Rental Contract
EQUIPMENT LEASE AGREEMENT
This Equipment Lease Agreement (as it may be amended from time to time, this “Agreement”),
dated as of [DATE], is entered into by and between Bighorn Rentals LLC, a Colorado limited
liability company having an address at 3625 Ivy St
Denver, CO 80207 (“Lessor”), and Lessee (as defined on the signature page of this Agreement)
( Lessee together with Lessor, the “Parties,” and each, a “Party”).
1. Equipment. Lessor hereby leases the Units described herein (the “Units,” and each, a
“Unit”) to Lessee and Lessee hereby accepts the Units for all purposes subject to the terms and
conditions of this Agreement. The delivery location and delivery date are listed herein. The
date Lessee shall take possession of the Units (the “Commencement Date”) and the date of the
expiration of Lessee’s rental of the Unit (the “Expiration Date”) are listed herein. Lessor shall
use reasonable efforts to meet the estimated delivery date, but Lessor shall have no
responsibility or liability for delays in delivery. 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”).
2. True Lease and Security Interest. The Parties intend that this Agreement shall constitute a
true lease under applicable law. Lessor has title to the Units at all times. 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. 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.
3. Net Lease. This is a net lease.
4. 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.
5. Rent. During the Term for any Unit, Lessee shall pay to Lessor rent as stated herein
(“Rent”), which shall be payable in full on the Commencement Date. 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 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.
6. Fuel. For Units that use fuel, Lessee has three options: (a) Prepay Fuel Option - Lessee
may purchase a full tank of fuel for the Units at the start of the rental, in which case a
“convenience charge” will appear on this Contract (calculated by multiplying the estimated fuel
capacity of Units by the Prepay per gallon rate). As an added benefit, Lessee may return the
Units full of fuel and the convenience charge will be refunded (however, if not returned full,
Lessee will not obtain any credit for fuel left in the Units upon return); (b) Pay on Return
Option - if Lessee returns Units with less fuel than when received, Lessee shall pay a refueling
charge (calculated by multiplying gallons required to refill tank with fuel to level when
received, by the Pay on Return per gallon rate); and (c) Return Full Option – if Lessee returns
the Units with at least as much fuel as when it was received (most Lessor Units comes with a
full tank of fuel, but not all), no fuel charge will be assessed. The cost of Lessee refueling Units
itself will generally be lower than the Prepay Fuel Option or the Pay on Return Option;
however, these options each allow for the convenience of not refueling. Lessee agrees that none
of these options are a retail sale of fuel.
7. Payment Mechanics. Lessee shall pay all amounts due under this Agreement on the
applicable due date in US dollars by cash, check or credit card in immediately available funds.
A late fee equal to the lesser of 3% per month or the maximum rate permitted by law shall be
assessed on all delinquent accounts, until paid in full. Lessee shall reimburse Lessor for all costs
incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment
of any late charge does not excuse Lessee of any default under this Agreement. Lessee shall pay
a fee of $75 for each check returned for lack of sufficient funds.
8. 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.
9. Permitted Use. Lessee agrees and warrants that (a) Lessor has no control over the manner
in which the Units are operated during the Term by Lessee or any third party that Lessee
implicitly or explicitly permits, (b) prior to each use and its return to Lessor, Lessee shall
inspect the Units to confirm that the Units are in good condition, without defects, readable
decals are on the Units, and the Units are suitable for Lessee’s intended use; (c) Lessee shall
immediately stop use and notify Lessor if the Units are damaged, unsafe, disabled,
malfunctioning, warning lights come on, levied upon, threatened with seizure, Lost, or if any
incident occurs; (d) Lessee has received from Lessor all information needed or requested
regarding the operation of the Units; (e) Lessor is not responsible for providing operator or
other training unless Lessee specifically requests in writing and Lessor agrees to provide such
training (Lessee being responsible to obtain all training that Lessee desires prior to the Unit’s
use); (f) Lessor is not responsible for Lessee’s obligation to provide reasonable
accommodation(s) to any (disabled) Authorized Individual(s); (g) the Units shall be used and
maintained in a careful manner, within the Unit’s capacity and in compliance with all applicable
laws, regulations, as well as all operating and safety instructions provided on, in or with the
Units and all applicable federal, state and local laws, permits and licenses; (h) the Units shall be
kept in a secure location; and (i) Lessee shall provide Lessor with accurate and complete
information, which Lessor relies upon to provide the appropriate Units to Lessee.
10. 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 following: (a) Lessee shall comply with all applicable law;
(b) Lessee shall only allow Authorized Individuals to operate the Units, however Lessee is
responsible for the Units and its use during the Rental Period regardless of the user.
“Authorized Individuals” shall be defined as individuals that Lessee allows to operate the
Units on its behalf who are properly trained to use the Units, at least 18 years old and are not
under the influence of any drugs, alcohol, substances or otherwise impaired while operating the
Units; (c) 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; (d) Lessee shall keep the Units free and clear of all liens; and (e) 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.
11. Lessee’s Use of Equipment.
11.1 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.
11.2 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.
12. Maintenance and Mandatory Modifications.
12.1 Lessee, at its sole expense and consistent with standard industry practice for
similar equipment, 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.
12.2 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).
12.3 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.
12.4 If Lessee incorporates or installs any part in or attaches any part to a Unit,
including without limitation any replacement or addition under Section 12.3, 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.
13. Loss.
13.1 From the Commencement Date through the expiration or earlier termination of
the Term, 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 one (1) day of learning of
any such Loss. After a Loss, Lessee shall (a) immediately notify Lessor, the police, if
necessary, and Lessee’s insurance carriers; (b) secure and maintain the Units and the
surrounding premises in the condition existing at the time of such Loss, until Lessor or its
agents investigate; and (c) immediately submit copies of all police or other third party
reports to Lessor. Lessor shall have the immediate right, but not obligation, to reclaim any
Units involved in any incident.
13.2 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 (“Loss Payment Date”), all
rent and other amounts due prior to the Loss Payment Date with respect to such Unit. (the
“Loss Payment”). This Agreement shall terminate with respect to any materially impaired
Unit on receipt by Lessor of the corresponding Loss Payment. 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.
13.3 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 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.
14. Insurance. During the Rental Period, Lessee shall maintain, at its own expense, the
following minimum insurance coverage: (a) for Lessees using Units for non-personal use,
general liability insurance of not less than $1,000,000 per occurrence, including coverage for
Lessee’s contractual liabilities herein such as the release and indemnification clause contained
in Section 14; (b) for Lessees using Units for non-personal use, property insurance against loss
by all risks to the Units, in an amount at least equal to the FMV thereof, unless RPP is elected at
the time of rental and paid for prior to any Incident; (c) worker’s compensation insurance as
required by law; and (d) automobile liability insurance (including comprehensive and collision
coverage, and uninsured/underinsured motorist coverage), in the same amounts set forth in
subsections (a) and (b), if the Units is to be used on any roadway. Such policies shall be
primary, non-contributory, on an occurrence basis, contain a waiver of subrogation, name
Lessor and its agents as an additional insured (including an additional insured endorsement) and
loss payee, and provide for Lessor to receive at least 30 days prior written notice of any
cancellation or material change. Any insurance that excludes boom damage or overturns is a
breach. Lessee shall provide Lessor with certificates of insurance evidencing the coverages
above prior to any rental and any time upon Lessor’s request. To the extent Lessor carries any
insurance, Lessor’s insurance will be considered excess insurance. The insurance required
herein does not relieve Lessee of its responsibilities, indemnification, or other obligations
provided herein, or for which Lessee may be liable by law or otherwise.
15. LIMITED DAMAGE WAIVER ADDENDUM. Lessor offers an optional limited
damage waiver which is a partial waiver of claims for physical damage or destruction of
Covered Items. IT IS NOT INSURANCE, NOR IS IT A WARRANTY. If offered, the terms of
the Limited Damage Waiver Addendum shall be incorporated herein.
16. Default.
16.1 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 or (c) Lessee becomes insolvent
or bankrupt.
16.2 If an Event of Default occurs, 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; and (f) exercise any other
right or remedy available to Lessor at law, in equity, by statute, in any other agreement
between the Parties, or otherwise.
17. Assumption of Liability. DURING THE RENTAL PERIOD, LESSEE
ASSUMES ALL RISK ASSOCIATED WITH THE POSSESSION, CONTROL OR USE
OF THE UNITS, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH,
RENTAL CHARGES, THEFT, LOSSES, DAMAGES AND DESTRUCTION,
INCLUDING LESSEE TRANSPORTATION, LOADING AND UNLOADING,
WHETHER OR NOT THE LESSEE IS AT FAULT.
18. 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 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.
19. Return of Units.
19.1 Lessee shall, at its sole expense and risk, no later than the Expiration Date or the
earlier termination of the Term for any Unit, return such Unit to a location that shall be
designated by Lessor in its sole discretion.
19.2 Lessee shall cause any Unit returned under this Agreement to be in at least as
good condition as when delivered to Lessee, including without limitation the removal of any
marks that Lessee is permitted to apply pursuant to this Agreement, 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 was 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.
20. Miscellaneous.
20.1 The headings in this Agreement are for reference only and shall not affect the
interpretation of this Agreement.
20.2 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.
20.3 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.
20.4 No amendment to this Agreement is effective unless it is in writing and signed
by an authorized representative of each Party to this Agreement.
20.5 No waiver under this Agreement is effective unless it is in writing 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.
20.6 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.
20.7 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 Agreement is null and void. No assignment or delegation
relieves Lessee of any of its obligations under this Agreement.
20.8 This Agreement is binding on and inures to the benefit of the Parties hereto and
their respective successors and permitted assigns.
20.9 Subject to the final sentence of this Section 20.9, 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 178, having the
right to enforce 178.
20.10 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 Colorado, United States of
America (including its statutes of limitations), 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 Colorado.
20.11 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 courts of the State of Colorado sitting in
Denver County, and any appellate court from any thereof and irrevocably and
unconditionally submits to the exclusive jurisdiction of such courts. 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.
20.12 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.
20.13 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.
20.14 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. The Impacted Party shall give
notice within 3 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 20.14, either Party may thereafter terminate this Agreement upon 3
days’ written notice.
20.15 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 request in furtherance of the
provisions and purposes of this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date
first above written