative of every other right or remedy given hereunder, now or hereafter existing at law, in equity, 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 its obligations pursuant to the terms of this lease plus accrued delinquent payments. In addition, Lessor shall attempt in good faith to mitigate its damages, but Lessor shall not be obligated to sell or release Equipment. 17. Lessor’s Expenses. Lessee shall pay Lessor (in addition to any other amounts specified herein) all costs and expenses, including, without limitation, reasonable attorneys’ fees, the fees of collection agencies, and other out-of-pocket expenses such as telephone and communication charges, incurred by Lessor in enforcing any of the terms, conditions or provisions hereof or in protecting Lessor’s rights herein. 18. Indemnification. Lessee shall indemnify, defend, and hold harmless Lessor, Lessor’s affiliates, and each of their directors, officers, employees, and agents from and against any and all claims, losses, liabilities (including without limitation negligence, tort and strict liability), damages, demands, judgments, settlements, suits, and all legal proceedings and any and all costs and expenses in connection therewith (including attorneys’ fees and expenses) that in any way relate to or arise out of any Lease, any Lease Document, the transactions contemplated thereby or any Item or the Equipment. 19. Successors and Assigns. This Lease shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. 20. Entire Agreement. This instrument, along with the Kaeser Compressors Terms and Conditions of Sale and Use, constitutes the entire contract between Lessor and Lessee governing the lease of each Item and the Equipment, and it shall not be amended, altered or changed except by a written agreement signed by the parties hereto. 21. Lessee’s Assent. Lessee’s assent to the terms of this Lease shall be manifested either by Lessee’s signature or Lessee’s ordering, paying for, or receiving any portion of the Items or Equipment. 22. Joint and Several Liability. If more than one Lessee is named in this Lease, the liability of each shall be joint and several. 23. Severability. If any provision of this Lease or any remedy provided herein is invalid under any applicable law, such provisions shall be inapplicable and deemed omitted, but the remaining provisions of this Lease shall be and remain effective in accordance with their terms. 24. No Waiver. Any failure of the Lessor to require strict performance by the Lessee or any waiver by Lessor of any provision herein shall not be construed as a consent or waiver of any other breach of the same or of any other provision. 25. Choice of Law. This Lease shall be governed by the laws of the Commonwealth of Virginia (without giving effect to principles of conflicts of law thereof.)
Kaeser Compressors, Inc. | P.O. Box 946 Fredericksburg, Virginia 22404 | 540-898-5500 | us.kaeser.com CCM-McDaniel/BOPER/F-030302-USA-Kairfree Master Lease Agreement-1/18.June 2021
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Document Name: Master Lease Agreement: KAirFree Plant Plan
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