10% UTILITY COST REDUCTION LEASE AGREEMENT
A GUARANTEED 10% YEARLY ELECTRIC AND GAS COMBINED
UTILITY COST REDUCTION FROM POWER SAVE
INTERNATIONAL, INC. (Hereafter Identified As PSI
or Lessor FOR A COGENAIRHEAT SYSTEM PLACEMENT FOR:
Date:
NAME
(Hereafter identified as Lessee or Site)
Contact:
CITY, STATE & ZIP_
Phone
Fax:
Year Month
<s> <c> <c>
Prior 12 Month Certified Electric & Gas Utility Bills $223,745. $22,374.
10% Reduction or Savings..... 22,374. 1,864.
90% Yearly Budget Amount ........................... 201,371. 16,780.
Each of A, B, C, D, E and F applies to the
equipment described above and in any Schedules
attached hereto.
SYSTEM - SEE SCHEDULE "A"
EXAMPLE
<s> <c> <c>
A. INITIAL D. AGREEMENT LEASE END
INSTALLED COST $344,990. PURCHASE OPTION
PSI Funded @ 120 Months
[See Section 23 of Lease]
B. UTILITY CO REBATES $18,000.
Net System 120 months...$172,495.
Installed Cost $326,990.
E. TAX BENEFITS
C. ADVANCE CASH [See Section 17 of Lease]
PURCHASE PRICE Lessor Retains Depreciation
F. CONTRACT TYPE
$96,738. True Lease
THE ADDITIONAL PROVISIONS ON PAGE 2 THROUGH 11
HEREOF WITH SCHEDULE "A" ARE INCLUDED IN, AND MADE
A PART OF THIS LEASE WHICH LESSEE ACKNOWLEDGES AND
HAS READ. THIS IS AN IRREVOCABLE PLACEMENT
AGREEMENT FOR THE TERM INDICATED ABOVE. THE SITE
ACKNOWLEDGES RECEIPT OF A SIGNED, TRUE AND EXACT
EXECUTED COPY OF THIS AGREEMENT.
(Lessee) (Lessor)
By By
Authorized Signature &
Title Chairman, C.E.O.
Date Date
POWER SAVE INTERNATIONAL, INC. Irrevocably and
Unequivocally Guarantees for 120 months (10 years)
the named site, a 10% yearly reduction in the
combined foundation utility cost of KWD/KWH
Electric and Gas Therms as adjusted, by yearly
audit against the initial foundation utility costs
as determined, in the PSI Feasibility Study Per
Utility Company Figures for the prior 12 Mos.
POWER SAVE agrees to provide installation of the
herein described Co-Generation System at PSI's
cost and expense. PSI will be totally responsible
thru a Qualified HVAC Company, to maintain and
service the installed systems.
The Site will allow PSI the right to have said
systems installed and hereby agrees to provide PSI
with copies of the current monthly utility bills,
along with copies each month, of the agreed Budget
Payments made to the respective Utility Companies
and Power Save for each and every month for the
next 120 months as set forth above.
The Site Party identified on page one, has agreed
to proceed with a Co-Generation installation from
PSI, based upon a "NO OUT OF POCKET COST"
Guaranteed 10% Yearly Reduction of Combined
Foundation Electric and Gas Utility Bills as
presented in a Power Save International, Inc.
(PSI) Feasibility Study dated _8/12/99_.
The applicable Utility Companies have received
copies of the Feasibility Study, and upon
confirming compliance with their respective
parameters have agreed to pay Cash Rebates
Totaling as part payment of the
installation costs. Said amount will be passed
through by the Site to PSI.
The system is Guaranteed and will be monitored by
computer off site by PSI, Installed and Serviced
by Pyke Mechanical Inc. (PYKE) based on the terms
of a separate Preventive Maintenance Agreement
placed with them by PSI.
The parties understand and agree that the above
mentioned Feasibility Study has been compiled from
the prior 12 months historically specific
parameters of usage, operating conditions and base
costs. It is assumed that these guidelines will
continue to be followed as the numbers generated
can be affected by Rate Changes, Weather Degree
Day Temperatures and Building Operations.
The parties agree that all reductions in combined
applicable Utility Costs generated by the systems
are the property of PSI to cover amortization of
systems, maintenance and profits. The Site's
participation is limited to the 10% Reduction from
the Computer Generated Foundation Rate, Usage and
Costs.
The site shall furnish copies of utility bills
each month to PSI and notify PSI of any changes in
the use of the structure or operational equipment,
which could have a positive or negative effect on
the accurate tracking of the related costs or
savings. The site also agrees to follow
PYKE/PSI's operating instructions.
PSI will then provide the Site with a computerized
yearly audit, using the procedures and formula as
generally outlined and detailed in the
accompanying Section "A". The results will be
analyzed by PSI and the Site to confirm that the
results are within the stated parameters to
maintain or change the forthcoming 12 months
Budget Payment Amounts.
SECTION "A"
UTILITY COSTS BUDGET PAYMENTS AND YEARLY AUDIT
DETAILS
The Computer Model Parameters for Comparison of
Usage Between the PSI Feasibility Study Foundation
Usage and Related Utility Costs Adjusted for
Current Conditions Commencing with the First
Anniversary and Continuing on Each Anniversary
Thereafter, Throughout the Term of the First 120
Month, 10% Guaranteed Combined Savings On Electric
and Gas Utility Costs follows:
1. The foundation or base operating hour
conditions and utility rates for electric and
natural gas, the operating hours and the
temperatures maintained, shall be the operating
conditions and rates in effect and used for the
Power Save Feasibility Study. The foundation
conditions derived from a Utility Company
printout, savings, and costs including
maintenance, or including equipment replacement
reserves, shall be recorded as part of the systems
commissioning data constituting the base for the
Guaranteed 10% Yearly Utility Cost Savings
commencing on startup, of which the Site shall
receive a copy. Said initial information shall be
the base line for each years audit comparison
through the term of this Utility Cost Savings
Agreement.
2. On an annual basis, the number of
KWD/KWH/Therms as applicable, shall be adjusted
for Degree Day Temperatures and Rate Changes,
totaled and compared with the Initial Foundation
or Base 12 months. Due consideration and
adjustment shall be made for any changes in
operating hours or percentage of occupancy, etc.
3. The foundation utility usage shall then be
converted into dollars taking into consideration
changes, if any, in the rate structures during the
course of the current year.
4. Degree-day temperature changes, if any, or
changes in the operating hours of the systems or
the utilization or temperatures of the building
shall be computed and set forth separately, with
adjustments for any impact.
5. The results of the annual evaluation shall
then be compared to the foundation rates and costs
and then the Foundation Rate and Costs shall be
adjusted up or down, on an apple for apple basis.
The difference in costs shall be the basis for
establishing the forthcoming 12 Month Budget
Utility Payments.
6. In the event that the parties have a
difference of opinion and cannot come to mutual
agreement in respect to interpretation of the
audit, they hereby agree to submit to formal
mediation by which a professional mediator chosen
by the parties will make a decision and the
parties irrevocably agree to be bound by the
mediator's decision.
TERMS AND CONDITIONS OF LEASE PLACEMENT
1. EQUIPMENT: SELECTION AND PURCHASE. Lessor
Leases to Lessee and Lessee hires from Lessor, the
personal property described above (the
"equipment") and in schedule "A" attached hereto.
Lessor has selected both the equipment and the
supplier for shipment directly to Lessee. Lessor
shall not be liable for any loss or damage by
reason of supplier's delay or failure to ship any
item of equipment. If for any reason any
equipment is not delivered to and accepted by
Lessee within six (6) months from the date of (i)
Lessor's purchase order or (ii) Lessee's execution
of this Lease, whichever first occurs, Lessor may
terminate the lease of such equipment upon written
notice to Lessee and Lessee may terminate the
lease of such equipment upon written notice to
Lessor.
2. Lessor represents that the equipment is of
such design and condition so as to be sufficiently
durable and suitable for Lessee's purposes.
Lessor assigns to, authorizes and appoints Lessee
to enforce, if necessary, in its own name, any
claim, warranty, agreement or representation which
may be made against the supplier.
3. ACCEPTANCE; REJECTION. Within 15 days after
the systems have been started and made
operational, unless Lessee notifies Lessor in
writing of any defects in or other discrepancies
with respect to such equipment, it has been
unconditionally accepted by Lessee for lease
hereunder.
4. INITIAL TERM. The initial lease term for
each item of equipment shall commence on the date
such equipment is activated by Lessee and shall
terminate after the expiration, from the rental
commencement date, of the number of months set
forth with respect to such type of equipment on
the face of this Lease and the Schedule pertaining
thereto.
5. RENT. The Foundation Yearly Budget Utility
Costs are $223,745 or $18,645 Monthly. The 10%
reduction brings that amount to $16,780 to be paid
for 120 months, subject to the yearly adjustments,
if any. The site will pay the current months
Electric & Gas Utility bills, deduct that amount
from the $16,780 and pay the remaining balance to
PSI each month as rent for the equipment as set
forth herein at the office of Lessor or to such
other person and/or place as Lessor may from time
to time designate in writing. Rent payments shall
be made in advance on the commencement date of the
lease and on the same day of each month
thereafter.
Lessee agrees to pay, to the extent permitted by
law, a collection service charge of $50.00 or two
percent (2%) of the delinquent payment, whichever
is greater, plus interest on such delinquent
amount from the due date thereof until paid at one
and one-half percent (1-1/2%) per month, or the
highest contract rate permitted by law, whichever
is less.
Lessor agrees to waive the above stated 2% penalty
for delinquent payment and interest, unless it is
shown that the Lessee has established a willful
and arbitrary pattern of deliberately withholding
or delaying the payment agreed upon.
6. ADJUSTMENTS IN RENT. Power Save
International, Inc. agrees, upon notification and
written demand from Lessee, that within 30 days of
the anniversary date each year, if the audit
determines the payments made by Lessee and
established in this document have exceeded the
Foundation or Base Actual Utility Usage amounts
adjusted for current year Foundation Changes,
PSI hereby agrees to rebate the difference.
Correspondingly, the Site agrees that within
thirty (30) days of receiving the audit they will
reimburse PSI for any excess utility costs not
covered by the Budget Payments. The assignment of
this lease to a third party does not release PSI
or the Site from that obligation.
6a. It is understood and agreed by both parties
that the systems which are subject to this Lease,
will generate certain utility and reserve savings,
which are identified in the Feasibility Study
along with the initial foundation utility costs at
commissioning. The initial Budget Payment amounts
have been mutually agreed upon, out of which the
site will first take a 10% reduction in the Budget
Utility Cost Payments. The formulas mutually
agreed by Lessee and Lessor are based on the
foundation 12 months Site utilization, utility
rate structures and degree day temperatures.
The Lessee shall furnish copies of utility bills,
each month to the Lessor, and notify the Lessor of
any changes, in the business use of the structure
or equipment, which could have a positive or
negative effect on the accurate tracking of the
related costs or savings. The Lessee is
responsible to keep in Good Operating Condition
their Existing Mechanical Infrastructure which
could have an adverse effect on the Systems,
provided under this Agreement.
Lessor will then provide Lessee with computerized
yearly reports, using the procedures and formula
as generally outlined above and detailed within
and as part of Section "A". The results will be
utilized and considered by Lessor and Lessee to
evaluate the performance benefits and determine
adjustment, if any, to the scheduled Budget
Distribution Amounts for the forthcoming year.
The scheduled distribution monthly payments shall
be increased or decreased on a yearly basis to
compensate for any variance exceeding the
projected scheduled amounts. The forthcoming
Monthly Budget Payment amount shall be adjusted
yearly, to compensate for whatever the exact costs
and/or variance shall be in the forthcoming years.
7. LOCATION; INSPECTIONS. Lessee shall keep or
permanently store, as appropriate, the equipment
in Lessee's possession and control at the location
designated in the Schedule of such equipment, or
at such other location to which the equipment may
have been moved with the prior written consent of
Lessor.
Whenever requested by Lessor, Lessee shall advise
Lessor as to the exact location of the equipment.
Lessor, during business hours, may enter the
premises where the equipment is located and
inspect and do maintenance on same.
8. REPAIRS; MAINTENANCE; USE; ALTERATIONS. Lessor
shall monitor the systems by computer off site and
shall, by a separate agreement outlined in
Schedule "A" and made a part of this lease
agreement, retain a Qualified HVAC Company
selected by the Lessor, to provide a service and
maintenance agreement at the expense of Lessor.
Lessor shall therefore accordingly at its sole
expense, keep all systems furnished under this
Agreement in good repair, condition and working
order as outlined in the Schedule "A" Maintenance
Agreement and specifically excluding the costs of
replacement filters, or filter service, if any.
If lighting is included in this lease, the cost of
replacement bulbs or ballasts are excluded unless
the failure falls within a specified written
warranty period. Lessee agrees to maintain
accurate and complete records of all repairs and
maintenance to all other connected equipment and
allow Lessor to inspect such records at any time
during business hours of Lessee.
Once installed, notwithstanding the foregoing,
should Lessor or Lessor's assign, fail to perform
its emergency service responsibilities under the
terms of this Lease, within a reasonable period of
time after notification by Fax that the systems
are out of service, if Lessor has not responded
within 24 hours and started repairs within a
reasonable time, Lessor acknowledges that Lessee
may have a State Certified Mechanical,
Refrigeration and Air Conditioning Company perform
such Emergency Services. The cost of that service
by others may be deducted by Lessee from the
Monthly Budget Payment.
Without the prior written consent of Lessor,
Lessee shall not make any alterations, additions
or improvements to the equipment which are
permanent or which detract from its economic value
or functional utility, except as may be required
pursuant to the preceding paragraph of this
Section 8, or except as determined to be necessary
by the approved company.
Lessee understands that lessor may at lessors
expense add to the systems or modify operations to
maximize economic benefits.
All additions and upgraded technology improvements
to increase equipment efficiency shall belong to
and immediately become the property of Lessor and
shall be returned to Lessor with the equipment
upon the expiration or earlier termination of this
Lease, and shall become an additional valued
increase in the buyout price.
If Lessor does not meet its service maintenance
and other specific obligations under this Lease,
this Lease will terminate and Lessee will, at
their option, either (a) remove equipment and
dispose of equipment with all costs associated
with removal and disposal to be borne by Lessor,
or (b) purchase the Systems from Lessor at the
price of Systems Initial installed cost minus
depreciation at a rate of 10% per year or a
purchase price either previously elected by or
available to Lessee under the Lease minus the
service maintenance fees; whichever purchase price
is less.
9. LOSS; DAMAGE. If insurance is not maintained,
or if the Lessee allows Other Parties access so
that the Systems can be damaged, Lessee assumes
and shall bear the risk of loss and damage to the
equipment from every cause whatsoever, whether or
not insured.
In the event of any loss or damage to the
equipment, Lessee, shall place the same in good
repair, condition and working order.
10. INSURANCE. Commencing on the date risk of
loss passes to Lessor from the supplier and
continuing until Lessee has re-delivered
possession of the equipment to Lessor, Lessee, at
its expense, shall keep the equipment insured
against all risks of loss or damage from every
cause whatsoever for the full, undepreciated
replacement value (new) of the equipment, and
shall carry public liability insurance, both
personal injury and property damage, covering the
equipment and its use. All insurance shall be of
a type, form, in amounts, with companies and
contain terms and conditions satisfactory to
Lessor.
Certificates of Insurance or other evidence
satisfactory to Lessor, including the original or
certified copies of the actual policies showing
the existence of insurance in accordance herewith,
and the terms, conditions of insurance payable as
a result of loss of, or damage of equipment, shall
be applied toward payment to place the systems in
good repair. Lessee irrevocably appoints Lessor
as Lessee's attorney-in-fact to make claim for,
receive payment of, and execute and endorse all
documents, checks or drafts received in payment
for loss or damage under any insurance policy.
11. LIENS; TAXES. Lessee shall keep the equipment
free and clear of levies, liens and encumbrances.
LESSOR WILL FILE ALL PERSONAL PROPERTY TAX RETURNS
COVERING THE EQUIPMENT AND WILL PAY THE PERSONAL
PROPERTY TAXES LEVIED OR ASSESSED THEREON.
12. INDEMNITY. Lessee does hereby assume
liability for and does agree to indemnify,
protect, save and keep harmless Lessor from and
against any and all liabilities, losses, damages,
penalties, claims, actions, suits, costs, expenses
and disbursements, including court costs and legal
expenses, of whatever kind and nature, imposed on,
incurred by or asserted by others, against Lessee.
13. SURRENDER. Unless ownership rights are
purchased by the Lessee, at the expiration or
earlier termination of the initial lease term of
each item of equipment, or Lessee renews this
Agreement for an added 10 year period,
Lessee authorizes Lessor, at its expense, to
remove such equipment, and return it at such place
and by such reasonable means as may be designated
by Lessor in the same repair, condition and
working order as at the commencement of the lease
term thereof, reasonable wear and tear resulting
from proper use excepted. Lessee agrees to pay
for all damage to equipment other than that
attributable to ordinary wear and tear.
The Lessor will pay for any damage done to the
equipment as a direct result of removal.
14. ASSIGNMENT. Without the prior written
consent of Lessor, which shall not be unreasonable
withheld, Lessee shall not assign, transfer,
pledge or hypothecate this Lease, any equipment or
any interest in this Lease or in and to the
equipment or permit its rights under this Lease to
be subject to any lien, charge or encumbrance of
any nature. Lessee's interest herein is not
assignable and shall not be assigned or
transferred by operation of law.
All rights of Lessor hereunder may be assigned,
pledged, mortgaged, transferred or otherwise
disposed of, either in whole or in part, without
notice to Lessee but always, however, subject to
the rights of Lessee. The Lessor will have the
right to transfer or assign the financial aspects
but will not have right to assign, pledge,
transfer, dispose of rights and obligations of the
System without the prior written consent of the
Lessee.
AN ASSIGNEE OF LESSOR SHALL BE LIABLE WITH RESPECT
TO LESSEE AS IF SUCH ASSIGNEE WAS THE ORIGINAL
LESSOR HEREIN.
Subject to the foregoing, this Lease inures to the
benefit of, and is binding upon the heirs,
legatee's, personal representatives, successors
and assigns of the parties hereto.
15. DEFAULT. Any of the following events or
conditions shall constitute an event of default
hereunder: (a) Lessee's failure to pay when due
any Budget Utility Payment, Utility Bills, PSI's
monthly payment, or other amounts due hereunder
within ten (10) days after the due date, and after
(3) days have passed after Lessee has received
notice of default and has failed to pay such
amounts due. (b) Lessee's default in performing
any other term, covenant or condition hereof or
under any other agreement between Lessor and
Lessee if such default is not cured within ten
(10) days after written notice thereof except as
provided in (c) or (d); of this Section 15; (c)
seizure of any equipment under legal process; (d)
Lessee's failure to comply with its obligations
under Section 10 or Section 14; (e) the filing by
or against Lessee of a petition for reorganization
or liquidation under the Bankruptcy Code or any
amendment thereto or under any other insolvency
law providing for the relief of debtors; (f) the
voluntary or involuntary making of an assignment
of a substantial portion of its assets by Lessee
or the benefit of creditors, appointment of a
receiver or trustee for Lessee or for any of
Lessee's assets, institution by or against Lessee
of any formal or informal proceeding for
dissolution, liquidation, settlement of claims
against or winding up of the affairs of Lessee, or
the making by Lessee of a transfer of all or a
material portion of Lessee's assets or inventory
not in the ordinary course of business; (g) the
failure by Lessor and/or the assignees of Lessor
to comply with Lessor's obligations.
16. REMEDIES. Upon Lessee's default, Lessor
shall have the right to exercise any one or more
of the following remedies: (a) without affecting
Lessors's title or right to possession of the
equipment, declare due, sue for and recover all
rent payments and other amounts then accrued or
thereafter accruing for the entire lease term; (b)
require Lessee to promptly redeliver the equipment
in the manner specified in Section 13 hereof; or
(c) repossess the equipment. In addition, Lessor
shall have all rights afforded to it under the
Uniform Commercial Code.
Such return or repossession of equipment shall not
terminate this Lease unless Lessor so notifies
Lessee in writing. Lessor at its option, may sell
or release the equipment upon such terms as it
determines and apply the proceeds all costs and
expenses of repossession and disposition,
reasonable attorney's fees, costs and expenses
and, if this Lease is designated on its face to be
a "true lease", an amount equal to 50% of the
equipment's original cost to Lessor as liquidated
damages for Lessor's loss of its residual salvage
value at the normal expiration of the lease, plus
any amounts due Lessor pursuant to Section 17
hereof.
Lessee shall promptly pay any resulting
deficiency, together with interest at the rate of
one and one-half percent (1-1/2%) per month (or
the maximum amount permitted by law, whichever is
less) and Lessor's reasonable attorney's fees,
costs and expenses if legal action is required to
collect such deficiency. If Lessor is unable to
repossess the equipment for any reason, the
equipment shall be deemed a total loss and Lessee
shall pay to Lessor the amount due pursuant to
Section 9 (c) All such remedies are cumulative and
may be enforced separately or concurrently and are
in addition to any other rights or remedies
available to Lessor at law or in equity.
17. DEPRECIATION. IF THIS LEASE IS DESIGNATED TO
BE A "TRUE LEASE," SECTION 17 APPLIES WITH RESPECT
TO LOSS OF DEPRECIATION DEDUCTION IN ALL CASES TO
LESSEE.
18. OWNERSHIP; PERSONAL PROPERTY; MARKINGS. The
equipment is, and shall at all times be and remain
(i) the sole and exclusive property of Lessor; and
the Lessee shall have no right, title or interest
therein or thereto except as expressly set forth
in this Lease; (ii) personal property
notwithstanding that the equipment or any part
thereof may now be or hereafter become, in any
manner affixed or attached to or imbedded in,
permanently resting upon, real property or any
building thereon. Lessee agrees to affix
nameplates or decals to the equipment indicating
Lessor's ownership thereof if requested and
supplied by Lessor.
19. LESSOR'S PAYMENT. In the event Lessee fails
to pay any amounts due hereunder or to perform any
of its other obligations under this Lease,
Lessor may, at its option, pay such amounts or
perform such obligations and Lessee shall
reimburse Lessor the amount of such payment or
cost of such performance upon demand together with
interest at one and one-half percent
(1-1/2%) per month or the maximum amount permitted
by law, whichever is less.
20. ADDITIONAL DOCUMENTS; FEES. If requested by
Lessor, Lessee shall execute, acknowledge, deliver
to Lessor, record and file such documents as
Lessor shall deem necessary or desirable to
protect its interest in this Lease and the
equipment. Lessor agrees to pay for all filing,
recording and search fees incurred with respect to
this Lease.
21. HOLDING OVER. Any use of the equipment by
Lessee beyond the initial lease term or any
renewal thereof shall be deemed to be an extension
of the lease term on a month-to-month basis
terminable by Lessor on ten (10) days notice to
Lessee and all obligations of Lessee herein
contained including payment of Budget Utility Cost
Amounts shall continue during such holding over.
22. CHOICE OF LAW; SERVICE OF PROCESS. This
Lease shall be binding and effective only when
signed by an officer of Lessor at its home office
Miami, Florida and, except for local filing
requirements, shall be governed by Florida Law and
shall be deemed to have been made in Miami,
Florida. Lessee does hereby submit to the
jurisdiction of any courts (federal, state, or
local) having a situ within the State of Florida
with respect to any dispute, claim or suit arising
out of or relating to this Lease or Lessee's
obligations hereunder.
23. PURCHASE OR RENEWAL OPTION. If an event of
default is not continuing hereunder, Lessee, by
giving Lessor not less than ninety (90) days
written notice prior to the expiration date of the
lease term of the Equipment Schedule first
expiring under the Lease, may elect to renew this
Lease for an added 10 years and receive a
Guaranteed 25% yearly reduction in the combined
adjusted costs of Electric and Gas utilizing the
same formula described herein, or the Lessee may
purchase not less than all of the equipment then
leased hereunder, at the times and in the manner
hereinafter specified, for an amount equal to that
stated on the face of this Lease, plus any
applicable sales tax with respect to each item of
equipment on the day immediately following the
date of expiration of the lease term of such item,
and by the delivery at such time by Lessee to
Lessor of payment, in cash or be certified check,
of the amount of the purchase price for the
equipment, on an "AS IS," "WITH ALL FAULTS" basis,
without representations or warranties of any kind
whatsoever. If Lessee does not elect to exercise
said purchase option, or renew this Agreement for
an added 10 year period, Lessee shall return each
item of equipment of Lessor, pursuant to and under
the terms and conditions of Section 13 hereof,
upon the expiration of the lease term thereof.
24. ENTIRE AGREEMENT; NON-WAIVER; NOTICES;
SEVERABILITY, ATTORNEYS' FEES.
This Lease contains the entire and only
understanding between Lessor and Lessee relating
to the subject matter hereof. Any
representations, promises or conditions not
contained herein shall not be binding unless in
writing and signed by duly authorized
representatives of each party. No covenant or
condition of this Lease can be waived except by
the written consent of Lessor. Any notices
required to be given here-under shall be given in
writing at the address of each party herein set
forth, or to such other address as either party
may substitute by written notice to the other.
Whenever reference is made herein to the "Lease",
it shall be deemed to include any Schedules
attached hereto identifying all items of equipment
and the applicable term and rent, all of which
constitute one indivisible lease of equipment to
which all the terms and provisions hereof apply.
If any provisions of this Lease is held invalid,
such invalidity shall not affect any other
provisions hereof.
25. GENDER; NUMBER; JOINT AND SEVERAL LIABILITY;
AUTHORIZATION. Whenever the context of this Lease
requires, the masculine gender includes the
feminine or neuter and the singular number
includes the plural; whenever "Lessor" is used
herein, it shall include all assignees of Lessor;
whenever the word "herein" is used referring to
this Lease, it shall include the applicable
Schedules hereto.
If there is more than one Lessee named in this
Lease the liability of each shall be joint and
several. Lessee hereby authorizes Lessor to (i)
insert equipment, serial numbers and other
identification in the equipment description when
known and (ii) correct any patent errors or
omissions in this Lease.
26. SURVIVAL. Lessee's indemnities shall survive
the expiration or other termination of this Lease.
27. SECURITY DEPOSIT. NONE, First Payment is due
upon commissioning and acceptance of Systems on
Site.
28. GUARANTEED OBLIGATIONS: As long as the Lessee
pays timely all Monthly Budget Payments, Less the
10% Reduction and the Respective Current Monthly
Utility Bills with the remaining balance paid
monthly to PSI, then PSI assumes the full
responsibility for the capital cost, monitoring,
maintenance and service of the systems associated
with this Agreement. Any default by the Lessee in
its obligations outlined herein, releases Power
Save International, Inc. from its obligations and
transfers the full liability of this Agreement to
the Lessee.
29. DEFINITION: Foundation Utility Costs are the
amount of KWD, KWH and Therms, Costs and used in
the initial prior 12 months as outlined in the PSI
Feasibility Study.
The Actual Yearly Usage of KWD, KWH and Therms as
reduced by the installed systems operation, will
have no impact in arriving at the adjusted
Foundation Utility Cost to establish the
forthcoming years utility cost, budget monthly
payments.
Yearly changes in building utilization, degree-day
temperatures and Rate Structures will result in a
Computer Generated Printout which will be the
basis for each forthcoming years utility cost
budget monthly payments.
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