The Lessee agrees that unit(s) rented from the Lessor shall not be operated in excess of:
8 machine hours per day,
40 machine hours per week,
or 160 machine hours per month
Weekend Rentals: 8 machine hours between Friday at 2pm and Monday 8am
under the terms of the rental agreement. Any use beyond these hourly limits will be subject to additional charges in 4 hour increments based upon each unit's rental rate.
This Equipment Lease Agreement (as it may be amended from time to time, this "Agreement"), dated as of THE DAY OF , 20 , is entered into by and between DECKER EQUIPMENT AND RENTAL LLC, A SOUTH DAKOTA LIMITED LIABILTY COMPANY, OF 616 WEST INDUSTRIAL ROAD, CANTON, SOUTH DAKOTA
57013 ("Lessor"), and , having its principal place of business/an address at ("Lessee," and together with Lessor, the "Parties," and each, a "Party").
WHEREAS, Lessor is in the business of leasing construction, agricultural, and miscellaneous machinery, tools, equipment, and personal property;
WHEREAS, Lessee is in the business of
; and
WHEREAS, Lessee desires to lease from Lessor, and Lessor desires to lease to Lessee the Units (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Equipment. Lessor hereby leases the Units described in Exhibit A attached hereto (the "Units," and each, a "Unit") to Lessee and Lessee hereby accepts the Units for all purposes of this Agreement and leases the Units from Lessor subject to the terms and conditions of this Agreement.
Delivery Location. The delivery location under this Agreement is 616 West Industrial Road, Canton, South Dakota 57013.
Delivery Date. The delivery date under this Agreement is ].
Lessor shall use reasonable efforts to meet the delivery date, but Lessor shall have no responsibility or liability for delays in delivery.
True Lease. The Parties intend that this Agreement shall constitute a true lease under applicable law and shall not be denominated a sale for purposes of South Dakota Codified Law chapter 57A-1-203. Lessor always has title to the Units. Lessee acquires no ownership, title, property, right, equity, or interest in the Units other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement.
Security Interest. The Parties intend and agree that, if this Agreement is recharacterized under applicable law as a secured financing or a lease intended for security, this Agreement shall be deemed a security agreement and Section 1 hereof shall be deemed to grant Lessor by Lessee a lien on and first priority security interest in the Units and all proceeds thereof, to secure the payment of Lessee's obligations under this Agreement. Lessor and Lessee each agree to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including without limitation UCC financing statements),
and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under applicable law.
Net Lease. This is a net lease.
No Setoff. Lessee's obligation to pay all rent and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
Commencement Date. The "Commencement Date" of this Agreement is
.
Expiration Date. The "Expiration Date" of this Agreement is
from the Commencement Date hereof.
Rent. The term hereof with respect to any Unit shall commence on the Commencement Date and, unless sooner terminated hereunder, shall expire on the later of the Expiration Date or the date such Unit is returned to and accepted by Lessor in the condition required hereunder (“Term"). During the Term for any Unit, Lessee shall pay to Lessor a fixed rent of
US dollars per Unit per month, payable in advance on the first day of each month, in accordance with the provisions of Section 11 hereof.
Payment Mechanics. Lessee shall pay all amounts due under this Agreement on the applicable due date in US dollars by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth on Schedule 1 hereto or by cash. If a payment under this Agreement becomes due and payable on a Saturday, Sunday, or any day on which commercial banks located in Canton, South Dakota are authorized or required by applicable law to be closed for business (any other day, a "Business Day"), then Lessee shall make such payment on the next succeeding Business Day. Provided Lessee makes such payment on such next succeeding Business Day, no interest accrues on the amount of such payment from and after such scheduled due date.
Late Payments. If Lessee does not pay any amount payable to Lessor under this Agreement within 3 days after the due date, Lessee shall pay to Lessor a late charge equal to the 18% per annum for the time period that the payment is delinquent for each day payment is overdue. Payment of any late charge does not excuse Lessee from any default under this Agreement.
EXCLUSION OF WARRANTIES. LESSOR MAKES NO WARRANTY WHATSOEVER, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Lessee's Representations. Lessee represents and warrants for the benefit of Lessor that the statements in this Section 14 are true and correct as of the date hereof.
Lessee is a [ENTITY TYPE] duly organized, validly existing, in good standing, and duly licensed and qualified to do business under applicable law.
Lessee has full corporate power and authority to enter into this Agreement, carry out its obligations hereunder, and consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Lessee, and constitutes a legal, valid, and binding obligation of Lessee enforceable against Lessee in accordance with its terms.
The execution, delivery, and performance by Lessee of this Agreement will not require the consent of any party, result in any lien on any Unit, or conflict with the organizational documents of Lessee, any provision of applicable law, or any instrument by which Lessee is bound.
There are no actions pending or threatened against or by Lessee challenging the transactions contemplated by this Agreement and no circumstances exist that may give rise to such an action.
On or prior to the date of this Agreement, Lessee has provided Lessor with insurance certificates accurately evidencing that the insurance coverage required under Section 19(b) hereof is in effect and with insurance certificates accurately evidencing that the insurance coverage required as of the date of this Agreement under Section 19(a) hereof is in effect.
If not publicly available, Lessee has delivered complete copies of Lessee's[ audited] financial statements for its most recent fiscal year and any other financial information of Lessee reasonably requested by Lessor, fairly presenting the financial condition and operations of Lessee's business as of the dates such statements and information were prepared.
Lessee's Covenants. Lessee agrees that until all amounts payable under this Agreement have been paid in full and all other obligations hereunder have been performed in full, Lessee shall comply with the covenants in this Section 15.
Lessee shall comply with all applicable law.
Lessee shall maintain in full force and effect all permits required to continue conducting its business and to lease and use each Unit in the manner contemplated under this Agreement.
Lessee shall pay, and indemnify and hold Lessor harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than gross or net income taxes) arising out of or in connection with this Agreement, the consummation of the transactions contemplated herein, or the shipment, possession, ownership, use, delivery, or operation of any Unit.
Lessee shall keep the Units free and clear of all liens.
Lessee shall not enter into any sublease of any Unit without Lessor's prior written consent, which consent may be withheld in Lessor's sole discretion. No permitted sublease shall relieve Lessee of its obligations under this Agreement.
Lessee's Use of Equipment.
No marking of any kind shall be placed on any Unit by Lessee except with the prior written consent of Lessor. Any such marking placed on a Unit by Lessee shall be removed at Lessee's expense on or before the expiration or earlier termination of the Term for such Unit. Lessee shall, at Lessee's expense and to Lessor's satisfaction, place and maintain on each Unit any identifying marks required by Lessor.
Lessee may not move any Unit from its location without Lessor's prior written consent.
The Parties intend that each Unit shall remain at all times personal property and not a fixture under applicable law, even if the Unit, or any part thereof, may be or become affixed or attached to real property or any improvements.
Lessee shall operate each Unit exclusively for
[TYPE OF USE]] for no more than the term of lease in connection with its business. Lessee shall not operate or permit the operation of any Unit in an unsafe or improper manner.
Lessee, at its own expense, shall maintain all records, logs, and other materials related to the Units ("Records") using practices and with a degree of care, comprehensiveness, and accuracy consistent with industry practice, but in no event less than reasonable practices and a reasonable degree of care, comprehensiveness, and accuracy, and as required by applicable law, and promptly furnish to Lessor such Records as may be requested by Lessor for any purpose.
Lessor's employees and agents shall have the right of access to Lessee's premises to inspect the Units and Lessee's Records on reasonable notice and during regular business hours. On Lessor's request, Lessee shall cooperate with and assist Lessor in obtaining access to premises other than Lessee's so that Lessor's employees and agents may inspect the Units.
Maintenance and Mandatory Modifications.
Lessee, at its sole expense and consistent with standard industry practice for similar equipment, Lessee's maintenance practices for its other similar equipment, and applicable insurance requirements, shall maintain, service, and repair each Unit and keep each Unit in compliance with any vendor's or manufacturer's specifications and applicable law, in serviceable and operable condition, free of broken, damaged, or missing parts, suitable for the commercial use originally intended[, ordinary wear and tear excepted]. All maintenance, service, and repair of any Unit and any part thereof shall be done to standards and with parts of like kind and at least equal quality to items being maintained, serviced, or repaired.
If during the Term hereof any part of any Unit is lost, stolen, damaged beyond repair, or otherwise permanently rendered unfit for use, Lessee, at its sole expense, shall promptly replace or cause to be replaced such part with one or more replacement parts. Lessee shall cause
such Unit after the replacement to be in as good an operating condition as, and have a value, remaining useful life, and utility at least equal to the value, remaining useful life, and utility of the Unit before the replacement (assuming such Unit to have been in the condition required by the terms of this Agreement).
Lessee, at its sole expense, shall make any alteration or modification to any Unit, including without limitation the replacement or addition of any component, that is required or supplied by the Lessor or the manufacturer or necessary to comply with applicable law. Lessee shall notify Lessor within ten (10) days of learning that an alteration or modification is required by applicable law.
If Lessee incorporates or installs any part in or attaches any part to a Unit, including without limitation any replacement or addition under Section 17.3, then immediately on any part becoming incorporated or installed in or attached to the Unit, without further act or any cost to Lessor, such part is deemed part of the Unit to the same extent as though originally incorporated or installed in or attached to the Unit, title to such part vests in Lessor, and such part becomes subject to this Agreement. Lessee shall cause all parts to be free and clear of any lien.
Loss.
From the Commencement Date through the expiration or earlier termination of the Term hereunder as to any Unit, Lessee shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to such Unit or its use, however caused or occasioned ("Loss"). Lessee shall notify Lessor in writing within [ten (10) days of learning of any such Loss.
The "Stipulated Loss Values" for the Units are as set forth in the attached Exhibit
[A/B].
If Lessor determines in its sole discretion that a Loss has materially impaired the
Unit affected or its use, Lessee shall pay, on Lessor's demand/within 30 days of notice by Lessor of such determination ("Loss Payment Date"), all rent and other amounts due prior to the Loss Payment Date with respect to such Unit plus the Stipulated Loss Value of the Unit determined in accordance with Exhibit [A/B] hereto (collectively, "Loss Payment"). This Agreement shall terminate with respect to any materially impaired Unit on receipt by Lessor of the corresponding Loss Payment. Upon such receipt and termination, Lessor shall deliver to Lessee a duly executed quitclaim bill of sale conveying title to such Unit to Lessee. So long as no Event of Default shall have occurred and be continuing, Lessee shall be subrogated to all claims of Lessor, if any, against third parties, for material impairment of such Unit to the extent of the Stipulated Loss Value of such Unit.
If Lessor determines in its sole discretion that a Loss has not materially impaired the Unit affected or its use, this Agreement shall continue with respect to such Unit as though no Loss had occurred; and Lessee shall at its sole expense promptly repair or cause to be repaired such Unit to the condition in which such Unit is required to be maintained hereunder, to the[ reasonable] satisfaction of Lessor. For the avoidance of doubt, there shall be no abatement of rent
or rent credit for any period in which a Unit is in a shop or otherwise out of operation in connection with any maintenance, repairs, or mandatory modifications under this Section 18 or Section 17 hereof.
Insurance.
From the Commencement Date through the expiration or earlier termination of the Term hereunder as to any Unit, Lessee, at its sole expense, shall provide and maintain for such Unit insurance against loss, theft, and damage ("Property Insurance") in an insured amount at least the greater of the Stipulated Loss Value or full replacement value of such Unit and in a form, and with companies, reasonably satisfactory to Lessor, including, without limitation, a Breach of Warranty Clause, the waiver of any subrogation rights against Lessor, and the insurer's agreement to give Lessor 30 days' prior written notice before cancellation or material change of the Property Insurance. Lessee shall name Lessor (or shall cause Lessor to be named) as loss payee for the Property Insurance. Deductibles, if any, must be approved in advance by Lessor.
For the Term, Lessee, at its sole expense, shall provide and maintain commercial general liability insurance ("Liability Insurance") in an amount no less than
$ and such other commercial general liability coverages as are ordinarily procured by prudent persons who operate similar equipment in similar businesses] and in a form, and with companies reasonably satisfactory to Lessor, including without limitation, the policy shall be primary and non-contributory with insurance carried by Lessor and the insurer's agreement to give Lessor 30 days' prior written notice before cancellation or material change of the Liability Insurance. Lessor shall be named as an additional insured without imposing on Lessor any expense in connection with the Liability Insurance.
On or before the Commencement Date, Lessee shall provide Lessor with insurance certificates accurately evidencing that the Property Insurance required under Section 19(a) is in effect. Lessee shall provide Lessor with insurance certificates accurately evidencing the renewal of the Property Insurance and Liability Insurance required under this Agreement promptly upon such renewal. Lessee shall otherwise promptly provide Lessor with insurance certificates evidencing that the insurance coverage required under this Agreement is in effect as Lessor may request from time to time.
Application of Insurance Proceeds and Condemnation Payments.
If Lessor receives any proceeds as loss payee of the Property Insurance, or under any condemnation proceeding related to the Units, it shall, if received pursuant to a Loss that has materially impaired a Unit under Section 18.3, credit such proceeds against Lessee's obligation to make Loss Payments to Lessor under Section 18.3 or if no such amounts are then due and outstanding, remit such proceeds to Lessee; or, if received pursuant to a Loss that has not materially impaired a Unit under Section 18.4, remit the proceeds to Lessee. If Lessee is in default under this Agreement, or an Event of Default (as hereinafter defined) has occurred and is continuing, Lessor may hold any such proceeds as security for the obligations of Lessee under this Agreement and apply such amounts in its sole discretion against Lessee's obligations hereunder.
Lessee receives any proceeds under the Property Insurance, or under any condemnation proceeding related to the Units, unless received with respect to a Loss that has not materially impaired a Unit as set forth in Section 18.4, Lessee shall promptly forward such amounts to Lessor to be applied by Lessor under Section 20.1. If Lessee is in default under this Agreement, or an Event of Default (as hereinafter defined) has occurred and is continuing, and Lessee receives any proceeds under the Property Insurance or under any condemnation proceeding related to the Units (regardless of whether a Unit is materially impaired) or the Liability Insurance, it shall forward such amounts to Lessor as security for the obligations of Lessee under this Agreement to be applied by Lessor in its sole discretion against Lessee's obligations hereunder.]
Default.
Each of the following events is an "Event of Default" under this Agreement: (a) Lessee fails to pay any rent or any other amount under this Agreement when due; (b) Lessee defaults in the observance or performance of any other term, covenant, or condition of this Agreement, on Lessee's part to be observed or performed[, and Lessee fails to remedy such default within 10 days after notice by Lessor to Lessee of such default]; (c) Lessee's interest or any portion thereof in this Agreement devolves on or passes to any other party, whether by operation of law or otherwise; (d) Lessee (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property or business; (d) Lessee sells, transfers, or disposes of all or substantially all of its assets or the property of its business, or merges or consolidates with any other entity; or (e) any representation contained in Section 14 is untrue as and when made.
If an Event of Default occurs and is continuing, Lessor may, in its sole discretion, exercise one or more of the following remedies: (a) declare this Agreement in default; (b) terminate this Agreement in whole or in part; (c) take possession of, or render unusable, any Unit wherever it 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 action; (d) require Lessee to deliver any Unit in the condition required under this Agreement to a location designated by Lessor and, for each day that Lessee fails to return any Unit, Lessor may demand an amount equal to the rent for such Unit, prorated on the basis of a thirty-day month, in effect immediately prior to such Event of Default; (e) proceed by court action to enforce performance by Lessee of this Agreement and/or to recover all damages and expenses incurred by Lessor by reason of any Event of Default; (f) sell any or all of the Units at public or private sale, with or without notice to Lessee or advertisement, or otherwise dispose of, hold, use, operate, lease to others, or keep idle such Units, and without any duty to account to Lessee for such action or inaction or for any proceeds with respect thereto, and apply the net proceeds thereof (after deducting all expenses, including legal fees and costs, incurred in connection therewith) to the amounts owed to Lessor under this Agreement, provided, however, that Lessee shall remain liable to Lessor for any deficiency that remains after any sale or lease of such Units; and (g) exercise any other right or remedy available to Lessor at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
Indemnity.
Lessee shall indemnify, defend, and hold harmless Lessor, its successors and assigns, and its affiliates and their successors and assigns and the respective directors, officers, managers, members, employees, consultants, financial advisors, counsel, accountants, and other agents of Lessor, its successors and assigns, Lessor's affiliates, and their successors and assigns (collectively, "Indemnitees") against any and all losses, injury, death, damages, liabilities, claims, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatsoever kind and nature, including[ reasonable] attorneys' fees and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers incurred by Indemnitees relating to, arising out of, or in connection with the transactions contemplated by this Agreement, including without limitation:
the selection, design, manufacture, delivery, purchase, acceptance, or rejection of any Unit or the ownership of any Unit;
the lease, possession, maintenance, use, condition, repair, return, disposition, operation, storage, or transportation of any Unit, any parts, or any modifications thereto (including, without limitation, latent and other defects, whether or not discoverable by Lessor or Lessee), [including without limitation any related pollution, contamination, environmental impairment, or similar condition];
any inaccuracy in or breach of any of the representations of Lessee contained in this Agreement;
any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Lessee pursuant to this Agreement; and
any assertion of the infringement of patent, trade secret, trademark, copyright, or other intellectual property rights of third parties.
Lessor's Performance of Lessee's Obligations. If Lessee is in default or an Event of Default has occurred and is continuing, Lessor may, in its sole discretion, on 10 days prior written notice, make any payment or perform any obligation on behalf of Lessee or take any action that Lessor in Lessor's sole discretion deems necessary to maintain and preserve any or all Units and Lessor's interests therein. Lessor's payment, performance of such obligation, or taking of such action shall not be a waiver by Lessor of any default or Event of Default or a release of Lessee by Lessor. Lessee shall pay immediately on demand to Lessor all sums so paid by Lessor and any expenses (including legal fees and costs) incurred by Lessor in connection with Lessor's payment, performance of such obligation, or taking of such action.
Return of Units.
If Lessee does not in accordance with the terms and conditions hereof exercise the Purchase Option as hereinafter defined, ]Lessee shall, at its sole expense and risk, no later than the Expiration Date or the earlier termination of the Term for any Unit (and except as set forth in Section 18.3), return such Unit to a location that shall be designated by Lessor in its sole discretion [no fewer than 10 days prior to the Expiration Date or the earlier termination of the Term for such
Fuel Return Requirement
The Lessee agrees to return the Unit(s) with fuel levels equal to those at the time of delivery, which shall be deemed 100% full unless otherwise stated in writing by the Lessor. If the Unit is returned with less than a full tank of fuel, the Lessee shall be liable for a fuel charge assessed by the Lessor. This charge shall be calculated based on the number of gallons required to refill the tank to full, multiplied by the per-gallon rate set by the Lessor. The fuel charge will be added to the final invoice and is payable upon receipt.
Unit.
Lessee shall cause any Unit returned under this Agreement to be in at least as good condition as when delivered to Lessee, ordinary wear and tear excepted, including without limitation the removal of any marks that Lessee is permitted to apply to the Unit under Section 16.1, complete with all parts, and in compliance with applicable law. The condition of all parts on the return of any Unit shall be at least as good as when the Unit delivered to Lessee. Any repairs to such parts necessary on return to restore them to a condition as good as when such Unit delivered, and any replacement of such parts required on return by their unfitness for use or damage beyond repair, shall be at Lessee's sole expense. Any repairs to any Unit required on return because of damage to such Unit owing to misuse of the unit while in Lessee's possession shall be at Lessee's sole expense.
Upon the return of any Unit under this Agreement, Lessee shall deliver or cause to be delivered to Lessor all records relating to the[ operation and maintenance of the] Unit, including all maintenance records, logs, certificates, and data in Lessee’s possession or required to be maintained by applicable law.
Lessee shall, at its expense, on Lessor's prior written request, store any Unit or Units returned under this Agreement for a reasonable period not to exceed 10 Business Days, either at the location for such Unit or Units or, subject to the prior written consent of Lessor, at another facility located in South Dakota selected by Lessee and used as a location for the storage of similar equipment. During the storage period, Lessee shall comply with all of the terms and conditions hereof, except for the obligation to make payments of rent.
If by the Expiration Date or the earlier termination of this Agreement for a Unit, Lessee does not return such Unit to Lessor in the condition required by and otherwise in accordance with the terms and conditions of this Agreement, Lessee shall continue to comply with all the terms and conditions of this Agreement with respect to such Unit, including without limitation the obligation to pay 125% of the prorated daily rent for each day from the Expiration Date or the earlier termination of this Agreement for such Unit until the date on which Lessee returns such Unit to Lessor in the manner required under this Agreement ("Holdover Rent"). Nothing contained in this Section 24.5, including Lessee's payment of Holdover Rent, shall (a) constitute a waiver of Lessee's failure to perform any obligation under this Agreement; or (b) give Lessee the right to retain possession of any Unit after the Expiration Date or the earlier termination of this Agreement for such Unit.
Renewal Option.
Provided that no Event of Default shall have occurred and be continuing, Lessee shall have the option at the conclusion of the Base Term to renew the lease of all and no less than all the Units under this Agreement ("Renewal Option") for a period of a similar term ("Renewal Term," and together with the Base Term, the "Term"). No less than 10 days prior to the Expiration Date, Lessee shall notify Lessor in writing and in accordance with the provisions of Section 28.2 of Lessee's intention to exercise the Renewal Option. In the event that Lessee fails so to notify Lessor no less than 10days prior to the Expiration Date, the Renewal Option shall expire and Lessee shall have no further right to renew the lease of the Units under this Agreement.
During the Renewal Term, Lessee shall pay to Lessor a fixed renewal rent of the greater of per Unit per month, payable in advance on the first day of each month, in accordance with the provisions of Section 11 hereof.
The Parties agree that Lessor shall determine stipulated loss values for the Renewal Term in Lessor's sole discretion and this Agreement shall be amended to replace the Stipulated Loss Values for the Base Term with the stipulated loss values for the Renewal Term.
Except as otherwise set forth herein, Lessee shall comply during the Renewal Term with all the terms and conditions of this Agreement.
Purchase Option.
Provided that no Event of Default shall have occurred and be continuing, Lessee shall have the option at the conclusion of the Term or, if Lessee exercises the Renewal Option, at the conclusion of the Renewal Term to purchase all and no less than all the Units under this Agreement ("Purchase Option"). No less than 10 days prior to the Expiration Date or, if Lessee exercises the Renewal Option, the expiration date of the Renewal Term, Lessee shall notify Lessor in writing and in accordance with the provisions of Section 28.2 hereof of Lessee's intention to exercise the Purchase Option. In the event that Lessee fails so to notify Lessor no less than 10 days prior to the Expiration Date or, if applicable, the expiration date of the Renewal Term], the Purchase Option shall expire and Lessee shall have no further right to purchase the Units under this Agreement.
The purchase price for the Units under the Purchase Option ("Purchase Price") shall be payable by the Lessee in accordance with Section 11 hereof on or before the Expiration Date or, if applicable, the expiration date of the Renewal Term and shall be
per Unit.
Upon payment of the Purchase Price to Lessor by Lessee, and payment to Lessor by Lessee of any other amounts then due and owing, Lessor shall transfer the Units to Lessee, as is, where is, without recourse, representation, or warranty of any kind, express or implied.
Miscellaneous.
Subject to any limitations and other provisions contained in this Agreement, the representations of Lessee contained in Section 14 survive indefinitely. All covenants and agreements of Lessee contained herein, including without limitation Lessee's obligations under Section 22, survive indefinitely [or for the period explicitly specified therein.
Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") in writing and addressed to the other Party at its address set forth in the first paragraph hereof (or to such other address as the receiving Party may designate from time to time in accordance with this Section 28.2). Each Party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), email of a PDF document (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 28.2.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement, together with all related exhibits and schedules, constitutes the sole and entire agreement of the Parties hereto with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
No amendment to or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party to this Agreement.
No waiver under this Agreement is effective unless it is in writing[, identified as a waiver under this Agreement] and signed by[ an authorized representative of] the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither any failure or delay in exercising any right, remedy, power, or privilege, or in enforcing any condition under this Agreement, nor any act, omission, or course of dealing between the Parties constitutes a waiver or estoppel with respect to any right, remedy, power, privilege, or condition arising from this Agreement.
All rights and remedies of Lessor provided in this Agreement are cumulative and not exclusive, and the exercise by Lessor of any right or remedy does not preclude the exercise by Lessor of any other rights or remedies that may now or subsequently be available to Lessor at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
Lessee acknowledges that a breach or threatened breach by Lessee of any of its obligations under [this Agreement/Section [NUMBER]] would give rise to irreparable harm to Lessor for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Lessee of any such obligations, Lessor will, in addition to any and all other rights and remedies that may be available to Lessor in respect of such breach, be entitled to [seek ]equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
Lessee may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lessor. Any purported assignment or delegation in violation of this Section 28.10 is null and void. No assignment or delegation relieves Lessee of any of its obligations under this Agreement.
This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
Subject to the final sentence of this Section 28.12, this Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereof. The Parties hereby designate the Indemnitees other than Lessor as third-party beneficiaries of Section 22, having the right to enforce Section 22.
This Agreement and all exhibits and schedules attached hereto, and all matters arising out of or relating hereto, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of South Dakota, United States of America (including its statutes of limitations and South Dakota’s choice of law statutes, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of South Dakota.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement or any exhibits or schedules attached hereto, or any contemplated transaction[, including, but not limited to, contract, equity, tort, fraud, and statutory claims], in any forum other than the Circuit Court in and for Lincoln County, South Dakota. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in Lincoln County, South Dakota. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR ANY EXHIBITS OR SCHEDULES ATTACHED HERETO IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY EXHIBITS OR SCHEDULES ATTACHED HERETO, OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (a) NO REPRESENTATIVE OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION, (b) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (c) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (d) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 28.15.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any
term of this Agreement (except for any obligations of Lessee to make payments to Lessor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics or pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement;[ and] (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 10 consecutive days following written notice given by it under this Section 28.17, either Party/the other Party may thereafter terminate this Agreement upon 10 days' written notice.
Lessee agrees to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded, such further documents or other papers and to do all such things and acts as Lessor may[ reasonably] request in furtherance of the provisions and purposes of this Agreement and the transactions contemplated hereby.