Loading...
HomeMy WebLinkAboutToshiba Business Solutions/Comm Rel/14,078.61/Master Lease AgreementTOSHIBA BUSINESS SOLUTIONS TOSHIBA FINANCIAL SERVICES APPLICATION NUMBER AGREEMENT NUMBER The words you and your, refer to the Customer. The words Lessor, we, us, and our, refer to Toshiba Financial 2468618 Services. The Toshiba Equipment is covered by the terms of the Toshiba Quality Commitment, a copy of which may be obtained from your service provider. We own the Equipment, as defined below, (excluding software) and you have the right to use it under the terms of this Master Lease With Maintenance Agreement (this 'Agreement"). 'Schedule' means any lease schedule signed by you and us which incorporates the terms of this Agreement. CUSTOMER•NTACT INFORMATION Legal Company Name: City of Carmel Fed. Tax ID#: Contact Person: Nancy Heck Bill -To Phone: (317) 571-2474 Bill -To Fax: Billing Address: 1 CIVIC SQUARE Attn: Community Relations & Economic Development City, State - Zip: CARMEL, I N 46032 Contact Name: Stefanie Carel Subsidiary Location: Indiana 1. Lease Agreement: You agree to lease from us the Equipment all as described under 'ITEM DESCRIPTION' on any Lease With Maintenance Schedule ('Schedule') issued pursuant to this Agreement, (hereinafter, with all replacement parts, repairs, additions and accessories, referred to as the 'Equipment") and as modified by Schedules to this Agreement from time to time signed by you and us. You authorize us to insert or correct missing information on this Agreement, including your accurate legal name, serial numbers and any other information describing the Equipment. You authorize us to change the amount of each Payment (set forth on attached Schedule to this Agreement) by not more than 15% due to changes in the equipment configuration which may occur prior to our acceptance of this Agreement or adjustments to reflect applicable sales taxes. We will send you copies of any changes. You agree to provide updated annual and/or quarterly financial statements to us upon request. You authorize us or our agent to obtain credit reports and make credit inquiries regarding you and your financial condition and to provide your information, including payment history, to our assignees or third parties having an economic interest in this Agreement or the Equipment. Toshiba Financial Services (TFS) is not responsible for service or maintenance of the Equipment and is not party to any service maintenance agreement. 2. Lease Commencement: This Agreement will commence upon your acceptance of the applicable Equipment. When you receive the Equipment, you agree to inspect it and verify your acceptance by telephone or, at our request, by delivery of written evidence of acceptance satisfactory to us. Upon acceptance, your obligations under this Agreement will become absolute and unconditional, and are not subject to cancellation, reduction or setoff for any reason whatsoever. You agree to pay us the amounts payable under the terms of this Agreement each period by the due date in accordance with the Term and Payment schedule set forth on attached Schedule to this Agreement. Payments shall be delivered to our address or to such other address as we may designate in writing. For any payment that is not received by its due dale, you agree to pay a late charge equal to the higher of 10% of the amount due or $22 (not to exceed the maximum allowed by law). 3. Image Charges: Each month during the term of this Agreement, you agree to remit to us the Payment and all other sums when due and payable to the address we provide to you from time to time. In return for the Payment, you are entitled to produce the Images (set forth on attached Schedule to this Agreement) included for each applicable image type each month. You also agree to pay us the Excess Image charge (set forth on attached Schedule to this Agreement) for each metered image that exceeds the applicable Images Included. We reserve the right to estimate the number of images used if you do not provide us with meter readings within seven days of request We will adjust the estimated charge for excess images upon receipt of actual meter readings. Notwithstanding any adjustments, you will never remit to us less than the Minimum Payment each month. You agree that we reserve the right to increase the maintenance and supplies portion of the Payment and/or the Excess Image charge each year during the Tenn of the Schedule by an amount not to exceed fifteen percent (15%) of the Payment and/or the Excess Image charge in effect at the end of the prior annual period. At our option, you will: (a) provide meter readings via an automated website when requested by us. We may charge a fee to recover the cost of meter collections if meters are requested but not submitted through the automated website. (b) Provide us by telephone or facsimile the actual meter readings when requested by us. (c) Allow us (or our agent) access to the Equipment to obtain meter readings. (d) Allow us (or our agent) to attach an automatic meter reading device to the Equipment. We may audit the automatic meter reading device periodically. If you have a dispute with your service provider, you continue to pay us all Payments and Excess Image charges without deductions or withholding deductions. Images made on Equipment marked as 'Customer Owned' will be included in determining your image and excess charges. 4. WARRANTY DISCLAIMER: WE MAKE NO WARRANTY EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE EQUIPMENT IS FIT FOR A PARTICULAR PURPOSE OR THAT THE EQUIPMENT IS MERCHANTABLE. YOU AGREE THAT YOU HAVE SELECTED EACH ITEM OF EQUIPMENT BASED UPON YOUR OWN JUDGMENT AND DISCLAIM ANY RELIANCE UPON ANY STATEMENTS OR REPRESENTATIONS MADE BY US. YOU LEASE THE EQUIPMENT "AS IS". NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT WILL BIND US, NOR WILL ANY BREACH THEREOF RELIEVE YOU OF ANY OF YOUR OBLIGATIONS HEREUNDER. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE TO PAY YOU ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR ANY DEFAULT BY US UNDER THIS AGREEMENT, THIS AGREEMENT AND EACH SCHEDULE IS NONCANCELABLE / IRREVOCABLE AND CANNOT BE CANCELLED OR TERMINATED. Toshiba Financial Services I Signature:-I/�, „/ �/u� _,fe_ I TitleAtAA.,;M JAelllilli Date: You hereby acknowledge and agree that your original or electronic signature below shall constitute an enforceable and original signature for all purposes. This Agreement may be executed in counterparts. The executed counterpart which has Lessor's original signature ancilor is in Lessor's possession shall constitute chattel paper as that term is defined in the Uniform Commercial Code ('UCC') and shall constitute the original agreement for all purposes, including, without limitation, (i) any hearing, trial or proceeding with respect to this Agreement, and (ii) any determination as to which version of this Agreement constitutes the single true original item of chattel paper under the UCC. If Customer signs and transmits this Agreement to Lessor by facsimile or other electronic transmission, the transmitted copy, upon execution by Lessor, shall be binding upon the parties. Customer agrees that the facsimile or other electronic transmission of this Agreement manually signed by Lessor, when attached to the facsimile or other electronic copy signed by Customer, shall constitute the original agreement for all purposes, including, without limitation, those outlined above in this Section. Without limiting and subject to the foregoing, the parties further agree that for purposes of executing this Agreement, (a) a document signed and transmitted by facsimile or other electronic transmission shall be treated as an original document, (b) the signature of any parry on such document shall be considered as an original signature, (c) the document transmitted shall have the same effect as a counterpart thereof containing original signatures, and (d) at the request of Lessor, Customer, who executed this Agreement and transmitted its signature by facsimile, or other electronic transmission shall provide the counterpart of this Agreement containing Customer's original manual signature to Lessor. No party may raise as a defense to the enforcement of this Agreement that a facsimile or other electronic transmission was used to transmit any signature of a parry to this Agreement. BY SIGNING THIS PAGE, YOU REPRESENT TO US THAT YOU HAVE RECEIVED AND READ THE ADDITIONAL TERMS AND CONDITIONS APPEARING ON THE SECOND PAGE OF THIS AGREEMENT. THIS AGREEMENT IS BINDING UPON OUR ACCEPTANCE HEREOF. Name: ,lames Brainard I Signature: X I Title: Mayor (Date: 1 of 2 SEE PAGE 2 FOR ADDITIONAL TERMS AND CONDITIONS TFSITBS MASTER LEASE WITH MAINTENANCE AGREEMENT — 0518 TERMS AND CONDITIONS (Terms Continued from Page 1) 5. Statutory Finance Lease: You agree that this Agreement qualifies as a statutory Finance Lease under Article 2A of the Uniform Commercial Code. To the extent you are permitted by applicable law, you waive all rights and remedies provided by Article 2A (sections 508-522) of the Uniform Commercial Code. 5. Security Interest You authorize us to file a financing statement with respect to the Equipment if this Agreement is deemed to be a secured transaction, you grant us a security interest in the Equipment to secure all amounts you owe us under any agreement with us. 7. Use Maintenance and Repair of Equipment: YOU WILL USE THE EQUIPMENT ONLY IN THE LAWFUL CONDUCT OF YOUR BUSINESS AND NOT FOR PERSONAL, HOUSEHOLD OR FAMILY PURPOSES. You will not move the Equipment from the equipment location listed on page 1 without our advance written consent You will give us reasonable access to the Equipment so that we can check tre Equipment's existence, condition and proper maintenance. At your cost, you will keep the Equipment in good repair. condition and working order, ordinary wear and tear excepted. You will not make any permanent alterations to the Equipment You will keep the Equipment free and clear of all hens. You assign to us all of your rights, but none of your obligations, under any purchase agreement for the Equipment We assign to you all our rights under any warranties, so long as you are not in default. 8. Software: Except as provided in this paragraph, references to 'Equipment' include any software referenced above or installed on the Equipment We do not own the software and cannot transfer any interest in it to you. You are responsible for entering into any license and/or other agreement (each a *License Agreement') required by the applicable software supplier or software licensor no later than the effective date of this Agreement and you will fully comply with such License, if any, throughout the applicable term. We are not responsible for the software or the obligations of you or the software licensor under any License Agreement. 9. Taxes and Lease Charges: You agree to pay all taxes, costs and expenses incurred by us as a consequence of the ownership, sale, lease or use of the Equ ipment including all sales, use and documentary stamp taxes. Any fee charged under this Agreement may include a profit and is subject to applicable taxes. In addition, you agree to pay us a UCC filing fee of 535.00. 10. Indemnity: You will indemnify and hold us harmless from any and all liability, damages, losses or injuries including reasonable attorney's fees, arising out of the ownership. use, condition or possession of the Equipment except to the extent directly caused by our gross negligence or willful misconduct. We reserve the right to control the defense and to select or approve defense counsel. This indemnity will survive the termination of this Agreement 11. Risk of Loss; Insurance: You are responsible for disk of loss or for any destruction of or damage to the Equipment No such loss or damage shall relieve you from the payment obligations under this Agreement You agree to keep the Equipment fully insured against loss unfit this Agreement is paid in full and to have us and our assigns named as lenders loss payee. You also agree to maintain public liability insurance covering both persona injury and property damage and you shall name us and our assigns as addibonal insured. Upon request You agree to provide us certificates or evidence of insurance acceptable to us. If you fail to comply with this requirement within 30 days after the start of this Agreement (a) we have the right but no obligation to obtain insurance covering our interest (and only our interest) in the Equipment for the lease lens, and renewals. Any insurance we obtain will not insure you against third party or liability clams and may be cancelled by us at any time. You will be required to pay us an additional amount each month for the insurance and adnrinistrafive fee. The cost may be more than the cost of obtaining your own insurance and we may make a profit You agree to cooperate with us. our insurer and our agent in the plat emend of coverage and with claims; or (b) we may charge you a monthly property damage surcharge of up to .0035 of the Equipment cost as a result of our credit risk and administrative and other costs, as would be further described on a letter from us to you We may make a profit on this program. Once an acceptable certificate or evidence of insurance is submitted. any such fees will be discontinued. If any of the Equipment is lost stolen or damaged you will at your option and cost either (a) repair the item or replace the item with a comparable item reasonably acceptable to us, or (b) pay us the sum set forth in the Remedies section. 12. Right to Perform: If you fat to comply with any provision of this Agreement we may, at our option, perform such obligations on your behalf. Upon invoice you will reimburse us for all costs incurred by us to perform such obligations. 13. Representations: (a) You represent and warant to us that (1) you have the lawful power and authority to enter into this Agreement and (2) the individuals signing this Agreement have been duly authorized to do soon your behalf, (3) you will provide us such financial information as we may reasonably request from time to time. (4) all financial information provided (or to be provided) is (or will be) accurate and complete in all material respects, (5) you will promptly nobly us in wnting if you nave your principal place of business or there is a change in your name, state of formation, or ownership, and (6) you will take any action we reasonably request to protect our rights in the Equipment (b) We represent and warrant to you that (1) we have the lawful power and authority to enter into this Agreement and (2) the individuals signing this Agreement have been duly authorized to do so on our behalf. 14. Default: You will be in default under this Agreement if: (a) we do not receive any Payment due under this Agreement within five (5) days after its due date, (b) you fail to meet any of your obligations in the Agreement (other than payment obligations) and do not correct such default within 10 days after we send you written notice of such default, (c) you or your guarantor became insolvenL are liquidated or dissolved, merge, transfer a material portion of your ownership interest or assets, stop doing business, or assign rights or property for the benefit of creditors, (d) a petition is filed by or against you or your guarantor under any bankruptcy or insolvency law, (e) any representation made by you is false fir misleading in any material respect, (1) you default on any other agreement with us or our assigns or any material agreement with any entity, or (g) there has been a material adverse change in your or any guarantors financial, business or operating condtion. 15. Remedies: If you are in default, we may, at our option, do any or all of the following: (a) retain your security deposit it any, (b) terminate this Agreement. (c) require that you pay, as compensation for loss of our bargain and not as a penalty, the sum of (1) all amounts due and payable by you or accrued under this Agreement pl us (2) the present value of all remaining Payments to became due under this Agreement (discounted at 2%or the lowest rate allowed by law), and (3)(i) the amount of any purchase option and. if none is specified. 20% of the ongi nal equipment cost which represents our anticipated residual value in the Equipment t or (if) return the Equipment to a location designated by us and pay to us the excess. if any, of the amount payable under clause (3)(i) over the Fair Market Value of the returned Equipment as determined by us in our reasonable discretion, (d) recover interest on any unpaid balance at the rate of 12% pet annum, and (e) exercise any other remedies available to us at law or in equity, including requiting you to immediately stop using any financed software. You agree to pay our reasonable attorney's fees and actual tout costs including any cost of appeal. If we have to take possession of the Equipment you agree to pay the cost of repossession and we may sell or re -rent the Equipment at terns we determine, at one or more public or pdvate sales, with or without notice 0 you. You may remain liable for any deficiency with any excess being retained by us. 16. Purchase Option: At the end of the Term provided you are not in default and upon 30 days prior written notice from you, you will either (a) return all the Equipment, or (b) purchase all the Equipment as is, without any warranty o condition, value or fide for the Fair Market Value of the Equipment as determined by us in our reasonable discretion plus applicable sales and othertaxes. 17. Automatic Renewal: Except as set forth in Section 16. this Agreement will automatically renew on a nanlh-lo-month basis after the Term, and you shall pay us the same Payments and lease charges as applied during the Term (and be subject to the terms and conditions of this Agreement) until the Equipmen t is returned to us or you pay us the applicable purchase price (and taxes). 18. Return of Equipment: If (a) a default occurs, or (b) you do not purchase the Equipment at the end of the Term pursuant to a slated purchase option, you will immediately return the equipment o any locabon(s) we may designate in the continental United Stales. The Equipment must be returned in 'Average Saleable Condition' and properly packed for shipment in accordance with our recommendations or specifications, freight prepaid and insured, 'Average Saleable Condition' means that all of the Equipment is immediately available for use by a third party, other than you, without the need for any repair or refurbishment All Equipment must be free of markings. You will pay us for any missing of defective parts or accessories 19. Assignment We may, without your consent assign or transfer any Equipment or this Agreement or any fights arising under this Agreement and in such event our assignee or transferee will have the rights, power, pnvileges and remedies of Lessor hereunder, but none of the obligations. Upon such assignment you agree not to assert as against our assignee, any defense, setoff, recoupmenl clai m or counterclaim that you may h ave against us. You will not assign, transfer or sublease this Agreement or any fights thereunder or any Equipment subject to this Agreement without our prior written consent 20. Personal Property Tax (PPT): You agree at our di saetion to (a) reimburse us annually for all personal property and similar taxes associated with the ownership, possession or use of the Equipment or (b) remit to us each of Iling period out estimate of the prorated equivalent of such taxes. You agree to pay us an administrative fee for the processing of such taxes. We may make a profit on such a fee. 21. Tax Indemnity: You agree to indemnify us for the loss of any income tax benefit caused by your acts or omissions inconsistent with our entitlement to certain tax benefits as owner of the Equipment 22. Governing Law. BOTH PARTIES AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL. This Agreement and any supplement shall be deemed fully executed and performed in the state in which our (or, if we assign this Agreement our assignee's) principal place of business is located and shall be governed by and construed in accordance with its laws. Any dispute concerning this Agreement will be adjudicated in a federal or stare court in such state. You hereby consent to personal jurisdiction and venue in such courts and waive transfer of venue. 23. Transition Billing: In order to facilitate an orderly transition, including installation and training and to provide a uniform billing cycle, the first Payment date of this Agreement will be the twenty-fifth (25th) day of the month following installation. You agree to pay a prorated amount for the period between the installation dated and this date. The payment for this transition period will be based on the Payment prorated on a 30 day calendar month and will be added to your first invoice. 24. Miscellaneous: This Agreement contains the entire agreement between you and us and may not be modified except as provided therein or in writing signed by you and us, and supersedes any purchase orders. We wilt not accept payment t in cash. If you so request an d we permit the early term ination of this Agreement you agree to p ay a fee for such privilege. Notices must be in writing and will be deemed given five d ays after marling to your or our mailing address. If a court finds any provision of this Agreement to be unenforceable, all other terms of that Agreement will remain in effect and enforceable. You agree that any delay or failure to enforce our rights under this Agreement does not prevent us from enforcing any fights at a later time. In no event will we charge of collect any amounts in excess of those allowed by applicable law. Time is of the a ssence. You hereby acknowledge and confirm that you have rat received any tax, financial, accounting or legal advice from us, or the manufacturer of the Eq uipment It is the Customer's sole and exclusive responsibility to ensure that all data from all disk dives or magnetic media are erased of any customer data and information. TO HELP THE GOVERNMENT FIGHT THE FUNDING OF TERRORISM AND MONEY LAUNDERING ACTIVITIES, FEDERAL LAW REQUIRES ALL FINANCIAL INSTITUTIONS TO OBTAIN, VERIFY AND RECORD INFORMATION THAT IDENTIFIES EACH PERSON WHO OPENS AN ACCOUNT. WHAT THIS MEANS TO YOU. WHEN YOU OPEN AN ACCOUNT, WE WILL ASK FOR YOUR NAME, ADDRESS AND OTHER INFORMATION THAT WALL ALLOW US TO IDENTIFY YOU. WE MAY ALSO ASK TO SEE IDENTIFYING DOCUMENTS. 25. Maintenance and Supplies Agreement ("MSA") with TBS: a) TBS agrees to provide full service maintenance including toner, developer and parts necessary to produce an image. TBS will provide inspections as required, which may be made in conjunction with regular or emergency service calls. It upon your request service is provided at a bme other than during TBS's normal business tours, you will be charged at TBS's customary rates. TBS will not be obligated to provide service for repairs made necessary as a result of service by personnel rat authorized by TBS or the use of supplies other than those provided by TBS. Separate charges for repairs or parts replacement due to the foregoing shall be bome by you. b) Except as provided below, TBS will replace parts necessary to produce an image, consumables and supply items without charge. You agree to replace any parts, consumables and supply item as a result of carelessness on the part of the operator, acclde nL misuse (including failure to follow the manufacturer's published operating manual) abuse, neglect. theft not. vandalism, lightning, electrical power failure, fire, water, or other casually. c) If you are in default under the MSA. TBS has the tight to deny performing any service andlor supplying any products. d) Under the MSA, TBS's liability with respect to any property damage or injury (including death) to persons arising out of or connected with service performed under this Agreement is striclly limited to that imposed by law and there is no contract imposing any greater degree of liability. e) Title to all supplies furnished hereunder including toner and toner bags remains with TBS until you consume said supplies to the extent they may not be further utilized in the image making process. We may charge you a supply height fee to cover the cost of shipping supplies. You agree to use the supplies provided at'no charge' on the Equipment. You will not take designated supplies from Equipment to be used in any other Equipment not covered by this Agreement You must purchase paper and staples separately. t) Stated supply item yields represent 100% of manufacturer stated yields based on standard letter size' copies with 6% image coverage. At the and of each annual billing period or billing cycle. you will be billed or any toner used in excess of that required based on yields staled above. 2 of 2 TFSITBS MASTER LEASE WITH MAINTENANCE AGREEMENT -0518 TOSHIBA BUSINESS SOLUTIONS TOSHIBA FINANCIAL SERVICES SCHEDULE NUMBER APPLICATION NUMBER AGREEMENT NUMBER 2468618 • • •- Legal Company Name. City of Carmel • Fed. Tax ID#: Contact Person: Nancy Heck Bill -To Phone: 317 571-2474 Bill -To Fax: Department Name: Billing Address: 1 CIVIC SQUARE Building/Room/Suite: Attn: Community Relations & Economic Development City, State - Zip: CARMEL, IN 46032 CUSTOMER•LOCATION (separate Legal Company Name: City of Carmel lease schedules must be completed for each location) Contact Person: Valery DeLong Phone: (317) 571-2790 Fax: Department Name: Address: 30 W Main St - 2nd Floor Building/Room/Suite: City, State -Zip: Carmel, IN 46032 Contact Name: Stefanie Carel Subsidiary Location: Indiana EQUIPMENTDESCRIPTION ITEM DESCRIPTION MODEL NO. SERIAL NO. STARTING METER e-STUD105506ACT 55 PPM COLOR 65 BK MFP WITH DSDF TANDEM DRAWER ESTUD105506ACT [:]See attached form (Schedule "A") for Additional Equipment ❑ See attached form (Billing Schedule) for Additional Equipment/Payment Schedule LEASE TERM & PAYMENT SCHEDULE Number of Payments: 63 of $ 223.47 Security Deposit": $ ❑ Received 'plus applicable taxes Payments includes: 1,200 B&W Images per Month Excess Images at: $ 0.00500 per B&W Image Lease payment period is monthly unless otherwise indicated. End -of -Lease Options: Payments includes: 1,500 Color Images per Month Excess Images at: $ 0.03500 ' per Color Image You will have the following options at the end of your original termPayments includes: Scan Images per Month Excess Images at: $ ' per Scan Image even provided the Agreement has not terminated a and no event of default under the Agreement has occurreddand is Payments includes: B&W Print Images per Month Excess Images at: $ per B&W Print Image continuing. 1. Purchase the Equipment at Fair Market Value per Payments includes: Color Print Images per Month Excess Images at: $ ' per Color Print Image section 16. 2. Renew the Agreement per section 17. Origination Fee: Up to $99.00 (included in First Invoice) Excess Images billed: ❑ Monthly X❑ Quartedy 3. Return Equipment. Billing Preference: ❑ Each unit invoiced separately (include at billing locations on Information Schedule) ❑ All units on one ❑ All units added to current Security Deposit: The security deposit is non interest bearing and is to secure your performance under this Agreement. Any security deposit made may be applied by us to satisfy any amount owed by you in, in which evert you will promptly restore the security deposit to its full amount as set forth above. If all conditions are fully complied with and provided you have not ever been in default of the Agreement in the Default section, the security deposit will be refunded to you after the return of the equipment in accordance with the Return of Equipment section. THIS SCHEDULE INCORPORATES ALL OF THE TERMS AND CONDITIONS OF THE MASTER LEASE WITH MAINTENANCE AGREEMENT IDENTIFIED ABOVE. LESSOR Toshiba Financial Services Signature Title 4dl Date: CUSTOMER This is a Master Schedule to the above -referenced Master Agreement between Lessor and Customer, all the terms and conditions of which are incorporated herein by reference. Upon the execution of this Master Schedule, Customer hereby agrees to lease from Lessor the Equipment described above. By signing below, Customer certifies that it has reviewed and does agree to all terms and conditions of the Master Agreement. Name: James Brainard Signature: X Title: Mayor Date: TFS/TBS MASTER LEASE WITH MAINTENANCE SCHEDULE — 0518 bank,ir CONSENT TO ASSIGNMENT AGREEMENT # EQUIPMENT FINANCE 2468618 Re: Agreement # 2468618 between TOSHIBA FINANCIAL SERVICES ("Assignor") and CARMEL CITY OF ("Customer'), dated Customer hereby consents to the assignment of the above -referenced Agreement to U.S. Bank Equipment Finance, a division of U.S. Bank National Association ("Assignee") and, effective as of the date of this Consent to Assignment, and until further notice from Assignee to the contrary, agrees to recognize Assignee as the sole and exclusive holder of the Agreement, with all rights, benefits and privileges attendant thereto, but none of the obligations of Assignor under the Agreement. Customer further agrees to direct to Assignee, or its assignee, all payments now or hereafter becoming due pursuant to the Agreement. Customer agrees that the rights of Assignee will not be subject to any claims, defenses or set offs that Customer may have against Assignor. TOSHIBA FINANCIAL SERVICES Assi4eSignat nor Title Date CARMEL CITY OF Customer X Signature Title Date NOTE:TO BEAN ORIGINAL. CAPITALIZED TERMS SINITHIS DOCUMENT ARE DEFINED AS IE AS ON THE AGREEMENT. A NMILE OF THIS DOCUMENT WITH SIGNATURE SHALL BE RED THE AGREEMENT. UNLESS SPECIFICALLY STATED OTHERWISE. A562 REV 04116 STATE AND LOCAL GOVERNMENT ADDENDUM AGREEMENT # 2468618 Addendum to Agreement # 2468618, between CARMEL CITY OF, as Customer and TOSHIBA FINANCIAL SERVICES, as Lessor. The words "you" and "your" refer to Customer. The words "we," "us" and "our" refer to Lessor. The parties wish to amend the above -referenced Agreement by adding the following language: REPRESENTATIONS AND WARRANTIES OF CUSTOMER: You hereby represent and warrant to us that: (i) you have been duly authorized under the Constitution and laws of the applicable jurisdiction and by a resolution or other authority of your governing body to execute and deliver this Agreement and to carry out your obligations hereunder; (ii) all legal requirements have been met, and procedures have been followed, including public bidding, in order to ensure the enforceability of this Agreement; (iii) this Agreement is in compliance with all laws applicable to you, including any debt limitations or limitations on interest rates or finance charges; (iv) the Equipment will be used by you only for essential governmental or proprietary functions of you consistent with the scope of your authority, will not be used in a trade or business of any person or entity, by the federal government or for any personal, family or household use, and your need for the Equipment is not expected to diminish during the term of this Agreement; (v) you have funds available to pay Payments until the end of your current appropriation period, and you intend to request funds to make Payments in each appropriation period, from now until the end of the term of this Agreement; and (vi) your exact legal name is as set forth on page one of this Agreement. NON -APPROPRIATION OR RENEWAL: If either sufficient funds are not appropriated to make Payments or any other amounts due under this Agreement or (to the extent required by applicable law) this Agreement is not renewed either automatically or by mutual ratification, this Agreement shall terminate and you shall not be obligated to make Payments under this Agreement beyond the then - current fiscal year for which funds have been appropriated. Upon such an event, you shall, no later than the end of the fiscal year for which Payments have been appropriated or the term of this Agreement has been renewed, deliver possession of the Equipment to us. If you fail to deliver possession of the Equipment to us, the termination shall nevertheless be effective but you shall be responsible, to the extent permitted by law and legally available funds, for the payment of damages in an amount equal to the portion of Payments thereafter coming due that is attributable to the number of days after the termination during which you fail to deliver possession and for any other loss suffered by us as a result of your failure to deliver possession as required. You shall notify us in writing within seven days after (i) your failure to appropriate funds sufficient for the payment of the Payments or (ii) to the extent required by applicable law, (a) this Agreement is not renewed or (b) this Agreement is renewed by you (in which event this Agreement shall be mutually ratified and renewed), provided that your failure to give any such notice under clause (i) or (ii) of this sentence shall not operate to extend this Agreement or result in any liability to you. TITLE TO THE EQUIPMENT: If the selected purchase option for this Agreement is $1.00 or $101.00, unless otherwise required by law, upon your acceptance of the Equipment, title to the Equipment shall be in your name, subject to our interest under this Agreement. The parties wish to amend the above -referenced Agreement by restating the following language: Any provision in the Agreement stating this Agreement supersedes any invoice and/or purchase order is hereby amended and restated as follows: "You agree that the terms and conditions contained in this Agreement, which, with the acceptance certification, is the entire agreement between you and us regarding the Equipment and which supersedes any purchase order, invoice, request for proposal, response or other related document." Any provision in the Agreement stating that this Agreement shall automatically renew unless the Equipment is purchased, returned or a notice requirement is satisfied is hereby amended and restated as follows: "Unless the purchase option is $1.00 or $101.00, at the end of the initial term, this Agreement shall renew on a month -to -month basis under the same terms hereof unless you send us written notice at least 30 days before the end of any term that you want to purchase or return the Equipment, and you timely purchase or return the Equipment." Any provision in the Agreement stating that we may assign this Agreement is hereby amended and restated as follows: "We may sell, assign, or transfer this Agreement without notice to or consent from you, and you waive any right you may have to such notice or consent." Any provision in the Agreement stating that you grant us a security interest in the Equipment to secure all amounts owed to us under any agreement is hereby amended and restated as follows: "To the extent permitted by law, you grant us a security interest in the Equipment to secure all amounts you owe us under this Agreement and any supplements hereto. You authorize and ratify our filing of any financing statement(s) and the naming of us on any vehicle title(s) to show our interest." 10162 REV 11/17 Page 1 of 2 Any provision in the Agreement stating that you shall indemnify and hold us harmless is hereby amended and restated as follows: "You shall not be required to indemnify or hold us harmless against liabilities arising from this Agreement. However, as between you and us, and to the extent permitted by law and legally available funds, you are responsible for and shall bear the risk of loss for, shall pay directly, and shall defend against any and all claims, liabilities, proceedings, actions, expenses, damages or losses arising under or related to the Equipment, including, but not limited to, the possession, ownership, lease, use or operation thereof, except that you shall not bear the risk of loss of, nor pay for, any claims, liabilities, proceedings, actions, expenses, damages or losses that arise directly from events occurring after you have surrendered possession of the Equipment in accordance with the terms of this Agreement to us or that arise directly from our gross negligence or willful misconduct." Any provision in the Agreement stating that a default by you under any agreement with our affiliates or other lenders shall be an event of default under the Agreement is hereby amended and restated as follows: "You will be in default if: (i) you do not pay any Payment or other sum due to us under this Agreement when due or you fail to perform in accordance with the covenants, terms and conditions of this Agreement; (ii) you make or have made any false statement or misrepresentation to us; or (iii) you dissolve, liquidate, terminate your existence or are in bankruptcy." Any provision in the Agreement stating that you shall pay our attorneys' fees is hereby amended and restated as follows: "In the event of any dispute or enforcement of rights under this Agreement or any related agreement, you agree to pay, to the extent permitted by law and to the extent of legally available funds, our reasonable attorneys' fees (including any incurred before or at trial, on appeal or in any other proceeding), actual court costs and any other collection costs, including any collection agency fee." Any provision in the Agreement requiring you to pay amounts due under the Agreement upon the occurrence of a default, failure to appropriate funds or failure to renew the Agreement is hereby amended to limit such requirement to the extent permitted by law and legally available funds. Any provision in the Agreement stating that the Agreement is governed by a particular state's laws and you consent to such jurisdiction and venue is hereby amended and restated as follows: "This Agreement will be governed by and construed in accordance with the laws of the state where you are located. You consent to jurisdiction and venue of any state or federal court in such state and waive the defense of inconvenient forum." By signing this Addendum, Customer acknowledges the above changes to the Agreement and authorizes Lessor to make such changes. In the event of any conflict between this Addendum and the Agreement, this Addendum shall prevail. In all other respects, the terms and conditions of the Agreement remain in full force and effect and remain binding on Customer. TOSHIBA FINANCIAL SERVICES Less Signature Title IrDate CARMEL CITY OF Customer X Signature Title Date NOTE: CAPITALIZED TERMS IN THIS DOCUMENT ARE DEFINED AS IN THE AGREEMENT, UNLESS SPECIFICALLY STATED OTHERWISE. 10162 REV 11117 Page 2 of 2 Approved and Adopted this day of ) , 20LL CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: James Brainard, Presiding Officer Date: Lori S. Wat ember Date: ATTEST: AU6*9�"j �9� Christine S. Pauley, Clerk -Treasurer Date:— Z