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HomeMy WebLinkAboutBPW-08-16=06-01 Ind Bond Bank/CFD RESOLUTION NO. BPW-08-16-06-01 A RESOLUTION OF THE CITY OF CARMEL BOARD OF PUBLIC WORKS AND SAFETY APPROVING THE ASSIGNMENT OF EOUIPMENT FOR THE CARMEL FIRE DEPARTMENT TO THE INDIANA BOND BANK WHEREAS, in accordance with the provisions of Indiana Code 5-22-2, bids for the purchase of the equipment ("Equipment") listed on attached Exhibit A, incorporated herein by this reference, were received and approved; and WHEREAS, the assignment of such Equipment to the Indiana Bond Bank in accordance with the provisions of Indiana Code 5-1.5 is in the best interests of the City of Carmel, Indiana ("City"); and !{4,;, NOW, THEREFORE, BE IT RESOLVED by the Board that the Equipment listed on attached Exhibit A is hereby assigned to the Indiana Bond Bank by means of that certain Schedule No. 007 to the Master Lease-Purchase Agreement by and between the Indiana Bond Bank and the City and dated as of April 20, 2004, a copy of which Schedule is attached hereto as Exhibit B. BE IT FURTHER RESOLVED, that the Carmel Clerk-Treasurer ("Clerk-Treasurer") is hereby authorized and approved to execute such documents related to the Equipment as are reasonable, lawful, necessary and required in order to carry out the transaction authorized hereby, provided that the Clerk- Treasurer shall have previously had such documents reviewed and approved by the Carmel City Attorney. ALL OF WHICH IS RESOLVED by the City of Carmel Board of Public Works and Safety, this ~ l; ~ day of ;At^O ~ ,2006. CARMEL BOARD OF PUBLIC WORKS AND SAFETY By: Lori S. Wa Date: ember ~/I(Ab0 { { Sandra M. Johnson, Deputy Clerk for , [cb:m,1>(lrd1:\cbass\mydocumCllIs\bpw_rcsolUlions\100o.'judoondbJulfircdiescl.doc:S;9.'06] EXHIBIT A SCHEDULE OF EOUlPMENT Carmel Fire Department: One (1) 2005 Chevrolet C4500 4x4 Diesel truck with utility body $43,351.66 3M Opticom Traffic Signal Pre-emption $88,231.86 Truck Accessories (radio, siren, lights, graphics, etc.) $ 5,000.00 TOTAL: $136,583.52 [eh:mSw<>rd:z".c bJ'ls'my documenls\bpw-resolulioll,I2006'jnd bond bJnk fire dicsd.doc:8i9.'06] , CCAN j3962 Lessor#06S Customer #0054295 fl1 Fifth Third Bank MASTER LEASE-PURCHASE AGREEMENT This Master Lease-Purchas~ Agreement i~ made this t.D "!:l day of April, 2004 by an'd between INDIANA BOND BANK (hereinafter called together with its successors and assigns, if any, 'Lessor'), INDIANA BOND BANK, a quasi-State agency with offices at 10 W. Market Street, Suite 2980, ,Indianapolis, IN 46204-2982 and CITY OF CARMEL ("Lessee'), -Mth its principal address at One Civic Square, Carmel, Hamilton County, Indiana 46032, a city and a polrtical subdivision of the State of Indiana, organized and existing under and by virtue of the laws and Constitution of the State of Indiana, , RECITA'lS .. .-- -.-... -..-...---.---- -...,.-----..--.---.--.----.-.--.------ ---- ---.--..---.-..---.----....---... , ' . ' . WHEREAS, Lessee is authorized by law to acquire equipment and other items of personal property and to finance such equipment and/or personal property by' entering into lease-purchase agreements; , ' , " WHEREAS, Lessee has determined that it is necessary for it to acquire under this Agreement certain i.tems qf Pe!spnalprQperty cjescribed herein'as Equipment; and WHEREAS, Lessor is willing to acquire such items of Equipment and 10 lease and sell them to Lessee pursuant to this Agreement; . ,NOW, THEREFORE, in the joint and mutual exercise of their powers, and in consideration of the mutual covenarits' herein contained, the parties hereto agree as follows: . . , 1. Certain Defined Terms and References. '(a) "In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings given below unless the context clearly 'requires otherwise: . Acquisition Fund" means the Acquisition Fund established pursuant to Section 4 of this Agreement and Section 2 of the Escrow Agreement. . Additional Rent" means the payments required to be made pursuant to Section 7 in addition to the Base Rent. "Agreement' means this Master Lease-Purchase Agreement as the same may be amended or supplemented from time to time, and all other documents and certificates required to be executed in connection herewith. "Applicable Rate of Interest" means such rate as shall be determined from' each Individual Payment Schedule. "Authorized Officer" means: (i) With respect to Lessee, any officer of Lessee who is designated in writing by Lessee as an Authorized Officer for the purposes of this Agreement; (ii) With respect to Lessor, any officer of Lessor who is designated in writing " as an Authorized Officer ior purposes of this Agreement; or ' THIS INSTRUMENT IS INTENDED BY THE PARTIES TO CONSTITUTE A SECURITY AGREEMENT UNDER THE OHIO UNIFORM COMMERCIAL CODE. C2003 Fifth Third. Bancorp rXllIl3rr 13 - l;g/S (Hi) With respect ta any successar ta Lessar as the Lessar means the .officer of the successar wha is designated In writing by the successar's gav~rning bady as an Autharized Officer far purpases .of this Agreement. ' 'Base'Rent' means the payments, including the principal and interest campanents thereaf, specified in the individual Payment Schedules attached hereta, "Band Fund' means, t.o the extent an Escraw Agreement is applicable ta a particular Lease, the Band, Fund established pursuant ta Sectian 2 .of the Escraw Agreement. , ," Certificate .of Acceptance' means a certificate evidencing Lessee's inspectian and acceptance .of the Equipment described an an Individual Payment Schedule, in farm and substance satisfactary ta Lessar. 'Cemmencement 'Oate' means the date when the term .of the Individual Payment Schedule , b~ins and Lessee's obligatian ta make Lease-Purchase Payments accrues, as evidenced by payment, ----by LessorTii'thel7eiidor-af thepurchaseprlce(cirp,;,linent"p0rff6iitt1ereOf)r6f1tie appITca5leEqulpmefir-'--- - ---, , .or by the depasit by Lessar inta the Acquisitian Fund .of the maneys required by the Escrow Agreement. ' 'Centracter' means each .of the manufacturers .or vendars fram wham Lessee has .ordered or will .order or with' wham Lessee has cantracted .or will cantract far the manufacture, delivery .or Installatian .of the Equipment. ' 'Envirenmental Law' means any federal, state, lacal .or fareign statute, law, .ordinance, rule, regulatian, cade', .order, wrtt, judgment, decree .or judicial .or agency interpretatian relating ta pallutian .or protectian .of the enviranment, health, safety .or natural resaurces; including thase relating ta the use, handling, treatm'ent; starage, dispasal .or release .of any substance designated, classified .or regulated as hazardaus' .or taxic material, including petraleum and petraleum ,by-praducts, asbestas-containing materials, PCBs, radlaactive materials and radan gas. ' "Es'crew Agent" means the Escraw Agent acting under an,d pursuant ta the EscWvV Agreement, if applicable. ' .. - ' 'Escrew Agreement' means, ta the extent--'equired by an'lndiv'ldual Payment Schedule, an Escrow Agreement by and between the Escraw Agent and Lessee, as the same may be amended and supplemented fram time ta time, "Equipinenf means the persanal praperty described in the Individual Payment Schedules, which is being leased and purchased by Lessee pursuant ta this Agreement. The praperty sa listed shall be, callectively, the 'Equipmenf and individually, a 'Unit .of Equipment.' "Equipment Lecatien" means the lacatian .or lacatians within Lessee's jurisdictian where the Equipment is ,installed, used .or maintained by Lessee. ' 'Event .of Loss' means with respect ta any Unit .of Equipment if such Untt .of Equipment .or any material part the'reof has been last, stalen, requisitianed .or candemned by anygavernmental autharity, damaged' beyand repair .or damaged in such a manner that results in an insurance settlement en the basis .of an actual .or arranged tatallass, 'Final Renewal Peried' .or "Final Peried' means the last peried during which a Lease will be renewed, cam'mencing an the first day .of the Fiscal Periad .of Lessee specified in the applicable Individual Payment Schedule with respect ta each Unit of Equipment and ending an the date specified in such Individual Payment Schedule as the last payment date, "Fiscal Peried" means the applicable fiscal year of Lessee, ,2- C>2003 Fifth Third Bancorp EXHI/3/i 13_ - ).jtS- "Implicii Rate of Interest" means the rate used to determine the interest portion of the lease.Purchase Payments, as set forthin the Individual Payment Schedules.. "Independent Counsel" means any attorney or attorneys duly admitted to practice law before the highest court of any state and not an officer or full time employee of Lessor or Lessee and who is not reasonably objected to by Lessee. . .' . "Individual Payment Schedules" means the schedules which identify specific Units of Equipment, the 'Commencement Date of the individuai leases and terms thereof (which are treated as separate lease obligations) which may become a part of this Agreement from time to time.' "Initial Fiscal Period" or "Initial Period" means such period as shall be indicated by the Commencement. Date set forth in each Individual Payment Schedule for the Equipment, which shall terminate the last day cif Lessee's then current Fiscal Period. The term of the Leases will be renewed in the manner described in Section 6 hereof at the end of the Initial Period or any Renewal. Period for one (1) additional year, upon Lessee's budgeting of sufficient funds for the making of. Lease.Purchase Payments fc)rtfie-'iiexf'ocCu;rrng'~iiewaflleiiOcr witTi" respecnii'the'EqulpmeriforuspeaftC'lJn~sol"-"~' ...... ..- Equipme~t, as provided in Section 10 of the Agreement. 'Lease.Purchase Payment 'Account" means the account established .by Lessor for receipt and deposit of the Lease.Purchase Payments of Lessee under the Agreement and for deposit of any insurance proceeds not used for repair or repiacement of Equipment, as provided in Section 19 of this Agreement. .' "Leas'e-Purchase Payments' means the sum of the Base Rent and any Additional Rent .due at or during a stated time. .' . . "Lease 'Term' means, collectively; the Initial Period and thereafter.. each Renewal Period provided for in the Agreement. "Lease" or "Leases" means an individual lease 'orleases of the Units of Equipment., as specified in the Individual Payment Schedules and the other documents, agreements and instruments executed in connection therewith, entered into as a part of and pursuant to the Agreement. "Lessee" means as referenced above, a political subdivision of the State. "Lessor" means as referenced above, or its successors or assigns. "Maximum Fiscal Periods" means the total number of. Fiscal Periods of Lessee during which the Leases may be renewed from and inciuding the first Fiscal Period to and including the final Fiscal Period. "Payme'nt Date" means each date of payment during the Lease Term designated as a Payment date in the Individual Payment Schedules, commencing as of the Commencement .Date. . 'Purchase' Price" means, as of any Purchase Price Date, the amount set forth in the Individual Payment Schedules which Lessee may pay to purchase the Equipment or specific Units of Equipment. "Purchase Price Date" means any Payment Date referred to in the Individual Payment Schedules, on which Lessee may purchase the Equipment or specific Units of Equipment by payment of the applicable Purchase Price after payment of the Lease.Purchase Payment due on such date. "Renewal Period" means any Fiscal Period subsequent to the Initial Period of an individual Lease during which such Lease is renewed. 'State" means the State or Commonwealth where Lessee is located. .3 " 02003 Fifth Third Bancorp EXH-If?JrT 13_ - ~/'S- ,"Taxable Rate of Interest" means a rate 01 interest equal to the Tax Equivalent Yield, "Tax Equivalent Yield" ,means the Implictt Rate 01 Interest divided by the remainder' resulting from, subtracting the current maximum lederal corporate income tax rate Irom one, "Vendor' means the manulacturer of, the Equipment as well as the agents or dealers 01 the manufacturer from whom Lessor purchased or will purchase the Equipment. .(b) Relerences to sections, exhibits or attachments, unless otherwise indicated, are to sections 01 or exhibtts or attachments to this Agreement. 2, AssiQnment of Warranties, Lessor hereby assigns to Lessee during the Lease Term, aH warranties, il any, express or implied with respect to the Equipment., This assignment includes an authorization to Lessee to obtain the customary services lurnished in connection with those warranties, at Lessee's expense. . --"i--'-~seOi'EciUiDm.;nCLessiiffiereby-agieesto deiiiTSEi;-iease and'Tiitfo[essee;ana-' ,. Lessee hereby agrees to rent, ,lease and hire Irom Lessor, the Equipment in. accordance with the provisions of this Agreement, to have and to hold for the Lease Term. Upon and during acquisition of the Equipment" all leasehold rights granted to Lessee by Lessor under this Agreement shall vest in Lessee, without any lurther action on the part 01 Lessor. , Each Le~se of each Unit 01 Equipment shall be evitlence9 by !jn Individu.al Payment Schedule executed by Lessor and Lessee describing specific personal property,and setting lorth'provisions'rejiiti"ng to the reni;.term of the Lease, and other details relating to such Equipment. The Lease for each Unit 01 Equipm'ent shafl become effective on the Commencement Date, and the Individual Payment Schedule lor such Equipment shall specify such date as the effective date of the Lease. , ' 4..' .. 'Disbursements. Subject to the terms and conditions hereol, Lesso'r and Less~e agree to disburse funds 'directly to'the Vendor of Equipment or, io the extent an Escrow Agreement is applicable ,to 'any'"lndividual Payment Schedule, establish an Acquisition Fund lor the purposes .hereinafter described for each Individual Payment Schedule through such Escrow Agreement. L,essor ,is authorized to disburse such'fundsdirectiy to the applicable party or fromthe Acquisition Fund, in accordance wtththe provisions, of the Escrow Agreement, as applicable, in each case lor payment 01, or reimbursement to Lessor or , Lessee for payment of, the following: (a) Expenses incurred in connection with the authorization, issuance and delivery 01 this Agreement and the preparation and delivery 01 all agreements, instruments and documents related . thereto, including', but not limited to, all finaflCial,' legal, administrative, accounting and printing lees, expenses 'and charges 'and all recording, liling or insurance, and any other,lees, expenses or charges relating to the Equipment or this Agreement; (b) Any other costs, expenses, lees and charge~ properly chargeabie to the cost 01 acquisition and installation 01 the Equipment; and ' (cj Any other costs reiating to the Equipment lor which payment may be made under the terms'of this Agreement.. Any such disbursements in respect 01 the purchase price 01 the Equipment or related costs from the Acquisition F'und or otherwise lor the paymeni 01 costs shah be made upon acceptance 01 the Equipment pursuant to Section 5 hereol. Reimburs'ements to Lessee for amounts paid on the:Equipment (by virtue 01 a down payment or payment lor the Equipment) Irom the amounts provided lor by this Agreement must be in accordance with U.S. Treas. Reg. 9 1.150-2, .4 - Cl2003 Fifth Third Bancorp . EXHI6tT ~ ~ J/f5 5. Acceotance af Eauioment. Upon the acquisitian and installation af each, Unit of Equipment, Lessee shall acknawledge and certify in writing its acceptance af such Equipment by signing a Certificate af Acceptance, 6. Lease Term, The term of each Lease will be far the initial Periad and wiii be renewabie upon budgeting by Lessee af sufficient funds to. pay Base, Rent and Additionai REmt on, the first day of ,each succeeding' Fiscal Period far the Maximum Fiscal Periods indicated an the Individual Payment Schedules, unless Lessee exercises its Purchase Option (as specified in Sectian 26 hereaf) prior to the end of the Final Renewal Period, The Lease will terminate upon payment af the final Lease-Purchase Payment indicated on the applicable Individual Payment Schedule (plus 'any Addftional Rent payable under the terms af this Agreement), or on a sooner Purchase Price Date. 7. ~. (a) Lessee agrees to pay to Lessar during the Lease Term of each Lease the Lease-Purchase Payments set forth in the Individual Payment Schedules an the dates and in the 'amounlS -serTonntfierein,uincli:Jding 'tIleinteresT corTij:i6nenlsulliereof,- equal lo'!\e"'MiCiJl\t!f'jinl'liCmll ,- ---- . below in this Section. The Lease-Purchase Payments during the Lease Term will be absolute and 'unconditional in all events and will not be subject to any set-off, defense, counterciaim or recoupment for any reasan whatsaever. (b) Lessee agrees to pay as Base Rent'directly to. Lessor the following amounts: (i) Lessee agrees to pay the Lease.Purcha;e Payments specified in e'ach Individual Payment Schedule. Each 'payment shall be applied first to payment af the interest component of the respective Lease_Purchase Payment. " (ii) To. the extent permitted by law, if any Lease-Purchase Payment shall not ,," have been received by Lessor ten (10) days after the Payment Date, Lessee agrees to pay a late payment fee equal.!o 1Y,% of the due and awing Lease-Purchase Payment. ". .: ..' . ." .:' ,(c) Lessee agrees to pay to Lessqr the iollowing amounts as Additional Rent: ' (i) Lessee represents th'at n'o' charges or tffi<es (local, state or federal) are currently imposed on theo.wnership; leasing, rental, sale, purchase, possession ,or use of the Equipment, exclusive af taxes on or measured by Lessor's income, and acknowledges that no provision has been made, for the inclusion of any such charges or taxes in the Base Rent. .If during the. Lease Term, the ownership, leasing, rental; sa,le, purchase, possession OLuse of the Equipment shall result in the imposition on Lessor of any charges or .taxes (local, state or federal), exclusive of taxes on or measured by Lessor's income, Lessee shall promptly pay to Lessor, upan receipt from Lessor af a. statement therefor, as Additional Rent an amount equal to those charges and taxes imposed on Lessor. (ii) Upon an Event of Default, 'Lessee will pay to Lessor as Additional Rent all reasonable costs and expenses incurred or to be paid by Lessor under the Agreement, including Lessor's out-of-pocket expenses and Lessor's attorney fees, which were not part of the original.cos( of the Equipment. (iii) Lessee will pay to Less'or as Additional Rent all supplemental payments required by Section 8(d) below In the amount necessary to preselVe the Tax Equivalent Yield to Lessor under the'terms of the Agreement, in the manner provided therein. (d) If Lessee does not make payme~t of all or any part of the Additional Re~t, Lessor ,shall have the right, but shall not be obligated, to payor advance the amount of such Additional Rent. If ,5. C2003.Fifth Third Bancorp liXIt/8/T ~ - 5/15 'Lessor pays any portion of such Additional Rent, Lessee shall pay Lessor no later than the first Payme~t ',Datean thenext'suceeeding Fiscal Period during, which the Lease Term' is ,in effect an amountequal to the sum of such Additional Rent and the costs incurred by Lessor in making such payment or advance, including the amount Lessor would have earned from investment of the amount paid or advanced before repa~ment thereof as determined by'the prime rate of Fifth Third Bank as announced from time to time, jllus 111,%, Lessor shall notify Lessee in writing of th'e costs incurred ,in any case of its paying or advancing such' Additionai Rent If Lessor pays 'or advances such Additional Rent, and is repaid as provided for in this paragraph, then suchin~ial faiiure to pay shall be deemed to be,cured and shall not be deemed to be an Event of Default under Section 22 of this Agreement. ' (e) Lease-Purchase Payments shall be payable at the principal commercial leasing office' of Lessor or at such other place as Lessor may from time to time designate in writing, 8. Actions Relatina to Tax Exemption of Interest Components, (a) Lessor and Lessee each covenant that it will restrict the use of moneys realized . :-.-, 'u-riaenliis -Agreehieiifoi'OlheTW;se'WtCirmect1'OlfWi!11'theacq ulsltlon' 'and-ftnam:ingofih,e' Equipment 'lIT' ----' 'such manner and to such extent, if any, as may be necessary, after taking into aceo'unt reasonable expectations at the time of entering into this Agreement, so that there wiil not exist, at any time any oblig~tion in connection with this Agreement or the Equipment that constitutes an obligation the interest on which is includible in gross income for federal income tax purposes or an "arbitrage bond' under Section' 148 'of the Internal Revenue Code of 1986, as amended (the "Co,de"), and the regulations prescribed under that Section and any subsequent amendments or modifications thereto, Any officer of Lessor or Lessee' having responsibility with respect to the execution and delivery of (his Agreement shall, 'alone or in conjUnction w~h any other officer, employee or agent of or consultant to Lessor or Lessee, ' give an appropriate certificate of Lessor or Lessee (in form and substance satisfactory to Lessor or Lessee, as applicable) pursuant to Sections 103 and 148 of the Code and those regulations, setting forth the reasonable expectations, of Lessor or Lessee on the date of entering into each IndiyidualPayment Schedule of this' Agreement, regarding each Lease and th,e use,of,thosemoneys, which ,such certificate, shall bind the Lessee with respect to the covenal)ts and undertakings contained therein, ' ' ' , (b) Lessee represents and covenants that it wili not use the Equip",ent, ,or permit'the Equipment to be used, in such a manner as would result in ttie loss of ihe 'exclusion irom gross income for federai, income' tax purposes of the compo'nent of the Lease-Purchase Payments designated as interest on the Individual Payment Schedules afforded under Section 1 03(a) of th~ Code, , (c) Lessor and Lessee each covenant to take all action required to maintain' exclusion from gross income for federal income tax purposes afforded under Section 103(a) of the Code, of the Lease-Purchase Payments designated as the interest component on tlie'lndividual Payment Scheduies attached hereto, , (d) (i) If at any time the yield to Lessor as to any Lease is decreased by any change in the limitation in the deductibility of the interest paid on debt incurred by Lessor to carry tax exempt 'obligations from that which is presently incurred by Lessor, or if there shall occur any other change in law which lowers 'the Tax Equivalent Yield to Lessor, then Lessee shall make a supplemental payment to Lessor annually, on written demand by Lessor, in an amount which is equal to the amciunt.necessary on an after-tax basis to preserve the same Tax Equivalent Yield, (ii) If for any reason the interest portion of the Lease-Purchase Payments of any Lease is determined not to be exciudable from gross income for federal income tax purposes, the Implicit Rate of Interest will increase to a rate equal to a Taxable Rate of Interest In addition, Lessee will pay an amount equal to the difference between the portion of the Lease-Purchase Payments which constituted interest with respectto such Lease which were actually paid and the interest which would have been paid if the Implicrt Rate of Interest had been a Taxable Rate of Interest from the Commencement Date or, if later, the effective'date from which the interest component is determined to be taxable, pius any penalties, interest, assessments and additions to tax payable by Lessor as a result of the loss of the tax exempt status of interest on the Lease, ,6 - Cl2003 Fifth Third Banco rp t'XH /8,-1 ~_ - 6, /t~ 9. ' 'Authoritv and Authorization, L",ssee represents, covenants and warrants, and will 'deliver to'Lessor not later than the Commencement Date an opinion of its counsel to the effect, that: (i) Lessee is a' political subdivision of the' State, duly organized and validly existing under and by virtue of the laws of the State; (Ii) the execution, delivery. and performance by Lessee of this Agreement have been duly authorized by all necessary action on the part of Lessee; and (iii) this Agreement constitutes a leg ai, valid 'and binding obligation of Lessee enforceable in accordance with its terms, Lessee agrees and warrants that (i) it will do or cause to be done all things necessary to preserve and keep this Agreement, ' including each'lndividual Payment Schedule hereunder, in full force and effect: (ii) it has complied with all requirements applicable to it, and has taken all steps for approval and adoption of'this Agreement as a valid obligation on its part: and (iii) sufficient funds are appropriated to pay all amounts due under this Agreement for the Initial Period, ' 10. Title: Termination: Nonaooroorlation, '(a) Lessee will obtain tille to the Equipment during the Lease Term, subject to , Lessors rights under this Agreement. Lessor 'and Lessee agree'that this Agreement or any other .. .--- --.----- --appropnale ClocUments--may--oe 'fire(f onecorded 'io-evla-en'ce--the' pal1ies'-respecliveinlerests--in the--------,.. -----, Equipment and the Agreement. ' .(b) The Equipment shall become the property of Lessee and Lessors interest therein shall pass to Lessee without cost upon (i) ,Lessee's exercise of the Pumhase Option granted in Section 20 hereof; or (ii) the complete payment and performance by Lessee of all of its obligations during the Lease Term, provided, however, that title shall immediately and without any action by Lessee vest in Lessor, and Lessee shall immediately surrender possession of the applicable Units ,of Equipment to Lessor upon (A) any termination of any Lease under this Agreement without Lessee, exercising its Purchase Option to purchase with respect thereto, or (B) the occurrence of an Event of Defaull\vhich is not cured in accordance with the terms of this Agreement. In any of such cases, Lessee agrees to execute such instruments and do such things as Lessor reasonably requests in order to, effectuate tranSfer of any and all of Lessee's right, title and interest in such Equipment, as is,- to Le,ssor, ,Subject to , Lessee's obligations under Section 14 hereof,. it ,is hereby, acknowiedged by Lessor and Lessee that Lessee will 'purchase the Equipment on the terms set forth in the Individual Payment Schedules of this Agreement. (c) It is Lessee's intent to pay Lease-Purchase Payments'for the Initial, Period and all Renewal Periods as scheduled on each Individual Payment Schedule if funds are legally available to it and in this regard, Lessee represents that the use of the Equipment is essential ,to its operations. If Lessee is not 'allotted funds for any successive Fiscal Period to continue paying,the Lease-Purchase Payments as to any Individual Payment Schedule for the Units'of Equipment relating thereto and it has no funds legally available for such payment from other sources, Lessee may terminate the applicable Individual Payment Schedules of this Agreement at the end of the then current Fiscal Period, and Lessee shall not be obligated to make any payments thereon beyond the end of the then current Fiscal Period, 'Lessee shall provide Lessor with ninety (90) days written notice of its intention to terminate this Agreement as .result of an event of nonappropriation. In such event, Lessor shilll have all the rights and remedies to take possession of the Units of Equ,ipment relating to the Individual Payment Schedules so terminated,' Lessee agrees to transfer all of its right, tille and interest and to peaceably surrender possession of the appliCable Units of Equipment to Lessor or its assignee on the 'effective date of such termination, and to have such Equipment packaged for shipment in accordance with manufacturer's specifications. 11. Security Interest. In order to secure all of its obligations hereunder, Lessee hereby (a) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in (i) the Equipment and in all additions, attachments, accessions, and substitutions thereto, and on any proceeds therefrom, (i1) all general intangibles, software intangibles and other property relating thereto (excluding accounts receivable), (i1i) all warehouse receipts" biils of lading and other documents of title now or hereafter covering any of the foregoing property, (iv) ail securities, funds, moneys, deposits, and oth.er property at any time held in or subject to the Acquisition Fund (if any), (v) all accessions thereto, (vi) all .7- Cl2003 Fifth Third Bancorp t"XHI8/~ - '1/t~ accessories, attachments, parts, equipment and repairs now or hereafter att~ched or affixed or used in connection with 'any of the foregoing property, (vii) all substitutions for any of the foregoing property and (viiirproceeds of any of the foregoing property (including, without limitation, any property acquired by Lessee with'such proceeds); (b) agrees that this Agreement ,may be filed as ,a financing statement evidencing such security interest and authorizes Lessor to file such other UCC Financing ,Statements relating'to such coliateral in such jurisdictions as Lessor shali, determine are necessary or appropriate; and (c) agrees to'execute and deliver ali financing statements, certificates onitle and qther instruments' necessary' or appropriate to evidence such security interest and Lessee hereby irrevocably makes, constitutes and appoints Lessor as lessee's true and lawful attorney with fuli power to sign the name of Lessee to any such-document. 12. Disclaimer of Warranties, LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE ,VALUE, DESIGN, CONDITION, COMPLIANCE' WITH 'SPECIFICATIONS, QUALITY OF -MATERIALS OR WORKMANSHIP, MERCHANTABiLITY, FITNESS FOR A PARTICULAR PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, SUBJECT TO LESSEE'S OBLIGATIONS _ ______ ---------UNDEWSECTIOt<ln14-HeF1E:OF':-Of"At<lY-eWnT-1'1I;: -EOtJIPMENTeR- AS'fO-IT-S 'f1TtE-THERET0-0R-' - --.- __.n" ANY OTHER REPRESENTATiON OR WARRANTY WITH RESPECT TO THE EQUIPMENT_ Lessor , hereby assigns tcl Lessee for and during the Lease Term all manufacturer's warranties or guaranties, express or implied, issued ori or applicable to'the Equipment and Lessor authorizes Lesseeto obtain the customary services furnished in connection with such warranties or guaranties at Lessee's expense, ' Lessee acknowledges that the Equipment shall be purchased by Lessor in,accordance with Lessee's specifications and from a vendor selected by Lessee; that Lessor is, not a manufacturer of or dealer of such Equipment and takes no ,part in or responsibllity for the installation of ,the Equipment, and that Lessor has, made no representation or warranty, and assumes ,no obligation with respect to the merchantability; condition,' quality or,fitness of the, Equipment or the enforcement of the manufacturer's warranties orguaranties, , ' , ' - AIi sUChri~ks, as between Lessor,an9 Lesse~, are t~be bornel;>YLessee, Without limiting the foregoing Lessor shali have no responsibility or :Iiability to Lessee or any other person with respect to, any of the folioWing: (I) any liability, loss or damage caused, or alieged to be caused directly or indirectly by the , Eq!Jip'ment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any other circumstances- in connection therewith; (ii) the use, operation or performance of the Equipment or any ',riskS relating thereto; (ili) any interruption of service; loss of b,usiness, or anticipated profits, or consequential damages; or (iv) the delivery, operation', servicing, maintenance, repair, -improvement or replacement of the Equipment. ' 13. Personal Propertv_ The Equipment is and shall at ali times be and remain personal property 'notwithstanding that the Equipment or any part thereof maybe or hereafter become in any , mariner affixed or attached to or embedded in or permanently rested upon real property or any building or fixtures thereon or otherwise attached in any manner to what is permanent by means of cement, plaster, nails, bolts, screws or otherwise_ 14. Use: Maintenance and Repair: Indemnification, (a) Lessee will: (i) use the Equipment in a careful manner for the use contemplated by this Agreement and the laws of the State with respect to equipment of this type; (ill comply wtth ali laws, insurance policies and regulations relating to the use, maintenance and operation of the Equipment; and (iii) pay all costs, claims, damages, fees and charges arising out of tts possession, use or maintenance ofthe Equipment. ' (b) Lessee, at its expense, will: (i) keep the Equipment in good repair and furnish all 'parts, mechanisms and devices req'uired therefor, and (ii) obtain and maintain any governmental licenses and permits required for ownership and operation of the Equipment. -8 - Cl2003 Fifth Third Bancorp EtHIer" 4!.. - S/15 (c) Lessee will repair and maintain, or by contract provide for the proper repair and maintenance of, the Equipment during the Lease Term. . (d) Lessor agrees that so long as no Event of Default Has occurred and is continuing during the Lease Term it will not impair Lessee's abilities to operate or maintain the Equipment in sound operating condition so that the Equipment will be able to carry out its intended functions. (e) Lessee releases Lessor from, agrees that Lessor shali not be. liable for, and to the extent permitted by law, Lessee shall indemnify Lessor against causes of action, costs and expenses (including, without limitation, reasonable attorneys' fees and expenses except as may be limited by law or judicial order or decision entered in any action brought to recover morieys under this Section) imposed upon, incurred by or asserted against ellher Lessor. on account of (a) ownership of any interest in the Equipment or any part thereof; (b) any accident, injury 'or death to persons or damage to property occurring on or:about the Equipment or any part thereof or the adjoining sidewalks, curbs, streets or ways, (c) any use, .disuse or condition of the Equipment or any part thereof, or the adjoining sidewalks, curbs, streets'or ways, (d) any failure on the part of Lessee'to perform or comply with'any of the terms . Fi'ereofoT re)'"jf11j'pe-!"formanee"Of anY-labor'or serVices -orthe'1umishing-'of any- materia1s:'or-other property..-" in respect of the Equipment or any part thereof. In case any action, sull or proceeding is brought against Lessor for any such reason, Lessee, upon the request of Lessor, will, to the extent permitted by law, at Lessee's expense, cause such action, suit or proceeding to be resisted and defended by Independent Counsel. . (f) Lessor agrees to indemnify and save harmless Lessee against and from any and all cost, liability; expenses 'and 'C1aims arising from any brea'ch or default on the part. of Lessor in the 'performance of any covenant or agreement on the part of Lessor to be performed pursuant to the terms .of this Agreement, or arising from any act or gross negligence of or iailure to act by Lessor, or any of its agents, contractors: servants, employees, or licensees, and from and against all cost, liability and. expenses incurred in or in connection with any such claim or action or proceeding brought thereon; and in case' any action or proceeding be brought against Lessee by reaSon of any such claim,Lessor, upon notice from Lessee, covenants to resist or defend such action (using counsel acceptable to Lessee, as the'case may be) or proceedings at Lessor's expense.. . '15:'. Alterations. Following completion of.the acquisition of the Equipment, Lessee will not make any aiterations, additions, .substitutions, subtractions' or replacements to' the Equipment. winlch would have an 'adverse effect on either the nature of the Equipment or the function or value of the Equipment, unless such anerations, additions, substitutions, subtractions, replacements or improvements . may be readily rem'oved or re-added without damage to the Equipment. Any alterations, additions or improvements to the Equipment which may not be readily removed without damage to the Equipment, and any substitutions or replacements, shall be considered to constitute a part of the Equipment. 16,' Location: Inspection. Lessee shall not remove the Equipment from the Equipment Location without the consent of Lessor, which consent sha.ll.not be unreasonably withheld. Lessor will be entitled. to enter' upon the Equipment Location or elsewhere during reasonable business hours to inspect or observe theuse, operation and maintenance of the Equipment. 17. liens and Encumbrances. Lessee and Lessor shall keep the Equipment free and clear' of all liens and encumbrances except those' created or permitted under this Agreement. 18. Risk of Loss: Damaae: Destruction. Lessee assumes all risk of loss or damage to the Equipment . from' any cause whatsoever. No loss .of or damage to, or appropriation by. governmental authorities of, or defect in or unfitness or obsolescence of, the Equipment will relieve Lessee of its obligation under this Agreement or .the Individual Payment Schedules hereunder. Lessee will promptly repair or replace any portions of Equipment lost, destroyed, damaged or appropriated necessary to maintain the Equipment in sound operating condition so that arall times during the Lease Term the Equipment will be able to carry out its intended functions. If an Event of Loss to any Equipment has occurred, Lessee shall immediately notify Lessor of same, and at the option of Lessor, Lessee shall: (a) .9 - C12003 Fifth Third Bancorp EXlfl13rr 8 - q/IS" repair or replace .such Equipment in accordance with the immediately preceding sentence and the other terms and conditions hereof or (b) pay to Lessor on the next succeeding Payment Date the sum of (i) all Base Rent and Additional Rent due on such Payment Date and all other amounts then due and owing hereunder plus (ii) the Purchase Price as of such Payment Date with respect to the Equipment. Upon Lessor's receipt of the payment required under subsection (b) above, Lessee shall be entitled to Lessor's interest in such Equipment, in ITS then condition and location, 'as is' and 'where is', without any representations or warranties, express or implied. 19. Insurance. Lessee during the Lea~e Term of thisAgreement shall maintain: . (a) property insurance, with any loss deductible commonly use(J by Lessee, covering the Equipment, naming Lessor as loss payee and, otherwise on the terms and in the amounts specified in the Insurance.Coverage Certificate exe,cuted by Lessee; (b) liability insurance covering the use.of the Equipment, which may . b<l a combination of self-insurance and an excess liability policy, naming Lessor as an additional insured and . '-o'lheiWiseori llie'leYmsana'jj;'lrni am6um!fs~eifiM'1n'tM'lnsurance'Coverage'Certificate -execlJ!edby -.-- -- ,- ,'.-, Lessee: (c) .the proceeds of any personal injury insurance, casuaily insurance, or appropriation awards, to the extent they are not promptly used or encumbered for the purposes stated in 18 hereof, shall be paid to Lessor for deposit in the Lease-Purchase Payment Account; and (d) in the event of total destruction of any Units .of Equipment, Lessee shall apply insurance proceeds, self-insurance and any other moneys available and appropriated for the purpose, to the acquisition of replacement Equipment. . 20. Purchase Option, Lessee; upon ninety (90) days priorwritten notice to Lessor and after the' Commencement Date; shall have the .right to. purcb.ase, tHe Equipment or. any.. Unit 'of Equipment . thereof on any Purchase Price Date by paying to Lessor the Lease-Purchase Payment.then due on the : applicable Individual Payment Schedule, together .with the Purchase Price relating to that date. Any purchase of Equipment hereunder shall be, on an 'as-is, where-is' basis without representation or warranty 'of any kind from Lessor except that Lessor. shall warrant that the Equipment is'free, clear and unenc'umbered of all liens arising by, through or under Lessor except for .such'liens as Lessee is required to remove pursuant to the terms hereof, 21. Asslanments, (a) Lessee may not, without the prior written consent of Lessor: (i) assign, transfer, "pledge, hypothecate or grant any security interest in or otherwise dispose of this Agreement or any Individual Payment Scheduie under this Agreement or any Unit .of Equipment (without replacement or. substitution) or.a'ny interest in this Agreement or any Individuai Payment.Schedule under this Agreement or Unit of Equipment, or (II) sublease the Equipmerit'or permit it to be operated by anyone other than Lessee, Lessee's employees or persons authorized by Lessee in connection with Lessee's operation and maintenance of the Equipment. ' (b) This Agreement and each Individual Payment Schedule and tHe obligations of Lessee to make payments under each Individual Payment Schedule, may be sold, assigned or otherwise disposed of in whole or in part to one or more successors, grantees, holders, assignees or subassignee by Lessor, whereupon such successons, grantees, h'olders, assignees or subassignee shall succeed to all of Lessor's rights and (except to the extent of any servicing obligations retained by Lessor) obligations, Upon any sale, disposition, assignment or reassignment, Less.ee shall be provided with a notice of the same by 'Lessor' or its grantees, holders, assignees or subassignee; provided. .however. that failure. to provide'such notice to Lessee shall not invalidate, void or render ineffective such assignment. Such sale, disposition,' assignment or reassignnientshallbe effective upon receipt of such notice by Lessee. -10 - ~2003 Fifth Third Bancorp EXHIf>r( I!. - 10//5' - ,--"..-..-.. .-_... (c) Lessee agrees to make all' payments to the assignee designated in the assignment, notwithstanding any claim, defense; setoff or counterciaim whatsoever (except arising from Lessor's breach 'of this Agreement) that'Lessee may from time to time have against Lessor or Ve'ndor, Lessee agrees to" execute all documents, including registering of assignments, notices of, assignment and chattel mortgages or financing statements, which may be reasonably requested by Lessor or assignee to' protect its interest in the Equipment, in this Agreement and in each Individual Payment Schedule, (d) LesSee hereby agr~es that Lessor may seIJ or offer to sell this Agreement (i) through a certificate of participation program, whereby one or more interests are created in the Agreement un'der each Individual Payment Schedule, the Equipment or the Rental Payments under this Agreement arid each Individual Payment Schedule or (ii), with other similar instruments, agreements and obligations through a pool, trust, limited partnership, or other entity, 22. Events of Default. The occurrence of anyone or m'ore of the following events constitutes an "Event of Default" under this Agreement: ',- ...- -----'-'(ar'--' 1.:essee;'s-Tailille--li5"'ma1<e' ClUrlnll.1he.-1t1en--Current.!'ist:ar-periud--"nr-..'---.----. . Lease-Purchase' Payment (or any other payment) as it becomes due in accordance with the terms of any Individual Payment Schedule of this Agreement, and the failure continues for fifteen (15) days after the due date; or " (b) Less~e's failure to perform or observe any other covenant, condition or agreement to be performed or observed by ~ under this Agreement, and the failure is not cured or steps satiSfactory to Lessor taken to cure the failure, within fifteen (15) days after written notice of the failure to Lessee by Lessor; or (e) The discovery by Lessor that any material statement, representation or warranty , made by Lessee In this Agreement or in any writing delivered by, Lessee pursuant to or in connection with this Agreement is false, misleading' or erroneous in any m'aterial respect;, or,,: , ' , , (d.) The initiation by Lessee of a proceeding: under anyiederal or st<lte bankruptcy or Insolvency I<lW seeking relief under such'laws concerning the indebtedness of Sul>-Lessee or Lessee; or (e) Lessee shall be or become insolvent, or. admit in writing ils inability'to pay its or his debts as they mature, or make an assignment for the benefit of creditors; or Lesse,e shall apply for or corisentto the appointment of any receiver, trustee or similar officer for it or for all or any' substantial part of its property; or such receiver, trustee or similar o,fficer shall be appointed without the application' or consent of Lessee; or L.essee shall institute (by petition, application, answer, consent or otherwise) any ',bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proc'eeding relating to it under the laws of. any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against Lessee, or any judgment, writ, warrant of attachment or execution or similar process shall be, issued or levied against ,a substantial part of the property of Lessee, 23. 'Remedies, Upon the occurrence of' an Event of Default, and as long as the Event of Default is continuing, Lessor may, at its option, exercise any one or more of the following remedies as to the Equipment: ' (a) By written notice to Lessee, .declare an amount equal to all amounts then due , under alllndividu'al Payment Schedules and all remaining Lease..Purchase Payments due thereon during the then applicable Fiscal Period, whereupon that amount shall become immediately due and payable; , (b) Within fifteen (15) days after written demand or notice to Lessee; enter and take immediate possession of the Equipment wherever situated, without any court order or process of law and without liability for entering the premises: ' -,,- C2003 Fifth Third Bancorp EXHI81T ~ - I;j;r , " '(c) Sell or lease the Equipment or sublease the Equipment for the account of LeSsee, 'holding Lessee liable for all Lease-Purchase Payments and other payments due during the then, applicable FiscafPeriod to the effective date of such selling, leasing or subleasing and for the difference, between 'the purchase price, rental and other amounts' paid by the purchaser, lessee or sublessee purs'uant to such sale, lease or sublease and the amounts payable during such Fiscal Period by Lessee under all individuai Payment Schedules of this Agreement; and, (d) Exercise any other right, remedy or privilege which may be available to it under the applicable laws of the State or any other appli<;able law or proceed by appropriate court action to enfoice the terms of this Agreement or to recover damages for the breach of this Agreement or to rescind this Agreement as to any or all of the Equipment. ' Lessee will remain liable for all covenants and obligations under this Agreement, and for all legal fees and other 'costs and expenses, including court costs awarded, by a court of competent jurisdiction, incurred by 'Lessor with respect to the enforcement of any of the remedies under this Agreement, when a ...__..._?~~~':!.:?_~~~!~,lJ~r~dicti~~ has ~~~~~~~j::~icate~~~t a.n Event of .'?_efa~lt has ~,:,:urred~.__..____ _._____ .. .,._ , Upon an Event of Default or as otherwise required herein or in any Agreement, Lessee shall within ten (10) calendardays after notice from Lessor, at its own cost and expense': (al if deinstallation, disassenibly or 'crating is required, cause the Equipment to be deinstalled, disassembled and crated by an authorized manufacturer's representative or such other service person as is satisfactory to Lessor; and . (b) deliver the Equipment to a location specified by Lessor, freight a'nd insurance prepaid by Lessee', If Lessee refuses'to deliver the Equipment in the manner designated, Lessor may enter upon Lessee's premises where the E':quipment is kept and take p,oss,esSion of the Equipment and charge to Lessee the costs of such taking, To the extent permitted.by applicable law, Lessee hereby expressly waives any damages occasioned by such taking, unless caused solely and directiy by Lessor's failure to comply with the'LJCC" If Lessee makes modifications to a site after any Equipment has been installed therein and such modifications impede the removal o,fthe,Equipment" the .cost of removing ,the impecFments and, restoring the site shall be the sole expense of Lessee, , Lessee agrees that if. Lessee is required .to ,deliver any item of Equipment to Lessor or Lessor's agent, the, Equipment shall be delivered free of all substances which are regulated by or form a basis for liability under any ,Environmental Law'(other than ,items necesSary' for the use or operation of the Equipment for the purposes for which it was intended so long, as such items have been hauled, ',conveyed, stored', treated, transported and' disposed of in accorda'ncewith Environmental Laws), -All of.Lessee's right" title and interest in any Equipment the possession of which is taken by Lessor upon the occurrence of an Event of Default ,(inCluding, without limitation, construction contracts, warranties, guaranties' or ,completion assurances, applicable to such 'Equipment)'shaU pass to Lessor, and Lessee's rights in such Equipment shaH terminate' immediately upon such repossession. . ' 24, No Remedv Exclusive. No remedy herein conferred upon or reserved, to Lessor is intended,to be exclusive and every such remedy shall be cumulative <1-nd shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity, No delay or. omission to exercise any right or power accruing upon any Event of Def,3'ult shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. All remedies herein conferred upon or reserved to Lessor shall survive the termination of this Agreement. 25, Notices: All notices to be given under this Agreement shall be made in writing and mailed by certified or registered mail, return receipt requested, to the parties at the addresses set forth herein or at such other address as the party may provide in writing from time to time, 26, Headlnqs, All section headings contained in this Agreement are .fo; convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 27,' Governina Law, This Agreement shall be constru!,d in accordance with and governed by the laws of the State, .12 - C2003 Fifth Third Sa ncorp !XHrBIT ~ - 1.2//S- 28. Deliverv of Related Documents. Lessee will execute or provide, as requested by Lessor, .such other documents and information as are reasonably necessary with respect to the trahsactions contemplated by this Agreement, including the Individuai Payment Schedules which are or become a part of this Agreement. . . . . . Lessor and Lessee agr"ee that this Agreement or any other appropriate documents .may be. filed or recorded to evidence the parties' respective interests in the Equipment and this Agreement or the individual Leases hereunder. . 29. Special Representations and Covenants of Lessor. Lessor represents that: (a) Lessor is INDIANA BOND BANK duly organized, existing and. in good standing under the laws of such state; has full and complete power to enter into this Agreement and to. enter into and carry out the transactions contemplated hereby, and to carry out its obligations under this Agreement; is possessed of full power te .own and hold real and personal property, and to lease the same; and has _~~Iy~~~~~~ed th:..~~:.:~!io~a..n?_ deliv:ry~!:his Agr::~~~t~__ ~_ _ __ _._ _________~ ____._. .._ _.__ ___ __ (b) nenher the execution and delivery .of this Agreement .or any. Lease, nor the fulfillment of or compliance wnh the terms and conditions hereof and thereof, nor the consummatien of the transaclions contemplated hereby and thereby, :confticts with or results in a breach of the terms, . cenditions or provisions of any restriction or any agreement .or instrument to which Lessor is new a party or by which Lessor .or its preperty is bound, or constitutes a default under any of the feregoing, or results in the creation or imposition of any .Iien, charge,. or encumbrance whatsoever upon any of the property or assets .of Lessor, or upon the Equipment, as defined in any Lease except encumbrances permitted by the Lease; and - (c) upon exercise by"Lessee of its option to purchase the Equipment pursuant to any Lease, Lessor will deliver to Lessee air documents which are or. may. be necessary to vest all .of Lessor's . right, title and interest in and to the Equipment in Lessee, and will release all..lifi!ns.and ..encumbrances . created under the Lease wilh respect te the Equipment. 30. Special Representations and Covenants of Lessee. Lessee represents that: .(a) it is a political subdivisien of the .State responsible fer. public safety.and that .acquiring, owning and financing of the Equipment and the leasing of the Equipment will advance such purposes. Lessee further.represents that it intends, te the fullest extent possible, to suppert and maintain the Equipment to assure performance .of ns essential function; . (b) the laws of the State authorize Lessee to acquire, operate and maintain the equipment to be leased pursuant to the Lease, to enter into the Lease and. the transactions contemplated thereby, and carry out its obligations under the Lease; (C) . the .officers .of Lessee executing the Lease have been duly authorized to execute and deliver the Lease under the terms and previsions' .of a resolution of Lessee's governing body or by . other apprepriate .official action; . (d) Lessee has complied with all open meeting laws, all public bidding iaws and all other laws of the State and the United States applicable to the Lease and the acquisition .of the Equipment by Lessee; . (e) except as provided under the terms of the Lease, Lessee will riot transfer, lease, assign, mortgage .or encumber the Equipment; .13. Cl2003 Fifth Third Bancorp EXl-I/f>/T ~ - 13/6 (f) the Equipment constitutes public property to be used solely for public purposes - - - ~nd lessee will use the Equipment during the term of the Lease -only to perform essential governmental funCtions; (9) - Lessee will execute and file with the Internal Revenue Service the information reporting statement required by Section 149(e) of the Code, (Form 8038G or 8038GC); (h) Lessee does not reasonably anticipate that less than ninety-five percent (95%) of the proceeds of the Lease will be used for 'local government activities' of Lessee; and (i) - all representations, warranties, covenants and statements contained in this Lease are true and correct. - Upon the executionef each Individual Payment Schedule, Lessee will provide Lessor a completed_and executed copy of the opinion of the legal counsel tei Lessee, in form and substance satisfactory to Lessor. ______ __ ______l}1_E!.__'J.ei~L9.n--0.leJl.a.~.9uns~I_~c:.!-_essee Will be_ dated the date that funding for the Individual Payment - Schedule is provided by Lessor. --rnaaaltlon-:- [essor's iililigaTiOri--lolOna1lie-purcfiase pnce-ton~-- ----- ---- -- --- Equipment- referred to in any Individual Equipment Schedule executed pursuant hereto is conditioned upon prior receipt of the following documents, in each case, duly -executed by Lessee and in_ form and substance -satisfactory tei Lessor: (i) Arbitrage and Tax Certificate, (Ii) Certificate of Fiscal Officer, (Iii) Bank Eligibility Certificate, (iv) Insurance Coverage Letter, -(v) Municipal Certificate and (vi) Essenti_al - -Use/Source of Funds Certificate_ 31. -E-scrow Aareement. To the extent required by any Individual Payment Schedule executed pursuant hereto, at the time of the execution and delivery of such Individual Payment Schedule, -- Lessor and- Less-ee agree to execute and deliver and to cause Escrow Agent to execute and deliver the Escrow Agreement Such Individual Payment Schedule shall take effect only upon execution and -_ delivery of- the Escrow Agreement by the- _parties thereto_ Upon receipt _of each- properly -completed --Paymerit Request Form, In the form prescribed by the Escrow Agreement.-- Lessor shall deposit or- cause -to :be deposited wtth Escrow Agent for credit to the Acquisition Fund the sum designated therein, which shall be held, Invested and diSbursed_in accordance with the Escrow Agreement- 32. - Entire Aareement. This Agreement, together- with all- Individual Paymeni Schedules and attachments and exhibits, arid other documents - or instruments executed by Lessee and Lessor in connection with this Agreement, constitute the entire agreement between the parties with respect to the - lease of the Equipment 33, Amendments_ This Agreement may not be modified, amended, altered or changed except with the written consent of Lessee and Lessor and except as contemplated by the adpttion of Individual Paym-ent Schedules_ 34. Severabilitv~ In any provision of, or any covenant, obligation or agreement contained in this Agreement is -determined by a court to be invalid or unenforceable, that determination shall- not affect any_other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained in this- Agreement The invalidity or -urienforceability shail not affect any valid or enforceable application thereof, and each such provision, covenant, obligation- or agreement shall be deemed to- be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law 35. Counterparts. This Agreement may be simultaneously executed in severai counterpartS, each of which shall be an original and all of which shall constitute but I!lne and the same Agreement. -14 - C/2003 Fifth Third Bancorp 12f..1f18/i B - /'I/r~ , . , IN WITNESS WHEREOF, the parties have executed this Master Lease-Purchase Agreernent by their authQrized officers as of the date set forth,above, ;Ja,c;: ' ~fi/2 , dr-- ;)...1: ' , 0i,.-<</l.lL d...-t.,c,t':-.' LESSOR: ~;;t~ ,_ ? ~,,~ tjANK By: " gl1't Narne: 1", "" 6u-r"f Title: ' C 1-1,0., r ,-,..."'" LESSEE: CITY OF CARMEL . . . . .._. .._. ......._.._.__.__..___ _.. .,_.._ ._..__.,.....__....._ .___.__..__..__ __.. ....___..._....__.___.__..______u__"_ ________._____.___ @2003 Fifth Third Bancorp By' ~(Q)~1f " .15 - - EXt.h8ti ~ - /slo5'