Exhibit 10.2
------------
(LOGO) NCR
MASTER EQUIPMENT LEASE AGREEMENT
LESSEE: Independent Bankshares, Inc. and First State Bank, N.A., jointly &
severally liable as Co-Lessees.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T Credit Corporation
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A2071
1. AGREEMENT. Lessor agrees to lease to Lessee and Lessee agrees to lease from
Lessor the equipment (Equipment) described in any schedule (Schedule)that
incorporates this Master Equipment Lease Agreement (Agreement) by reference. A
Schedule shall incorporate this Agreement by reference by listing the above-
referenced Lease Number thereon. Such lease shall be governed by the terms and
conditions of this Agreement, as well as by the terms and conditions set forth
in the applicable Schedule. Each Schedule shall constitute an agreement separate
and distinct from this Agreement and any other Schedule. In the event of a
conflict between the provisions of this Agreement and a Schedule, the provisions
of the Schedule shall govern.
2. ASSIGNMENT OF PURCHASE DOCUMENTS. Lessee shall execute and deliver to
Lessor a writing acceptable to Lessor whereby Lessor is assigned all of Lessee's
rights and interest in and to; (a) the Equipment described in the applicable
Schedule and (b) any purchase order, contract or other documents (collectively,
Purchase Documents) relating thereto that Lessee has entered into with the
Seller (as specified in the applicable Schedule). If Seller is not an affiliate
of Lessor, Lessee shall deliver to Lessor a writing acceptable to Lessor whereby
Seller acknowledges, and provides any required consent to, such assignment. If
Lessee has not entered into any Purchase Document for the Equipment with Seller,
Lessee authorizes Lessor to act as Lessee's agent to issue a purchase order to
Seller for the Equipment and for associated matters, and such purchase order
shall be subject to this Section 2 and all references in this Agreement to
Purchase Documents shall include such purchase order. By executing the
applicable Schedule, Lessee represents and warrants that Lessee either (y) has
reviewed, approved and received a copy of the applicable Purchase Documents or
(z) has been informed by Lessor (i) of the identity of the Seller, (ii) that
Lessee may have rights under the Purchase Documents and (iii) that Lessee may
contact Seller for a description of such rights.
3. DELIVERY; ACCEPTANCE. Lessee shall cause the Equipment to be delivered to
Lessee at the Equipment Location (as specified in the applicable Schedule) and
Lessee shall accept the Equipment as soon as it is delivered or, if acceptance
criteria is specified in the applicable Purchase Documents, as soon as it has
met such criteria. Lessee shall evidence its acceptance of the Equipment and
commencement of the Lease with respect thereto by executing and delivering to
Lessor a commencement certificate (Commencement Certificate) in a form
acceptable to Lessor. By executing and delivering a Commencement Certificate to
Lessor, (a) Lessee represents and warrants that it has selected the Equipment
and Seller specified on the applicable Schedule and (b) Lessee shall irrevocably
accept such Equipment under lease.
4. PURCHASE OF EQUIPMENT. Provided that no Event of Default (as defined in
Section 19) exists, and no event has occurred and is continuing that with notice
or the lapse of time or both would constitute an Event of Default, Lessor shall
be obligated to purchase the Equipment from Seller and to lease the Equipment to
Lessee if (and only if) Lessor receives on or before the Latest Commencement
Date (as specified in the applicable Schedule) the related Commencement
Certificate and Schedule (both executed by Lessee), and such other documents or
assurances as Lessor may reasonably request.
5. TERM. The initial term of each Schedule (initial Term) shall begin on the
date specified as the Commencement Date on the Commencement Certificate with
respect to such Schedule and shall continue for the period specified in such
Schedule. Any renewal term of a Schedule (Renewal Term) shall begin on the
expiration of, as applicable, the Initial Term or any preceding Renewal Term
(collectively, Term).
6. RENT; ADVANCE RENT; LATE CHARGES. Lessee shall pay Lessor the first Rental
Payment (as specified in the applicable Schedule) for the Equipment on or before
the Commencement Date of the applicable Schedule, and shall pay Lessor the
remaining periodic Rental Payments on or before the periodic payment dates
specified in the applicable Schedule or, if periodic payment dates are not
specified, on or before the corresponding day of each subsequent period during
the Initial Term of the applicable Schedule, regardless of whether Lessee has
received notice that such Rental Payments are due. Additionally, if pursuant to
this Agreement or the applicable Schedule the Term is extended or a renewal
option exercised, Lessee shall also pay all Rental Payments required with
respect thereto. All Rental Payments will be sent to Lessor's above-referenced
address, or to such other address as specified by Lessor in writing. Lessee
shall also pay Lessor Advance Rent (as specified in the applicable Schedule) for
the Equipment when it signs the applicable Schedule, and such Advance Rent shall
be refunded without interest to Lessee only if Lessor declines to sign the
applicable Schedule. Advance Rent shall be credited to Lessee's first Rental
Payment under the applicable Schedule, and any excess Advance Rent shall be
credited to Lessee's final Rental Payment(s). Lessee agrees to pay Lessor a
late charge of 5% of any Rental Payment (or other amount due hereunder) that is
not paid within 10 days of its due date, plus interest at the rate of 1-1/2% per
month on any such amounts (or such lesser rate as is the maximum rate allowable
under applicable law). Also, in the event that more than one Schedule is
entered into hereunder, the parties will use their best efforts to implement a
common billing date for all Schedules.
7. ADJUSTMENTS. The Total Purchase Price (as specified in the applicable
Schedule) and Rental Payment set forth in each Schedule are estimates, and if
the final invoice from Seller specifies a Total Purchase Price (including taxes,
delivery, installation and other charges) that is greater or less than such
estimated Total Purchase Price, Lessee hereby authorizes Lessor to adjust the
Total Purchase Price and Rental Price, Lessee hereby authorizes Lessor to adjust
the Total Purchase Price and Rental Payment on the applicable Schedule to
reflect the final invoice amount (Final Invoice Amount). If Option B in the
Schedule has been selected, Lessee also authorizes Lessor to adjust such
purchase and renewal options to reflect the Final Invoice Amount. However, if
the Final Invoice Amount exceeds the estimated Total Purchase Price by more than
10%, Lessor will notify Lessee and obtain Lessee's prior written approval of the
aforementioned adjustments; provided, however that such written approval shall
not be required when such adjustments are caused by Equipment changes or system
reconfigurations requested or caused by Lessee. Additionally, if Lessor
financed any down payment for the Equipment pursuant to an Interim financing
agreement (Financing Agreement) with Lessee, Lessor may also adjust the Total
Purchase Price and Rental Payment with respect to such Equipment to reflect any
accrued interest that Lessee elects to finance.
All references in this Agreement and any Schedule to Total Purchase Price and
Rental Payment shall mean the estimates thereof specified in the applicable
Schedule, as adjusted pursuant to this Section 7.
8. INSURANCE. At its own expense, Lessee shall provide and maintain the
following insurance: (a) Insurance against the loss or theft of or damage to the
Equipment for the greater of the Stipulated Loss Value (computed as described in
the applicable Schedule) or full replacement value thereof, naming Lessor as a
loss payee; and (b) public liability and third party property damage insurance,
naming Lessor as an additional insured. Such insurance shall be in a form,
amount and with companies reasonably satisfactory to Lessor, shall contain the
Insurer's agreement to give Lessor 30 days prior written notice before
cancellation or material change thereof, and shall be payable to Lessor
regardless of any act, omission or breach by Lessee. Lessee shall deliver to
Lessor the insurance policies or copies thereof or certificates of such
insurance on or before the Commencement Date of the applicable Schedule, and at
such other times as Lessor may reasonably request. If no Event of Default
exists, and no event has occurred and is continuing that with notice or the
lapse of time or both would constitute an Event of Default, the proceeds of any
insurance required under clause (a) hereof that have been paid to Lessor shall
be applied against Lessee's obligations to Lessor under Section 13 hereof.
9. TAXES. Lessee shall reimburse Lessor for (or pay directly, but only if
instructed by Lessor) all taxes, fees, and assessments that may be imposed by
any taxing authority on the Equipment or on its purchase, ownership, delivery,
possession, operation, rental, return to Lessor or purchase by Lessee
(collectively, Taxes); provided, however, that Lessee shall not be liable for
any such Taxes (whether imposed by the United States of America or by any other
domestic or foreign taxing authority) imposed on or measured by Lessor's net
income or tax preference items. Lessee's obligation includes, but is not
limited to, the obligation to pay all license and registration fees and all
sales, use, personal property and other taxes and governmental charges, together
with any penalties, fines and interest thereon, that may be imposed during the
Term of the applicable Schedule. Lessee is liable for these Taxes whether they
are imposed upon Lessor, Lessee, the Equipment, this Agreement, the applicable
Schedule or any Financing Agreement. If Lessee is required by law or
administrative practice to make any report or return with respect to such Taxes,
Lessee shall promptly advise Lessor thereof in writing and shall cooperate with
Lessor to ensure that such reports are properly filed and accurately reflect
Lessor's interest in the Equipment. Lessor has no obligation to contest any
such Taxes, however Lessee may do so provided that: (a) Lessee does so in its
own name and at its own expense; (b) the contest does not and will not result in
any lien attaching to any Equipment or otherwise jeopardize Lessor's right to
any Equipment; and (c) Lessee indemnifies Lessor for all expenses (including
legal fees and costs), liabilities and losses that Lessor incurs as a result of
any such contest.
10. REPAIRS; USE; LOCATION; LABELS. Lessee shall: (a) at its own expense, keep
the Equipment in good repair, condition and working order and maintained in
accordance with the manufacturer's recommended engineering and maintenance
standards; (b) use the Equipment lawfully and exclusively in connection with its
business operations and for the purpose for which the Equipment was designed and
intended; and (c) with Lessor's prior written consent, not move the Equipment
from the Equipment Location. If Lessor supplies Lessee with labels stating that
the Equipment is owned by Lessor, Lessee shall affix such labels to the
Equipment pursuant to Lessor's instructions.
11. MAINTENANCE; INSPECTION; ALTERATIONS. At its own expense, Lessee shall:
(a) enter into and maintain a maintenance agreement for the Equipment with the
manufacturer or other party acceptable to Lessor; (b) maintain the Equipment
in the same condition as when delivered, subject only to ordinary wear and tear,
and in good operating order and appearance; (c) make all alterations or
additions to the Equipment that may be required or supplied by the Seller or
legally necessary; and (d) make no other alterations or additions to the
Equipment (except for alterations or additions that will not impair the value or
performance of the Equipment and that are readily removable without damage to
the Equipment). Any modifications, alterations or additions that Lessee makes to
the Equipment (except as permitted by Section 11(d) above) shall become Lessor's
property and shall also be deemed to be Equipment. Upon request, Lessor, or any
party designated by Lessor, shall have the right to inspect the Equipment and
Lessee's applicable maintenance agreement and records at any reasonable time.
12. PERSONAL PROPERTY; LIENS AND ENCUMBRANCES; TITLE. The Equipment shall at
all times remain personal property, notwithstanding that the Equipment, or any
part thereof, may be (or becomes) affixed or attached to real property or any
improvements thereon. Except for the interest of Lessor, Lessee shall keep the
Equipment free and clear of all levies, liens and encumbrances of any nature
whatsoever. Except as expressly set forth in this Agreement, the Equipment
shall at all times remain the property of Lessor and Lessee shall have no right,
title or interest therein.
13. RISK OF LOSS. As between Lessor and Lessee, Lessee shall bear the entire
risk of loss, theft, destruction or damage to the Equipment from any cause
whatsoever or requisition of the Equipment by any governmental entity or the
taking of title to the Equipment by eminent domain or otherwise (collectively,
Loss). Lessee shall advise Lessor in writing within 10 days of any such Loss.
Except as provided below, no such Loss shall relieve Lessee of the obligation to
pay Lessor Rental Payments and all other amounts owed hereunder. In the event
of any such Loss, Lessor, at its option, may: (a) if the Loss has not materially
impaired the Equipment (in Lessor's reasonable judgment), require Lessee, upon
Lessor's demand, to place the Equipment in good condition and repair reasonably
satisfactory to Lessor; or (b) if the Loss has materially impaired the Equipment
(in Lessor's reasonable judgment), require Lessee, upon Lessor's demand, to pay
Lessor its anticipated return (Lessor's Return), which shall consist of the
following amounts: (i) the Rental Payments (and other amounts) then due and
owing under the applicable Schedule; plus (ii) the Stipulated Loss Value
(computed as described in the applicable Schedule) of the Equipment; plus (iii)
all other amounts that become due and owing under the applicable Schedule, but
only to the extent such amounts are not included in the moneys paid to Lessor
pursuant to clauses (i) and (ii) above. Upon Lessor's full receipt of such
Lessor's Return: (y) the applicable Schedule shall terminate, and except as
provided in Section 25, Lessee shall be relieved of all obligations under the
applicable Schedule; and (z) Lessor shall transfer all of its interest in the
Equipment to Lessee "AS IS, WHERE IS," and without any warranty, express or
implied from Lessor, other than the absence of any liens or claims by, through,
or under Lessor.
14. NON-CANCELLABLE NET LEASE. ALL LEASES HEREUNDER SHALL BE NON-CANCELLABLE
NET LEASES, AND LESSEE AGREES THAT IT HAS AN UNCONDITIONAL OBLIGATION TO PAY ALL
RENTAL PAYMENTS AND OTHER AMOUNTS WHEN DUE. LESSEE IS NOT ENTITLED TO ▇▇▇▇▇ OR
REDUCE RENTAL PAYMENTS OR ANY OTHER AMOUNTS DUE, OR TO SET OFF ANY CHARGES
AGAINST THOSE AMOUNTS. LESSEE IS NOT ENTITLED TO RECOUPMENTS, CROSS-CLAIMS,
COUNTERCLAIMS OR ANY OTHER DEFENSES TO ANY RENTAL PAYMENTS OTHER AMOUNTS DUE
HEREUNDER, WHETHER THOSE DEFENSES ARISE OUT OF CLAIMS BY LESSEE AGAINST LESSOR,
SELLER. THIS AGREEMENT, ANY SCHEDULE OR OTHERWISE, NEITHER DEFECTS IN EQUIPMENT,
DAMAGE TO IT, NOR ITS LOSS, DESTRUCTION OR LATE DELIVERY SHALL TERMINATE THIS
AGREEMENT OR ANY SCHEDULE, OR AFFECT LESSEE'S OBLIGATIONS HEREUNDER, UNLESS
LESSEE'S OBLIGATION TO PAY RENTAL PAYMENTS AND OTHER AMOUNTS HAS BEEN TERMINATED
PURSUANT TO THE EXPRESS
TERMS OF THIS AGREEMENT, ALL RENTAL PAYMENTS AND OTHER AMOUNTS SHALL CONTINUE TO
BE DUE AND PAYABLE HEREUNDER.
15. LESSOR DISCLAIMERS; LIMITATION OF REMEDIES. IT IS SPECIFICALLY UNDERSTOOD
AND AGREED THAT: (A) LESSOR SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION,
WARRANTY OR PROMISE MADE BY SELLER, NEITHER SELLER NOR LESSOR SHALL ACT AS, OR
BE DEEMED TO BE, AN AGENT OF THE OTHER, AND LESSOR SHALL NOT BE BOUND BY, OR
LIABLE FOR, ANY REPRESENTATION OR PROMISE MADE BY SELLER (EVEN LIABLE FOR, ANY
REPRESENTATION OR PROMISE MADE BY SELLER (EVEN IF LESSOR IS AFFILIATED WITH
SELLER); (B) LESSOR SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY
DELAY IN ITS DELIVERY OR INSTALLATION; (C) LESSOR SHALL NOT BE LIABLE FOR ANY
BREACH OF ANY WARRANTY THAT SELLER MAY HAVE MADE; (D) LESSEE HAS SELECTED ALL
EQUIPMENT WITHOUT LESSOR'S ASSISTANCE; (E) LESSOR IS NOT A MANUFACTURER OF ANY
EQUIPMENT; AND (F) LESSOR HAS NOT MADE ANY DOES NOT NOW MAKE ANY REPRESENTATION
OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN, COMPLIANCE WITH
SPECIFICATIONS, OPERATION, OR CONDITION OF ANY EQUIPMENT (OR ANY PART THEREOF),
THE MERCHANTABILITY OR FITNESS OF EQUIPMENT FOR A PARTICULAR PURPOSE, OR ISSUES
REGARDING PATENT INFRINGEMENT, TITLE AND THE LIKE. IT IS FURTHER AGREED THAT
LESSOR SHALL HAVE NO LIABILITY TO LESSEE, LESSEE'S CUSTOMERS, OR ANY THIRD
PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT
OF THIS AGREEMENT OR ANY SCHEDULE OR CONCERNING ANY EQUIPMENT, OR FOR ANY
DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR LESSOR'S NEGLIGENCE;
PROVIDED, HOWEVER, THAT NOTHING IN THIS AGREEMENT SHALL DEPRIVE LESSEE OF ANY
RIGHTS IT MAY HAVE AGAINST ANY PERSON OTHER THAN LESSOR. LESSEE SHALL LOOK
SOLELY TO SELLER FOR ANY AND ALL CLAIMS AND WARRANTIES RELATING TO THE
EQUIPMENT. Lessor hereby assigns to Lessee for the Term of the applicable
Schedule the right to enforce, provided no Event of Default then exists under
this Agreement and such enforcement is pursued in Lessee's name, any
representations, warranties and agreements made by Seller pursuant to the
Purchase Documents and Lessee may retain any recovery resulting from any such
enforcement efforts. TO THE EXTENT PERMITTED BY APPLICABLE LAW. LESSEE WAIVES
ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UCC
AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE THAT MAY LIMIT
OR MODIFY LESSOR'S RIGHTS AS DESCRIBED IN THIS SECTION OR OTHER SECTIONS OF THIS
AGREEMENT.
16. LESSEE WARRANTIES. Lessee represents, warrants and covenants to Lessor
that: (a) unless it is an individual, Lessee is duly organized, validly existing
and in good standing under applicable law; (b) Lessee has the power and
authority to enter into this Agreement, all Schedules and all other related
instruments or documents hereunder (collectively, Fundamental Agreements); (c)
such Fundamental Agreements are enforceable against Lessee in accordance with
their terms and do not violate or create a default under any instrument or
agreement binding on Lessee; (d) there are no pending or threatened actions or
proceedings before any court or administrative agency that could have a material
adverse affect on Lessee or any Fundamental Agreement, unless such actions are
disclosed to Lessor and consented to in writing by Lessor; (e) Lessee shall
comply in all material respects with all Federal, state and municipal laws and
regulations the violation of which could have a material adverse effect upon the
Equipment or Lessee's performance of its obligations under any Fundamental
Agreement; (f) Lessee shall obtain all governmental approvals necessary for it
to enter into and perform each Fundamental Agreement; (g) each Fundamental
Agreement shall be effective against all creditors of Lessee under applicable
law, including fraudulent conveyance and bulk transfer laws, and shall raise no
presumption of fraud; (h) financial statements and other related information
furnished by Lessee shall be prepared in accordance with generally accepted
accounting principles and shall present Lessee's financial position as of the
dates given on such statements: (i) Lessee shall furnish Lessor with its
certified financial statements, opinions of counsel, resolutions, and such other
information and documents as Lessor may reasonably request; (j) ALL EQUIPMENT IS
LEASED FOR
BUSINESS PURPOSES ONLY, AND NOT FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES; and
(k) all Equipment is tangible personal property and shall not become a fixture
or real property under Lessee's use thereof. Lessee shall be deemed to have
reaffirmed the foregoing warranties each time it executes any Fundamental
Agreement.
17. GENERAL INDEMNITY. Lessee shall indemnify, hold harmless, and, if so
requested by Lessor, defend Lessor against all claims (Claims) directly or
indirectly arising out of or connected with the Equipment or any Fundamental
Agreement. Claims refers to all losses, liabilities, damages, penalties,
expenses (including legal fees and costs), claims, actions, and suits, whether
based on a theory of strict liability of Lessor or otherwise, and includes, but
is not limited to, matters regarding (a) the selection, manufacture, purchase,
acceptance, rejection, ownership, delivery, lease, possession, maintenance, use,
condition, return or operation of the Equipment; (b) any latent defects or other
defects in any Equipment, whether or not discoverable by Lessor or by Lessee;
(c) any patent, trademark or copyright infringement; and (d) the condition of
any Equipment arising or existing during Lessee's use.
18. SURRENDER; EXTENSION OF TERM. Unless Lessee purchases the Equipment or
renews the Term pursuant to the applicable Schedule, or acquires the Equipment
pursuant to Section 13 hereof, Lessee shall, at its expense, deinstall, inspect,
test and property pack the Equipment at the expiration of the Term, free of all
liens and rights of others, by delivering it on board such common carrier as
Lessor may specify with freight prepaid to any destination within the United
States of America specified by Lessor. If Lessor so requests, Lessor and its
agents shall have the right to enter upon any premises where Equipment may be
located to perform any of Lessee's tasks noted above in this Section 18, and
Lessee shall reimburse Lessor for all costs and expenses Lessor incurs in
fulfilling such tasks. Lessee agrees that the Equipment when returned to
Lessor, shall be in the same condition as when delivered to Lessee, reasonable
wear and tear excepted, and certified as being eligible for Seller's or the
manufacturer's generally available maintenance contract at then prevailing
rates, without Lessor incurring any expense to repair, rehabilitate or certify
such Equipment (Lessee shall be liable for all costs and expenses Lessor incurs
to place the Equipment in such condition). If requested by Lessor, Lessee, at
its expense, shall store the Equipment on its premises for a reasonable period,
during which period the Equipment shall be subject to all of the terms and
conditions hereof, except for the obligation to make Rental Payments. In all
instances where Lessee is returning Equipment to Lessor, Lessee shall give
Lessor written notice thereof in accordance with the terms of the applicable
Schedule. If Lessee fails to provide the aforementioned notice or return the
Equipment to Lessor in the time and manner provided above, the Term shall be
extended in accordance with the terms of the applicable Schedule. If any
Schedule is extended pursuant to the preceding sentence, Lessee shall continue
to pay the higher of the periodic Rental Payments in effect prior to the
expiration of the then existing term of the applicable Schedule (whether it be
the Initial Term or any Renewal Term (Applicable Term)) or such other periodic
rental payment amount as is specified for such extension period in the Schedule,
and all other provisions of this Agreement shall continue to apply.
19. EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default under this Agreement and all Schedules: (a) Lessee fails to pay any
Rental Payment or any other amount payable to Lessor hereunder within 10 days
after its due date; or (b) Lessee fails to perform or observe any other
representation, warranty, covenant, condition or agreement to be performed or
observed by lessee hereunder or in any other agreement with Lessor, or in any
agreement with any other person that in Lessor's sole opinion is a material
agreement, and Lessee fails to cure any such breach within 10 days after
notice thereof; or (c) any representation or warranty made by Lessee hereunder,
or in any other instrument provided to Lessor by Lessee, proves to be incorrect
in any material respect when made; or (d) Lessee makes an assignment for the
benefit of creditors, whether voluntary or involuntary; or (e) a preceding under
any bankruptcy, reorganization, arrangements of debts, insolvency or
receivership law is filed by or against Lessee or Lessee takes any action to
authorize any of the foregoing matters; or (f) Lessee becomes insolvent or fails
generally to pay its debts as they become due, the Equipment is levied against,
seized, or attached, or Lessee seeks to effectuate a bulk sale of Lessee's
inventory or assets; or (g) Lessee voluntarily or involuntarily dissolves or is
dissolved, or terminates or is terminated; or (h) any guarantor dies or revokes
a guaranty provided to Lessor under this Agreement; or (i) any guarantor under
this Agreement is the subject of an event listed in clauses (b) through (g)
above; or (j) any letter of credit required pursuant to any Schedule is
breached, cancelled, terminated or not renewed during the Term of any such
Schedule.
20. REMEDIES. If an Event of Default occurs, Lessor may, in its sole
discretion, exercise one or more of the following remedies: (a) terminate this
Agreement or any or all Schedules; or (b) take possession of, or render
unusable, any Equipment wherever the Equipment 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, and no such action shall
constitute a termination of any Schedule; or (c) require Lessee to deliver the
Equipment at a location designated by Lessor; or (d) declare the Lessor's Return
(as defined in Section 13 hereof and calculated by Lessor as of the date of the
Event of Default) for each applicable Schedule due and payable as liquidated
damages for loss of a bargain and not as a penalty and in lieu of any further
Rental Payments under the applicable Schedule; or (e) proceed by court action to
enforce performance by Lessee of any Schedule and/or to recover all damages and
expenses incurred by Lessor by reason of any Event of Default; or (f) terminate
any other agreement that Lessor may have with Lessee; or (g) exercise any other
right or remedy available to Lessor at law or in equity. Also, Lessee shall pay
Lessor all costs and expenses (including legal fees and costs, and fees of
collection agencies) incurred by Lessor in enforcing any of the terms,
conditions or provisions of this Agreement. Upon repossession or surrender of
any Equipment, Lessor shall lease, sell or otherwise dispose of the Equipment in
a commercially reasonable manner, with or without notice and at public or
private sale, and apply the net proceeds thereof (after deducting all expenses
(including legal fees and costs) incurred in connection therewith) to the
amounts owed to Lessor hereunder; provided, however, that Lessee shall remain
liable to Lessor for any deficiency that remains after any sale or lease of such
Equipment. Lessee agrees that with respect to any notice of a sale required by
law to be given, 10 days notice shall constitute reasonable notice. These
remedies are cumulative of every other right or remedy given hereunder or now or
hereafter existing at law or in equity or by statute or otherwise, and may be
enforced concurrently therewith or from time to time.
21. LESSOR'S PERFORMANCE OF LESSEE'S OBLIGATIONS. If Lessee fails to perform
any of its obligations hereunder, Lessor may perform any act or make any payment
that Lessor deems reasonably necessary for the maintenance and preservation of
the Equipment and Lessor's interests therein; provided, however, that the
performance of any act or payment by Lessor shall not be deemed a waiver of, or
release Lessee from, the obligation at issue. All sums so paid by Lessor,
together with expenses (including legal fees and costs) incurred by Lessor in
connection therewith, shall be paid to Lessor by Lessee immediately upon demand.
22. FINANCING OF ADDITIONS. If, under any Schedule, Lessee intends to make any
addition to the Equipment, Lessee shall, in writing, request Lessor to
finance the costs of such addition. Lessee shall provide Lessor with the terms
under which it hopes to obtain the financing, and upon receiving such a request,
Lessor shall determine, in its sole discretion, whether to provide such
financing. If Lessor does not, within 20 days after receiving Lessee's request,
offer to finance the addition upon the terms requested by Lessee, Lessee may
obtain offers from third parties for financing the addition, and Lessee shall
notify Lessor of the details of any third party financing offer Lessee would
like to accept (Third Party Offer). If Lessor has not made a financing offer to
Lessee on terms substantially similar to the Third Party Offer within 20 days of
receiving Lessee's notice, Lessee may accept the Third Party Offer unless: (a)
the aggregate cost to Lessee of obtaining financing from the Third Party Offer
is greater than the aggregate cost under Lessor's financing offer; (b) the Third
Party Offer would create a security interest in, or a lien on, the Equipment; or
(c) the addition is not permitted under Section 11(d) hereof.
23. ASSIGNMENT BY LESSOR. Lessor shall have the unqualified right to assign,
pledge, transfer, mortgage or otherwise convey any of its interests hereunder or
in any Schedule or any Equipment, in whole or in part, without notice to, or
consent of, Lessee, if any Schedule is assigned, Lessee shall: (a) unless
otherwise specified by the Lessor and the assignee (Assignee) specified by
Lessor, pay all amounts due under the applicable Schedule to such Assignee,
notwithstanding any defense, setoff or counterclaim whatsoever that Lessee may
have against Lessor or Assignee; (b) not permit the applicable Schedule to be
amended or the terms thereof waived without the prior written consent of the
Assignee; (c) not require the Assignee to perform any obligations of Lessor,
other than those that are expressly assumed in writing by such Assignee; and (d)
execute such acknowledgments thereto as may be requested by Lessor. It is
further agreed that: (x) each Assignee shall be entitled to all of Lessor's
rights, powers and privileges under the applicable Schedule, to the extent
assigned; (y) any Assignee may reassign its rights and interests under the
applicable Schedule with the same force and effect as the assignment described
herein; and (z) any payments received by the Assignee from Lessee with respect
to the assigned portion of the Schedule shall, to the extent thereof, discharge
the obligations of Lessee to Lessor with respect to the assigned portion of the
Schedule. LESSEE ACKNOWLEDGES THAT ANY ASSIGNMENT OR TRANSFER BY LESSOR OR ANY
ASSIGNEE SHALL NOT MATERIALLY CHANGE LESSEE'S OBLIGATIONS UNDER THE ASSIGNED
SCHEDULE.
24. ASSIGNMENT OR SUBLEASE BY LESSEE. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE SHALL NOT ASSIGN THIS AGREEMENT OR ANY SCHEDULE OR ASSIGN ITS RIGHTS IN
OR SUBLET THE EQUIPMENT OR ANY INTEREST THEREIN; provided, however, that Lessee
may sublease or assign a Schedule to an affiliate or a wholly-owned subsidiary
of Lessee if: (a) Lessee and such sublessee or assignee execute and deliver to
Lessor a writing (to be provided by Lessor) whereby the sublessee or assignee
agrees to assume joint and several liability with Lessee for the full and prompt
payment, observance and performance when due of all of the obligations of the
Lessee under such Schedule; and (b) Lessor consents to such sublease or
assignment, which consent shall not be unreasonably withheld, in no event,
however, shall any such sublease or assignment discharge or diminish any of
Lessee's obligations to Lessor under such Schedule.
25. SURVIVAL; QUIET ENJOYMENT. All representations, warranties and covenants
made by Lessee hereunder shall survive the termination of this Agreement and
shall remain in full force and affect. All of Lessor's rights, privileges and
indemnities, to the extent they are fairly attributable to events or conditions
occurring or existing on or prior to the termination of this Agreement, shall
survive such termination and be enforceable by Lessor and any successors and
assigns. So long as no Event of Default exists, and no event has occurred and
is continuing that with notice or the lapse of time or
both would constitute an Event of Default, neither Lessor nor any Assignee will
interfere with Lessee's quiet enjoyment of the Equipment.
26. FILING FEES; FURTHER ASSURANCES; NOTICES. Lessee will promptly reimburse
Lessor for any filing or recordation fees or expenses (including lien search
fees, legal fees and costs) incurred by Lessor in perfecting or protecting its
interests in the Equipment and under this Agreement. Lessee shall promptly
execute and deliver to Lessor such documents and take such further action as
Lessor may from time to time reasonably request in order to carry out the intent
and purpose of this Agreement and to protect the rights and remedies of Lessor
created or intended to be created hereunder. All notices under this Agreement
shall be sent to the respective party at its address set forth on the front page
of this Agreement or on the applicable Schedule or at such other address as the
parties may provide to each other in writing from time to time. Any such notice
mailed to said address shall be effective when deposited in the United States
mail, duly addressed and with first class postage prepaid.
27. WAIVER OF JURY TRIAL; SUCCESSORS. LESSEE AND LESSOR EACH IRREVOCABLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY LAWSUIT, PROCEEDING COUNTERCLAIM OR ANY OTHER
LITIGATION OR PROCEEDING UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY
OTHER FUNDAMENTAL AGREEMENT, OR THE DEALING OR RELATIONSHIP BETWEEN OR AMONG
LESSOR, LESSEE, SELLER OR ANY OTHER PERSON. This Agreement and all Schedules
inure to the benefit of and are binding upon the permitted successors or assigns
of Lessor and Lessee.
28. NO WAIVER; LESSOR APPROVAL. Any failure of Lessor to require strict
performance by Lessee, or any written waiver by Lessor of any provision hereof,
shall not constitute consent or waiver of any other breach of the same or any
other provision hereof. Neither this Agreement nor any other Fundamental
Agreement shall be binding upon Lessor unless and until executed by Lessor.
29. CAPTIONS; COUNTERPARTS; LESSOR'S AFFILIATES. The captions contained in
this Agreement are for convenience only and shall not affect the interpretation
of this Agreement. Only one counterpart of the Schedule shall be marked
"Original" (Original), and all other counterparts thereof shall be marked as,
and shall be, duplicates. To the extent that any Schedule constitutes chattel
paper (as such term is defined in the Uniform Commercial Code in effect in any
applicable jurisdiction), no security interest in such Schedule may be created
through the transfer or possession of any counterpart other than the Original.
Lessee understands and agrees that AT&T Capital Corporation or any affiliate or
subsidiary thereof may, as lessor, execute Schedules under this Agreement, in
which event the terms and conditions of the applicable Schedule and this
Agreement as it relates to the lessor under such Schedule shall be binding upon
and shall inure to the benefit of such entity executing such Schedule as lessor,
as well as any successors or assigns of such entity.
30. CHOICE OF LAW; INTEGRATION; ENTIRE AGREEMENT. EACH LEASE UNDER THIS
AGREEMENT SHALL BE GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW
PROVISIONS) OF THE STATE OF NEW JERSEY (STATE). If any provision of this
Agreement or such Schedule shall be prohibited by or invalid under that law,
such provision shall be ineffective only to the extend of such prohibition or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement or such Schedule. Lessor and Lessee
consent to the jurisdiction of any local, state or Federal court located within
the State, and waive any objection relating to improper venue or forum non
conveniens to the conduct of any proceeding in any such court. This Agreement
and all other Fundamental Agreements executed by both Lessor and Lessee
constitute the entire agreement between Lessor and Lessee relating to
the leasing of the Equipment, and supersede all prior agreements relating
thereto, whether written or oral, and may not be amended or modified except in a
writing signed by the parties hereto.
LESSEE: INDEPENDENT BANKSHARES, INC.
BY: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
-------------------------------------
Print Name and Title
June 23, 1998
-------------------------------------
Date
FIRST STATE BANK, N.A.
BY: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
-------------------------------------
Print Name and Title
June 23, 1998
-------------------------------------
Date
LESSOR: AT&T CREDIT CORPORATION
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Lessee Authorized Signature
▇▇▇▇▇▇▇▇ ▇▇▇▇, Senior Credit Officer
-------------------------------------
Print Name and Title
June 30, 1998
-------------------------------------
Date
[Page]
[LOGO] AT&T Capital Corporation
AMENDMENT TO MASTER EQUIPMENT LEASE AGREEMENT
LESSEE: Independent Bankshares, Inc.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, Zip: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T CREDIT CORPORATION
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number A2071
Lessor and Lessee hereby amend, as specified below, the Master
Equipment Lease Agreement (Agreement) identified by the Lease Number specified
above. Capitalized terms used in this Amendment that are not otherwise defined
herein shall have the meanings ascribed to them in the Agreement.
1. Lessor and Lessee hereby agree that in connection with certain
leases of Equipment, Lease Number "A2071" or "A207100" may be used to refer to
the Agreement between Lessee and Lessor. Accordingly, any Master Equipment
Lease Agreement Schedule or any other related document entered into in
connection with the Agreement shall incorporate the Agreement by reference by
listing either "A2071" or "A207100" on such document.
Lessor and Lessee hereby make this Amendment an integral part of the
Agreement.
Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
(Lessee Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
(Type/Print Name)
President/CEO
----------------------------------
(Title)
June 23, 1998
----------------------------------
(Date)
AT&T CREDIT CORPORATION
By:
-----------------------------
(Lessor Authorized Signature)
----------------------------------
(Type/Print Name)
----------------------------------
(Title)
----------------------------------
(Date)
[Page]
[LOGO] NCR
Amendment to Master Equipment Lease Agreement
LESSEE: Independent Bankshares, Inc.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, Zip: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T CREDIT CORPORATION
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number A2071
Lessor and Lessee hereby amend, as specified below, the Master
Equipment Lease Agreement (Agreement) identified by the Lease Number specified
above. Capitalized terms used in this Amendment that are not otherwise defined
herein shall have the meanings ascribed to them in the Agreement.
1. In order to induce Lessor to enter into the Agreement and to
provide Lessor with assurance of Lessee's performance of all obligations set
forth therein, Lessee hereby agrees to serve as a Co-Lessee with First State
Bank, N.A. (all of such parties together with Lessee collectively referred to as
"Co-Lessees") under the Agreement. Each Co-Lessee shall be jointly and
severally liable and responsible for fulfilling all obligations of Lessee under
the Agreement, and each hereby waives any and all claims of contribution or
recoupment that may arise with respect to its status as Co-Lessee. It is
specifically understood and agreed that Lessor shall discharge its obligations
to all Co-Lessees under the Agreement by rendering performance to any one of the
Co-Lessees, provided that such performance is rendered to the actual user of the
Equipment.
2. Schedules executed under the Agreement, by referencing the above
specified Lease Number, shall be deemed to be executed by all Co-Lessees and
shall be enforceable by Lessor against any or all Co-Lessees.
Lessor and Lessee make this Amendment an integral part of the
Agreement.
LESSEE: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
(Lessee Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
(Type/Print Name)
Chairman of the Board
----------------------------------
(Title)
June 23, 1998
----------------------------------
(Date)
LESSOR: AT&T CREDIT CORPORATION
By:
-----------------------------
(Lessor Authorized Signature)
----------------------------------
(Type/Print Name)
----------------------------------
(Title)
----------------------------------
(Date)
[Page]
CO-LESSEE: First State Bank, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
(Lessee Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
(Type/Print Name)
Chairman of the Board/CEO
----------------------------------
(Title)
June 23, 1998
----------------------------------
(Date)
[Page]
[LOGO] NCR
Master Equipment Lease Agreement Schedule
NCR Credit
LESSEE: Independent Bankshares, Inc. and First State Bank, N.A. jointly and
severally liable as Co-Lessees
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T Credit Corporation
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A2071
Schedule Number: 50840
SELLER: BancTec USA, CompUSA and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Description of Items to be Leased (the Equipment): Equipment subject hereto
shall include, but not be limited to: NCR 4300 Server equipment and all other
items of equipment, including all attachments, alterations, and additions
thereto, and any and all parts thereof, and a right to use license for any
software related thereto, and related documentation, as such are and/or will be
more particularly described in the equipment order(s) as reflected in the
invoices of the seller or supplier.
Total Price Including Installation/One-Time Charges: $49,100.00
Total Purchase Price (Sum of total prices including installation/one-time
charges): $49,100.00
Option A: [X] Yes [ ] No
Lessee selects a fair market value purchase option and a fair rental value
renewal option.
Option B: [ ] Yes [X] No
Lessee selects (i) a fixed price purchase option of either $ N/A or N/A% of the
Total Purchase Price, and (ii) a fixed price renewal option of N/A% of the
periodic Rental Payment.
THE TERMS AND CONDITIONS OF THE FOREGOING OPTIONS AND OTHER IMPORTANT PROVISIONS
ARE SET FORTH ON THE BACK OF THIS SCHEDULE.
PAYMENTS IN ARREARS YES [X]
If this payments in arrears option is selected, Lessee shall pay Lessor the
first Rental Payment for the Equipment on the last day of the First Rental
Payment Period, which shall begin at Lessor's option on either the Commencement
Date or the first day of the month following the month in which the Commencement
Date occurs, and shall pay Lessor the remaining periodic Rental Payments on or
before the last day of each subsequent Rental Payment Period.
Equipment Location: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Advance Rent: $0.00
Rental Payment: $1,133.72
Rental Payment Period: Monthly
Latest Commencement Date: 6/30/98
Length of Initial Term: 48 Months
THIS SCHEDULE SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF THE MASTER
EQUIPMENT LEASE AGREEMENT REFERENCED BY THE LEASE NUMBER SPECIFIED ABOVE
(AGREEMENT) BY AND BETWEEN LESSEE, AS LESSEE, AND LESSOR OR AT&T CAPITAL
CORPORATION OR ANY AFFILIATE OR SUBSIDIARY THEREOF, AS LESSOR, AND BY THE TERMS
AND CONDITIONS SET FORTH ON THE FRONT AND BACK OF THIS SCHEDULE. PURSUANT TO
SUCH TERMS AND CONDITIONS (WHICH LESSEE ACKNOWLEDGES THAT IT HAS READ AND
UNDERSTANDS), LESSEE AGREES TO LEASE FROM LESSOR (AS SPECIFIED BELOW) AND LESSOR
AGREES TO LEASE TO LESSEE THE ABOVE REFERENCED EQUIPMENT. IT IS UNDERSTOOD AND
AGREED THAT THE TERMS AND CONDITIONS OF THIS SCHEDULE MAY BE DIFFERENT FROM THE
TERMS AND CONDITIONS OF PRIOR SCHEDULES AND THAT ANY ASSIGNMENT OR TRANSFER
PURSUANT TO SECTION 23 OF THE AGREEMENT BY LESSOR OR ANY ASSIGNEE SHALL NOT
MATERIALLY CHANGE LESSEE'S OBLIGATIONS HEREUNDER, LESSEE REPRESENTS AND WARRANTS
THAT IT SHALL LOOK ONLY TO THE SELLER FOR ANY AND ALL CLAIMS AND WARRANTIES
RELATING TO THE EQUIPMENT AND THAT IT ETHER HAS
REVIEWED, APPROVED AND RECEIVED A COPY OF THE APPLICABLE PURCHASE DOCUMENTS OR
HAS BEEN INFORMED BY THE LESSOR THAT IT MAY HAVE RIGHTS UNDER THE PURCHASE
DOCUMENTS AND MAY CONTACT SELLER FOR A DESCRIPTION OF SUCH RIGHTS, TO THE EXTENT
PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES
CONFERRED UPON LESSEE BY ARTICLE 2A OF THE UCC AND ANY RIGHTS NOW OR HEREAFTER
CONFERRED BY STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY THE LESSOR'S RIGHTS
AS DESCRIBED IN THE AGREEMENT, THIS SCHEDULE OR ANY OTHER FUNDAMENTAL AGREEMENT,
(AS DEFINED IN THE AGREEMENT).
Lessee: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
Date
First State Bank, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chairman of the Board/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
Date
AT&T CREDIT CORPORATION
By:
-----------------------------
Lessor Authorized Signature
----------------------------------
Print Name and Title
----------------------------------
Date
ORIGINAL
[Page]
[LOGO] NCR
Master Equipment Lease Agreement Commencement Certificate
NCR Credit
LESSEE: Independent Bankshares, Inc. and First State Bank, N.A. jointly and
severally liable as Co-Lessees
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T Credit Corporation
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A2071
Schedule Number: 50840
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings ascribed to them in the Master Equipment Lease Agreement
(Agreement) identified by the Lease Number specified above.
In accordance with the terms and provisions of the Agreement and the Schedule
identified by the Schedule Number specified above, the Lessee hereby certifies
and states that: (a) all Equipment listed in the above-referenced Schedule, as
amended through the date hereof, has been delivered and fully installed; (b)
Lessee has inspected the Equipment, and all testing as it deems necessary has
been performed by Lessee, the manufacturer or Seller; (c) Lessee irrevocably
accepts the Equipment for all purposes of the Agreement, the Purchase Documents
and all related documents; (d) on the date hereof the Equipment has become for
the first time operational and available to be placed in service for its
specifically assigned function; (e) any insurance policies required by Section 8
of the Agreement have been obtained and are in full force and effect; (f) the
Equipment is located at the Equipment Location specified in the Schedule (and
such location is also set forth below); and (g) Lessee selected the Equipment
and the Seller thereof, as identified in the Schedule.
Lessee hereby acknowledges and agrees that the above-referenced Schedule and all
other Fundamental Agreements relating thereto executed by both Lessor and Lessee
constitute the entire agreement between Lessor and Lessee relating to the
leasing of the equipment described in the Schedule, and supersede all prior
agreements relating thereto, whether written or oral, and may not be amended or
modified except in a writing signed by the parties hereto.
Equipment Location: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Lessee: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
Date
First State Bank, N.A.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Chairman of the Board/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
(Date)
ORIGINAL
[Page]
[LOGO] NCR
Master Equipment Lease Agreement Schedule
NCR Credit
LESSEE: Independent Bankshares, Inc.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T Credit Corporation
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A207100
Schedule Number: 50850
SELLER: BancTec USA and ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Description of Items to be Leased (the Equipment): Equipment subject hereto
shall include, but not be limited to: NCR 7780 Proof Encoders equipment and all
other items of equipment, including all attachments, alterations, and additions
thereto, and any and all parts thereof, and a right to use license for any
software related thereto, and related documentation, as such are and/or will be
more particularly described in the equipment order(s) as reflected in the
invoices of the seller or supplier.
Total Price Including Installation/One-Time Charges: $881,909.62
Total Purchase Price (Sum of total prices including installation/one-time
charges): $881,909.62
Option A: [X] Yes [ ] No
Lessee selects a fair market value purchase option and a fair rental value
renewal option.
Option B: [ ] Yes [X] No
Lessee selects (i) a fixed price purchase option of either $ N/A or N/A% of the
Total Purchase Price, and (ii) a fixed price renewal option of N/A% of the
periodic Rental Payment.
THE TERMS AND CONDITIONS OF THE FOREGOING OPTIONS AND OTHER IMPORTANT PROVISIONS
ARE SET FORTH ON THE BACK OF THIS SCHEDULE.
PAYMENTS IN ARREARS YES [X]
If this payments in arrears option is selected, Lessee shall pay Lessor the
first Rental Payment for the Equipment on the last day of the First Rental
Payment Period, which shall begin at Lessor's option on either the Commencement
Date or the first day of the month following the month in which the Commencement
Date occurs, and shall pay Lessor the remaining periodic Rental Payments on or
before the last day of each subsequent Rental Payment Period.
Equipment Location: See Attached Exhibit A
Advance Rent: $0.00
Rental Payment: $17,452.99
Rental Payment Period: Monthly
Latest Commencement Date: June 30, 1998
Length of Initial Term: 60 Months
THIS SCHEDULE SHALL BE GOVERNED BY THE TERMS AND CONDITIONS OF THE MASTER
EQUIPMENT LEASE AGREEMENT REFERENCED BY THE LEASE NUMBER SPECIFIED ABOVE
(AGREEMENT) BY AND BETWEEN LESSEE, AS LESSEE, AND LESSOR OR AT&T CAPITAL
CORPORATION OR ANY AFFILIATE OR SUBSIDIARY THEREOF, AS LESSOR, AND BY THE TERMS
AND CONDITIONS SET FORTH ON THE FRONT AND BACK OF THIS SCHEDULE. PURSUANT TO
SUCH TERMS AND CONDITIONS (WHICH LESSEE ACKNOWLEDGES THAT IT HAS READ AND
UNDERSTANDS), LESSEE AGREES TO LEASE FROM LESSOR (AS SPECIFIED BELOW) AND LESSOR
AGREES TO LEASE TO LESSEE THE ABOVE REFERENCED EQUIPMENT. IT IS UNDERSTOOD AND
AGREED THAT THE TERMS AND CONDITIONS OF THIS SCHEDULE MAY BE DIFFERENT FROM THE
TERMS AND CONDITIONS OF PRIOR SCHEDULES AND THAT ANY ASSIGNMENT OR TRANSFER
PURSUANT TO SECTION 23 OF THE AGREEMENT BY LESSOR OR ANY ASSIGNEE SHALL NOT
MATERIALLY CHANGE LESSEE'S OBLIGATIONS HEREUNDER, LESSEE REPRESENTS AND WARRANTS
THAT IT SHALL LOOK ONLY TO THE SELLER FOR ANY AND ALL CLAIMS AND WARRANTIES
RELATING TO THE EQUIPMENT AND THAT IT ETHER HAS REVIEWED, APPROVED AND RECEIVED
A COPY OF THE APPLICABLE PURCHASE DOCUMENTS OR HAS BEEN INFORMED BY THE LESSOR
THAT IT MAY HAVE RIGHTS UNDER THE PURCHASE DOCUMENTS AND MAY CONTACT SELLER FOR
A DESCRIPTION OF SUCH RIGHTS, TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE
WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON LESSEE BY ARTICLE 2A OF
THE UCC AND ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE THAT
MAY LIMIT OR MODIFY THE LESSOR'S RIGHTS AS DESCRIBED IN THE AGREEMENT, THIS
SCHEDULE OR ANY OTHER FUNDAMENTAL AGREEMENT, (AS DEFINED IN THE AGREEMENT).
Lessee: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
Date
AT&T CREDIT CORPORATION
By:
-----------------------------
Lessor Authorized Signature
----------------------------------
Print Name and Title
----------------------------------
Date
ORIGINAL
[Page]
MASTER EQUIPMENT LEASE AGREEMENT: A207100 SCHEDULE 50850
EXHIBIT A
EQUIPMENT LOCATIONS:
1. First State Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
2. First State Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3. First ▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[Page]
[LOGO] NCR
Master Equipment Lease Agreement Commencement Certificate
NCR Credit
LESSEE: Independent Bankshares, Inc.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇/▇▇▇▇▇/▇▇▇: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T Credit Corporation
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A207100
Schedule Number: 50850
Capitalized terms used herein that are not otherwise defined herein shall have
the meanings ascribed to them in the Master Equipment Lease Agreement
(Agreement) identified by the Lease Number specified above.
In accordance with the terms and provisions of the Agreement and the Schedule
identified by the Schedule Number specified above, the Lessee hereby certifies
and states that: (a) all Equipment listed in the above-referenced Schedule, as
amended through the date hereof, has been delivered and fully installed; (b)
Lessee has inspected the Equipment, and all testing as it deems necessary has
been performed by Lessee, the manufacturer or Seller; (c) Lessee irrevocably
accepts the Equipment for all purposes of the Agreement, the Purchase Documents
and all related documents; (d) on the date hereof the Equipment has become for
the first time operational and available to be placed in service for its
specifically assigned function; (e) any insurance policies required by Section 8
of the Agreement have been obtained and are in full force and effect; (f) the
Equipment is located at the Equipment Location specified in the Schedule (and
such location is also set forth below); and (g) Lessee selected the Equipment
and the Seller thereof, as identified in the Schedule.
Lessee hereby acknowledges and agrees that the above-referenced Schedule and all
other Fundamental Agreements relating thereto executed by both Lessor and Lessee
constitute the entire agreement between Lessor and Lessee relating to the
leasing of the equipment described in the Schedule, and supersede all prior
agreements relating thereto, whether written or oral, and may not be amended or
modified except in a writing signed by the parties hereto.
Equipment Location: See Attached Exhibit A
Lessee: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------
Lessee Authorized Signature
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, President/CEO
----------------------------------
Print Name and Title
June 23, 1998
----------------------------------
Date
ORIGINAL
[Page]
MASTER EQUIPMENT LEASE AGREEMENT: A207100 SCHEDULE 50850
EXHIBIT A
EQUIPMENT LOCATIONS:
1. First State Bank
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
2. First State Bank, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3. First ▇▇▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
[Page]
[LOGO] NCR
▇▇▇▇ OF SALE
NCR Credit
SELLER: INDEPENDENT BANKSHARES, INC.
Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Equipment: NCR 4300 Server
PURCHASER: AT&T CREDIT CORPORATION
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Purchase Price: $49,100.00
Dated as of: June 22, 1998
Seller hereby transfers to Purchaser, as of the date set forth above, all of
Seller's right, title and interest in and to the Equipment described above.
Seller hereby acknowledges the receipt and the sufficiency of the Purchase Price
set forth above. Seller represents, warrants and covenants to Purchaser that
(1) Purchaser is receiving from the Seller good and marketable title to the
Equipment free and clear of any and all liens, encumbrances or claims of any
party whatsoever, and (2) any manufacturers' warranties are in full force and
effect. Seller agrees to pay any and all sales, use, property or other taxes
due on the Equipment through the date set forth above (whether known as of such
date or not) and/or in connection with the transfer of the Equipment to
Purchaser.
SELLER: INDEPENDENT BANKSHARES, INC.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------
(Type/Print Name)
President/CEO
--------------------------------
(Title)
June 23, 1998
--------------------------------
(Date)
[Page]
[LOGO] NCR
ASSIGNMENT OF PURCHASE DOCUMENTS
LESSEE: Independent Bankshares, Inc. and First State Bank, N.A., jointly and
severally liable as Co-Lessees
Address: ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
LESSOR: AT&T CREDIT CORPORATION
Address: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Lease Number: A2071
1. AGREEMENT. Lessee and Lessor have entered into a Master Equipment Lease
Agreement (Agreement), identified by the Lease Number specified above, pursuant
to which Lessor agrees to lease to Lessee and Lessee agrees to lease from Lessor
the equipment (Equipment) described in any schedule (Schedule) that incorporates
the Agreement by reference. The Equipment is subject to a purchase order,
contract or other documents (collectively, Purchase Documents) that Lessee has
entered into with the seller for the Equipment (Seller). This assignment,
relating to such Equipment and Purchase Documents, is delivered by Lessee
pursuant to section 2 of the Agreement.
2. ASSIGNMENTS. Lessee hereby assigns to Lessor all of Lessee's rights and
interests in and to the Equipment and the Purchase Documents (as the same
relates to such Equipment).
3. LESSEE'S CONTINUING OBLIGATIONS. Except for the obligation to pay Seller
for the Equipment if (and only if) the Equipment is accepted by Lessee pursuant
to the Agreement, Lessee's assignment to Lessor shall not include any of
Lessee's obligations under the Purchase Documents, and Lessee shall at all times
remain liable to Seller to perform all of the duties and obligations of the
purchaser under such Purchase Documents to the same extent as if an assignment
had not occurred. The exercise by Lessor of any of the rights assigned
hereunder shall not release Lessee from any of Lessee's duties or obligations to
the Seller under the Purchase Documents.
This assignment may not be amended or modified except in a writing signed by the
parties hereto.
Lessee: Independent Bankshares, Inc.
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
(Lessee Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
(Type/Print Name)
President/CEO
---------------------------------
(Title)
June 23, 1998
---------------------------------
AT&T CREDIT CORPORATION
By:
----------------------------
(Lessor Authorized Signature)
---------------------------------
(Type/Print Name)
---------------------------------
(Title)
---------------------------------
(Date)
[Page]
Co-Lessee: First State Bank, N.A.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
(Co-Lessee Authorized Signature)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
---------------------------------
(Type/Print Name)
Chairman of the Board/CEO
---------------------------------
(Title)
June 23, 1998
---------------------------------
[Page]