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<br />It is Lessee's intent to make Lease Payments for the full Lease Term if funds are <br />legally available therefore, and in that regard Lessee represents that the use of <br />the Equipment is essential to its proper, efficient and econom~c op~ration. <br /> <br />4. NONAPPROPRIATION OF FUNDS. In the event no funds or insufficient funds are <br />appropriated and budgeted or are otherwise available by any means whatsoever in any <br />fiscal period for Lease Payments under this Lease, then the Lessee will immediately <br />notify the Lessor or its assignee of such occurrence and this Lease shall terminate <br />on the last day of the fiscal period for which appropriations were received without <br />penalty or expense to Lessee of any kind whatsoever, except as to the portions of <br />Lease Payments otherwise available. In the event of such termination, Lessee <br />agrees to peaceably surrender possession of the Equipment to Lessor or its assignee <br />on the date of such termination, packed for shipment in accordance with <br />manufacturer specifications and freight prepaid and insured to any location in the <br />continental United States designated by Lessor. Lessor will have all legal and <br />equitable rights and remedies to take possession of the Equipment. <br /> <br />Notwithstanding the foregoing, Lessee agrees that: [i] it will not cancel this <br />Lease under the provisions of this Section if any funds are appropriated to it, or <br />by it, for the acquisition, retention or operation of the Equipment or other <br />equipment performing functions similar to the Equipment for the fiscal period in <br />which such termination occurs or the next succeeding fiscal period thereafter and <br />Iii] it will not during the Lease Term give priority in the application of funds to <br />any other functionally similar equipment. This paragraph will not be construed so <br />as to permit Lessee to terminate this Lease in order to acquire any other equipment <br />or to allocate funds directly or indirectly to perform essentially the same <br />application for which the Equipment is intended. <br /> <br />5. LIMITATION ON WARRANTIES. Lessee acknowledges and agrees that the Equipment is <br />of a size, design, and capacity selected by Lessee, that Lessor is neither a <br />manufacturer nor a vendor of such equipment and that LESSOR HAS NOT MADE, AND DOES <br />NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH <br />RESPECT TO THE MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, <br />FITNESS FOR USE, OR SUITABLILITY OF THE EQUIPMENT IN ANY RESPECT WHATSOEVER OR IN <br />CONNECTION WITH OR FOR THE PURPOSES AND USES OF THE LESSEE, OR ANY OTHER <br />REPRESENTATION, WARRANTY OR COVENANT OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, <br />WITH RESPECT THERETO, AND LESSOR SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, <br />INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF OR TO LESSEE OR ANY OTHER PERSON OR <br />ENTITY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT <br />AND THE MAINTENANCE THEREOF. <br /> <br />Lessor hereby assigns to Lessee during the Lease Term, so long as no Event <br />of Default has occured hereunder and its continuing, all manufacturer's warranties, <br />if any, expressed or implied with respect to the Equipment, and Lessor authorizes <br />Lessee to obtain the customary services furnished in connection with such <br />warranties at Lessee's expense. <br />