FULL LEGAL NAME OF LESSEE:
GREEN GOLD NRG LTD
ADDRESS:___________________________________________________________
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WIND TURBINE
LOCATION IF DIFFERENT THAN ABOVE
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AUTHORISED REPRESENTATIVE
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WIND TURBINE DESCRIPTION/ |
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The term of this lease is for _________ months at an annual rate of __ % (Percent) based on a purchase price of $______ and commences on the date the lessor executes and signs this lease. The term ends on the expiration of the number of months in the initial term after the rent commencement date.
Lessee shall pay the rent payments shown above, the first of which shall be due on the first half yearly month of June or December of the year from the date of this lease, and subsequent payments shall be due semi annually in arrears thereafter. Rent payments shall be due whether or not lessee has received any notice that such payments are due.
Lessee shall indemnify lessor against, and hold lessor harmless from, any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including reasonable attorney fees arising out of, connected with, or resulting from the property subject to this lease, including, but not limited to the manufacture, selection, delivery, use, operation, or return of such property.
On lessor’s acceptance of this lease, lessor agrees to order the wind turbine subject to the lease from the seller on the terms and conditions of the purchase order initially attached to this agreement. Lessor to insert in this lease the identification data of the wind turbine when made available to lessor. Lessee acknowledges that lessee has selected (1) the wind turbine and (2) the seller from whom lessor is to purchase the wind turbine, and lessee acknowledges that lessor is neither a manufacturer nor a merchant and has made no recommendations with respect to the seller or the wind turbine.
Lessee assumes and shall bear the entire risk of loss, theft, destruction, or damage of or to any part of the wind turbine (“loss or damage”) from any cause whatsoever, whether or not covered by insurance, and no such loss shall release lessee of its obligation under this agreement in the event of loss or damage. Lessee, at the sole option of lessor, shall (a) at lessee’s expense, repair the wind turbine to the satisfaction of lessor; or (b) at lessee’s expense, and to the satisfaction of lessor, replace the wind turbine with similar or like wind turbine in good condition and repair and of comparable value, with clear title thereto in lessor; or (c) make payment to lessor the total of the amounts specified below:
A) All rental payments past due or currently owed to lessor under this lease.
On lessor’s receipt of the payment specified by subsections (b) above, lessee shall be entitled to whatever interest lessor may have in such damaged or stolen wind turbine, as is, where is, without warranty express or implied. The parties agree that the sum of the amount required by subsections (a) and (b) will equal the total amount payable to lessor in the event of “loss or damage.”
Lessee shall provide, maintain, and pay for (a) insurance against the loss or theft of the wind turbine, for its full replacement value, naming lessor as a loss payee and (b) public liability and property damage insurance naming lessor as an additional insured. All insurance shall be in a form and amount and with companies satisfactory to lessee and shall contain the insurer’s agreement to give twenty one days’ written notice to lessor before cancellation or material change of policy of insurance.
Without lessor’s prior written consent, lessee shall not (a) assign, transfer, pledge, or otherwise dispose of this lease, the wind turbine, or any interest therein or (b) sublet or lend the wind turbine or permit it to be used by anyone other than lessee or lessee’s employees.
Lessor may assign this lease or grant a subsidiary interest in the wind turbine in whole or part without notice to lessee, and lessor’s assignee or secured party may then assign this lease or the security agreement without notice to lessee. Each such assignee or secured party shall have all the rights, but none of the obligations, of lessor under this lease. Lessee shall recognize such assignments or security agreements and shall not assert against the assignees or the secured parties any defense counterclaim or offset lessee may have against lessor. In spite of any such assignment, lessor warrants that lessee shall quietly enjoy use of the wind turbine, subject to the terms and conditions of this lease. Subject to the foregoing, the lease inures to the benefit of and is binding on the respective heirs, legatees, personal representatives, successors, and assigns of lessor and lessee.
At lessee’s own risk, lessee shall use or permit the use of the wind turbine at a location of the lessee’s choice, and such wind turbine may be moved without lessor’s prior written consent. Lessee, at lessee’s expense, shall maintain the wind turbine in good repair, condition, and functional order, shall not use the wind turbine unlawfully, and shall not alter the wind turbine without lessor’s prior written consent. Lessor shall not be liable for loss of profit or other consequential damages resulting from the theft, destruction, or disrepair of the wind turbine, and there shall be no abatement of lease payments on account of any such theft, destruction, or disrepair.
On expiration of the lease term or on demand by lessor pursuant to Section Twelve, lessee, at lessee’s expense, shall return the wind turbine in good repair, ordinary wear and tear excepted, to such place as lessor may specify. On expiration of the first twelve months of the lease term and at the end of the lease term lessee shall have a call option granting the lessee right to purchase the wind turbine and its lease from the lessor; and the lessor shall have a put option granting the lessor the right to sell to the lessee the wind turbine and its lease. The purchase amount payable in each option is $___________ which amount shall be the total and final amount payable to the lessor and remove any further obligations of the lessee to the lessor.
The wind turbine is, and shall at all times remain, property of lessor, and lessee shall have no right, title, or interest except as expressly set forth in this lease. The wind turbine is and shall at all times be and remain personal property although the wind turbine or any part of it may now be or hereafter become in any manner affixed or attached to real property or any improvements. All additions or improvements to the wind turbine of any kind or nature made by lessee shall become component parts of the wind turbine, and title shall immediately vest in lessor and be governed by the terms of this lease.
A) Lessee shall be in default under this lease if lessee shall:
1) Fail to pay any rent, the payments on any other lease or indebtedness of lessee to lessor arising independently of this lease, or other amount required in this lease within twenty one days after the rent becomes due and payable;
2) Fail to perform or observe according to its terms any covenant contained in this lease, or any other instrument or document executed in connection with this lease;
3) Become insolvent (however defined), cease business as a going concern, make an assignment for the benefit of creditors, or cause a petition for receiver or in bankruptcy to be filed by or against lessee (including a petition for reorganization or an arrangement); or
4) Commit or fail to commit any act that results in jeopardising the rights of lessor or causes lessor to deem itself insecure as to its rights.
B) If lessee is in default under this lease, lessor, with or without notice to lessee, shall have the right to exercise concurrently or separately, and without any election of remedies to be deemed made, the following remedies:
1) Elect that the rental payments due be accelerated and the entire amount of rental be due immediately;
2) Terminate this lease;
3) Enter on lessee’s premises and without any court order or other process of law repossess and remove the wind turbine, whether with or without notice to lessee; any such repossession shall not constitute a termination of this lease unless lessor so notifies lessee in writing, and lessor shall have the right, at its option, to lease the wind turbine to any other person or persons on such terms and conditions as lessor shall determine; or
4) Sell the wind turbine to the highest bidder at public or private sale, at which sale lessor may be the purchaser.
In the event either sub-section 3 or 4 is exercised, there shall be due from lessee, and lessee will immediately pay to lessor, the difference between the total amount of rentals to be received from any third person or the purchase price at such sale, as the case may be, and the total unpaid rental provided to be paid, together with the estimated fair market value of the wind turbine for the original lease termination date, plus all costs and expenses of lessor in repossessing, releasing, transporting, repairing, selling, or otherwise handling the wind turbine.
Service of all notices under this agreement shall be sent by Australian registered or certified mail addressed to the party involved at its respective address set forth above or to such other address as the parties may hereafter substitute by written notice.
Lessee, on request, agrees to execute any instrument necessary to the filing and recording of this lease agreement or the wind turbine. Lessee further appoints lessor its true and lawful attorney to prepare, execute, and sign any and all security agreements, financing statements, or otherwise, in order to effectuate a lien on the property subject to this lease, and to file such instruments at the proper location or locations.
If any rental installment is not paid within thirty days after its due date, lessee shall pay to lessor a service charge or $20 together with any expenses incurred in collecting the late payment. Lessee shall also pay interest on any such late payment from the due date until payment at a rate up to the maximum rate allowed by law.
Lessor assumes no liability and makes no representation as to the treatment of this lease agreement by any federal, state, or local taxation authority.
Any controversy or claim arising out of or relating to this lease or its breach shall be settled by arbitration in accordance with the rules of _________, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Arbitration shall be held in the City of _________ , _________[state], and any question of law shall be decided in accordance with the laws of the State of _________.
Lessor does not warrant the fitness, merchantability, design, condition, capacity, suitability, or performance of the wind turbine leased. Lessor makes no express or implied warranties and leases the wind turbine “as is” and “with all faults.”
Warranties made by the seller and/or manufacturer of the leased wind turbine are assigned by lessor to lessee. In event of any claim concerning the location, installation, repair, or use of the wind turbine leased or any other claim concerning the wind turbine, regardless of cause or consequence, lessee’s only remedy, if any, is against the seller or manufacturer of the wind turbine. No defect regardless the cause or consequence shall relieve lessee from performance under this lease, including rental payments.
This instrument constitutes the entire agreement between lessor and lessee and is irrevocable for its term and for the aggregate rentals reserved above, and it shall not be amended, altered, or changed except by a written agreement signed by the parties. Lessee shall provide lessor with such corporate resolutions, opinions of counsel, financial statements, and other documents as lessor shall request from time to time. Time is of the essence of this lease. Any failure of lessor to require strict performance by lessee or any waiver by lessor of any provision of the lease shall not be construed as a consent or waiver of any other breach of the same or any other provision. If any portion of this lease is deemed to be invalid, it shall not affect the rest of this agreement. Headings or titles to the paragraphs of this lease are solely for the convenience of the parties and not an aid to the interpretation of this agreement.
Lessee applies to lessor for a lease of the above-described wind turbine for commercial purposes and agrees that this lease is not to be construed as a consumer contract. If lessor accepts by executing the lease below, lessee agrees to rent from lessor and lessor agrees to rent to lessee, the wind turbine, on all of the terms and conditions of this lease.
In witness whereof, each party has caused this agreement to be executed on the date indicated below.
For Lessor: Name:
[Date] [Signature]
Title
For Lessee: Green Gold NRG Ltd
[Date] [Signature]
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Name
[Title]