HomeMy WebLinkAboutResolution BPW 05-21-25-02/ADMIN/$491,511/Crossroads Bank/Lease Agreement for generator
EXHIBIT 4
OPINION OF LESSEE’S COUNSEL
May 22 , 2025
Crossroads Bank
1205 North Cass Street
Wabash, Indiana 46992
Re: Master Equipment Lease-Purchase Agreement Dated May 22, 2025
and Lease Schedules Thereto
Ladies and Gentlemen:
As counsel for City of Carmel, Indiana, (“Lessee”), I have examined the Master Equipment Lease-Purchase
Agreement duly executed by Lessee and dated May 22, 2025 (the “Master Lease”), which has been
incorporated by reference into the Lease Schedule No. 1 dated May 22, 2025 (“Lease Schedule No.1”) each
between Lessee and Crossroads Bank. (“Lessor”), the form of the Certificate of Acceptance (the
“Certificate of Acceptance”) attached to Lease Schedule No.1 and the proceedings taken by the City Board
of Public Works and Safety a governing body of Lessee to authorize on behalf of Lessee the execution and
delivery of the Master Lease, Lease Schedule No. 1, the Certificate of Acceptance and all additional
equipment schedules and related payment schedules to be entered into pursuant to the Master Lease (each
of which is herein referred to as an “Additional Lease Schedule”) and to be executed and delivered in
substantially the same manner and in substantially the same form as Lease Schedule No. 1. The Master
Lease, Lease Schedule No. 1 and the related Certificate of Acceptance are herein collectively referred to as
the “Lease.” The Master Lease and any Additional Lease Schedule and the related Certificate of
Acceptance are herein collectively referred to as an “Additional Lease.” Based upon the foregoing
examination and upon an examination of such other documents and matters of law as I have deemed
necessary or appropriate, I am of the opinion that:
1. Lessee is a city duly organized and legally existing as a political subdivision, municipal corporation or
similar public entity under the Constitution and laws of the State of Indiana with full power and
authority to enter into the Master Lease, Lease Schedule No. 1, the Certificate of Acceptance and each
Additional Lease Schedule.
2. The City of Carmel, Indiana Board of Public Works and Safety has the legal capacity and authority to
enter into the Master Lease and all related agreements which shall be a valid and binding agreement of
the City of Carmel , Indiana.
3. The Master Lease, Lease Schedule No. 1 and each Additional Lease Schedule have each been duly
authorized and have been, or, with respect to each Additional Lease Schedule, will be, duly executed
and delivered by Lessee. Assuming due authorization, execution and delivery thereof by Lessor, the
Master Lease and Lease Schedule No. 1 constitute, and each Additional Lease Schedule will
constitute, the legal, valid and binding obligation of Lessee, enforceable against Lessee in accordance
with their respective terms, subject to any applicable bankruptcy, insolvency, moratorium or other laws
or equitable principles affecting the enforcement of creditors’ rights generally.
4. The Certificate of Acceptance has been duly authorized by Lessee and, when a Certificate of
Acceptance is duly executed and delivered by Lessee in accordance with Lease Schedule No. 1 or any
Additional Lease Schedule, the Lease and each Additional Lease to which a Certificate of Acceptance
relates will constitute the legal, valid and binding obligation of Lessee, enforceable against Lessee in
accordance with their respective terms, subject to any applicable bankruptcy, insolvency, moratorium
or other laws or equitable principles affecting the enforcement of creditors’ rights generally.
5. The Equipment to be leased pursuant to the Lease and each Additional Lease constitutes personal
property and when subjected to use by Lessee will not be or become a fixture under applicable law.
6. Lessee has complied with any applicable public bidding requirements in connection with the Lease,
each Additional Lease and the transactions contemplated thereby.
7. No litigation or proceeding is pending or, to the best of my knowledge, threatened to restrain or enjoin
the execution, delivery or performance by Lessee of the Master Lease, Lease Schedule No. 1 or any
Additional Lease Schedule or in any way to contest the validity of the Lease or any Additional Lease,
to contest or question the creation or existence of Lessee or its governing body or the authority or
ability of Lessee to execute or deliver the Lease or any Additional Lease or to comply with or perform
its obligations thereunder. There is no litigation pending or, to the best of my knowledge, threatened
seeking to restrain or enjoin Lessee from annually appropriating sufficient funds to pay the Rental
Payments or other amounts contemplated by the Lease or any Additional Lease.
8. The resolution adopted by the Lessee’s Board of Public Works and Safety a governing body of the
City of Carmel, Indiana authorizing the execution and delivery of the Master Lease, Lease Schedule
No. 1, the Certificate of Acceptance, the Additional Lease Schedules, each Certificate of Acceptance
and certain other matters was adopted at a meeting that was held in compliance with all applicable
laws relating to the holding of open and public meetings.
9. The entering into and performance of the Master Lease, Lease Schedule No. 1 and each Additional
Lease Schedule do not, and the execution of a Certificate of Acceptance by Lessee pursuant to Lease
Schedule No. 1 and each Additional Lease Schedule will not, violate any judgment, order, law or
regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon any assets of Lessee or on the
Equipment (as such term is defined in the Master Lease) pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its
assets may be bound.
This opinion may be relied upon by purchasers and assignees of Lessor’s interest in the Lease and each
Additional Lease. [A copy of this opinion may be furnished to, Special Tax Counsel in connection with the
Lease or any Additional Lease, which is authorized to rely on this opinion in rendering its opinion as
Special Tax Counsel.]
Respectfully submitted,
Sergey Grechukhin
___________________________________
Sergey Grechukhin, Attorney for Lessee
May 13, 2025
Mr. Sergey Grechukhin
City of Carmel Department of Law
One Civic Square
Carmel, Indiana 46032
RE: City of Carmel, Indiana - Tax Exempt Lease Purchase for a new Cummins 800KW Tier
II Standby Diesel Generator.
Dear Mr. Grechukhin:
It was a pleasurer speaking with you this morning. As we discussed, Crossroads Bank
through its affiliation with the Indiana Bond Bank has been selected to provide The
City of Carmel, Indiana with tax-exempt lease purchase financing of a new Cummins
800KW Tier II Standby Diesel Generator.
Enclosed please find Crossroads Banks master lease documents for your review and
completion.
Enclosures:
*Master Lease
* Equipment Schedule 1
Exhibit 1 Insurance Coverage Requirements
Exhibit 2 Form of Authorizing Resolution - To be completed by the
City’s Attorney and passed by the Board of Public Works and Safety
at the May 21, 2025, meeting.
Exhibit 3 Incumbency Certificate of Lessee
Exhibit 4 Opinion of Lessee’s Counsel - To be supplied by the
City’s Attorney
*Exhibit 5 Certificate of Acceptance
Attachment 1 Rental Payment Schedule
Attachment 2 IRS Form 8038G – To be completed by the city
and sent to the IRS
Attachment 3 Bank Qualified Designation
*Exhibit 6 The City needs to provide a copy of its State Tax
Exemption Certificate Form ST 105
* Escrow Agreement
* Invoice for Crossroads Bank Documentation Fee
* Copy of the Indiana Bond Banks award letter
Please complete the Opinion of Lessee’s Counsel and return it to me. Also please
complete the Authorizing Resolution and have it passed by the City’s Board of Public
Works and Safety at the May 21, 2025, meeting.
If you have any questions, please call me at (317) 565-2379 or on my cell phone at
(317) 508-0687.
I appreciate the opportunity to work with you in completing this transaction.
Sincerely,
Barry Grossman
Sr. Vice President
CROSSROADS BANK
MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT
Master Agreement Date: May 22, 2025
LESSEE: City of Carmel, Indiana LESSOR: Crossroads Bank
1 Civic Square 1205 N. Cass Street
Carmel, Indiana 46032 Wabash, IN 46992
For and in consideration of the mutual promises and
agreements herein contained, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless the context otherwise clearly
requires, the following terms shall have the respective
meaning set forth below for all purposes of this Agreement,
each Schedule and each Lease:
“Additional Payments” means any amounts (other than
Rental Payments) required to be paid by Lessee pursuant to
the terms of each Lease.
“Agreement” means this Master Equipment Lease-
Purchase Agreement, as supplemented and amended from
time to time as herein provided.
“Certificate of Acceptance” means, with respect to each
Schedule, a certificate that Lessee delivers to Lessor upon
Lessee’s receipt and acceptance of the Equipment described in
such Schedule and pursuant to which Lessor is directed by
Lessee to, and against which Lessor does, allocate funds to
pay the Purchase Price for such Equipment. Each Certificate
of Acceptance with respect to a Schedule shall be in
substantially the form attached as Exhibit 5 to such Schedule,
shall be completed, executed and delivered by Lessee to
Lessor as provided in Paragraph 9 of this Agreement and shall
have a Rental Payment Schedule and, with respect to a Tax-
Exempt Lease only, I.R.S. information reporting return
attached thereto.
“Code” means the Internal Revenue Code of 1986, as
amended. Each reference to a section of the Code herein shall
be deemed to include the United States Treasury Regulations
proposed or in effect thereunder.
“Equipment” means (a) the equipment, vehicles,
computer hardware and software (subject to any applicable
software license agreement) and other tangible and intangible
personal property (including maintenance and other support
service agreements) identified in each Schedule, (b) any
property acquired in substitution, renewal, repair or
replacement for or as additions, improvements, accessions and
accumulations to any of such equipment, vehicles, computer
hardware and software and other personal property and (c) any
accessories, parts and appurtenances appertaining or attached
to any of such equipment, vehicles, computer hardware and
software and other personal property or from time to time
incorporated therein or installed thereon.
“Event of Default” is defined in Paragraph 24 of this
Agreement.
“Event of Nonappropriation” means a nonrenewal of the
term of a Lease by Lessee, determined by the failure or refusal
of the governing body of Lessee to appropriate monies
sufficient to pay the Rental Payments and reasonably
estimated Additional Payments for the next succeeding
Renewal Term as provided in such Lease.
“Fiscal Period” means the annual or biennial period used
from time to time by Lessee for its financial accounting and
budgeting purposes.
“Initial Term” means, with respect to each Lease, the
period determined as provided in Paragraph 3 hereof.
“Lease” means, collectively, (a) a Schedule and the terms
of this Agreement which are incorporated by reference into
such Schedule, (b) the Certificate of Acceptance relating to
such Schedule, together with the Attachments to such
Certificate of Acceptance, and (c) each Addendum that
describes this Agreement or the Lease to which such
Addendum relates.
“Legally Available Funds” means funds that the
governing body of Lessee duly appropriates or are otherwise
legally available for the purpose of making Payments under
each Lease.
“Lessee” means the entity referred to as Lessee in the
heading for this Agreement.
“Lessor” means (a) the entity referred to as Lessor in the
heading for this Agreement or (b) any assignee or transferee of
any right, title or interest of Lessor in and to any Lease
(including Rental Payments and the Equipment thereunder)
pursuant to Paragraph 27 hereof, but does not include any
entity solely by reason of that entity retaining or assuming any
obligation of Lessor to perform under any Lease.
“Net Proceeds” means the amount remaining from the
gross proceeds of any insurance claim or condemnation award
after deducting all expenses (including attorneys’ fees)
incurred in the collection of such claim or award.
“Payments” means, with respect to each Lease, the
Rental Payments and the Additional Payments thereunder,
collectively.
“Prepayment Option Amount” means, with respect to
each Lease, the amount determined pursuant to such Lease at
which Lessee may prepay the aggregate principal component
of Rental Payments thereunder on any Rental Payment date
provided in such Lease for which a Prepayment Option
Amount is identified under the column titled “PREPAYMENT
OPTION AMOUNT” on the related Rental Payment Schedule
prior to the scheduled payment of all Rental Payments to be
paid under such Lease for the Equipment therein identified.
“Purchase Price” means, with respect to each Schedule,
the total cost of the Equipment described in the Certificate of
Acceptance related to such Schedule, including all delivery
charges, installation charges, capitalizable consulting and
training fees, legal fees, financing costs, motor vehicle
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registration fees, recording and filing fees and other costs
necessary to vest full, clear legal title to such Equipment in
Lessee, subject to the security interest granted to and retained
by Lessor as set forth in the related Lease, and otherwise
incurred in connection with the financing provided by the
lease-purchase of the Equipment as provided in such Lease.
“Renewal Term” means, with respect to each Lease, each
successive period, in addition to the applicable Initial Term,
that is coextensive with Lessee’s Fiscal Period and for which
Lessee has extended the term of such Lease as provided
therein.
“Rental Payments” means, with respect to each Lease,
the amounts (allocable with respect to a Tax-Exempt Lease to
a principal component and an interest component) payable by
Lessee pursuant to such Lease, as payments for the installment
financing of the Purchase Price for the Equipment as set forth
in such Lease.
“Rental Payment Schedule” means, with respect to each
Lease, the schedule of Rental Payments due with respect to the
funds allocated for the payment of the Purchase Price under
such Lease by Lessor at Lessee’s direction pursuant to the
related Certificate of Acceptance, calculated as provided in the
related Schedule and attached as Attachment I to such
Certificate of Acceptance.
“Schedule” means a Lease Schedule that may be
executed by Lessor and Lessee from time to time pursuant to
this Agreement and, in the case of a Tax-Exempt Lease in
substantially the form attached to this Agreement as Schedule
A-1 or, in the case of a Taxable Lease, in substantially the
form attached to this Agreement as Schedule A-2, together in
each case with the Exhibits attached to each such Schedule.
“Schedule Funding Date” means the date identified by
Lessor in its Acknowledgment to a Certificate of Acceptance
on which Lessor allocated funds into an escrow account for
the payment of the Purchase Price under the related Schedule
at Lessee’s direction.
“State” means the State under whose laws Lessee exists
or is organized.
“Taxable Lease” means a Lease that is not a Tax-Exempt
Lease.
“Tax-Exempt Lease” means a Lease for which the
interest component of Rental Payments is excludible from
gross income of the owner or owners thereof for federal
income tax purposes.
“Vendor” means the manufacturer, seller or supplier of
the Equipment and the agents or dealers of the manufacturer,
seller or supplier from whom Lessee acquired and Lessor
financed the Equipment pursuant to the applicable Schedule.
2. Agreement to Lease-Purchase Equipment Under Each
Lease. Lessee hereby agrees to acquire, purchase and lease all
the Equipment identified in each Schedule that may from time
to time be executed by Lessor and Lessee pursuant hereto, and
Lessor hereby agrees to lease the Equipment under each
Schedule to Lessee, all on the terms and conditions set forth in
this Agreement and the related Lease. Each Schedule
executed and delivered by Lessor and Lessee pursuant to this
Agreement and the related Certificate of Acceptance
(including the Attachments thereto) shall constitute a separate
and independent Lease.
This Agreement is not a commitment by Lessor to Lessee
or to any Vendor to enter into any Schedule not currently in
effect unless Lessee shall execute and deliver to Lessor a
completed Schedule together with all exhibits thereto each in
form and substance and with terms acceptable to Lessor (in
the exercise of its sole discretion) and only so long as the
financial condition or affairs of Lessee shall not have changed
so as in the sole opinion of Lessor, to impair the credit risk to
Lessor of the transaction contemplated by such Schedule.
Each Schedule, upon its execution by Lessor and Lessee,
shall constitute a commitment by Lessor to finance Lessee’s
installment purchase and leasing of the Equipment therein
described on the terms and subject to the conditions provided
in such Schedule, and shall constitute a commitment by
Lessee to obtain such financing from Lessor, but nothing in
this Agreement or in such Schedule shall obligate Lessor to
allocate funds for the payment of the Purchase Price under the
related Lease as directed in any Certificate of Acceptance
unless Lessee shall complete, execute and deliver to Lessor a
Certificate of Acceptance with respect to Equipment at a
Purchase Price and with Vendors acceptable to Lessor (in the
exercise of its sole discretion) and only so long as the financial
condition or affairs of Lessee shall not have changed so as, in
the sole opinion of Lessor, to impair the credit risk to Lessor
of the transaction contemplated by such Certificate of
Acceptance; provided, however, that Lessor’s approval of or
failure to object to any Vendor shall not constitute or imply
any representation by Lessor with respect to the quality or
reliability of such Vendor.
This Agreement and any Schedule are, and in the case
of a Certificate of Acceptance may be, entered into solely for
the benefit of Lessor and Lessee and not for the benefit of
any third party including (without limitation) any Vendors.
3. Term. The term of this Agreement begins as of the
Master Lease Date set forth above and will continue so long as
any amount remains unpaid under a Lease. The Initial Term
of each Lease begins as of the Schedule Funding Date
identified by Lessor in the Certificate of Acceptance relating
to such Lease and expires at midnight on the last day of
Lessee’s current Fiscal Period during which such Schedule
Funding Date occurs. Beginning at the expiration of the
applicable Initial Term, the term of each Lease shall
automatically be extended upon the successive appropriation
by Lessee’s governing body of amounts sufficient to pay
Rental Payments and reasonably estimated Additional
Payments during the next succeeding Renewal Term in the
number of Renewal Terms, each coextensive with Lessee’s
Fiscal Period, as are necessary for all Rental Payments
identified in the pertinent Rental Payment Schedule to be paid
in full, unless such Lease is terminated as provided therein.
The term of each Lease will expire upon the first to occur
of:
(a) the expiration of the Initial Term or any Renewal
Term under such Lease during which an Event of
Nonappropriation occurs,
(b) the day after the last scheduled Rental Payment
under such Lease is paid in full,
(c) the day after the Prepayment Option Amount under
such Lease is paid in full or
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(d) an Event of Default under such Lease and a
termination of Lessee’s rights thereunder as provided therein.
4. Rental Payments. Lessee hereby agrees to pay Rental
Payments for the Equipment identified in each Lease (but only
from Legally Available Funds) to Lessor at Lessor’s mailing
address set forth above (or at such other address as may be
designated from time to time pursuant to Paragraph 27 or 30
hereof) in the amounts provided in the pertinent Rental
Payment Schedule. Rental Payments made by check will be
accepted subject to collection.
Lessee’s obligation to make Rental Payments and to pay
any Additional Payments payable under each Lease
constitutes a current obligation payable exclusively from
Legally Available Funds and shall not be construed to be an
indebtedness within the meaning of any applicable
constitutional or statutory limitation or requirement. Lessee
has not pledged its full faith and credit or its taxing power to
make any Rental Payments or Additional Payments under
any Lease.
5. Agreement to Seek Appropriations; Notice of Event of
Nonappropriation. Lessee agrees that its primary business
official will do all things lawfully within such official’s power
(a) to include amounts to make Payments under each Lease in
each annual or biennial budget (as appropriate) to be
submitted to Lessee’s governing body and (b) to use best
efforts to obtain and maintain funds from which Payments
under each Lease may be made during each Fiscal Period for
which amounts have been duly appropriated to make
Payments. Lessee hereby agrees to notify Lessor immediately
(and in no case later than thirty (30) days prior to the last day
of its then current Fiscal Period) of the occurrence of an Event
of Nonappropriation under any Lease.
6. Prepayment Option. Lessee is granted the option
pursuant to the applicable Lease to prepay the aggregate
principal component of Rental Payments (in whole but not in
part) identified in such Lease, prior to the scheduled payment
of the Rental Payments in full pursuant to such Lease, on each
Rental Payment date for which a Prepayment Option Amount
is identified under the column titled “PREPAYMENT
OPTION AMOUNT” in the applicable Rental Payment
Schedule. Such prepayment amount shall equal the
Prepayment Option Amount (assuming that all Rental
Payments and Additional Payments due under such Lease on
and prior to the prepayment date have been paid) shown for
the Rental Payment date on which such prepayment is to be
effective under the column titled “PREPAYMENT OPTION
AMOUNT” in the applicable Rental Payment Schedule. The
aggregate principal component of Rental Payments may not be
prepaid in whole or in part on any day prior to the first Rental
Payment Date for which a “PREPAYMENT OPTION
AMOUNT” is shown in the applicable Rental Payment
Schedule, and the Prepayment Option Amount shown on any
Rental Payment Schedule may include an amount representing
premium.
To exercise the option provided in this Paragraph 6 and
granted in a Lease, Lessee shall give Lessor a written notice
exercising such option and designating the affected Lease, the
Rental Payment date on which such prepayment is to be
effective and the applicable Prepayment Option Amount,
which notice shall be delivered to Lessor at least thirty (30)
days in advance of the proposed prepayment date. Such
prepayment option may be exercised by Lessee with respect to
a Lease whether or not one or more Events of Default have
occurred and are then continuing under such Lease at the time
of such exercise; provided, however, that the prepayment of
such principal component of Rental Payments under the
applicable Lease upon the exercise of such option during the
continuance of an Event of Default thereunder shall not limit,
reduce or otherwise affect liabilities or obligations that Lessee
has incurred as a result of such Event of Default or otherwise
terminate the term of the affected Lease notwithstanding
anything in such Lease to the contrary.
Immediately upon any such prepayment being made,
Lessor shall execute all documents reasonably necessary to
confirm in Lessee title in and to the Equipment under the
affected Lease free and clear of any lien, encumbrance or
other interest created by Lessor, but without warranties and in
“where-is, as-is” condition, and release Lessor’s security
interest in such Equipment and shall deliver such documents
to Lessee. Lessor shall further cooperate in providing for the
filing of any necessary releases, termination statements or
other similar documents and the release of certificates of title
or certificates of origin to Lessee.
7. Essentiality. Lessee’s present intention is to make Rental
Payments and Additional Payments under each Lease for the
Initial Term and all Renewal Terms applicable thereto as long
as it has Legally Available Funds. In that regard, Lessee
represents with respect to each Lease that (a) the use and
operation of the Equipment under each Lease is essential to its
proper, efficient and economic governmental operation and (b)
the functions performed by the Equipment under each Lease
could not be transferred to other equipment available for its
use.
8. Nonsubstitution. If Lessor terminates a Lease pursuant to
Paragraph 25 or an Event of Nonappropriation occurs with
respect to a Lease, Lessee agrees, to the extent not prohibited
by law, not to purchase, lease, rent or otherwise acquire
equipment performing functions similar to those performed by
the Equipment described in such Lease or obtain from any
source the services or information that the Equipment
described in such Lease was to perform or provide, in each
case for a period equal to the shorter of (a) the longest period
(if any) permitted by State law for such purpose or (b) 360
days after such termination or occurrence.
9. Delivery and Installation. Lessee shall select the type,
quantity and Vendor of each item of Equipment designated in
a Schedule. Once Lessor and Lessee have executed the related
Schedule, Lessee (as Lessor’s agent for this purpose) shall
then order the Equipment identified in such lease from such
Vendor. Any existing purchase order at the time a Schedule is
executed for any portion of the Equipment therein identified
and any purchase order thereafter executed shall be deemed to
be executed by Lessee in its capacity as Lessor’s agent for
purposes of such Schedule. Lessor shall have no liability for
any delay in delivery or failure by the Vendor to deliver any
Equipment under any Schedule or to fill any purchase order or
meet the conditions thereof. Lessee, at its expense, will pay or
cause the Vendor to pay all transportation, packing, taxes,
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duties, insurance, installation, testing and other charges
relating to the Equipment under each Schedule. As soon as
practicable after Lessee’s receipt and installation of all
Equipment identified in a Schedule, Lessee shall deliver to
Lessor a Certificate of Acceptance relating thereto. Execution
of a Certificate of Acceptance with respect to the Equipment
identified in a Schedule by any employee, official or agent of
Lessee having authority in the premises or having managerial,
supervisory or procurement duties with respect to equipment
of the same general type as the Equipment describe in such
Certificate of Acceptance shall constitute acceptance of such
Equipment on behalf of Lessee. If Lessee delivers a
completed and executed Certificate of Acceptance to Lessor
that is in form and substance acceptable to Lessor and satisfies
the conditions for allocation of funds for the payment of the
Purchase Price under the related Lease, including those
provided in the third paragraph of Paragraph 2 of this
Agreement, Lessor shall within five (5) business days allocate
such funds as directed by Lessee in such Certificate of
Acceptance, complete and execute the Acknowledgment of
Lessor included in such Certificate of Acceptance and
calculate and prepare the Rental Payment Schedule to be
attached to such Certificate of Acceptance all of which shall
constitute and be part of the related Lease.
Lessee understands and agrees that neither the Vendor of
any Equipment under any Schedule or related purchase order
nor any salesman or other agent of any such Vendor is an
agent of Lessor. No salesman or agent of the Vendor of any
Equipment under any Schedule or related purchase order is
authorized to waive or alter any term or condition of any such
Schedule or related purchase order, and no representation as to
Equipment or any other matter by the Vendor of any
Equipment under any Schedule or related purchase order shall
in any way affect Lessee’s duty to pay the Rental Payments
under the related Lease and perform its other obligations as set
forth in such Lease. Lessee hereby acknowledges that it has
or will have selected the Equipment identified in each
Schedule using its own criteria and not in reliance on any
representations of Lessor.
10. Disclaimer of Warranties. LESSOR, NOT BEING
THE MANUFACTURER, SELLER OR SUPPLIER OF
ANY OF THE EQUIPMENT UNDER ANY SCHEDULE,
NOR A DEALER IN ANY OF SUCH EQUIPMENT, HAS
NOT MADE AND DOES NOT MAKE ANY
WARRANTY, REPRESENTATION OR COVENANT,
EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATEVER, INCLUDING BUT NOT LIMITED TO:
THE MERCHANTABILITY OF THE EQUIPMENT OR
ITS FITNESS FOR ANY PARTICULAR PURPOSE,
THE DESIGN OR CONDITION OF THE EQUIPMENT,
THE QUALITY OR CAPACITY OF THE EQUIPMENT,
THE WORKMANSHIP IN THE EQUIPMENT,
COMPLIANCE OF THE EQUIPMENT WITH THE
REQUIREMENT OF ANY LAW, RULE,
SPECIFICATION OR CONTRACT PERTAINING
THERETO, PATENT INFRINGEMENT OR LATENT
DEFECTS. NOTHING HEREIN SHALL MODIFY
LESSEE’S RIGHTS AGAINST THE VENDOR OF ANY
EQUIPMENT. Lessee accordingly agrees not to assert any
claim whatsoever against Lessor based thereon. Lessee
further agrees, regardless of cause, not to assert any claim
whatsoever against Lessor for any direct, indirect,
consequential, incidental or special damages or loss of any
classification. Lessor shall have no obligation to install, erect,
test, adjust, service or maintain any Equipment under any
Lease. Lessee shall look solely to the manufacturer, seller
and/or supplier for any and all claims related to any and all of
the Equipment. LESSEE ACQUIRES, PURCHASES AND
LEASES THE EQUIPMENT “WHERE-IS, AS-IS” AND
“WITH ALL FAULTS.”
Lessor hereby acknowledges that, so long as no Event of
Default or Event of Nonappropriation has occurred and is
continuing under a Lease, the warranties (if any) of the
manufacturer, seller and/or supplier of the Equipment under
such Lease are for the benefit of Lessee.
11. Title to Equipment. During the term of each Lease, title
to the Equipment identified therein shall be vested in Lessee
subject to the rights of Lessor under such Lease, unless Lessor
terminates such Lease pursuant to Paragraph 25 hereof as
provided in such Lease or an Event of Nonappropriation
occurs with respect to such Lease, in which event title to the
Equipment identified in such Lease shall immediately vest in
Lessor free and clear of any right, title or interest of Lessee.
Lessee, at its expense, will protect and defend Lessee’s title to
the Equipment identified in each Lease and Lessor’s rights and
interests therein and will keep the Equipment under each
Lease free and clear from any and all claims, liens,
encumbrances and legal processes of Lessee’s creditors and
other persons. All items of Equipment shall at all times be and
remain personal property notwithstanding that any such
Equipment may now or hereafter be affixed to realty.
12. Tax Covenants Applicable Only to Tax-Exempt Leases;
Tax Indemnity Payments. Lessee agrees that it will not take
any action that may cause the interest component of Rental
Payments under any Tax-Exempt Lease to be or to become
includible in the gross income of the owner or owners thereof
for federal income tax purposes, nor will it omit to take or
cause to be taken, in a timely manner, any action, which
omission may cause the interest component of Rental
Payments under any Tax-Exempt Lease to be or to become
includible in the gross income of the owner or owners thereof
for federal income tax purposes. Lessee agrees to execute and
deliver to Lessor, upon Lessor’s request, a tax certificate and
agreement in form and content acceptable to Lessor, relating
to the establishment and maintenance of the excludability
from gross income of the interest component of Rental
Payments under any Tax-Exempt Lease for federal income tax
purposes.
If Lessee breaches the covenant contained in this
Paragraph with respect to a Tax-Exempt Lease, the interest
component of Rental Payments under such Tax-Exempt Lease
may become includible in gross income of the owner or
owners thereof for federal income tax purposes. In such
event, Lessee agrees to pay promptly after any such
determination of taxability and on each Rental Payment date
thereafter to Lessor an additional amount determined by
Lessor to compensate such owner or owners for the loss of
such excludability (including, without limitation,
5
compensation relating to interest expense, penalties or
additions to tax), which determination shall be conclusive
(absent manifest error). Notwithstanding anything herein to
the contrary, any additional amount payable by Lessee
pursuant to this Paragraph 12 as provided in a Tax-Exempt
Lease shall be payable solely from Legally Available Funds.
It is Lessor’s and Lessee’s intention that each Tax-
Exempt Lease not constitute a “true” lease for federal income
tax purposes and, therefore, it is Lessor’s and Lessee’s
intention that Lessee be considered the owner of the
Equipment under each Tax-Exempt Lease for federal income
tax purposes; provided, however, that nothing in this
paragraph shall affect the characterization of the transactions
contemplated by each Lease for State law purposes.
This Paragraph 12 shall be inapplicable and of no force or
effect with respect to any Taxable Lease.
13. Use of Equipment, Inspection and Reports. During the
term of each Lease, Lessee shall be entitled to quiet enjoyment
of the Equipment identified therein and may possess and use
the Equipment in accordance with such Lease, provided that
Lessee is in compliance in all respects with the terms of such
Lease and that such possession and use are in conformity with
all applicable laws, any insurance policies and any installation
requirements (including environmental specifications) or
warranties of the manufacturer, seller and/or supplier with
respect to the Equipment identified in such Lease. Lessee
shall provide all permits and licenses, if any, necessary for the
installation and operation of the Equipment under each Lease.
Lessor shall have the right, upon reasonable prior notice to
Lessee and during regular business hours, to inspect the
Equipment at the premises of Lessee or wherever the
Equipment may be located. Lessee shall promptly notify
Lessor of any alleged encumbrances on the Equipment
identified in any Lease or any accident allegedly resulting
from the use or operation thereof or any claim relating thereto.
During the term of each Lease and at Lessor’s request,
Lessee shall provide Lessor, no later than ten (10) days prior
to the end of each Fiscal Period (commencing with the
Lessee’s first Fiscal Period during which a Schedule Funding
Date occurs), with current budgets or other proof of
appropriation for the ensuing Fiscal Period and such other
information relating to Lessee’s ability to continue the term of
each Lease for the next succeeding Renewal Term as may be
reasonably requested by Lessor.
During the term of each Lease and at Lessor’s request,
Lessee shall furnish or cause to be furnished to Lessor, at
Lessee’s expense, as soon as available and in any event not
later than 180 days after the close of each Fiscal Period, the
audited financial statements of Lessee as at the close of and
for such Fiscal Period, all in reasonable detail, audited by and
with the report of Lessee’s auditor.
During the term of each Lease and at Lessor’s request,
Lessee shall promptly furnish to Lessor a list of those officials
or officers of Lessee who are duly authorized to execute and
deliver, for and on behalf of Lessee, this Agreement, any
Schedule or any Certificate of Acceptance or otherwise
perform acts and execute documents and agreements relating
to any Lease.
14. Security Agreement; Further Assurances. To secure the
performance of all of Lessee’s obligations under each
Schedule and the related Lease, Lessee grants to Lessor, and
Lessor shall have and retain, a security interest constituting a
first and exclusive lien on the Equipment delivered under each
respective Lease, on all attachments, repairs, replacements and
modifications thereto or therefor and on any proceeds
therefrom; provided, however, that such grant of a security
interest shall not apply with respect to any portion of
Equipment consisting of computer software that is subject to a
license that prohibits such grant of a security interest with
respect to the licensed software. Any portion of Equipment
consisting of computer software that is subject to such a
prohibition in the related license shall be subject to such
separate rights and remedies as may be agreed upon by Lessor
and Lessee with the consent of the software licensor. Lessee
agrees to execute and deliver such additional documents,
including, without limitation, financing statements, certificate
of title or certificates of origin (or applications therefor) noting
Lessor’s interest thereon, opinions of counsel, notices and
similar instruments, in form satisfactory to Lessor, which
Lessor deems necessary or appropriate to establish and
maintain its security interest in the Equipment under each
Lease or for the confirmation or perfection of each Lease and
Lessor’s rights under each Lease. Upon the occurrence of an
Event of Default or an Event of Nonappropriation under a
Lease or in the event that Lessee refuses or is otherwise
unwilling to execute and file financing statements to which
Lessor is entitled in accordance with such Lease within ten
(10) days after Lessor’s written request to Lessee therefor,
Lessor is authorized to file financing statements signed only
by Lessor in accordance with the applicable Uniform
Commercial Code or signed by Lessor as Lessee’s attorney-in-
fact.
15. Risk of Loss. All risk of loss, damage, theft or
destruction to each item of Equipment under each Schedule
and each Lease shall be borne by Lessee. No such loss,
damage, theft or destruction of the Equipment under any
Lease, in whole or in part, shall impair the obligations of
Lessee under any Lease (including, but not limited to, the
obligation to pay Rental Payments under each such Lease
when due) all of which shall continue in full force and effect
subject to the terms of the applicable Lease. If (a) the
Equipment or any portion thereof under a Lease is destroyed
(in whole or in part) or is damaged by fire or other casualty or
(b) title to, or the temporary use of, the Equipment or any part
thereof under a Lease is taken under the exercise of the power
of eminent domain, Lessee shall immediately notify Lessor.
Lessee and Lessor shall cause the Net Proceeds of any
insurance claim or condemnation award to be applied, at
Lessor’s option, to (i) the prompt repair, restoration,
modification or replacement of the Equipment so affected or
(ii) the payment in full of any then applicable Prepayment
Option Amount. Any balance of Net Proceeds remaining after
completion of such work or payment of such Prepayment
Option Amount shall be paid promptly to Lessee. If the Net
Proceeds are insufficient to pay the costs of such repair,
restoration, modification or replacement or to pay such
Prepayment Option Amount in full, Lessee shall, at Lessor’s
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direction, either complete the work or pay any then applicable
Prepayment Option Amount in full and in either case pay any
cost in excess of the amount of Net Proceeds, but only from
Legally Available Funds.
16. Insurance. In the event that Lessee is not self-insured as
hereinafter provided, Lessee, at its expense, shall throughout
the term of each Lease keep the Equipment thereunder insured
against theft, fire, collision (in the case of vehicles) and such
other risks as may be customary for each item of Equipment in
the amounts and for the coverage set forth in Exhibit 1 to the
applicable Schedule, with carriers acceptable to Lessor, under
a policy or policies containing a loss payable endorsement in
favor of Lessor, and affording to Lessor such additional
protection as Lessor shall reasonably require. Lessee shall
further, at its expense, maintain in effect throughout the term
of each Lease a policy or policies of comprehensive public
liability and property damage insurance in the amounts and for
the coverage set forth in Exhibit 1 to the applicable Schedule,
with carriers satisfactory to Lessor. All such insurance shall
name Lessor as an additional insured. The policies required
hereby shall provide that they may not be canceled or
materially altered without at least thirty (30) days’ prior
written notice to Lessor. Lessee shall deliver to Lessor copies
or other evidence satisfactory to Lessor of each insurance
policy and each renewal thereof. Failure by Lessor to request
evidence of such insurance policies or renewals, or otherwise
to verify the existence of such insurance, shall not constitute a
waiver of the requirements hereof. Lessor shall have the right,
on behalf of itself and Lessee, to make claim for, receive
payment of and execute and endorse all documents, checks or
drafts received in payment for loss or damage under said
insurance policies. If Lessee is self-insured with respect to
equipment such as the Equipment under a Lease, Lessee shall
maintain during the term of such Lease an actuarially sound
self-insurance program in form satisfactory to Lessor and shall
provide evidence thereof in form and substance satisfactory to
Lessor.
17. Maintenance and Repairs. Lessee shall use the
Equipment under each Lease in a careful and proper manner,
in compliance with all applicable laws and regulations and, at
its expense, keep and maintain the Equipment under each
Lease in good repair and working order, performing all
maintenance and servicing necessary to maintain the value and
utility of the Equipment, reasonable wear and tear excepted.
Without the prior written consent of Lessor, Lessee shall not
make any alterations, modifications or attachments to the
Equipment under any Lease which cannot be removed without
materially damaging the functional capabilities, economic
value or utility of such Equipment.
18. Taxes. Unless Lessee has provided Lessor with evidence
necessary to sustain an exemption therefrom, Lessee shall
timely pay all assessment, license fees, taxes (including sales,
use, excise, personal property, ad valorem, stamp documentary
and other taxes) and all other governmental charges, fees,
fines or penalties whatsoever, whether payable by Lessor or
Lessee, now or hereafter imposed by any governmental body
or agency on or relating to the Equipment under each Lease,
the Rental Payments under each Lease or the use, registration,
rental, shipment, transportation, delivery, ownership or
operation of the Equipment under each Lease and on or
relating to each Lease; provided, however, that the foregoing
shall not include any federal, state or local income or franchise
taxes of Lessor.
19. Lessor’s Performance of Lessee’s Obligations. If Lessee
shall fail duly and promptly to perform any of its obligations
under a Lease, Lessor may, at its option, perform any act or
make any payment that Lessor deems necessary for the
maintenance and preservation of the Equipment under such
Lease and Lessor’s interests therein, including but not limited
to, payments for satisfaction of liens, repairs, taxes, levies and
insurance. All expenses incurred by Lessor in performing
such acts and all such payments made by Lessor together with
late charges described in Paragraph 20 below as provided in
each Lease, and any reasonable legal fees incurred by Lessor
in connection therewith, shall be payable by Lessee to Lessor
on demand. The performance of any act or payment by Lessor
as aforesaid shall not be deemed a waiver or release of any
obligation or default on the part of Lessee.
20. Late Charges. Should Lessee fail to duly pay any part of
any Rental Payment or other sum to be paid to Lessor under a
Lease (including, but not limited to, any amounts due as a
result of Lessor’s exercise of its rights under Paragraph 25
hereof) within ten (10) days after the date on which such
amount is due under such Lease, then Lessee shall pay to
Lessor late charges on such delinquent payment from the due
date thereof until paid at the rate of eighteen percent (18%) per
annum or the highest rate permitted by law, whichever is less.
21. Indemnification. Lessee assumes liability for, agrees to
and does hereby indemnify, protect and keep harmless Lessor
and its agents, employees, officers, directors, parents,
subsidiaries and stockholders from and against any and all
liabilities, obligations, losses, damage, injuries, claims,
demands, penalties, actions, costs and expenses (including
reasonable attorneys’ fees), of whatsoever kind and nature,
arising out of the use, condition (including, but not limited to,
latent and other defects and whether or not discoverable by
Lessee or Lessor), operation, ownership, selection, delivery,
storage, leasing or return of any item of Equipment, regardless
of where, how and by whom operated, or any failure on the
part of Lessee to accept the Equipment under any Lease or
otherwise to perform or comply with any conditions of any
Lease. Lessee is an independent contractor and nothing
contained in any Lease shall authorize Lessee or any other
person to operate any item of Equipment so as to incur or
impose any liability or obligation for or on behalf of Lessor.
Notwithstanding anything in any Lease to the contrary, any
indemnity amount payable by Lessee as described in this
Paragraph 21 and as provided in the applicable Lease shall
be payable solely from Legally Available Funds and only to
the extent authorized by law.
22. No Offset; Unconditional Obligation. Each Lease is
“triple net” and Lessee’s obligation to pay all Rental Payments
and Additional Payments under each Lease shall be absolute
and unconditional under any and all circumstances subject to
the terms and conditions of each Lease. Without limiting the
generality of the foregoing, Lessee shall not be entitled to any
abatement of rent or reduction thereof or setoff against rent,
including, but not limited to, abatements, reductions or setoffs
7
due to any present or future claims of Lessee against Lessor
under any Schedule, any Lease, under this Agreement or
otherwise; nor, except as otherwise expressly provided in a
Lease, shall any Lease terminate, or the respective obligations
of Lessor or Lessee be otherwise affected, by reason of any
failure of the Equipment under such Lease to perform in the
manner or to the extent that Lessee anticipated or to achieve
cost or other savings that Lessee anticipated, any defect in or
damage to or loss or destruction of all or any of the Equipment
under any Lease from whatsoever cause, the taking or
requisitioning of the Equipment under any Lease by
condemnation or otherwise, the lawful prohibition of Lessee’s
use of the Equipment under any Lease, the interference with
such use by any private person or corporation, the invalidity or
unenforceability or lack of due authorization or other infirmity
of this Agreement, any Schedule or any Lease, or lack of right,
power or authority of Lessor to enter into this Agreement, any
Schedule or any Lease or any insolvency, bankruptcy,
reorganization or similar proceedings by or against Lessor or
Lessee or for any other cause whether similar or dissimilar to
the foregoing, any present or future law to the contrary
notwithstanding, it being the intention of the parties hereto
that the Rental Payments and Additional Payments payable by
Lessee under each Lease shall continue to be payable in all
events unless the obligation to pay the same shall expire or be
terminated pursuant to such Lease (including upon the
occurrence of an Event of Nonappropriation thereunder) or
until the Equipment thereunder has been returned to the
possession of Lessor as provided in such Lease (for all
purposes of each Lease, any item of Equipment shall not be
deemed to have been returned to Lessor’s possession until all
of Lessee’s obligations with respect to the return,
transportation and storage thereof have been performed). To
the extent permitted by applicable law, Lessee hereby waives
any and all rights that it may now have or that at anytime
hereafter may be conferred upon it, by statute or otherwise, to
terminate, cancel, quit or surrender any Lease or any of the
items of Equipment thereunder, except in accordance with the
express terms of each Lease.
23. Representations and Warranties of Lessee. Lessee
hereby represents and warrants to and agrees with Lessor that:
(a) Lessee is a state or a political subdivision thereof
within the meaning of Section 103(c) of the Code.
(b) Lessee has the power and authority under applicable
law to enter into the transactions contemplated by this
Agreement, each Schedule and each Lease and has been duly
authorized to execute and deliver this Agreement and each
Lease and to carry out its obligations under each Schedule and
each Lease.
(c) All requirements have been met and procedures
have occurred in order to ensure the enforceability of this
Agreement, each Schedule and each Lease, and Lessee has
complied with such public bidding requirements, if any, as
may be applicable to the transactions contemplated by this
Agreement, each Schedule and each Lease.
(d) Lessee is not subject to any legal or contractual
limitation or provision of any nature whatsoever that in any
way limits, restricts or prevents Lessee from entering into this
Agreement, any Schedule or any Lease or performing any of
its obligations under this Agreement, any Schedule or any
Lease, except to the extent that such performance may be
limited by bankruptcy, insolvency, reorganization or other
laws affecting creditors’ rights generally.
(e) There is no action, suit, proceeding, inquiry or
investigation, at law or in equity, before or by any court,
public board or body, known to be pending or threatened
against or affecting Lessee, nor to the best knowledge of
Lessee is there any basis therefor, wherein any unfavorable
decision, ruling or finding would materially adversely affect
the transactions contemplated by this Agreement, any
Schedule, any Lease or any other agreement or instrument to
which Lessee is a party and which is used or contemplated for
use in the consummation of the transactions contemplated by
this Agreement, any Schedule or any Lease. All
authorizations, consents and approvals of governmental bodies
or agencies required in connection with the execution and
delivery by Lessee of this Agreement, each Schedule and each
Lease or in connection with the carrying out by Lessee of its
obligations hereunder and thereunder have been obtained,
except with respect to annual or biennial budgeting and
appropriation procedures as required by State law relating to
each Lease.
(f) The entering into and performance of this
Agreement, each Schedule and each Lease will not violate any
judgment, order, law or regulation applicable to Lessee or
result in any breach of, or constitute a default under, or result
in the creation of any lien, charge, security interest or other
encumbrance upon any assets of Lessee or on the Equipment
under any Lease pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to
which Lessee is a party or by which it or its assets may be
bound, except as provided in each Lease with respect to the
granting of security interests in and to the Equipment therein
described.
(g) Lessee is acquiring the Equipment under each
Schedule and the related Lease for use within its geographical
boundaries.
(h) The useful life of the Equipment identified in each
Schedule will not be less than the stated full term of the
applicable Lease, including all contemplated Renewal Terms.
(i) Lessee expects to have made sufficient
appropriations or expects to have other Legally Available
Funds to pay all Rental Payments due during the Initial Term
under each Lease.
(j) During the five years prior to the date hereof, Lessee
has not failed (for whatever reason) to appropriate amounts
sufficient to pay its obligations that are subject to annual or
biennial appropriation.
24. Events of Default. Each of the following events
constitutes an “Event of Default” with respect to a Lease:
(a) Lessee fails to pay in full the Rental Payment due
under such Lease on any date upon which such Rental
Payment is due;
(b) Lessee fails to comply with any other agreement or
covenant of Lessee under such Lease for a period of thirty (30)
days following receipt of written notice of violation of such
agreement or covenant and demand that such violation be
remedied;
8
(c) Lessee institutes any proceedings under any
bankruptcy, insolvency, reorganization or similar law or a
receiver or similar officer is appointed for Lessee or any of its
property;
(d) any warranty, representation or statement made in
writing by or on behalf of Lessee in connection with such
Lease is found to be incorrect or misleading in any material
respect on the date made;
(e) actual or attempted sale, lease or encumbrance of
any of the Equipment under such Lease or the making of any
levy, seizure or attachment thereof or thereon; or
(f) any event of default occurs under any other Lease.
25. Repossession and Lessor’s Other Rights Upon Event of
Default or Event of Nonappropriation. Immediately upon the
occurrence of an Event of Default under a Lease or
immediately after the expiration of the Initial Term or any
Renewal Term under a Lease during which an Event of
Nonappropriation occurs, Lessor may terminate the affected
Lease or Lessee’s rights thereunder and in any such event
repossess the Equipment under such Lease, which Lessee
hereby agrees, at its expense, to surrender promptly to Lessor
at such location in the continental United States as Lessor
shall direct. Such right of repossession and other rights as
specifically provided in this Paragraph 25 shall constitute the
sole remedies for Lessee’s failure to make payments or
otherwise perform its obligations when required under a
Lease. If Lessor is entitled to repossess the Equipment under
a Lease, Lessee shall permit Lessor or its agents to enter the
premises where the affected Equipment is then located. In the
event of any such repossession, Lessee shall execute and
deliver such documents as may reasonably be required to
transfer title to and possession of the Equipment under the
affected Lease to Lessor, free and clear of all liens and
security interests to which such Equipment may have become
subject.
Any termination of a Lease at Lessor’s option as
described in this Paragraph 25 and as provided in the
applicable Lease shall take effect at the end of the Initial Term
or the Renewal Term then in effect under such Lease, unless
Lessor (at its option) elects to terminate such Lease on an
earlier date.
Upon repossession, if the Equipment under the affected
Lease is damaged or otherwise made less suitable for the
purposes for which it was manufactured than when delivered
to Lessee (reasonable wear and tear excepted), Lessee agrees,
at its option, to: (a) repair and restore such Equipment to the
same condition in which it was received by Lessee (reasonable
wear and tear excepted) and, at its expense, promptly return
such Equipment to Lessor (or to a location identified in a
written notice to Lessee) or (b) pay to Lessor the actual costs
of such repairs, restoration and return.
If Lessor terminates a Lease as described in this
Paragraph 25 and as provided in the applicable Lease or an
Event of Nonappropriation occurs under a Lease and Lessee
continues to use the Equipment after the Initial Term or any
Renewal Term under such Lease during which the Event of
Default or Event of Nonappropriation occurs or if Lessee
otherwise refuses to pay Rental Payments due during a
Renewal Term under a Lease for which Lessee’s governing
body has appropriated sufficient Legally Available Funds to
pay such Rental Payments, Lessor shall, be entitled to bring
such action at law or in equity to recover damages attributable
to such holdover period for the Equipment subject to such
Lease that Lessee continues to use or to the remainder of such
Renewal Term under such Lease for which such
appropriations have been made.
Lessor shall also be entitled to exercise any or all
remedies available to a secured party under the applicable
Uniform Commercial Code and all other rights and remedies
that Lessor may have at law or in equity. Upon termination of
a Lease (whether as a result of the occurrence of an Event of
Default or an Event of Nonappropriation) under which the
financed Equipment included computer software, the license
relating to such software shall terminate and Lessee shall
cease use and return such computer software as provided in
the related license or otherwise.
No right or remedy conferred upon or reserved to Lessor
as described herein and as provided in each Lease is exclusive
of any right or remedy herein or in any Lease or at law or in
equity or otherwise provided or permitted, but each shall be
cumulative of every other right or remedy given as described
herein and as provided in each Lease or now or hereafter
existing at law or in equity or by statue or otherwise and may
be enforced concurrently therewith or from time to time.
No waiver of or delay or omission in the exercise of any
right or remedy as described herein and as provided in each
Lease or otherwise available to Lessor shall impair, affect or
be construed as a waiver of its rights thereafter to exercise the
same. Any single or partial exercise by Lessor of any right
hereunder or with respect to any Lease shall not preclude any
other or further exercise of any right as described herein and
as provided in each Lease. The exercise of any right or
remedy herein provided with respect to a Lease shall not
relieve Lessee of any other obligations under any other Lease
or the Equipment identified therein.
26. No Sale, Assignment or Other Disposition by Lessee.
Lessee agrees not to (a) sell, assign, transfer, lease, sublease,
pledge or otherwise encumber or suffer a lien or encumbrance
upon or against any interest in this Agreement, any Lease or
the Equipment under any Lease, (b) remove the Equipment
from its Equipment Location identified in the applicable
Schedule or (c) enter into any contract or agreement with
respect to the use and operation of any of the Equipment under
any Lease by any person other than Lessee, without Lessor’s
prior written consent in each instance. Lessee shall at all
times remain liable for the performance of the covenants and
conditions on its part to be performed, notwithstanding any
assigning, transferring or other conveyance that may be made
with such consent. Lessee shall take no action that may
adversely affect the excludability from gross income for
federal income tax purposes of any portion of the interest
component of the Rental Payments under any Tax-Exempt
Lease.
27. Assignment by Lessor. Lessor may, at any time and from
time to time without Lessee’s consent, assign, transfer or
otherwise convey all or any part of its interest in the
Equipment under any Lease or any Lease, including Lessor’s
rights to receive the Rental Payments or any part thereof under
9
any Lease (in which event Lessee agrees to make all Rental
Payments under the affected Lease thereafter to the assignee
designated by Lessor), to terminate any Lease or Lessee’s
rights under any Lease and to repossess the Equipment and
exercise Lessor’s other rights and remedies under each Lease;
provided, however, that any such assignment, transfer or
conveyance to a trustee for the benefit of owners of
certificates of participation shall be made in a manner that
conforms to any applicable State law. Nothing in this
Paragraph 27 shall be construed, however, to prevent Lessor
from executing any such assignment, transfer or conveyance
with respect to a Lease that does not involve funding through
the use of certificates of participation within the meaning of
applicable State law, including any such assignment, transfer
or conveyance as part of a multiple asset pool to a partnership
or trust interests in which are offered and sold in a private
placement or limited offering only to investors whom Lessor
reasonably believes are qualified institutional buyers or
accredited investors within the meaning of the applicable
federal securities law; provided, however, that in any event,
Lessee shall not be required to make Rental Payments under
any Lease, to send notices or to otherwise deal with respect to
matters arising under any Lease with or to more than one
individual or entity with respect to each Lease. No
assignment, transfer or conveyance permitted by this
Paragraph 27 with respect to a Lease shall be effective until
Lessee shall have been given a written notice of assignment
that discloses the name and address of each such assignee;
provided, however, that if such assignment is made to a bank
or trust company as trustee or paying agent for owners of
certificates of participation, trust certificates or partnership
interests with respect to the Rental Payments payable under
any Lease, it shall thereafter be sufficient that a copy of the
agency or trust agreement shall have been deposited with
Lessee until Lessee shall have been advised that such agency
or trust agreement is no longer in effect. During the term of
this Agreement, Lessee shall keep, or cause to be kept, a
complete and accurate record of all such assignments with
respect to each Lease in form necessary to comply with
Section 149 of the Code with respect to Tax-Exempt Leases
and Section 165(f) of the Code with respect to Taxable Leases.
Lessee agrees, if so requested, to acknowledge each such
assignment in writing within fifteen (15) days after request
therefor, but such acknowledgment shall in no way be deemed
necessary to make any assignment effective. Lessee further
agrees that any monies or other property received by Lessor as
a result of any such assignment, transfer or conveyance shall
not inure to Lessee’s benefit.
28. Costs. Lessee shall pay to Lessor all costs and expenses,
including reasonably attorneys' fees and costs related to
repossession of the Equipment under any Lease (including,
without limitation, the costs and expenses to deliver
possession of the Equipment under such Lease to such
location as Lessor directs pursuant to Paragraph 25 hereof)
and the exercise of remedies with respect to each Lease,
incurred by Lessor in enforcing any of the terms, conditions or
provisions of each Lease.
29. Severability. If any provision of this Agreement or any
Lease is or becomes invalid, illegal or unenforceable, such
invalidity, illegality or unenforceability will not affect the
other provisions of this Agreement or any such Lease which
shall be valid and enforceable to the fullest extent permitted
by law.
30. Notices. All notices, reports and other documents
provided for in this Agreement, any Schedule or any Lease
shall be deemed to have been given when delivered or three
(3) days after being mailed by certified mail, postage prepaid,
addressed to Lessor or Lessee at their respective mailing
addresses set forth above or such other addresses as either of
the parties hereto may designate in writing to the other from
time to time for such purpose.
31. Amendments. This Agreement, each Schedule (including
the Exhibits attached thereto), each Certificate of Acceptance
(including the Attachments thereto) and any Addendum
relating hereto constitute the entire agreement between Lessor
and Lessee with respect to the Equipment therein described
and the subject matter hereof and thereof. No term or
provision of this Agreement, any Schedule, any Certificate of
Acceptance, any such Addendum or any Lease may be
changed, waived, amended or terminated except by a written
agreement signed by both Lessor and Lessee except that
Lessee may adjust the amount financed to the extent provided
in each Schedule and Lessor may (a) adjust the annual interest
rate for a Rental Payment Schedule to the extent provided in
the related Schedule and (b) insert the serial number and
additional description details in any Schedule of any item of
Equipment after delivery thereof.
32. Construction. This Agreement, each Schedule and each
Lease shall in all respects be governed by and construed in
accordance with the laws of the State. The titles of the
Paragraphs of this Agreement are for convenience only and
shall not define or limit any of the terms or provisions hereof.
Time is of the essence with respect to this Agreement, each
Schedule and each Lease in each of their respective
provisions.
33. Parties; Survival of Certain Obligations and
Indemnities. (a) The provisions of this Agreement and each
Lease shall be binding upon, and (subject to the limitations of
Paragraphs 26 and 27 hereof) shall inure to the benefit of, the
respective assignees and successors of Lessor and Lessee.
(b) The indemnities, assumptions of liabilities and
obligations of Lessee provided for in Paragraphs 8, 12 and 21
of this Agreement and incorporated into each Lease shall
continue in full force and effect notwithstanding the expiration
or termination of the term of this Agreement or any applicable
Lease.
34. Original Agreement and Lease. Lessor and Lessee shall
execute and deliver only one original of this Agreement and of
each Lease, each of which shall be delivered to Lessor. Lessor
shall provide to Lessee a full, true and correct copy of the
executed Agreement and each executed Lease. In the event
that the originally executed Agreement or an originally
executed Lease is lost, stolen, destroyed or mutilated and
Lessor certifies such events to Lessee, Lessee shall execute
and deliver to Lessor, promptly after Lessor’s request and at
Lessor’s expense, a replacement Agreement or Lease for such
original Agreement or Lease so lost, stolen, destroyed or
mutilated. Compliance with Laws. The Lessor shall comply
10
with all applicable federal, state, and local laws, rules,
regulations, and ordinances, and all provisions required
thereby to be included herein are hereby incorporated by
reference.
35. Ethics. The Lessor and its agents shall abide by all ethical
requirements that apply to persons who have a business
relationship with the Lessee as set forth in Ind. Code § 4-2-6,
et seq., § 4-2-7, et seq. and the regulations promulgated
thereunder. If the Lessor has knowledge, or would have
acquired knowledge with reasonable inquiry, that a
government officer, employee, or special appointee, as those
terms are defined in § 4-2-6-1, has a financial interest in the
Agreement, the Lessor shall ensure compliance with the
disclosure requirements in § 4-2-6-10.5 prior to the execution
of this Agreement.
36. No Delinquency. The Lessor certifies by entering into
this Agreement neither it nor its principal(s) is presently in
arrears in payment of taxes, permit fees or other statutory,
regulatory or judicially required payments to any
governmental entity within the State of Indiana.
37. Telephone Solicitation. The Lessor and any principals of
the Lessor certify that: (A) the Lessor, except for de minimis
and nonsystematic violations, has not violated the terms of:
Ind. Code § 24-4.7 [Telephone Solicitation Of Consumers]; §
24-5-12 [Telephone Solicitations]; or § 24-5-14 [Regulation of
Automatic Dialing Machines]; in the previous 365 days, even
if § 24-4.7 is preempted by federal law; and (B) the Lessor
will not violate the terms of § 24-4.7 for the duration of the
Agreement, even if § 24-4.7 is preempted by federal law. The
Lessor and any principals of the Lessor certify that an affiliate
or principal of the Lessor and any agent acting on behalf of the
Lessor or on behalf of an affiliate or principal of the Lessor,
except for de minimis and nonsystematic violations, (A) has
not violated the terms of § 24-4.7 in the previous 365 days,
even if § 24-4.7 is preempted by federal law; and (B) will not
violate the terms of § 24-4.7 for the duration of the
Agreement, even if § 24-4.7 is preempted by federal law.
38. No Debarment. The Lessor certifies by entering into this
Agreement neither it nor its principals nor any of its
subcontractors are presently debarred, suspended, proposed
for debarment, declared ineligible or voluntarily excluded
from entering into this Agreement by any federal agency or by
any department, agency or political subdivision of the State of
Indiana.
39. Drug Free Workplace. The Lessor hereby covenants and
agrees to make a good faith effort to provide and maintain a
drug-free workplace as required by Executive Order No. 90-5
dated April 12, 1990, issued by the Governor of Indiana.
40. E-verify. The Lessor swears or affirms under the penalties
of perjury that the Lessor does not knowingly employ an
unauthorized alien and complies with Ind. Code § 22-5-1.7
41. Applicable Standards. The Lessor, its employees and
subcontractors shall comply with all applicable licensing
standards, certification standards, accrediting standards and
any other laws, rules, or regulations governing services to be
provided by the Lessor pursuant to this Agreement.
42. No Discrimination. Pursuant to the Indiana Civil Rights
Law, federal Civil Rights Act of 1964, ADEA, and ADA, the
Lessor covenants it shall not discriminate against any
employee or applicant for employment relating to this
Agreement with respect to the hire, tenure, terms, conditions
or privileges of employment or any matter directly or
indirectly related to employment, because of the employee’s
or applicant’s race, color, national origin, religion, sex, age,
disability, ancestry, status as a veteran, or any other
characteristic protected by federal, state, or local law
(“Protected Characteristics”). Lessor certifies compliance
with applicable federal laws, regulations, and executive orders
prohibiting discrimination based on the Protected
Characteristics in the provision of services. The Lessee is a
recipient of federal funds, and therefore, where applicable,
Lessor and any subcontractors shall comply with requisite
affirmative action requirements, including reporting, pursuant
to 41 CFR § 60, as amended, and Section 202 of Executive
Order 11246 as amended by Executive Order 13672.
43. Anti-Collusion. The undersigned attests, subject to the
penalties for perjury, the undersigned is the properly
authorized representative, agent, member or officer of the
Lessor. Further, to the undersigned’s knowledge, neither the
undersigned nor any other member, employee, representative,
agent or officer of the Lessor, directly or indirectly, has
entered into or been offered any sum of money or other
consideration for the execution of this Agreement other than
that which appears upon the face hereof. Furthermore, if the
undersigned has knowledge that a governmental officer,
employee, or special appointee, as those terms are defined in
Ind. Code § 4-2-6-1, has a financial interest in the Agreement,
the Lessor attests to compliance with the disclosure
requirements in § 4-2-6-10.5.
LESSEE HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT.
IN WITNESS WHEREOF, Lessor and Lessee have each caused this Master Equipment Lease-Purchase
Agreement to be duly executed and delivered as of the date first above written.
11
LESSEE: City of Carmel, Indiana LESSOR: Crossroads Bank
By: By:
Printed Name: Zachary Q. Jackson Printed Name: Barry Grossman
Title: Chief Financial Officer - Controller Title: Sr. Vice President
SCHEDULE A-1
Crossroads Bank
STATE AND LOCAL GOVERNMENT LEASE SCHEDULE
(TAX EXEMPT)
MASTER EQUIPMENT LEASE-PURCHASE
AGREEMENT DATE: MAY 22, 2025 LEASE SCHEDULE NO. 1
LESSEE: CITY OF CARMEL, INDIANA LEASE SCHEDULE DATE: MAY 22, 2025
1. This Schedule covers the following Equipment together with all accessories, attachments, substitutions and accessions:
Vendor Quantity Description of Units of
Equipment
Serial Numbers (if
available)
Fredericks, Inc.
5448 W. Old St Rd 132
Pendleton, Indiana 46064
Phone: (765) 778-7588
See City of Carmel,
Indiana Agreement for
Purchase of Goods and
Services, Appropriation
#1205 0 44-670.00, dated
May 7, 2025, Attached
Hereto and Made Apart
Hereof.
See City of Carmel, Indiana
Agreement for Purchase of
Goods and Services,
Appropriation #1205 0 44-
670.00, dated May 7, 2025,
Attached Hereto and Made
Apart Hereof.
2. EQUIPMENT LOCATION: City of Carmel
Address: One Civic Square
City: Carmel County: Hamilton State: IN Zip: 46032
3. AMOUNT FINANCED:
Cash Purchase Price (including delivery) $491,511.00
Plus processing/documentation fees
Paid In Cash $350.00
Plus sales tax 0
Amount Financed $491,511.00
Lessee shall pay any sales or use tax with respect to the
Equipment described in this Schedule. Lessee hereby certifies
that it is exempt from State and local taxation and its tax-
exempt identification number is _____________. If
applicable, a copy of a certificate evidencing Lessees tax-
exemption is attached as Exhibit 6 hereto.
At the time of installation, the amount financed may be
adjusted (at Lessees request and as approved by Lessor based
upon information provided by Lessee that supports such
request in Lessors reasonable judgment) by the addition or
deletion of items of Equipment the cash purchase price of
which shall not exceed 10% of the Cash Purchase Price
indicated above.
4. RENTAL PAYMENT TERMS:
Annual interest rate: 4.44%
First Rental Payment due: January 15, 2026
Rental Payments due thereafter: Annually
Number of Rental Payments: Five (5)
Lessee agrees that the Rental Payment Schedule shall be
calculated and prepared by Lessor after delivery by Lessee of the
Certificate of Acceptance relating to this Schedule, subject to any
adjustment in the amount financed as described above and
adjustments of the annual interest rate used to calculate the interest
component of Rental Payments as provided in Paragraph 5 below.
5. DELETED
6. INCORPORATED BY REFERENCE: The terms and
provisions of the Master Equipment Lease-Purchase Agreement
described above (other than to the extent that such terms and
provisions relate solely to other Schedules or Equipment listed on
other Schedules) are hereby incorporated into this Schedule by
reference and made a part hereof. Upon execution and delivery by
Lessee of a Certificate of Acceptance related to this Schedule and
execution by Lessor of the Acknowledgment thereon, such
Certificate of Acceptance, Acknowledgment thereto and the Rental
Payment Schedule calculated and prepared by Lessor with respect
thereto shall be, and are hereby, incorporated into this Schedule by
reference and made a part hereof.
7. REPRESENTATIONS, WARRANTIES AND
COVENANTS: Lessee hereby represents, warrants and
covenants that its representations, warranties and covenants set
forth in such Master Equipment Lease-Purchase Agreement are
true and correct as though made on the date of execution of
this Schedule. Lessee hereby further represents and warrants
to and agrees with Lessor that:
(a) The payment of the Rental Payments or any portion
thereof related to this Schedule is not (under the terms of the
related Lease or any underlying arrangement) directly or
indirectly (i) secured by any interest in property used or to be
used in any activity carried on by any person other than a state
or local governmental unit or payments in respect of such
property or (ii) derived from payments (whether or not to
Lessee) in respect of property, or borrowed money, used or to
be used in any activity carried on by any person other than a
state or local governmental unit. No Equipment described in
this Schedule is being or will be used, directly or indirectly, in
any activity carried on by any person other than a state or local
governmental unit. No portion of the purchase price for the
Equipment described in this Schedule will be used, directly or
indirectly, to make or finance loans to any person other than
Lessee. Lessee has not entered and will not enter into any
management or other service contract with respect to the use
and operation of the Equipment; provided, however, that
Lessee may enter into customary agreements for the
maintenance and upkeep of the Equipment.
(b) Lessee shall not permit any person or entity (including
the federal government) to guarantee, directly or indirectly, in
whole or in part, any Rental Payments related to this Schedule
without the prior written consent of Lessor.
(c) All funds to be allocated for the payment of the
purchase price by Lessor at Lessees direction pursuant to each
Certificate of Acceptance will be used, directly or indirectly, to
finance costs of a type that would be properly chargeable to a
capital account under the Code (or would be so chargeable
with a proper election) under federal income tax principles if
Lessee were treated as a corporation subject to federal income
taxation, taking into account the placed-in-service date for the
Equipment.
(d) Lessee does not intend to sell or otherwise dispose of
the Equipment identified in this Schedule (or any interest therein)
prior to the last Rental Payment scheduled to be paid with respect to
such Equipment under the applicable Rental Payment Schedule.
(e) Lessee has entered into this Schedule for the purpose of
purchasing, acquiring and leasing the Equipment identified herein
and not for the purpose of refinancing any outstanding obligation of
Lessee more than 90 days in advance of its payment or prepayment
date. The purchase price for the Equipment will be paid directly by
Lessor, at the direction of Lessee as provided in a Certificate of
Acceptance and upon satisfaction of all conditions precedent to
disbursement, to the vendor or vendors of such Equipment or as
reimbursement to Lessee for funds advanced to purchase such
Equipment; provided, however, that no portion of the purchase price
for the Equipment will be paid to Lessee as reimbursement for any
expenditure paid by Lessee more than 60 days prior to the execution
and delivery of this Schedule or, if earlier, more than 60 days prior
to any official action taken to evidence an intent to reimburse.
8. ATTACHMENTS: Lessee hereby represents and certifies to
Lessor that:
(a) attached to this Schedule as Exhibit 2 is a full, true and
correct copy of a resolution or other appropriate official action of
Lessees governing body specifically authorizing Lessee to execute
and deliver the Master Equipment Lease-Purchase Agreement, this
Schedule and the applicable Lease;
(b) attached to this Schedule as Exhibit 3 is a full, true and
correct copy of an Incumbency Certificate relating to the authority of
the officers who have executed and delivered, or will execute and
deliver, the Master Equipment Lease-Purchase Agreement, this
Schedule and the applicable Lease on behalf of Lessee; and
(c) attached to this Schedule as Exhibit 4 is a full, true and
correct copy of an opinion of Lessees legal counsel regarding the
legal, valid and binding nature of the Master Equipment Lease-
Purchase Agreement, this Schedule and each Lease on Lessee and
certain other related matters.
9. ORIGINAL LEASE: Lessor and Lessee shall execute and
deliver only one original Lease represented by this Schedule and the
Certificate of Acceptance (including the Rental Payment Schedule
attached thereto) to be delivered with respect hereto and
incorporated herein and such original Lease shall be delivered to
Lessor.
City of Carmel, Indiana (Lessee) Crossroads Bank. (Lessor)
By: By:
Printed Name: Zachary Q. Jackson Printed Name: Barry Grossman
Title: Chief Financial Officer - Controller Title: Sr. Vice President
EXHIBIT 1
(TO LEASE SCHEDULE NO. 1)
INSURANCE COVERAGE REQUIREMENTS
To Lessor: Crossroads Bank (“Lessor”)
1205 N. Cass Street
Wabash, Indiana 46992
Phone (260) 563-3185 Fax (260) 5634841
Attn: Trey Weber
Email: TWeber@crossroadsbanking.com
To Lessee: City of Carmel, Indiana (“Lessee”)
One Civic Square
Carmel, IN 46032
In accordance with that certain Master Equipment Lease-Purchase Agreement, dated May 22, 2025, and Lease Schedule No. 1,
dated May 22, 2025 (collectively, the “Lease”) by and between Lessor and Lessee,
INSTRUCTIONS: Please circle number(s) regarding applicable insurance coverage. Proof of insurance coverage will be
provided to Lessor and its successors and assigns at or prior to the time that Lessee delivers a Certificate of Acceptance to Lessor
with respect to the Equipment described in the above-referenced Schedule.
1. maintains All Risk Physical Damage Insurance on the Equipment (as described in the Schedule) evidenced by a Certificate
of Insurance (“Certificate”) and Long Form Loss Payable Clause naming Lessor and its successors and assigns as Loss Payee.
Coverage required: Full Replacement Value. Lessee has instructed the insurance agent named below to issue a Certificate to
Lessor:
Company:
Address:
Phone No.:
Contact:
2. maintains Public Liability Insurance evidenced by a Certificate of Insurance, naming Lessor and its successors and assigns
as Additional Insured, with the following minimum coverages:
$1,000,000 per person
$5,000,000 aggregate bodily injury liability
$491,511 comprehensive damage liability
Lessee has instructed the insurance agent named below to issue a Certificate to Lessor:
Company:
Address:
Phone No.:
Contact:
3. is self-insured for all risk, physical damage and will provide Lessor with such supporting documentation as Lessor may
request.
4. is self-insured for public liability and will provide Lessor with such supporting documentation as Lessor may request.
Lessee: City of Carmel, Indiana
By:
Printed Name: Zachary Q. Jackson
Title: Chief Financial Officer - Controller
Date: May 22, 2025
EXHIBIT 2
(TO LEASE SCHEDULE NO. 1)
A RESOLUTION OF THE CITY OF CARMEL, INDIANA BOARD OF PUBLIC
WORKS AND SAFETY, AUTHORIZING THE EXECUTION AND DELIVERY
OF A MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT AND
SEPARATE LEASE SCHEDULES AND CERTIFICATES OF ACCEPTANCE
WITH RESPECT TO THE ACQUISITION, PURCHASE, FINANCING AND
LEASING OF CERTAIN EQUIPMENT FOR THE PUBLIC BENEFIT;
AUTHORIZING THE EXECUTION AND DELIVERY OF DOCUMENTS
REQUIRED IN CONNECTION THEREWITH; AND AUTHORIZING THE
TAKING OF ALL OTHER ACTIONS NECESSARY TO THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED BY THIS
RESOLUTION.
WHEREAS, City of Carmel, Indiana (the "Lessee"), a body politic and corporate duly organized and existing
as a political subdivision, municipal corporation or similar public entity of the State of Indiana, is authorized by the laws
of the State of Indiana to purchase, acquire and lease personal property for the benefit of the Lessee and its inhabitants
and to enter into contracts with respect thereto; and
WHEREAS, the Lessee desires to purchase, acquire and lease certain equipment (including maintenance and
other support service agreements) constituting personal property necessary for the Lessee to perform essential
governmental functions; and
WHEREAS, in order to acquire such equipment, the Lessee proposes to enter into that certain Master
Equipment Lease-Purchase Agreement (the "Agreement") and separate Lease Schedules and Certificates of Acceptance
relating thereto from time to time as provided in the Agreement with Crossroads Bank. (the "Lessor"), the form of which
has been presented to the governing body of the Lessee at this meeting; and
WHEREAS, the governing body of the Lessee deems it for the benefit of the Lessee and for the efficient and
effective administration thereof to enter into the Agreement and the separate Lease Schedules and Certificates of
Acceptance relating thereto as provided in the Agreement for the purchase, acquisition and leasing of the equipment to
be therein described on the terms and conditions therein provided;
NOW, THEREFORE, BE IT AND IT IS HEREBY RESOLVED by the governing body of
The City of Carmel follows:
Section 1. Approval of Documents. The form, terms and provisions of the Agreement and the separate
Lease Schedules and Certificates of Acceptance relating thereto as provided in the Agreement are hereby approved in
substantially the forms presented at this meeting, with such insertions, omissions and changes as shall be approved by
the Chief Financial Officer-Controller, of the Lessee or other members of the governing body of the Lessee executing
the same, the execution of such documents being conclusive evidence of such approval; and the Chief Financial Officer-
Controller of the Lessee is hereby authorized and directed to execute the Agreement, each Lease Schedule, each
Certificate of Acceptance and any related Exhibits and Attachments attached to any thereof and to deliver the
Agreement, each Lease Schedule and each Certificate of Acceptance (including such Exhibits and Attachments) to the
respective parties thereto.
Section 2. Other Actions Authorized. The officers and employees of the Lessee shall take all action
necessary or reasonably required by the parties to the Agreement, each Lease Schedule and each Certificate of
Acceptance to carry out, give effect to and consummate the transactions contemplated thereby (including the execution
and delivery of any tax certificate and agreement, each with respect to separate Lease Schedules and Certificates of
Acceptance, as contemplated in the Agreement) and to take all action necessary in conformity therewith, including,
without limitation, the execution and delivery of any closing and other documents required to be delivered in connection
with the Agreement, each Lease Schedule and each Certificate of Acceptance.
Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, any Lease Schedule,
any Certificate of Acceptance nor any other instrument shall be construed with respect to the Lessee as incurring a
pecuniary liability or charge upon the general credit of the Lessee or against its taxing power, nor shall the breach of any
agreement contained in this Resolution, the Agreement, any Lease Schedule, any Certificate of Acceptance or any other
instrument or document executed in connection therewith impose any pecuniary liability upon the Lessee or any charge
upon its general credit or against its taxing power, except to the extent that the Rental Payments payable under each
Lease are special limited obligations of the Lessee as provided in such Lease.
Section 4. Appointment of Authorized Lessee Representatives. The Chief Financial Officer-Controller of
the Lessee is hereby designated to act as authorized representative of the Lessee for purposes of the Agreement, each
Lease Schedule and each Certificate of Acceptance until such time as the governing body of the Lessee shall designate
any other or different authorized representative for purposes of the Agreement, each Lease Schedule and each Certificate
of Acceptance in which event the Lessee shall notify the Lessor in writing of any new authorized representatives
designated as herein provided.
Section 5. Severability. If any section, paragraph, clause or provision of this Resolution shall for any reason
be held to be invalid or unenforceable, the invalidity of unenforceability of such section, paragraph, clause or provision
shall not affect any of the remaining provisions of this Resolution.
Section 6. Repealer. All bylaws, orders and resolutions or parts thereof inconsistent herewith are hereby
repealed to the extent only of such inconsistency. This repealer shall not be construed as reviving any bylaw, order,
resolution or ordinance or part thereof.
Section 7. Effective Date. This Resolution shall be effective immediately upon its approval and adoption.
ADOPTED AND APPROVED by the City of Carmel, Board of Public Works & Safety of the Lessee this 21st
day of May, 2025.
LESSEE: City of Carmel, Indiana
By:
Printed Name: Laura Campbell
Title: Presiding Officer
By:
Printed Name: James Barlow
Title: Member
By:
Printed Name: Alan Potasnik
Title: Member
ATTEST:
By:
Printed Name: Jacob Quinn
Title: Clerk
APPROVED AS TO FORM:
ATTORNEY FOR LESSEE
EXHIBIT 3
(TO LEASE SCHEDULE NO. 1)
INCUMBENCY CERTIFICATE OF LESSEE
The undersigned, the duly authorized representative of the named Lessee under that certain Master
Equipment Lease-Purchase Agreement dated May 22, 2025 (the “Agreement”), with Crossroads Bank., as
Lessor, hereby certifies as follows in accordance with the requirements of the Agreement, which is
incorporated by reference into the above-referenced Lease Schedule. Capitalized terms used herein have
the same meaning as in the Agreement.
I hold the position noted under my signature, and I have all authority necessary to execute and deliver this
Certificate. The following officers of the Lessee are duly elected or appointed, and the signatures above the
respective name and title are true and correct and, where required, have been filed with the appropriate
officials of the State.
Signature: Signature:
Printed Name: Zachary Q. Jackson Printed Name:
Title: Chief Financial Officer – Controller Title:
IN WITNESS WHEREOF, I have executed and delivered this Certificate as of this 6th day of May, 2025.
Lessee: City of Carmel, Indiana
By:
Printed Name: Zachary Q. Jackson
Title: Chief Financial Officer - Controller
EXHIBIT 4
OPINION OF LESSEE’S COUNSEL
(Please furnish this text on Attorney’s Letterhead)
[To be dated the execution date of Lease Schedule No. 1 ]
May 22, 2025
Crossroads Bank
1205 North Cass Street
Wabash, Indiana 46992
Re: Master Equipment Lease-Purchase Agreement Dated May 22, 2025
and Lease Schedules Thereto
Ladies and Gentlemen:
As counsel for City of Carmel, Indiana, (“Lessee”), I have examined the Master Equipment Lease-Purchase
Agreement duly executed by Lessee and dated May 22, 2025 (the “Master Lease”), which has been
incorporated by reference into the Lease Schedule No. 1 dated May 22, 2025 (“Lease Schedule No.1”) each
between Lessee and Crossroads Bank. (“Lessor”), the form of the Certificate of Acceptance (the
“Certificate of Acceptance”) attached to Lease Schedule No.1 and the proceedings taken by the City Board
of Public Works and Safety a governing body of Lessee to authorize on behalf of Lessee the execution and
delivery of the Master Lease, Lease Schedule No. 1, the Certificate of Acceptance and all additional
equipment schedules and related payment schedules to be entered into pursuant to the Master Lease (each
of which is herein referred to as an “Additional Lease Schedule”) and to be executed and delivered in
substantially the same manner and in substantially the same form as Lease Schedule No. 1. The Master
Lease, Lease Schedule No. 1 and the related Certificate of Acceptance are herein collectively referred to as
the “Lease.” The Master Lease and any Additional Lease Schedule and the related Certificate of
Acceptance are herein collectively referred to as an “Additional Lease.” Based upon the foregoing
examination and upon an examination of such other documents and matters of law as I have deemed
necessary or appropriate, I am of the opinion that:
1. Lessee is a city duly organized and legally existing as a political subdivision, municipal corporation or
similar public entity under the Constitution and laws of the State of Indiana with full power and
authority to enter into the Master Lease, Lease Schedule No. 1, the Certificate of Acceptance and each
Additional Lease Schedule.
2. The City of Carmel, Indiana Board of Public Works and Safety has the legal capacity and authority to
enter into the Master Lease and all related agreements which shall be a valid and binding agreement of
the City of Carmel, Indiana.
3. The Master Lease, Lease Schedule No. 1 and each Additional Lease Schedule have each been duly
authorized and have been, or, with respect to each Additional Lease Schedule, will be, duly executed
and delivered by Lessee. Assuming due authorization, execution and delivery thereof by Lessor, the
Master Lease and Lease Schedule No. 1 constitute, and each Additional Lease Schedule will
constitute, the legal, valid and binding obligation of Lessee, enforceable against Lessee in accordance
with their respective terms, subject to any applicable bankruptcy, insolvency, moratorium or other laws
or equitable principles affecting the enforcement of creditors’ rights generally.
4. The Certificate of Acceptance has been duly authorized by Lessee and, when a Certificate of
Acceptance is duly executed and delivered by Lessee in accordance with Lease Schedule No. 1 or any
Additional Lease Schedule, the Lease and each Additional Lease to which a Certificate of Acceptance
relates will constitute the legal, valid and binding obligation of Lessee, enforceable against Lessee in
accordance with their respective terms, subject to any applicable bankruptcy, insolvency, moratorium
or other laws or equitable principles affecting the enforcement of creditors’ rights generally.
5. The Equipment to be leased pursuant to the Lease and each Additional Lease constitutes personal
property and when subjected to use by Lessee will not be or become a fixture under applicable law.
6. Lessee has complied with any applicable public bidding requirements in connection with the Lease,
each Additional Lease and the transactions contemplated thereby.
7. No litigation or proceeding is pending or, to the best of my knowledge, threatened to restrain or enjoin
the execution, delivery or performance by Lessee of the Master Lease, Lease Schedule No. 1 or any
Additional Lease Schedule or in any way to contest the validity of the Lease or any Additional Lease,
to contest or question the creation or existence of Lessee or its governing body or the authority or
ability of Lessee to execute or deliver the Lease or any Additional Lease or to comply with or perform
its obligations thereunder. There is no litigation pending or, to the best of my knowledge, threatened
seeking to restrain or enjoin Lessee from annually appropriating sufficient funds to pay the Rental
Payments or other amounts contemplated by the Lease or any Additional Lease.
8. The resolution adopted by the Lessee’s Board of Public Works and Safety a governing body of the
City of Carmel, Indiana authorizing the execution and delivery of the Master Lease, Lease Schedule
No. 1, the Certificate of Acceptance, the Additional Lease Schedules, each Certificate of Acceptance
and certain other matters was adopted at a meeting that was held in compliance with all applicable
laws relating to the holding of open and public meetings.
9. The entering into and performance of the Master Lease, Lease Schedule No. 1 and each Additional
Lease Schedule do not, and the execution of a Certificate of Acceptance by Lessee pursuant to Lease
Schedule No. 1 and each Additional Lease Schedule will not, violate any judgment, order, law or
regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the
creation of any lien, charge, security interest or other encumbrance upon any assets of Lessee or on the
Equipment (as such term is defined in the Master Lease) pursuant to any indenture, mortgage, deed of
trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its
assets may be bound.
This opinion may be relied upon by purchasers and assignees of Lessor’s interest in the Lease and each
Additional Lease. [A copy of this opinion may be furnished to, Special Tax Counsel in connection with the
Lease or any Additional Lease, which is authorized to rely on this opinion in rendering its opinion as
Special Tax Counsel.]
Respectfully submitted,
___________________________________
Attorney
EXHIBIT 5
(TO LEASE SCHEDULE NO. 1)
CROSSROADS BANK
CERTIFICATE OF ACCEPTANCE
LESSEE: CITY OF CARMEL, INDIANA
MASTER EQUIPMENT LEASE-PURCHASE
AGREEMENT DATE: MAY 22, 2025
LEASE SCHEDULE NO. 1
THE UNDERSIGNED ACKNOWLEDGES AND REPRESENTS FOR AND ON BEHALF OF LESSEE
THAT: (a) the Equipment identified in the above-referenced Lease Schedule is delivered, installed, available for use and
is placed in service as of the Acceptance Date indicated below; (b) such Equipment is in good operating condition and
repair and is accepted as satisfactory in all respects for purposes of the applicable Lease; (c) the cash purchase price of
such Equipment is $491,511 and (d) to the extent that invoices with respect to the Equipment are not attached hereto,
Lessee shall deliver or cause to be delivered to Lessor such invoices in a timely manner.
FURTHER, Lessee hereby directs Crossroads Bank as Lessor, (a) to allocate funds from the escrow
account for the payment of the amounts evidenced on the invoices delivered herewith or to be delivered by
Lessee pursuant to the preceding paragraph, which amounts represent the cash purchase price for such
Equipment and the amount financed for purposes of the Lease (calculated as permitted by Paragraph 3 of such
Lease Schedule), which may include an adjustment from the purchase price stated in such Lease Schedule,
which adjustment shall not exceed 10% of the cash purchase price stated in such Lease Schedule, and (b) to
calculate and prepare the Rental Payment Schedule as provided in the above-referenced Lease Schedule,
which shall be the Rental Payment Schedule for all purposes of the applicable Lease.
If this Certificate of Acceptance relates to a Tax-Exempt Lease, Lessee hereby (a) represents that
neither Lessee nor any agency or unit of Lessee has on hand any property, including cash and securities, that
is legally required or otherwise restricted (no matter where held or the source thereof) to be used directly or
indirectly to pay the amount that is herein requested for allocation for the payment of the purchase price, (b)
represents that it has not and will not establish any funds or accounts (no matter where held or the source
thereof) the use of which is legally required, otherwise restricted or reasonably expected to be used to pay
directly or indirectly the Rental Payments to be shown on the Rental Payment Schedule (Attachment 1) for
this Certificate of Acceptance except the portion of the Lessee's general or special fund from which such
Rental Payments are to be made within 12 months of when amounts used to make Rental Payments are
deposited therein and (c) agrees to complete and file or cause to be filed in a timely manner an information
reporting return (either I.R.S. Form 8038-G or Form 8038-GC, as appropriate) in the form attached as
Attachment 2 hereto as required by the Internal Revenue Code of 1986, as amended.
If this Certificate of Acceptance relates to a Tax-Exempt Lease and such Lease may be treated as
bank-qualified, the Lessee will designate such Lease as "bank-qualified" as provided in the Bank-Qualified
Designation attached as Attachment 3 hereto.
ACCEPTANCE DATE: May 22, 2025
AUTHORIZED SIGNATURE:
PRINTED NAME: Zachary Q. Jackson
TITLE: Chief Financial Officer - Controller
2
LESSOR ACKNOWLEDGMENT
THE UNDERSIGNED HEREBY ACKNOWLEDGES FOR AND ON BEHALF OF LESSOR THAT:
(1) The Schedule Funding Date is May 22, 2025 (on which funds were allocated for the future payment of the
purchase price at Lessee's direction as described in the Certificate of Acceptance to which this Acknowledgment is attached and
from which interest accrues); and
(2) The Rental Payment Schedule attached as Attachment 1 hereto has been calculated and prepared as provided
in the above-referenced Lease Schedule and shall constitute the Rental Payment Schedule for all purposes of the applicable
Lease.
DATED THIS 22nd day of May 2025.
Crossroads Bank, AS LESSOR
By:
Printed Name: Barry Grossman
Title: Sr. Vice President
ATTACHMENT 1
(TO CERTIFICATE OF ACCEPTANCE FOR LEASE SCHEDULE NO. 1)
CROSSROADS BANK
RENTAL PAYMENT SCHEDULE
LESSEE: City of Carmel, Indiana
MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT DATE: MAY 22, 2025
LEASE SCHEDULE: NUMBER 1
Stated annual interest rate: 4.44%
IN ACCORDANCE WITH THE LEASE SCHEDULE DESCRIBED ABOVE, THE RENTAL
PAYMENTS SHALL BE MADE FOR THE EQUIPMENT DESCRIBED IN SUCH LEASE SCHEDULE
AS FOLLOWS:
Payment No. Date Payment Interest Principal *Prepayment Option
1 1/15/2026 $110,126.10 $14,235.17 $95,890.93 $395,620.07
2 1/15/2027 $110,126.10 $17,572.10 $92,554.00 $303,066.07
3 1/15/2028 $110,126.10 $13,461.17 $96,664.93 $206,401.14
4 1/15/2029 $110,126.10 $9,167.64 $100,958.46 $105,442.68
5 1/15/2030 $110,126.10 $4,683.42 $105,442.68 $0.00
Grand Totals $550,630.50 $59,119.50 $491,511.00
*Assumes all Rental Payments, applicable taxes and all other amounts payable under the Lease on and prior to that
date have been paid.
ATTACHMENT 3
(TO CERTIFICATE OF ACCEPTANCE FOR LEASE SCHEDULE NO. 1)
BANK-QUALIFIED DESIGNATION
City of Carmel, Indiana, as Lessee (“Lessee”) under the Certificate of Acceptance to
which this Designation is attached, hereby designates the Lease created under the Lease Schedule
identified in such Certificate of Acceptance as a “qualified tax-exempt obligation” for the
purposes and within the meaning of Section 265(b)(3) of the Internal Revenue Code of 1986, as
amended. Lessee hereby represents that Lessee reasonably anticipates that Lessee and other
entities that Lessee controls and entities who issue obligations on behalf of Lessee will not issue
tax-exempt obligations (including such Lease) that exceed the aggregate principal amount of
$10,000,000 during the calendar year in which such Lease is executed and delivered and interest
commences to accrue thereunder.
This Designation is attached to and made a part of such Lease
EXECUTED on May 22, 2025.
LESSEE: City of Carmel, Indiana
Signature:
Printed Name: Zachary Q. Jackson
Title: Chief Financial Officer - Controller
EXHIBIT 6
(To Lease Schedule No.1)
[ATTACH EVIDENCE OF EXEMPTION FROM STATE AND LOCAL TAXES, IF APPLICABLE.]
INDIANA FORM - ST 105
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into by and between the City of Carmel,
Indiana, (“CCI”) and Crossroads Bank (“Bank”).
RECITALS
“CCI” is purchasing a new Cummins 800KW Tier II Standby Diesel Generator as described on
master lease schedule number 1 dated May 22, 2025, (“Equipment”) for the sum of ($491,511) (“Purchase
Price”).
Bank is financing “CCI”s purchase of the Equipment under a Master Equipment Lease-Purchase
Agreement dated May 22, 2025 (“Lease”).
To facilitate “CCI”s purchase of the Equipment and to minimize its interest payments to Bank,
Bank will advance, upon execution of this Agreement and contemporaneously with the effective date of the
Lease, the full Purchase Price to an interest-bearing escrow account to be disbursed as authorized and
directed by Lessee.
In consideration of the above recitals, and the mutual covenants contained herein, the parties agree
as follows:
1. Upon the Bank advancing the Purchase Price to “CCI”, “CCI” will deposit the same with
Bank in an interest-bearing escrow account.
2. Bank shall disburse amounts from the escrow account to the vendors of the Equipment
upon receipt of the following: (a) copies of statements for the labor, services, or materials with respect to
which disbursement is required, certified by vendor to be true and correct, and (b) written approval of
vendor’s statements by “CCI”.
3. Upon completion of delivery and installation of the Equipment to the satisfaction of
“CCI” and disbursement of all escrow funds, Agreement shall terminate, and no party shall have any
further rights, duties, or obligations hereunder.
City of Carmel, Indiana, (“Lessee”)
By: ___________________________________________________________________
Zachary Q. Jackson, Chief Financial Officer - Controller
Date: May 22, 2025
CROSSROADS BANK (“Lessor” and “Escrow Agent”)
By: ___________________________________________________________________
Barry Grossman, Senior Vice President
Date: May 22, 2025
Crossroads Bank
May 22, 2025
INVOICE
_____________________
City of Carmel, Indiana,
One Civic Square
Carmel, Indiana 46032
Documentation Fee for - Master Lease Schedule
No 1., for a New Cummins 800KW Tier II Standby
Diesel Generator
$350
TOTAL AMOUNT DUE: $350
PLEASE MAKE CHECK PAYABLE TO:
Crossroads Bank.
Crossroads Bank.
PO BOX 259
Wabash, Indiana 46992
Toll Free (800) 377- 4944
BOARD OF DIRECTORS
Shawna Girgis
Dan Huge
Deron Kintner
Charles L. Williams
10 West Market Street | Suite 2410 |
Indianapolis, Indiana 46204
| p 317-233-0888 | inbondbank.com
Daniel Elliott
Chair, Indiana Bond Bank
Treasurer of State
Jacob Blasdel
Executive Director
Mike Lucas
Vice-Chair
May 13, 2025 Zac Jackson City of Carmel One Civic Square Carmel, IN 46032
Re: Indiana Bond Bank: Hoosier Equipment Lease Purchase (HELP) Program Dear Mr. Jackson: The Indiana Bond Bank is pleased to award your lease to Crossroads Bank. They will be contacting you regarding the lease’s legal documentation, which will be between your entity and the bank. Interest rates can be time-sensitive, so please carefully review the lease documents for the deadlines and documentation necessary to execute this lease. Approval of the lease is subject to credit review by Crossroads Bank. You will be notified if additional information is required. Please note that IC 5-1.5-8-3(c) exempts Indiana Municipalities from bidding the financing through the HELP Program. Your entity must still follow the provisions of the public purchase law (IC 5-22-2) as applicable. Finally, both your entity and the Bond Bank will receive a copy of the lease documents at closing. If you have any questions regarding the HELP program, please do not hesitate to contact us. Sincerely,
Marisa Weimer cc: Barry Grossman, Crossroads Bank IBB has not reviewed the credit worthiness of the QE. By bidding, the bank affirms that it
has reviewed the QE’s creditworthiness and obtained financial information necessary for it to
make a decision to lend money