|
<br />OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR ENTITY ARISING OUT OF OR IN
<br />CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT AND THE MAINTENANCE
<br />THEREOF. Lessor hereby assigns to Lessee during the Lease Term, so long as no Event of Default has occurred
<br />hereunder and is continuing, all manufacturer's warranties, if any, expressed or implied with respect to the
<br />Equipment, and Lessor authorizes Lessee to obtain the customary services furnished in connection with such
<br />warranties at Lessee's expense. Lessee's sole remedy for the breach of any such manufacturer's warranty shall be
<br />against the manufacturer of the Equipment, and not against Lessor. Lessee expressly acknowledges that Lessor
<br />makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such
<br />warranties of the manufacturer of the Equipment.
<br />
<br />5. RETURN OF EQUIPMENT. Unless Lessee shall have exercised its purchase option as provided in Section
<br />20 hereof, upon the expiration of earlier termination of this Lease pursuant to the terms hereof, Lessee shall, at its
<br />sole expense but at Lessor's option, return the Equipment to Lessor to any location in the continental United States
<br />designated by Lessor.
<br />
<br />6. NON-APPROPRIATION OF FUNDS; NON-SUBSTITUTION. Notwithstanding anything contained in this
<br />Lease to the contrary, in the event no funds or insufficient funds are appropriated and budgeted or are othelWise
<br />unavailable by any means whatsoever in any fiscal period for Lease Payments due under this Lease, Lessee will
<br />immediately notify Lessor or its assignee in writing of such occurrence and this Lease shall terminate on the last
<br />day of the fiscal period for which appropriations have been received or made without penalty or expense to
<br />Lessee, except as to (i) the portions of Lease Payments h~rein agreed upon for which funds shall have been
<br />appropriated and budgeted or are othelWise available and (Ii) Lessee's other obligations and liabilities under this
<br />Lease relating to, or accruing or arising prior to, such termination. In the event of such termination, Lessee agrees
<br />to peaceably surrender possession of the Equipment to Lessor or its assignee on the date of such termination In
<br />the manner set forth in Section 5 hereof and Lessor will have all legal and equitable rights and remedies to take
<br />possession of the Equipment. Notwithstanding the foregoing, Lessee agrees (i) that it will not cancel this Lease and
<br />this Lease shall not terminate under the provisions of this Section if any funds are appropriated to it, or by it, for
<br />the acquisition, retention or operation of the Equipment or other equipment or services performing functions similar
<br />to the functions of the Equipment for the fiscal period in which such termination would have othelWise occurred or
<br />for the next succeeding fiscal period, and (Ii) that it will not during the Lease Term give priority in the application of
<br />funds to any other functionally similar equipment or to services performing functions similar to the functions of the
<br />Equipment. This section will not be construed so as to permit Lessee to terminate this Lease in order to purchase,
<br />lease, rent or othelWise acquire the use of any other equipment or services performing functions similar to the
<br />functions of the Equipment, and, if this Lease terminates pursuant to this Section, Lessee agrees that during the
<br />fiscal period immediately following the fiscal period in which such termination occurs it will not so purchase, lease,
<br />rent or othelWise acquire the use of any such other equipment or services.
<br />
<br />7. REPRESENTATIONS, COVENANTS AND WARRANTIES. Lessee hereby represents, covenants and
<br />warrants to Lessor as of the date hereof and at all times during the Lease Term that (i) Lessee is a state or a fully
<br />constituted political subdivision therof, or its obligations hereunder constitute obligations issued on behalf of a
<br />state or a political subdivision therof, and Lessee do or cause to be done all things necessary to preserve and
<br />keep in full force and effect its existence and this Lease; (Ii) Lessee has full power and authority under the
<br />constitution and laws of state in which it is located to enter into this Lease and the transactions contemplated
<br />hereby, and to perform all of its obligations hereunder; (Iii) each officer of Lessee executing this Lease has been
<br />duly authorized to execute and deliver this Lease under the terms and provisions of a resolution of Lessee's
<br />goveming body, or by other appropriate official action; (iv) the execution, delivery and performance of this Lease
<br />and all documents executed in connection herewith, including, without limitation, Schedule A hereto and the
<br />Delivery and Acceptance Certificate referred to in Section 3 hereof (this Lease together with all such documents
<br />shall be collectively referred to herein as the "Lease Documents") have been duly authorized by all persons,
<br />govemmental bodies and agencies necessary to authorize and approve this Lease; (v) the Lease Documents
<br />have been duly executed and delivered by and constitute the valid and binding Obligations of Lessee, enforceable
<br />against Lessee in accordance with their respective terms; (vi) the execution, delivery and performance of this
<br />Lease by Lessee shall not (a) violate any federal, state or local law or ordinance, or any order, writ, injunction,
<br />decree, rule or regulation of any court or other governmental agency or body applicable to Lessee; or (b) conflict
<br />with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond,
<br />mortgage, indenture, agreement, deed of trust, lease or other obligation to which Lessee is bound, if such conflict,
<br />breach or violation would give rise to any right of termination, cancellation or acceleration under any of the terms,
<br />
<br />Pags: 20f7
<br />Document: texasagr.doc rev.0397
<br />
|