Attachment_1-Master_Lease-To-Purchase_Agreement.pdf

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MASTER LEASE-TO-PURCHASE AGREEMENT NO. __________

between

ALLIANCE FOR SUSTAINABLE ENERGY, LLC

Management and Operating Contractor of the

NATIONAL RENEWABLE ENERGY LABORATORY

and [Insert the legal name of your firm]

INTRODUCTION

This MASTER LEASE TO PURCHASE AGREEMENT (Agreement) is made and entered into by and between [insert the legal name of your firm], (Lessor), and the Alliance for Sustainable Energy, LLC (hereinafter called “Company”). This Agreement is in furtherance of the Company’s Prime Contract DE-AC36-08GO28308 with the United States Government, (Government), represented by the U.S. Department of Energy, (DOE) for the management and operation of the National Renewable Energy Laboratory (hereinafter called "NREL") and the performance of certain research and development work.

AGREEMENT

Whereas, Company has determined that it is necessary to acquire certain equipment in order to perform work at the NREL, and

Whereas, from time to time Company will identify such equipment as necessary for performance of Company's work, and

Whereas, the Lessor has agreed to provide funds for the purchase of equipment to be leased under this Agreement, and

Whereas, the Lessor is willing to lease to Company equipment that will be identified in accordance with this Agreement; and

NOW, THEREFORE, the parties, in consideration of the exchange of mutual promises contained herein, agree as follows.

1. LEASE OF EQUIPMENT

The Lessor shall lease to Company, Company shall lease from the Lessor the equipment mutually determined acceptable for lease under such Lease-to-Purchase (LTP) Order(s) which shall be executed between Company and the Lessor under the provisions of this Agreement. Each LTP Order, executed from time to time, shall include individual equipment descriptions, hereinafter referred to collectively as Equipment. Company will demonstrate its acceptance of the Equipment by executing and delivering to the Lessor an Acceptance Certificate in a form acceptable to the Lessor.

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2. TERM

This Agreement shall become effective upon the Lessor's signature acceptance of a Company-executed Agreement and will expire five (5) years after its execution or upon the completion of all orders issued under this Agreement whichever occurs later. The term of this Agreement will continue for such time as required to complete Company’s obligations to make payments under this Agreement, subject to default and cancellation provisions herein. The term of any payment schedule under this Agreement shall be selected by Company and shall be limited in duration to a minimum of 18 months and a maximum of 60 months. The term of each LTP Order added under this Agreement shall begin on the acceptance date for the Equipment as specified in the Acceptance Certificate, which shall be executed by the Company, and shall continue for the number of months specified in the LTP Order.

Notwithstanding any other provision of this Agreement and with respect solely to the use of this Agreement for adding LTP Orders, Company or the Lessor may, upon two (2) weeks’ notice in writing, terminate this Agreement, at no cost to either party.

3. PAYMENTS

In consideration of the promises and the agreements on the part of the Lessor herein, Company hereby agrees to pay to the Lessor lease payments for the Equipment after acceptance of the Equipment at the times determined for each accepted LTP Order. A Payment Schedule shall be established for each LTP Order based on the purchase price of the corresponding Equipment, adjusted for prepayment or early payment discount and/or accrual of progress payments. Each Payment Schedule shall be established based on a simple amortization schedule calculated to repay the adjusted purchase price during the period of the specified term. The total ceiling for all LTP Orders issued from this MLTP Agreement shall not exceed thirty million dollars ($30,000,000.00) cumulatively.

The first payment due date for the Equipment accepted shall be the first day of the month after the month following the date of acceptance. Based upon the purchase price for each LTP Order, Company hereby agrees to make lease payments in accordance with the Payment Schedules, payable in arrears. The Payment Schedules for each LTP Order shall show the Option Payment, which is the outstanding balance (which shall be simply calculated without the addition of prepayment penalties or fees) for each payment period. Company shall make all payments at the address of the Lessor, set forth below, or at such other address as the Lessor may, from time to time, designate in writing.

If any lease payment is not paid within ten (10) days of the due date, on the 11th day, interest shall accrue on the late payment, until paid, at the lease rate specified for the corresponding Payment Schedule. The Lessor shall invoice Company at least thirty (30) days prior to the due date of the current lease payment for each active LTP Order.

In the event Company elects to make payments, other than purchase option payments described in Section 4 below, in addition to scheduled lease payments, such payments shall either reduce the amounts of subsequent lease payments, be applied against a future individual lease payment, or reduce the term of the selected LTP Order, or any combination of these actions, at Company's sole discretion.

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4. PURCHASE OPTION

Company is hereby given the option (provided Company is not in default in the performance of any of its obligations hereunder) to purchase the Equipment under any LTP Order at any time after acceptance of the Equipment by paying the Option Payment related to the last completed lease payment of the corresponding Payment Schedule, plus a per diem charge for payments received after the due date reflected on that Schedule. The per diem rate will be based on the lease rate stated in the corresponding Payment Schedule and calculated on a three hundred sixty (360) day per year basis.

Company shall exercise such option to purchase the Equipment by notifying the Lessor of Company's intention to do so, in writing, not less than thirty (30) days before the proposed purchase date. Such notice may be delivered, mailed, emailed, or faxed to the Lessor's office as set forth below.

[Insert Lessor Name] Attention: [Insert Name] [Insert Address] [Insert City, State, Zip]

The Lessor shall keep Company advised of any change of the Lessor's address for such notice.

5. DEFAULT

The Lessor shall provide the Company’s Representative identified in Section 18 of this Agreement with written notice of any defaults or non-performance and offer a cure period of at least thirty (30) days to remedy the default or non-performance before the Lessor's default rights are perfected or exercised.

Company shall be in default upon the occurrence of any one of the following events: failure to pay the lease payments, or any additions thereto, within ten (l0) days of the due date thereof except for cancellation in accordance with Section 8; failure to observe or perform any other term, condition or covenant of the Agreement and such failure shall continue for a period of thirty (30) days after notice.

Upon any event of default, and at any time following the thirty (30) day cure period specified above during which the defect has not been cured or from time to time thereafter, the Lessor may, at its option and after notice to, or demand upon, terminate all or any of Company's rights under the Agreement and thereupon Company shall forthwith surrender the Equipment of any such terminated LTP Order and allow Lessor to exercise any of its rights in the Equipment. All of the Lessor's rights and remedies herein are cumulative and may be exercised concurrently or separately. These rights afforded the Lessor shall be in addition to any rights or remedies set forth in any LTP Order issued under this Agreement.

In the event the Lessor defaults in the performance of any of the terms and conditions herein all of the Lessor's rights hereunder, at the option of Company, shall terminate and the Lessor shall become liable for any reprocurement costs incurred by Company, including, but not limited to, any costs associated with securing a higher lease rate from a new lessor.

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6. TAXES

As applicable Company shall, subject to the below listed conditions, reimburse the Lessor for all license fees, assessments, and sales, use, property and other taxes lawfully imposed during the term hereof upon any Equipment by any state, federal or local government, based upon the ownership, leasing, renting, sale, possession or use of the Equipment, together with any penalties or interest in connection therewith not due to the fault or negligence of the Lessor excepting state, federal, or local taxes or payments in lieu thereof imposed upon or measured by the income of the Lessor.

All sums reimbursed to the Lessor under this Section shall be remitted by the Lessor to the appropriate taxing agency and shall fully discharge Company’s obligations as provided in this Section. The rights under this Section 6 shall survive until claims by the applicable taxing authority are barred by any applicable statute of limitations.

The Lessor agrees to cooperate with Company and do all acts reasonably necessary and appropriate to secure and maintain tax exemption of the property leased hereunder pursuant to any Federal, state or local government.

Conditions

A. Company shall have the right to conduct all administrative and judicial proceedings with respect to the charges to be reimbursed pursuant to this paragraph or, at its option, Company shall have the right to direct such a defense and bear the costs thereof.

B. No reimbursement shall be made if: the Lessor or its assignee makes any agreement without

Company’s consent with the applicable taxing authority in the course of settlement, compromise or negotiation that was known, or that reasonably should have been known, by the Lessor or its assignee, to impair or foreclose the effective exercise by Company of its rights under subparagraph A, above; or the Lessor or its assignee fails to cooperate fully with Company at Company's expense in any proceeding undertaken or directed in accordance with subparagraph A., above, including but not limited to, personnel availability for interviews, affidavits, testimony and/or consultation, and document availability for inspection and/or copying relating to this Agreement, including those accounting records describing the treatment of funds provided by Company pursuant to this Agreement.

C. The Lessor and its assignee shall use commercially reasonable efforts to refer all inquiries regarding the use and location of the Equipment subject to this Agreement to Company.

D. The Lessor and its assignee shall use best efforts to give prompt written notice to Company of any inquiry or notice regarding the charges to be reimbursed pursuant to this paragraph from the applicable taxing authority whether written or oral.

E. No reimbursement shall be made for penalties if such penalties are assessed against the

Lessor for any reason other than the failure to file returns, on the advice of Company, with the applicable taxing authority and pay any charges assessed in accordance with law. None of the preceding conditions shall be deemed waived by Company unless such a waiver expressly references this paragraph, is in writing, and is signed either by an officer of Company or appropriate Acquisition Services Representative.

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7. TITLE

The Lessor covenants that it is the sole owner of Equipment identified in each LTP Order , and that no other person, party, firm or corporation has any right, title, interest in or to same and that, during the term of an LTP Order, said Lessor will not sell or encumber said property, or any interest therein, except subject to the rights given Company by virtue of this Agreement; and except that the Lessor may sell, assign and transfer its interest in an LTP Order and the property covered hereby to its successors and assigns pursuant to Section 10.

8. NON-AVAILABILITY OF FUNDS

The Lessor understands that funding of LTO Orders placed under this Agreement is subject to the future availability of annually appropriated, apportioned, and allotted funds under Contract DE- AC36- 08GO28308 or a successor prime operating contract, and that this Agreement must be made and administered consistent with 31 U.S.C §1341 and 41 U.S.C. §11. Accordingly, funding of lease costs for LTP Orders placed under this Agreement shall be provided on a fiscal year basis, subject to a determination by Company and/or DOE that sufficient appropriated and apportioned funds are available to be allotted for such costs. Company agrees to give written notice not later than thirty (30) days before the beginning of each successive fiscal year that funds for the next fiscal year may be lawfully applied to the LTP Orders placed under this Agreement subject to the continued availability of funds in the ensuing fiscal year. In the event that no funds are appropriated and/or apportioned, or a determination is not made by the DOE that sufficient funds are available to continue an LTP Order and no written notice of funds is made within the time prescribed, then the affected LTP Order shall end on the last day of the current fiscal year which funding is provided without penalty or expense of any kind to Company. If funding previously available for an LTP Order is withdrawn during the current fiscal year as a result of budgetary action by the Office of Management and Budget or by Congress, Company will notify the Lessor of this occurrence and may cancel the LTP Order in whole or in part upon two (2) weeks written notice to the Lessor. Such cancellation shall be without penalty to Company. Upon cancellation of an LTP Order and upon written direction from the Lessor, Company shall deliver the Equipment to the Lessor within the continental United States consistent with the terms and conditions described in Section 15 of this Agreement.

Lessor understands and agrees that payment in full of the Option Payment related to the last completed lease payment of the corresponding Payment Schedule as specified in Section 4 shall act to transfer Lessor’s rights under the LTP Order to Company, and/or the Government, as applicable. Upon payment of the Option Payment related to the last completed lease payment of the corresponding Payment Schedule as specified in Section 4, Lessor shall transfer its rights and shall furnish title to Company in a manner and method that Company deems appropriate. Nothing in this Agreement shall be construed to require a violation of 31 U.S.C. §1341 and 41 U.S.C. §11.

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9. PAYMENT OBLIGATION

Subject only to Section 8 of this Agreement, Company's obligation to make all payments that shall or may become due hereunder, including but not limited to lease payments or other sums due as additional rent, shall not be affected by any defect in condition, operation, fitness for use, damage or destruction of or to the Equipment or any interruption or cessation of use or possession thereof for any reason whatsoever or any insolvency, bankruptcy, reorganization or similar proceedings instituted by or against Company.

10. ASSIGNMENT

This Agreement or any right, remedy or obligation hereunder is assignable in whole or in part by Company to Government or a successor in interest. This Agreement, and any interest in it, is not assignable by the Lessor, in whole or in part, without the prior written approval of Company.

11. POSSESSION OF EQUIPMENT

Company shall not relinquish its possession of the Equipment nor shall Company assign (except to a successor) interest as the Government’s managing and operating contractor for the National Renewable Energy Laboratory or sublet the Agreement, any unit of the Equipment, or any interest in either, unless any such assignee is of equivalent credit rating as Company or the remaining payments are revised accordingly to account for such change in credit rating, by amendment hereto, and assumes all of the obligations under this Agreement, and the Lessor shall have given its prior written consent, which consent shall not be unreasonably withheld.

12. PASSAGE OF TITLE TO THE GOVERNMENT

Upon completion of the term of an LTP Order, and provided Company has complied with all provisions of this Agreement on its part to be kept and performed, and upon the completion of the payment obligations for each LTP Order, all the right, title and interest of said Lessor in and to said Equipment shall automatically vest in and become the property of the U.S. Government, and said Lessor covenants that it will thereupon execute and tender to Company, for further consideration of one dollar, a bill of sale of all its right, title and interest in and to said property as evidence of said transfer of title, anything in this Agreement to the contrary notwithstanding.

13. RISK OF LOSS: DAMAGE TO PERSONS AND PROPERTY

Except as outlined in this Section, upon acceptance, Company assumes all risk of loss of or damage to the Equipment from any cause whatsoever until the Equipment is returned to the Lessor and no such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof shall relieve Company of the obligation to make lease payments or to perform any other obligation under this Agreement. Company shall notify the Lessor within sixty (60) days of loss or destruction of a determination to replace or repair, or to remit the Option Payment.

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In the event an individual LTP Order requires Lessor to obtain insurance, Lessor assumes all risk of loss of or damage to the Equipment from any cause whatsoever until the passage of title of the Equipment to the Government as described in Section 12. No such loss of or damage to the Equipment nor defect therein nor unfitness or obsolescence thereof shall relieve Company of the obligation to make lease payments or to perform any other obligation under this Agreement. Company shall notify the Lessor within sixty (60) days of loss or destruction of a determination to replace or repair, or to remit the Option Payment.

This provision in no way relieves Company of its obligation to make payments in accordance with Section 9. Company agrees that the Lessor shall not be liable to Company for any liability, claim, loss, damage, injury, or expense of any kind or nature caused, or alleged to be caused, directly or indirectly, by the negligence of Company, its agents, servants and invitees, the inadequacy of any unit of the Equipment for any purpose, any deficiency or defect in any unit of the Equipment, the use or performance of any unit of the Equipment, delays in delivery, interruption or loss of service in the use or performance of any unit of the Equipment, the seizure of the Equipment by any governmental authority or person, any hostile or warlike action by any governmental authority or person, any insurrection, rebellion, revolution, civil war, usurped power or action taken by any authority against the same, any radiation or radioactive contamination, or any loss of business, profits or other indirect, special or consequential damages, of any nature, whether or not resulting from any of the foregoing.

14. EQUIPMENT TO REMAIN PERSONAL PROPERTY

Company will not permanently attach the Equipment to any personal or real property and asserts that it will keep the Equipment as personal property and not permit it to become a fixture.

15. INSTALLATION AND USE OF EQUIPMENT

All Equipment shall, at Company's expense, except as provided in purchase orders for the Equipment, be installed, operated and disconnected in accordance with any applicable installation and operation manuals or instructions of the manufacturer of the Equipment, by competent and duly qualified personnel in Company's direct employment or under Company’s direct supervision with the assistance, as applicable, of the field service and systems engineering representatives of the manufacturer.

Company agrees to have any installation site prepared in accordance with the manufacturer's installation instructions.

Company shall retain the Equipment at NREL unless the Lessor consents, in writing, to its removal. If Company relocates the Equipment from its NREL location(s), Company agrees that all details of the move shall be arranged and supervised in accordance with manufacturer standards for movement of the Equipment. Company agrees that Company will use said Equipment for the ordinary and sole purpose for which it is designed. It is further agreed that, during the term of this Agreement, Company shall be responsible for and shall pay all charges for upkeep and/or storage of said Equipment and shall make, at its own expense, any and all repairs and supply and pay for any and all materials needed to maintain said Equipment in proper condition.

All repairs, alterations and replacements, which shall include all engineering changes prescribed by the manufacturer, excluding any operating software, shall become the Lessor's property and shall be

Master LTP Agreement - 8 -subject to this Agreement when incorporated into or attached to any unit of the Equipment. Company shall have the option, upon any return of the Equipment to the Lessor, subject to the authorization of DOE either to remove any and all attachments and additions, subject to the condition that each unit is restored to its original condition, less normal wear and tear; or to allow such additions and attachments to become the property of the Lessor unless the Lessor shall request that the attachments and additions be removed; in which case the unit for which such request is made shall be restored to its original condition, less normal wear and tear, prior to redelivery to the Lessor.

All costs incurred in connection with the operation of each unit, including but not limited to labor, materials, energy and supplies shall be borne by Company. All materials, supplies and accessories used to operate the Equipment are to meet the manufacturer's standard specifications.

Company shall, at Company's sole expense, install, use, operate and maintain the Equipment in good condition and working order, ordinary wear and tear excepted, in full compliance with all applicable laws, ordinances, rules and regulations or of any regulatory or other governmental bodies having jurisdiction; and shall without limiting the foregoing, duly apply for, obtain and maintain in full force and effect all permits and licenses necessary for such installation, use, operation and maintenance, and shall further prepare and timely file, or deliver to the Lessor in time for such filing, if the same may only be filed by the owner of the Equipment involved, any and all applications, certifications and reports required to be filed.

16. MANUFACTURER'S WARRANTY

The Lessor hereby assigns to Company for and during the Term of any LTP Order, all manufacturer's warranties and guarantees, expressed or implied, issued on, associated with or applicable to each unit of the Equipment hereunder and hereby authorizes Company to obtain all warranties and services furnished in connection therewith by the manufacturer. During this Agreement, the Lessor shall execute such documents of assignment as Company may reasonably request and will otherwise use its best efforts to make available to Company all of its rights under any of the manufacturer's warranties on the Equipment.

17. REPRESENTATIONS, COVENANTS AND WATTANTIES OF COMPANY AND LESSOR

A. Company represents, covenants and warrants during the term of the Agreement:

i. Company will not avoid obligating funds if operating funds for the then-current fiscal year are appropriated and allotted to it for the Equipment or other equipment with similar functional capability; and

ii. Company has selected the Equipment and desires to lease the Equipment for use in the performance of its operation of NREL for DOE. Lessor, at Company’s request shall lease the Equipment to Company as herein provided. Lessor’s only role shall be facilitating the financing of the Equipment for Company. Lessor shall not be liable for specific performance or for damages if the supplier or manufacturer of the Equipment for any reason fails to install the Equipment. Company acknowledges that Lessor is

Master LTP Agreement - 9 -not a manufacturer or dealer in the Equipment (or similar equipment) and will not inspect the Equipment prior to delivery and installation at NREL.

B. Lessor represents, covenants and warrants during the term of this Agreement:

i. Lessor has not and will not cause any lien or encumbrance on the Equipment; and

ii. To the best of Lessor’s knowledge there are no governmental proceedings or litigation pending, threatened or contemplated (or any basis therefore) wherein an unfavorable decision, ruling or finding might adversely affect the transaction contemplated in or the validity of this Master Lease-Purchase Agreement.

18. NOTICES

All notices shall be in writing and sent by prepaid, overnight, Registered or Certified mail addressed to the party to whom notice is intended to be given at such address as is specified herein or such other address as shall have been subsequently given in writing by such party for the purpose of notice. Any notice complying with the above provisions shall be deemed to have been received by such party on the fifth day after deposit in the mail.

A. Lessor: At such address as is specified under Section 4, of this Agreement.

B. Company: Alliance for Sustainable Energy, LLC Attention: Brittany Decker 15013 Denver West Parkway Golden, CO 80401

19. WAIVER BY LESSOR

The Lessor's failure at any time to require strict performance by Company of any of the provisions hereof shall not waive or diminish the Lessor's right thereafter to demand strict compliance therewith or with any other provisions. In the event Company fails to comply with any provision of this Agreement, the Lessor shall have the right, but shall not be obligated, to effect such compliance in whole or in part.

Company shall forthwith reimburse any allowable payments and expenses of the Lessor, along with any applicable late charges, as items of additional rent hereunder. No waiver by the Lessor of any of its rights hereunder shall be effective unless express and in writing. No effective waiver by the Lessor of any of its rights shall be effective to waive any other rights. No obligation of the Lessor, except as otherwise specified herein, shall survive the Agreement.

20. WAIVER BY COMPANY

Company's failure at any time to require strict performance by the Lessor of any of the provisions hereof shall not waive or diminish Company's right thereafter to demand strict compliance therewith or with any other provisions. In the event the Lessor fails to comply with any provision of this Agreement, Company shall have the right, but shall not be obligated, to effect such compliance in whole or in part.

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No waiver by Company of any of its rights hereunder shall be effective unless express and in writing.

No effective waiver by Company of any of its rights shall be effective to waive any other rights. No obligation of Company, except as otherwise specified herein, shall survive the Agreement.

21. MODIFICATION

The Lessor and Company agree that any modifications or changes to this Agreement hereto must be in writing and must be signed by both parties.

22. QUIET ENJOYMENT

The Lessor covenants that Company shall have quiet use and enjoyment of the Equipment without suit, trouble, or hinderance from Lessor during the term of this Agreement so long as Company is not in default thereunder.

23. RELEASE OF INFORMATION

Information regarding this Agreement or the undertaking or any data developed hereunder shall not be released without Company’s Acquisition Services Representative’s prior written approval. The name of Alliance for Sustainable Energy LLC, NREL or any of its departments, or the U.S. Government shall not be used in any publications, news releases, advertising, speeches, technical papers, photographs, or other releases of information without Company Acquisition Services Representative’s prior written approval.

24. EQUAL OPPORTUNITY

The Federal Acquisition Regulation clause, FAR 52-222-26, Equal Opportunity (Apr 1984), is incorporated by reference as part of this Agreement.

25. TERMS AND CONDITIONS

In the event of conflict or inconsistency between the terms and conditions herein or other Company documents referenced in this Agreement, the order of precedence shall be as follows.

a. Company LTP Orders, including their appendices and attachments, executed pursuant to this

Agreement.

b. Master Lease-To-Purchase Agreement including appendices and attachments herein.

c. NREL Standard Terms and Conditions: Appendix B-8.

d. NREL Intellectual Property Provisions: Appendix C-3.

e. NREL Terms and Conditions for Subcontracts in excess of $700.000.00: Appendix D.

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26. AGREEMENT BINDING

This Agreement shall, in every respect, be binding on the parties hereto and their respective successors and assigns.

27. INTEGRATION AND GOVERNING LAW

This Agreement shall be governed by Colorado law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Denver, Colorado.

28. ENTIRETY OF AGREEMENT

This Agreement and all attachments shall constitute the entire agreement concerning the Equipment and shall supersede all other agreements, either oral or written, of the parties with respect to the matters referred to herein, and shall, in every respect, be binding on the parties hereto, and their respective successors and assigns. Any provision of this Agreement found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this Agreement.

29. ATTACHMENTS

Sample Lease to Purchase Order

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date(s) shown below.

[Insert the legal name of your firm] ALLIANCE FOR SUSTAINABLE ENERGY, LLC

BY: BY:

TITLE: TITLE:

DATE: DATE:

Acquisition Services Representative:

Brittany Decker Phone Number: (303) 384-7387 Fax Number: (303) 630-2109 E-Mail: Brittany.Decker@NREL.gov