SIGNATURE UTILITY LEASING, Inc.
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XX Xxx 00000
Xxxxxx, Xxxxx 00000
(000) 000-0000 FAX (000) 000-0000
Master Lease Agreement
LESSEE: Cap Rock Electric Cooperative, Inc. LEASE NUMBER: 20000122
Signature Utility Leasing, Inc., "Lessor" and Cap Rock Electric Cooperative,
Inc., "Lessee" have executed this Lease Agreement ("Lease") effective the
April 1, 2000 and hereby agree to the terms contained below and in any
attachments made a part of this Lease Agreement.
This Lease and the attachments hereto constitute the entire agreement of the
parties with respect to the leasing of the Equipment and the other subject
matter of this Lease. This Lease supercedes all prior written and/or oral
understandings or agreements with respect to the subject matter hereof, and
no change, modification, amendment or addition to this Lease shall be
enforceable unless in writing and signed by Lessor and Lessee.
In consideration of the mutual covenants hereinafter contained, the parties
hereby agree as follows:
1. LEASE OF EQUIPMENT. Lessor hereby leases to Lessee, and Lessee hereby
leases from Lessor, subject to the terms of this Lease Agreement ("Lease"),
the equipment (collectively, the "Equipment," any one item of which may be
referred to individually as an "Item of Equipment") described in any Schedule
A, executed by Lessor and Lessee and made a part hereof, Lessee hereby
authorizes Lessor to include in any Schedule A the serial number and other
information identifying the Equipment when determined by Lessor.
Each such Schedule A when executed by the parties shall be deemed to be a
part of this Lease, it being understood and agreed that this Lease shall be a
Master Lease. All Schedules, addends or other attachments to this Lease
executed by Lessor and Lessee are hereby incorporated herein and made a part
hereof.
In the event it is necessary to amend the terms of a Schedule A to reflect a
change in one or more of the following conditions: (a) Lessor's actual cost
of procuring the Equipment; or (b) Lessor's actual cost of providing
Equipment to Lessee; or (c) A change in lease payments as a result of (a)
and/or (b) above; or (d) Description of the leased Equipment; Lessee agrees
that any such amendment shall be described in a letter from Lessor to Lessee,
and unless Lessee objects thereto in a writing delivered to Lessor within
fifteen (15) days of mailing of such letter from Lessor to Lessee, such
Schedule A shall be deemed amended and such amendments shall be incorporated
herein.
2. RENTALS/LEASE TERM. Lessee agrees to pay Lessor rentals for each Item of
Equipment leased under this Lease as set forth in the Schedule A applicable to
such item of Equipment. All rentals shall be payable as described to Lessee at
Lessor's mailing address set forth in such Schedule A, or to such other person
or at such other place as Lessor may from time to time designate in writing.
"Scheduled Lease Commencement Date" for purposes of this Lease shall be the
first day of the month following the In-Service Date, provided, however, in
the event the Daily Billing Option is selected on the applicable Schedule A,
the Scheduled Lease Commencement Date shall be the In-Service Date.
"In-Service Date" shall be the date Equipment is delivered and accepted by
Lessee for lease as provided herein. The "Scheduled Lease Term" shall be as
set forth in the applicable Schedule A. Rentals for each item of Equipment
shall commence on the Scheduled Lease Commencement Date with respect to each
Item of Equipment. If the In-Service Date occurs prior to the Scheduled Lease
Commencement Date, Lessor shall be entitled to a rental ("Interim Rent") for
period from such In-Service Date to the Scheduled Lease Commencement Date (the
"Interim Period"). Interim Rent shall be computed by dividing all rentals
other than Interim Rent due under the Lease by the actual number of days in
the Scheduled Lease Term and multiplying this result by the actual number of
days from In-Service Date to Scheduled Lease Commencement Date. Interim Rent
(if any) shall be due on the Scheduled Lease Commencement Date. The Scheduled
Lease Term, including any Minimum Term as described Paragraph 3 below, as set
forth in the Schedule A, together with the Interim Period, if any, shall
constitute the Lease Term ("Lease Term") for each item of Equipment. Lessee
agrees to pay Lessor at the expiration or other termination of the Lease Term,
additional rents, if specified under Special Terms described in the Schedule
A. The termination of this Lease with respect to certain items of Equipment
shall not affect the continuation of this Lease with respect to other items of
Equipment not subject to such termination. In the event the Lessee exercises
the option to renew the Lease, rentals for the renewal period shall be agreed
to by the parties at the time of renewal.
3. MINIMUM LEASE TERM. The Minimum Lease Term ("Minimum Term") shall be set
forth in the Schedule A for each item of Equipment and shall commence on the
Scheduled Lease Commencement Date. If Lessor agrees to terminate this Lease
prior to the expiration of the Minimum Term with respect to an item of
Equipment, Lessor shall, in addition to all other charges specified in this
Lease, charge Lessee an early termination fee. Upon completion of the Minimum
Term, the Lessee is deemed to have continued the Lease on a month-to-month
basis, until completion of the Scheduled Lease Term unless the Lessee
notifies the Lessor in writing 30 days prior to the end of the Minimum Term
that it desires to terminate the Lease.
4. FLOATING RENTAL RATE. Notwithstanding any provision to the contrary
contained in Paragraph 2 above, if a Floating Rate is specified on the
Schedule A as applicable to an item of Equipment, the Lessee's rental
obligation for such item of Equipment shall be adjusted at each rental due
date based on the index specified on such Schedule A. Rental adjustments will
be calculated based on monthly changes in the index up or down. Monthly
changes in the index and the outstanding lease balance for each item of
Equipment will be used to compute an adjusted rental amount. Rental
adjustments will be compounded and accumulated monthly and billed to the
Lessee based on the Rental frequency specified on the appropriate Schedule A.
5. LATE CHARGES. If Lessee fails to pay any rental or other amount required
to be paid by Lessee to Lessor, within five (5) days after the due date
thereof, Lessee shall (in addition to all other amounts due Lessor) pay
Lessor the lesser of one and one-half percent (1.5%) per month, or the
maximum amount allowed by law until paid on such unpaid amounts.
6. SECURITY DEPOSIT. If a Security Deposit amount is specified in the
Schedule A, Lessee agrees to pay such amount to Lessor prior to the Scheduled
Lease Commencement Date. If Lessee has fulfilled all terms and conditions
herein, the Security Deposit shall be returned to the Lessee without
interest or it may be applied to any purchase option exercised by Lessee at
the expiration of the Lease.
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7. NO WARRANTIES; LESSEE'S OBLIGATIONS; VENDOR NOT AN AGENT. LESSEE
ACKNOWLEDGES THAT: LESSOR IS NOT THE MANUFACTURER OF THE EQUIPMENT NOR THE
MANUFACTURER'S AGENT NOR A DEALER THEREIN; THE EQUIPMENT IS OF A SIZE, DESIGN,
CAPACITY, DESCRIPTION AND MANUFACTURE SELECTED BY LESSEE; LESSEE IS
SATISFIED THAT THE EQUIPMENT IS SUITABLE AND FIT FOR ITS PURPOSES; LESSOR HAS
NOT MADE AND DOES NOT MAKE ANY WARRANTY OR REPRESENTATION
Master Lease Number: 20000122
WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION,
MERCHANTABILITY, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR ANY
PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT
OR WORKMANSHIP IN THE EQUIPMENT NOR ANY OTHER REPRESENTATION OR WARRANTY
WHATSOEVER; LESSOR SHALL NOT BE LIABLE TO LESSEE AND LESSEE HEREBY WAIVES ANY
CLAIM IT MAY HAVE AGAINST LESSOR FOR ANY LOSS, DAMAGE (CONSEQUENTIAL OR
OTHERWISE) OR EXPENSE CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT LEASED
HEREUNDER. NO DEFECT OR UNFITNESS OF THE EQUIPMENT NOR ANY REPRESENTATION AS
TO THE EQUIPMENT OR ANY OTHER MATTER BY VENDOR SHALL RELIEVE LESSEE OF THE
OBLIGATION TO PAY ANY RENTALS OR OTHER OBLIGATION UNDER THIS LEASE. LESSEE
UNDERSTANDS AND AGREES THAT NEITHER VENDOR NOR ANY SALES REPRESENTATIVE OR
OTHER AGENT OF VENDOR, IS AN AGENT OF LESSOR. NO SALES REPRESENTATIVE OR
AGENT OF VENDOR IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS
LEASE. Lessor hereby assigns to Lessee for the duration of this Lease all
warranties received by Lessor with respect to the Equipment, to the extent
assignable, and Lessor shall have no obligation whatsoever to make any claim
on such warranty.
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8. LOCATION, INSPECTION, and MARKETING. The Equipment at all times shall be
located at the address specified in the applicable Schedule A unless Lessee
has notified Lessor in writing of a change of location for each item of
Equipment. Lessee shall make the Equipment available for inspection by
Lessor's representatives during Lessee's normal business hours and shall make
Lessee's maintenance log and other records pertaining to the Equipment
available for inspection and duplication by Lessor's representatives. Lessee
shall affix to or place on the Equipment such labels, plates or other
markings indicating Lessor's ownership in the Equipment as may be directed
and applied by Lessor.
9. USE. Lessee agrees all Equipment will be operated by competent
and qualified personnel only and in accordance with applicable operating
instructions, laws, government regulations, and applicable insurance
policies. Lessee further agrees that the Equipment will not be operated by
any person who is under the influence of alcohol or drugs.
10. RISK OF LOSS; GENERAL INDEMNITY. Lessee hereby assumes the risk of
bodily injury or death, and of damage to property, including the Equipment,
and the loss of such property, from whatsoever cause during the Lease Term.
Lessee shall indemnify and hold Lessor harmless from and against any and all
claims, losses, liabilities (including patent infringement, negligence, tort
and strict liability), damages, judgments, suits, and all legal proceedings,
and any and all costs and expenses in connection therewith (including
attorneys' fees) arising out of or in any manner connected with the
manufacture, sale, purchase, financing, ownership, delivery, rejection,
non-delivery, possession, use, transportation, storage, condition, operation,
maintenance, repair, return or other disposition of the Equipment or with this
Lease, including, without limitation, claims for injury to or death of
persons, for damage to property, for violation of any law, rule or regulation
of any public authority, and for environmental damage and clean-up. Lessee
shall give Lessor notice of any such claim or liability within 72 hours of
Lessee's notice. The provisions of this Paragraph shall survive the
expiration or termination of this Lease. Lessee agrees that upon written
notice by Lessor of the assertion of any claim, action, damage, obligation,
liability, or lien, Lessee shall, at Lessor's written request, assume the
full responsibility for the defense thereof. Any payment pursuant to this
Paragraph shall include an amount equal to any taxes required to be paid by
Lessor as a result of the receipt of such payment.
11. ALTERATIONS; REPAIRS. Any improvement, replacement, addition, accessory
or repair part for the Equipment shall become the property of Lessor free of
all liens and encumbrances and shall be deemed part of the Equipment. The
Equipment is, and shall at all times be and remain, personal property,
notwithstanding that any item of Equipment or any part thereof shall now be
or hereafter become in any manner affixed or attached to real property or any
improvements thereof.
of: (i) the amount which will cause the Lessor to realize the same rate of
return up to the date of the Casualty Occurrence that the Lessor would have
realized had the Lease of the Equipment been in effect for the entire Lease
Term; and (ii) all installments of rental then due with respect to that item
of Equipment. The total rental described in the Schedule A which contained an
item of Equipment for which a Casualty Loss Value was paid, shall be reduced
by a percentage derived by dividing the Cost of the item of Equipment
experiencing the Casualty Occurrence
12. MAINTENANCE. Lessee shall pay all costs and expenses of whatever nature
resulting from the use and operation of each item of Equipment. Lessee, at
its expense, shall keep the Equipment in good repair, condition and working
order, in full compliance with all applicable manufacturer's recommendations,
ordinary wear and tear expected.
13. TAXES. Lessee shall pay when due and be responsible for all charges,
taxes, and fees which may now or hereafter be imposed or levied by any
governmental body or agency required to be paid or collected by Lessor on or
relating to the Equipment leased hereunder and the sale, purchase, rental,
operation, maintenance or use thereof (excluding any taxes on or measured by
the net income of Lessor) together with any penalties or interest applicable
thereto, whether the same be payable by or assessed to Lessor or Lessee. If
under law or custom such payments may be made only by Lessor, Lessee shall
promptly notify Lessor and shall reimburse Lessor, upon demand, all such
payments made by Lessor. Upon request, Lessee will furnish to Lessor a
documentary evidence satisfactory to Lessor that reflects payment by Lessee.
14. PERSONAL PROPERTY TAXES. Wherever equipment is subject to personal
property taxes in the jurisdiction where the Equipment is located, Lessor
will properly report any and all property values for all lease transactions
with the appropriate property tax assessor or other proper official. Lessee
shall reimburse Lessor for all personal property taxes assessed by the
applicable taxing jurisdiction. If Lessor does not notify Lessee of Lessor's
intent to file the applicable property tax return within fourteen (14) days
of the personal property tax return due date, or if Lessee has made a written
request that Lessor not file such return, Lessee shall file all property
values with the appropriate taxing jurisdiction and assume full
responsibility for the payment of all such taxes, assessments, penalties, and
interest when due. Lessee shall also reimburse Lessor any costs and expenses
incurred by Lessor (including reasonable attorneys' fees), as a result of
Lessee's failure to report and pay such taxes and charges.
15. INSURANCE. Lessee shall at its own expense acquire and maintain, during
the term hereof, with such insurers, in such form and under such policies as
shall be satisfactory to Lessor, both: (a) all risk property insurance,
naming Lessor as loss payee, in amounts and under coverages to provide for
rebuilding, repairing or replacing the Equipment in the event of any damage,
destruction, loss or theft of the Equipment. The amount of such insurance
shall be at least equal to the Equipment Cost described in the Schedule A for
each item of Equipment; and (b) comprehensive public liability insurance
including coverage for any bodily injury, death or property damage which may
be caused by or related to the Equipment or its operation, in amounts
satisfactory to Lessor. Such insurance shall name Lessor as an additional
insured.
If any loss occurs it shall be paid by check or draft payable to Lessor
and Lessee jointly. Lessor may endorse Lessee's name thereon as Lessee's
agent. Lessee shall furnish to Lessor a certificate of insurance indicating
that such insurance coverages are in effect at the time the Equipment is
delivered and shall indicate that such insurance cannot be canceled or
altered without at least thirty (30) days prior written notice to Lessor. If
Lessee fails to pay insurance required to be provided by Lessee under this
Lease, Lessor may, but is not obligated to provide such insurance. Lessee
shall, upon demand reimburse Lessor for any costs, fees or expenses incurred
in proving such insurance.
16. CASUALTY OCCURRENCE. (a) For purposes of this Lease, a "Casualty
Occurrence" shall mean any event that causes an item of Equipment to be
destroyed, irreparably damaged, lost, stolen, unaccounted for or taken or
requisitioned by condemnation or otherwise during the term of this Lease, (b)
in the event that any item of Equipment shall suffer a Casualty Occurrence,
Lessee shall promptly and fully inform Lessor within 72 hours of such an
occurrence. Lessee shall pay to Lessor, on the first day of the month
following the giving of such notice, an amount ("Casualty Loss Value") equal
to the sum
by the Total Equipment Cost described in such Schedule A. Lessor shall be
entitled to receive and retain any proceeds from any insurance with respect
to such item of Equipment up to the amount of the Casualty Loss Value.
Provided an Event of Default has not occurred and is continuing, Lessor shall
pay over such insurance proceeds to Lessee to the extent such amounts exceed
the Casualty Loss Value or the entire insurance proceeds received if Lessee
has previously paid the Lessor the Casualty Loss Value. Upon Lessor's receipt
of such payment, Lessee shall be
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Lessee initials __________
Master Lease Number: 20000122
entitled to whatever interest Lessor may have in said item of Equipment, in
its then condition and location, without warranties, express or implied, and
this Lease shall terminate with respect to such item of Equipment.
17. LOSS AND DAMAGE. No loss, theft, damage or destruction of Equipment shall
relieve Lessee of the obligation to pay rent or perform any other obligation
under this Lease. In the event of damage to any item of Equipment, Lessee
shall immediately place the same in good repair.
18. EVENTS OF DEFAULT. The following shall constitute Events of Default: (a)
Lessee fails to pay all or any part of a rental payment or any other payment
when due and payable, or (b) Lessee fails to perform or Lessee breaches any
of the other covenants herein and such failure or breach continues for a
period of ten (10) days after written notice thereof by Lessor; or (c)
Without Lessor's consent, Lessee removes, sells, transfers, assigns, parts
with possession or sublets any item of Equipment, or (d) Lessee creates,
incurs or suffers to exist any mortgage, lien or other encumbrance or
attachment of any kind whatsoever upon or affecting the Equipment or this
Lease or any of Lessor's interest thereunder, or (e) Lessee become insolvent,
makes an assignment for the benefit of creditors, ceases or suspends its
business, admits in writing its inability to pay its debts as they mature, or
bankruptcy, reorganization or other proceedings for the relief of debtors or
benefit of creditors are instituted by or against Lessee, or (f) Any
representation or warranty made by Lessee herein or in any document or
certificate furnished to Lessor proves to be incorrect in any material
respect when made; or (g) If Lessee is a business entity, the dissolution,
merger or reorganization of Lessee, or (h) If Lessee is an individual, Lessee
dies or is judicially declared incompetent, or (i) Lessee is in default under
any other agreement executed with Lessor at any time.
In this Paragraph 18, "Lessee" also means any guarantor of Lessee's
obligations under the Lease and "Lease" also means any guaranty of those
obligations.
19. REMEDIES UPON DEFAULT. Upon the occurrence of any Event of Default and at
any time thereafter, Lessor may do any one or more of the following with or
without terminating this Lease: (a) Declare the entire amount of rental and
other charges due and to become due hereunder for the entire Lease Term
immediately due and payable, (b) Take immediate possession of any and all
Equipment without notice, (c) Sell or lease any Equipment or otherwise
dispose, hold or use such Equipment at lessor's sole discretion, (d) Demand
payment of all additional costs incurred by Lessor in the course of
correcting any default, (e) Proceed against any or all security given in
connection herewith which includes but is not limited to sureties and
guarantors, other obligation under this Lease (f) Upon notice to Lessee,
terminate this Lease and all Schedules executed pursuant hereto. A
termination hereunder shall only occur upon such notice by Lessor and only as
to such items of Equipment included in such notice. This Lease shall continue
in full force and effect as to the remaining Items of Equipment, if any; (g)
Exercise any other right or remedy available to Lessor under the Uniform
Commercial Code or any other applicable law. If this Lease is deemed at any
time to be one intended as security, Lessee agrees that the Equipment shall
secure all indebtedness owing by Lessee to Lessor; (h) Recover from Lessee,
not as a penalty but as liquidated damages, an amount equal to the sum of:
(i) any accrued and unpaid rentals as of the date the Lessor obtains
possession of the Equipment following Lessee's default ("Repossession Date");
plus (ii) the present value of all future rentals reserved in the Lease and
contracted to be paid over the unexpired term of the Lease discounted at a
rate equal to the six (6) month U.S. Treasury Xxxx rate as of the
Repossession Date, plus (iii) all costs and expenses incurred by Lessor in
any repossession, recovery, storage, repair, sale, re-lease or other
disposition of the Equipment including reasonable attorney's fees and costs
incurred in connection with or otherwise resulting from the Lessee's default,
plus (iv) estimated residual value of the Equipment as of the Expiration of
the Lease, LESS the amount received by Lessor upon sale or re-lease of such
item of Equipment, if any.
Notwithstanding Paragraph 19(h) above, Lessor and Lessee agree that, in the
event it is adjudged or otherwise determined that following an Event of
Default, Lessor is entitled to the present value of future rentals reserved
in the Lease, the discount rate shall be equal to the six (6) month U.S.
Treasury Xxxx rate in effect at the time the Event of Default occurred.
Lessor's rights and remedies provided hereunder or by law shall be
cumulative and shall be in addition to all other rights and remedies
available to Lessor. Lessor's failure to strictly enforce any provisions of
this Lease or any other right available to Lessor shall not be construed as a
waiver thereof or as excusing Lessee from future performance. Lessee shall
pay Lessor all costs and expenses, incurred by Lessor in any repossession,
recovery, storage, repair, re-lease or other disposition or the Equipment,
including reasonable attorneys' fees as a result of or arising out of an
Event of Default.
20. ASSIGNMENT AND SUBLEASE. (a) LESSEE SHALL NOT ASSIGN OR IN ANY WAY
DISPOSE OF ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS LEASE OR
ENTER INTO ANY SUBLEASE OF ALL OR ANY PART OF THE EQUIPMENT WITHOUT THE PRIOR
WRITTEN CONSENT OF LESSOR. ANY ATTEMPTED ASSIGNMENT BY LESSEE WITHOUT SUCH
CONSENT SHALL BE NULL AND VOID AND SHALL BE AN EVENT OF DEFAULT UNDER THIS
LEASE. (b) Lessor shall have the right, without notice to Lessee, to assign
or create a security interest in this Lease, or assign any of its rights or
interests in this Lease, or in the Equipment. If Lessee is given notice of
such assignment or security interest, Lessee shall acknowledge such
assignment or security interest in writing upon terms satisfactory to Lessor.
Upon written notice to Lessee from Lessor of any assignment or of any
security interest created by Lessor hereunder, Lessee shall pay rentals
directly to such assignee if directed by Lessor to do so. Any assignee of
Lessor shall have all of the rights, but none of the obligations, of Lessor
under this Lease and Lessee agrees that it will not assert against any
assignee of Lessor any defense, counterclaim or offset that Lessee may have
against Lessor. Lessee acknowledges that any assignment or transfer by Lessor
shall not materially change Lessee's duties or obligations under this Lease
nor materially increase the burdens or risks imposed on Lessee.
21. OWNERSHIP. Title to the Equipment shall remain with Lessor at all times
and Lessee shall have no right, title or interest therein except as expressly
set forth in this Lease.
22. RETURN OF EQUIPMENT. If Lessee does not exercise any purchase option
provided in this Lease, at the expiration of the Lease Term or other
termination of this Lease, Lessee shall, at its own expense, deliver the
Equipment to a location designated by Lessor. The Equipment shall be
delivered by Lessee to Lessor in the same condition as it was when delivered
to Lessee, normal wear and tear excepted. Lease Term in as provided this
Paragraph shall not expire until the Equipment is returned to Lessor.
23. LESSEE'S OPTIONS. Lessor and Lessee agree that, notwithstanding terms
contained in the Lease to the contrary, so long as no Event of Default has
occurred and is continuing, at the expiration of the Minimum Term Lessee
shall have the option: (i) to purchase the Equipment at fair market value,
(ii) Continue the Lease as provided in Paragraph 3 of this Lease, or (iii)
return the Equipment to Lessor as provided in Paragraph 22 herein. At the
expiration of the Scheduled Lease Term, Lessee shall have the option to (i)
purchase the equipment at fair market value or at the Purchase Option Amount
specified on the applicable Schedule A; (ii) renew the Lease as provided in
Paragraph 2 herein, or (iii) return the Equipment to Lessor as provided
herein.
24. NOTICES. (a) Any requirement of the Uniform Commercial Code regarding
reasonable notice shall be met if such notice is given at least five (5) days
before the time of sale, disposition or other event or thing giving rise to
the requirement of notice, (b) All notices or communications under this Lease
shall be in writing, shall be delivered or mailed to the parties at the
addresses set out for them in this Lease, and any notice so addressed and
mailed by registered mail or hand delivered and left with a responsible
person shall be deemed to have been given when so mailed or delivered, (c)
Lessor and Lessee may in writing at any time, and from time to time, change
the address to which notice shall be delivered or mailed.
25. POWER OF ATTORNEY; AFFIRMATION OF SECURITY INTEREST. LESSEE HEREBY
IRREVOCABLY APPOINTS AND CONSTITUTES LESSOR AND EACH OF LESSOR'S OFFICERS,
EMPLOYEES OR AGENTS AS LESSEE'S TRUE AND LAWFUL AGENT AND ATTORNEY-IN-FACT
FOR THE PURPOSE OF FILING FINANCING STATEMENTS RELATING TO THIS LEASE AND THE
EQUIPMENT, INCLUDING AMENDMENTS THERETO, PURSUANT TO THE UNIFORM COMMERCIAL
CODE AS ADOPTED IN THE STATE OR STATES WHERE THE EQUIPMENT IS LOCATED; LESSOR
BEING HEREBY AUTHORIZED AND EMPOWERED TO SIGN LESSEE'S NAME ON ONE OR MORE OF
SUCH FINANCING STATEMENTS, DOCUMENTS OR INSTRUMENTS.
In the event this Lease should be construed as a lease intended as security,
Lessee affirms that Lessor has a security interest in the Equipment and all
rentals payable hereunder, proceeds (including insurance proceeds) of the
Equipment, and all amounts arising from the sale or other disposition of the
Equipment.
Lessee Initials _________
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Master Lease Number: 20000122
26. NON-CANCELLABLE LEASE; WAIVER; OBLIGATIONS UNCONDITIONAL. THIS LEASE
CANNOT BE CANCELLED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN. LESSEE
HEREBY AGREES THAT LESSEE'S OBLIGATION TO PAY ALL RENTALS AND PERFORM ALL
OTHER OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, IRREVOCABLE, UNCONDITIONAL, AND
INDEPENDENT AND SHALL BE PAID AND PERFORMED WITHOUT ABATEMENT, DEDUCTION OR
OFFSET OF ANY KIND OR NATURE WHATSOEVER. To the extent permitted by applicable
law, Lessee also hereby waives any rights now or hereafter conferred by
statute or otherwise which may require Lessor to sell, lease or otherwise use
any Equipment in mitigation of Lessor's damages as set forth in Paragraph 19
or which may otherwise limit or modify any of Lessor's rights or remedies
under Paragraph 19. Any action by Lessee against Lessor for any default by
Lessor under this Lease, including breach of warranty or indemnity, shall be
commenced within one (1) year after any such cause of action accrues.
27. REPRESENTATIONS AND WARRANTIES OF LESSEE. Lessee represents and warrants
that: (i) Lessee is duly qualified to do business wherever necessary to carry
on its present business and operations; (ii) Lessee has full power,
authority, and legal right to enter into and perform this Lease and the
execution, delivery, and performance of such documents have been duly
authorized, do not require the approval of any governmental body, will not
violate any judgment, order, law or regulation applicable to Lessee or any
provision of Lessee's certificate of incorporation or bylaws, if any, or
constitute a default under, or result in the creation of any lien, charge,
encumbrance or security interest upon any assets of the Lessee under any
agreement or instrument to which Lessee is a party or by which Lessee or its
assets may be bound or affected; (iii) this Lease and all schedules and
attachments shall have been duly entered into, delivered and shall constitute
legal, valid, and binding obligations of Lessee, enforceable in accordance
with their terms when executed by Lessor and Lessee.
28. FINANCIAL STATEMENTS. Lessee shall promptly furnish Lessor with Lessee's
annual certified financial statements. Lessee shall also furnish Lessor with
other financial information as Lessor may reasonably request from time to
time. If Lessee does not have certified financial statements available in the
normal course of business, Lessee shall provide uncertified financial
statements that accurately reflect Lessee's financial condition including
copies of its most recent federal income tax returns.
29. ENFORCEABILITY; CAPTIONS. (a) If any part, term, or provision of this
Lease is held by any court to be unenforceable or prohibited by law, the
rights and obligations of the parties shall be construed and enforced with
that part, term or provision limited so as to make it enforceable to the
greatest extent allowed by law, or if it is totally unenforceable, as if this
Lease did not contain that particular part, term, or provision. (b) The
headings in this Lease have been included for ease of reference only and
shall not be considered in the construction or interpretation of this Lease.
(c) This Lease shall in all respects be governed by and construed in
accordance with the laws of the State of Texas. (d) the venue for any legal
action undertaken to enforce any term of this lease shall be Xxxxxx County,
Texas. (e) This Lease shall inure to the benefit of Lessor, its successors,
and assigns, and all obligations of Lessee shall bind its permitted
successors and assigns.
LESSEE: LESSOR:
Cap Rock Electric Cooperative, Inc. SIGNATURE UTILITY LEASING, INC.
000 Xxxx Xxxx Xxxxxx Xxxxx #000 PO Box 16006
Midland, TX 79701 Xxxxxx, XX 00000
By: /s/ Xxx Xxxxxx By:
------------------------------- --------------------------------
Xxx Xxxxxx Xxxx Xxxxxxxxx Date
Title: VP Chief Operating Title: President & CEO
Officer
NOTE: PLEASE MAIL PAYMENTS OF ANY KIND TO THE FOLLOWING ADDRESS: SIGNATURE
LEASING, DEPT. RB #1153, X.X. XXX 000000, XXXXXX, XX 00000-0000. PLEASE
FORWARD ALL OTHER CORRESPONDENCE TO: SIGNATURE LEASING, X.X. XXX 00000,
XXXXXX, XX 00000.
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Lessee initials ______
