United Fidelity Bank F.S.B/Council/Master Governmental Lease Agreementle -
Indiana?"
MASTER GOVERNMENTAL LEASE AGREEMENT
Date of Delivery: _, 2017
By
CITY OF CARMEL, INDIANA
as Borrower
and
UNITED FIDELITY BANK, FSB
as Lender
MASTER GOVERNMENTAL LEASE AGREEMENT
This MASTER GOVERNMENTAL LEASE AGREEMENT dated _, 2017 is made
and entered into by CITY OF CARMEL, INDIANA, a municipal corporation under the laws of the State of
Indiana, by and through its Board of Public Works and Safety (the 'Borrower"), and UNITED FIDELITY
BANK, F.S.B., a federal savings bank (the "Lender").
The Borrower and the Lender have duly authorized, executed and delivered this Master
Governmental Lease Agreement to finance the property and interests in property more particularly
described herein as the Equipment for the benefit and use of the Borrower.
All things necessary to make this Master Governmental Lease Agreement a valid agreement of the
Borrower and the Lender have been done and performed in due time, form and manner as required by law.
AGREEMENT
NOW THEREFORE, for and in consideration of the premises and the mutual covenants and
agreements herein contained, the Borrower and the Lender hereby covenant and agree as follows:
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ARTICLE 1
Principles of Construction; Accounting Principles; and Definitions
Section 1.01 Principles of Construction
For all purposes of this Master Governmental Lease Agreement, except as otherwise expressly
provided or unless the context otherwise requires:
(1) Singular terms shall include the plural as well as the singular, and vice versa. Any
pronoun shall include both singular and plural and cover all genders.
(2) All references in this instrument to designated "Articles", "Sections" and other
subdivisions are to the designated Articles, Sections and subdivisions of this instrument as originally
executed.
(3) The terms "herein", "hereof' and "hereunder" and other words of similar import
refer to this Master Governmental Lease Agreement as a whole and not to any particular Article,
Section or other subdivision.
Section 1.02 Accounting Principles
All accounting terms not otherwise defined herein have the meanings assigned to them, and
all computations herein provided for shall be made, in accordance with Accounting Principles.
Section 1.03 Definitions
For all purposes of this Master Governmental Lease Agreement the following terms shall have the
following meanings:
Accounting Principles shall mean GAAP, GASB or other accounting principles generally
accepted in the United States of America, as applicable to the Borrower.
Act of Insolvency shall mean, with respect to any Person, the appointment of a receiver,
liquidator or trustee of such Person or any of its Property or assets; or a general assignment by such Person
for the benefit of the creditors thereof; or the commencement of proceedings by or against such Person
under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law or any jurisdiction, now or hereafter in effect.
Actual/360 Basis shall mean a method of computing interest or other charges hereunder on the
basis of an assumed year of 360 days for the actual number of days elapsed, meaning that interest or other
charges accrued for each day will be computed by multiplying the rate applicable on that day by the unpaid
principal balance (or other relevant sum) on that day and dividing the result by 360.
Advances shall mean the advances by the Lender to the Borrower pursuant to Section 5.01 and
the Schedules.
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Affiliate of any specified Person shall mean any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified Person. For purposes of this
definition, 'control" when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative
to the foregoing.
Agreement shall mean collectively this Master Governmental Lease Agreement, as at any time
amended, restated, or supplemented, and all Schedules at any time executed and delivered pursuant
hereto.
Applicable Law shall mean all applicable provisions of all constitutions, statutes, rules,
regulations and all binding orders, judgments and decrees of any Governmental Authority.
Auditor shall mean the Indiana State Board of Accounts (or any successor to the functions
thereof) or an Independent certified public accountant (or a firm thereof) regularly engaged in the auditing
of financial records.
Authorized Borrower Representative shall mean any officer of the Borrower authorized by the
Borrower to act as "Authorized Borrower Representative" for purposes of this Master Governmental Lease
Agreement.
Borrower shall mean the City of Carmel, Indiana, a municipal corporation, and the successors
and assigns thereof.
Borrower's Available Funds shall mean all current funds and current revenues of the Borrower
in a Fiscal Year which are lawfully available for payment of Obligations.
Business Day shall mean any day other than a Saturday, a Sunday, or a day on which the Lender
is authorized to be closed under general law or regulation applicable in the place where the Lender
performs its business with respect to this Master Governmental Lease Agreement.
Certificate of Acceptance shall mean a Certificate of Acceptance, in form and of content as
attached hereto as Appendix II, with respect to any Item of Equipment.
Code shall mean the Internal Revenue Code of 1986, as amended.
Collateral shall have the meaning assigned therefor in Article II.
Date of Delivery shall mean _, 2017.
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Debt shall mean, for the Borrower and its affiliated organizations, on a consolidated basis, all
items that in conformity with Accounting Principles would be shown on the balance sheet of such Person as
a liability and in any event shall include (without duplication) (1) indebtedness and obligations (whether
represented by bonds, warrants, notes, debentures, or debt securities) for the payment of borrowed money
or extensions of credit, (2) liabilities for all or any part of the deferred purchase price of property or services
or secured by any Lien on any Property owned or held by such Person, (3) the capitalized amount of
obligations under any lease of Property, determined in accordance with Accounting Principles, (4)
contingent obligations determined in accordance with Accounting Principles, (5) current liabilities under a
Governmental Retirement Plan, and (6) obligations to pay termination fees under any interest rate
contracts which hedge exposure to fluctuations in interest rates; provided, however, that 'Debt" shall not
include (i) trade payables and similar unsecured current obligations incurred in the ordinary course of
business, or (ii) deferred compensation payables, or (iii) any increase in liabilities as a result of unrealized
losses on interest rate contracts.
Default Rate shall mean, as of any date of determination, a per annum rate of interest equal to
the Prime Rate, as adjusted from time to time as provided herein, plus three percent (3.00%), provided,
however, the Default Rate shall never exceed the maximum rate of interest permitted by law.
Determination of Taxability shall mean, and shall occur when, (i) the Lender receives written
notice from the Borrower, supported by an Opinion of Counsel, that the Interest Portion of the Financing
Payments with respect to any Advance is Taxable or (ii) the Internal Revenue Service shall issue a final
determination in writing that the Interest Portion of the Financing Payments with respect to any Advance
is Taxable; provided, that a Determination of Taxability shall not be deemed to have occurred until and
unless the Borrower is afforded reasonable opportunity (at the expense of the Borrower and for a period not
to exceed 2 years) to pursue any judicial or administrative remedy available to the Borrower with respect to
such determination and avails itself of such opportunity by appropriate proceedings diligently pursued.
Environmental Laws means all federal, state and local laws, regulations and orders regulating
health, safety and environmental matters, including without limitation air pollution, soil and water
pollution, and the use, generation storage, handling or disposal of hazardous materials.
Equipment shall mean the equipment and personal property described, identified, or listed in the
Schedules. The parties agree that all Equipment described, identified, or listed in the Schedules is personal
property, not real property.
Equipment Costs shall mean and include, with respect to any Item of Equipment, all costs of the
acquisition, construction and installation, including without limitation (i) the cost of labor, materials and
supplies used in such acquisition, construction and installation, (ii) transportation costs, (iii) fees for
architectural, engineering and supervisory services, (iv) expenses incurred in the enforcement of any
remedy against any contractor, subcontractor, materialman, vendor, supplier, surety, or Warranty
Provider, (v) expenses incurred by the Borrower in connection with the financing of such Equipment,
including legal, consulting, accounting and other fees, and (vi) reimbursement to the Borrower for any of
the foregoing costs and expenses set forth in (i) through (v) above, paid with funds of the Borrower.
ERISA means the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, and regulations thereunder.
Event of Default shall have the meaning stated in Section 9.01.
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Financing Payments shall mean all payments specified to be made under any Schedule as
principal of and interest on the Advance made pursuant to such Schedule by the Lender to the Borrower.
Fiscal Year shall mean the 12 -month period established from time to time by the Borrower as the
Fiscal Year thereof.
GAAP shall mean generally accepted principles of accounting in effect from time to time in the
United States applied in a manner consistent with those used in preparing such financial statements as
have theretofore been furnished to the Lender by the Borrower.
GASB shall mean generally accepted accounting principles established by the Government
Accounting Standards Board and in effect in the United States of America and elected by the Borrower,
applied in a consistent basis with that of the preceding year of the Borrower, reflecting only such changes in
accounting principles or practice with which the independent public accountants of the Borrower concur.
Governmental Authority shall mean any federal, state, county, municipal, or other government,
domestic or foreign, and any agency, authority, department, commission, bureau, board, court or other
instrumentality thereof.
Governmental Retirement Plan shall mean and include any pension or retirement plan
maintained by the Borrower under ERISA or the laws of the State.
Independent, when used with respect to any Person, shall mean a Person who (i) is in fact
independent, (ii) does not have any direct financial interest or any material indirect financial interest in
any Obligor or in any Affiliate of such Obligor, and (iii) is not connected with an Obligor as an officer,
employee, promoter, underwriter, trustee, partner, director or Person performing similar functions.
Interest Portion shall mean that amount of a Rent Payment specified in the applicable Schedule
as allocable to interest accrued on the outstanding amount of the principal portion of the Advance made by
the Lender to the Borrower under such Schedule.
Item of Equipment shall mean any particular item of Equipment.
Lender shall mean United Fidelity Bank, F.S.B. and its successors and assigns, and any Person to
whom this Agreement is assigned or transferred pursuant to Section 10.01.
Lien shall mean, as to any asset, (1) any lien, charge, claim, mortgage, security interest, pledge,
hypothecation or other encumbrance of any kind with respect to such asset, (2) any interest of a vendor or
lessor under any conditional sale agreement, capitalized lease (determined in accordance with Accounting
Principles) or other title retention agreement relating to such asset, (3) any reservation, exception,
encroachment, easement, right-of-way, covenant, condition, restriction, lease or other title exception
affecting such asset, or (4) any assignment, deposit, preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, any financing lease having substantially the same economic effect as any of the
foregoing, and the filing of any financing statement under the UCC in effect in the State or comparable law
of any jurisdiction).
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Material Adverse Effect shall mean any act or circumstance or event (other than as a result of
any act or omission by the Lender) or change which (i) causes an Event of Default, or (ii) if determined or
resolved adversely to the Borrower would have a material and adverse effect upon, or a material adverse
change in the financial condition or business operations of the Borrower, or (iii) would adversely affect the
validity or enforceability of this Master Governmental Lease Agreement.
Material Debt shall mean, with respect to the Borrower on any date, Debt of the Borrower which
individually equals or exceeds $25,000.
Maximum Aggregate Advance Amount shall mean.Two Hundred Thousand Dollars ($200,000).
Obligations shall mean and include:
(1) the Financing Payments;
(2) all other amounts becoming due and payable by the Borrower under any provision of this
Master Governmental Lease Agreement; and
(3) all renewals and extensions of any or all the obligations of the Borrower described in
paragraph (1) or (2) above, whether or not any renewal or extension agreement is executed in connection
therewith.
Obligor shall mean collectively (i) the Borrower and any other Person at any time liable for
payment in whole or in part of the Obligations and (ii) the respective successors and assigns thereof.
Opinion of Counsel shall mean an opinion from an attorney or firm of attorneys (i) with
experience in the matters to be covered in the opinion (including without limitation matters relating to the
issuance of obligations by or on behalf of states or local governmental units) and (ii) who may be counsel to
a party hereto and who shall be acceptable to the Lender.
Person shall mean and include any individual, corporation, partnership, joint venture, limited
liability company or partnership, association, trust, unincorporated organization and any government or any
agency or political subdivision thereof.
Prime Rate shall mean the rate of interest designated from time to time by Lender as its
commercial prime interest rate, with the understanding that the prime interest rate of Lender is an interest
rate established from time to time for lending purposes after taking into account such factors as Lender
may in its sole discretion from time to time deem appropriate and is not necessarily the best or lowest rate
offered by Lender.
Property shall mean any and all rights, titles and interests in and to any and all property whether real
or personal, tangible or intangible, and wherever situated.
Schedule shall mean any Schedule, in substantially the form and of substantially the content as
attached hereto as Appendix I, properly completed and executed with respect to the Equipment referenced
therein.
State shall mean the State of Indiana.
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Supplier shall have the meaning assigned in IC 26-1-2.1-103.
Tax Certificate and Agreement shall mean that certain Non -Arbitrage and Federal Tax
Matters Certificate dated the date of delivery by the Borrower of each Schedule delivered in connection with
this Master Governmental Lease Agreement.
Taxable shall mean that, for purposes of federal income taxation, the Interest Portion of the
Financing Payments with respect to any Advance is includable in gross income for federal income tax
purposes.
Transaction means the loan provided in any Schedule with respect to this Master Governmental
Lease Agreement and the consummation of the transactions described in this Master Governmental Lease
Agreement. The phrase "consummation of the Transaction", when used with respect to any party to
this Master Governmental Lease Agreement, means that such party has taken all action required to
complete the Transaction.
UCC shall mean IC 26-1.
Warranty Provider shall mean any Person who provides a warranty (express or implied) with
respect to any part of the Equipment.
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ARTICLE 2
Construction of Agreement; Finance Lease;
Designation as Chattel Paper; Net Lease
Section 2.01 Construction of Agreement
The Borrower and the Lender covenant and agree that:
(a) This Agreement shall provide for the financing of Equipment by the Lender for the
Borrower upon delivery of Schedules hereunder executed by the, Borrower and the Lender in accordance
with the provisions hereof and in compliance with the Conditions Precedent applicable to each Schedule.
This Agreement is not a legal commitment to lend money or finance Equipment and the Lender shall not
have any obligation to execute and deliver any Schedule.
(b) All terms and provisions set forth in any Schedule at any time executed and 'delivered
pursuant hereto are hereby incorporated into this Master Governmental Lease Agreement, and made a part
hereof, by this reference thereto as fully as if set out in full herein.
(c) This Master Governmental Lease Agreement and all Schedules at any time executed and
delivered pursuant hereto shall operate and be construed as one integrated contractual agreement to effect
the purposes hereof.
(d) In the event any provision of a Schedule is inconsistent or in conflict with a provision of
this Agreement, the provision in such Schedule shall govern and control.
Section 2.02 This Master Governmental Lease Agreement to be a Finance Lease
The Borrower covenants and agrees that for purposes of IC 26-1-2.1 of the UCC this Master
Governmental Lease Agreement is a Finance Lease.
Section 2.03 Designation as Chattel Paper
The Borrower agrees that only the Lender's original of this Master Governmental Lease Agreement
constitutes chattel paper for purposes of the UCC and that no security interest can be perfected by
possession of any other counterpart delivered pursuant to Section 11.04.
Section 2.04 Net Lease
Subject to the provisions of Article 12, the Borrower agrees that this Master Governmental Lease
Agreement shall be a "net lease" and shall be construed to effectuate such intent.
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ARTICLE 3
Chattel Mortgage; Security Interest
(a) To secure the payment of the Obligations and the performance of the covenants contained
herein, and in consideration of the premises, the Borrower by these presents does grant, bargain, sell, alien,
remise, release, convey, assign, transfer, mortgage, hypothecate, pledge, set over and confirm unto the
Lender, and grant to the Lender security title to and a continuing security interest in, all and singular, all
right, title and interest of the Borrower in and to the following described property and all proceeds and
products thereof (collectively the "Collateral"):
(1) the Equipment, and all goods represented by the Equipment, now existing or
hereafter acquired or created from time to time, whether in transit or in the constructive, actual or
exclusive possession of the Borrower or held by the Borrower or others for the Borrower's account
and wherever the same may be located;
(2) all proceeds and products of, and additions and accessions to, any of the items
described in (1) above;
(3) all books and records related to any of the items described in (1) or (2) above;
(b) The Borrower agrees that the security title and security interest herein created and
granted to the Lender shall vest in the Lender immediately upon the acquisition and creation of any Item of
Equipment hereafter created or acquired, without the necessity for any other or further action by the
Borrower or by the Lender. The Borrower agrees that, to the extent the UCC is ever determined to not be
applicable to the foregoing pledge, the pledge made pursuant to this Article shall be effective pursuant to IC
5-1-14-4.
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ARTICLE 4
Nature of Obligations;
No Recourse to Governing Body, Officers of Borrower
Section 4.01 Source of Payment of Obligations
(a) Borrower's Available Funds. The Obligations which shall become due and payable under
this Master Governmental Lease Agreement in any Fiscal Year in which this Master Governmental Lease
Agreement is in effect shall be payable from the Borrower's Available Funds.
(b) Direction to Officers. The Borrower does hereby authorize and direct the Clerk -Treasurer
of the Borrower to pay the Financing Payments, and all other Obligations, solely from the Borrower's
Available Funds, when and as the same become due and payable in accordance with the terms of this
Master Governmental Lease Agreement.
Section 4.02 Obligations Not Chargeable Against Constitutional Debt Limit
The Financing Payments and other Obligations to be paid, and the agreements to be performed, by
the Borrower under this Master Governmental Lease Agreement during any Fiscal Year in which this
Master Governmental Lease Agreement is in effect shall be payable solely from the Borrower's Available
Funds and therefore shall not constitute or create an indebtedness, or pecuniary liability or obligation, of
the Borrower which is chargeable against any limitation or prohibition upon indebtedness applicable to the
Borrower under the Constitution, or any statutory or common law, of the State.
Section 4.03 No Liability of State or Political Subdivision
The Lender agrees that the .Obligations shall never constitute an obligation (general or special),
indebtedness, pecuniary liability, or charge against the general faith or credit or taxing powers of the State,
or any county or municipality therein or any political subdivision thereof other than the Borrower, within
the meaning of any constitutional provision or statutory limitation whatsoever.
Section 4.04 Governing Body, Officers, of Borrower Exempt from Individual Liability
(a) The Lender agrees that: (i) no recourse under or upon any covenant or agreement of this
Master Governmental Lease Agreement shall be had against any past, present or future incorporator,
officer, employee, counsel or member of the governing body of the Borrower, or of any successor entity,
either directly or through the Borrower, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; (ii) this Master Governmental Lease Agreement
is solely a corporate obligation, and that no personal liability whatever shall attach to, or is or shall be
incurred by, any past, present or future incorporator, officer, employee, counsel or member of the governing
body of the Borrower or any successor corporation, or any of them, under or by reason of the covenants or
agreements contained in this Master Governmental Lease Agreement; and (iii) any and all personal
liability of every nature, whether at common law or in equity, or by statute or by constitution or otherwise,
of any such past, future or present incorporator, member, director, officer, employee or counsel is hereby
expressly waived irrevocably and unconditionally released by the Lender as a condition of and in
consideration for the execution of this Master Governmental Lease Agreement.
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(b) The provisions of this Section shall survive any expiration or termination of this Master
Governmental Lease Agreement and shall continue to be enforceable notwithstanding any such expiration
or termination.
Section 4.05 Obligations of Borrower Unconditional
Subject to the provisions of Article 12, the obligation of the Borrower to pay the Obligations and to
perform and observe the other agreements and covenants on its part herein contained shall be absolute and
unconditional, irrespective of any rights of set-off, recoupment or counterclaim it might otherwise have
against the Lender, any contractor, any Supplier or any Warranty Provider. The Borrower will not suspend
or discontinue any such payment or fail to perform and observe any of its other agreements and covenants
contained herein for any cause whatsoever, including, without limiting the generality of the foregoing,
default of any contractor, vendor, Supplier or Warranty Provider, with respect to acquisition, installation,
maintenance or operation of any of the Equipment, unsuitability of or defectiveness of the Equipment (or
any portion thereof), failure of consideration or commercial frustration of purpose, the invalidity or
unenforceability of this Master Governmental Lease Agreement or any provision thereof, any loss of or
damage to or destruction of the Equipment (or any portion thereof) or any part thereof, the taking by
eminent domain of title to or the right to temporary use of all or any part of the Equipment, any change in
the tax or other laws or administrative rulings, actions or regulations of the United States of America or of
the State or any political or taxing subdivision of either thereof, or any failure of the Lender to perform and
observe any agreement or covenant, whether express or implied, any duty, liability or obligation arising out
of or in connection with this Master Governmental Lease Agreement.
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ARTICLE 5
The Equipment
Section 5.01 Advances by Lender to Effect Acquisition of Equipment; Delivery of a
Schedule for Each Advance
(a) The Lender shall make Advances from time to time, upon written request of the Borrower
therefor and as provided in this Section 5.01, upon satisfaction of the Conditions Precedent applicable to a
Schedule and subject to the provisions hereof and satisfaction of the particular conditions precedent and
requirements of the Lender with respect to any Advance.
(b) The aggregate principal amount of the Advances shall not exceed the Maximum Aggregate
Advance Amount.
(c) (1) Each Advance shall be made upon the delivery of a funding request in form and
content satisfactory to the Lender, appropriately completed and executed by an Authorized
Borrower Representative, with respect to such Advance.
(2) The proceeds of each Advance shall be applied solely to the payment of
Equipment Costs.
(d) The Lender shall record on its internal records (which may be kept by computer or other
means) the principal amount and purpose of each Advance. The determination and certification by the
Lender of the outstanding principal amount of each Advance shall be conclusive for all purposes absent
manifest error.
(e) The Borrower covenants and agrees that the Lender makes no representation or warranty
that the proceeds of the Advances will be sufficient to pay in full all costs of the Equipment. In the event
the proceeds -of the Advances are insufficient to pay in full all costs of the Equipment, the Borrower shall
pay any such deficiency. The Borrower shall not by reason of the payment of such deficiency from its own
funds be entitled to any abatement of or diminution in Financing Payments.
(f) No Advance shall be made after —2026.
Section 5.02 Delivery and Acceptance of Items of Equipment in Schedules; Release of
Lender
(a) The Borrower shall select all property to become part of the Equipment subject hereto.
The Lender will cause to be tendered to the Borrower, when and as directed in writing by the Borrower and
at the expense of the Borrower, each Item of Equipment listed in each Schedule at the location indicated in
that Schedule.
(b) (1) The Borrower will inspect each Item of Equipment, and either accept or reject
delivery as soon as the same shall have been delivered and is operational, or if the Warranty
Provider allows a pre -acceptance test period, as soon as the test period shall have expired.
(2) The Borrower will, deliver to the Lender a completed and executed Certificate of
Acceptance with respect to such Equipment.
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(c) For purposes of IC 26-1-2.1, the Borrower hereby approves the contracts by which the
Lender acquired the right to possession and use of the Equipment and acknowledges receipt of a copy
thereof.
(d) The Borrower covenants and agrees that the Lender shall not be liable, to any extent
whatever, for the selection, quality, condition, merchantability, suitability, fitness, operation or
performance of the Equipment, including, without limitation, the Lender shall not be liable to Borrower for
any liability, claim, loss, damage or expense of any kind or nature (including strict liability in tort) caused,
directly or indirectly, by the Equipment or any inadequacy thereof for any purpose, or any deficiency or
defect therein, or the use or maintenance thereof, or any repairs, servicing or adjustments thereto, or any
delay in providing or failure to provide any part thereof, or any interruption or loss of service or use thereof,
or any loss of business, or any damage whatsoever and howsoever caused, except for any such loss or
damage caused by the willful acts of Lender, or its agents, representatives and assigns.
Section 5.03 Title; Possession and Use of Equipment
(a) The Lender shall hold legal title to the Equipment, subject to Borrower's rights hereunder,
including the right of an equitable owner in a lease financing transaction.
(b) The Borrower and the Lender covenant and agree that the exclusive right of possession
and use of the Equipment shall be and hereby is vested in the Borrower.
(c) The Lender hereby covenants and agrees with the Borrower that, as long as no Event of
Default shall have occurred and be continuing, the Borrower shall have, and the Lender will not disturb,
the quiet and peaceful possession and use of the Equipment without restriction upon the use thereof for its
intended purpose, subject to the terms and provisions of this Master Governmental Lease Agreement.
(d) The Lender agrees that upon the satisfaction by Borrower of all Obligations relating to an
Item of Equipment, Borrower shall have the right to purchase such Item of Equipment from Lender for $1;
and Borrower agrees that if Borrower does not exercise its right to purchase the Item of Equipment, Lender
shall have the right to abandon the Equipment to Borrower, and in association with such right of
abandonment, Lender shall have not obligation to remove the Item of Equipment. Upon satisfaction of all
Obligations relating to an Item of Equipment, Borrower shall exercise its right to purchase such Item of
Equipment by delivering a notice to the Lender of its desire to purchase such Item of Equipment, and
delivering the associated required payment. In the event of the exercise by Borrower of its right to
purchase and the delivery of the notice and making the required payment, or Lender abandonment of the
Item of Equipment, title to such Item of Equipment shall immediately transfer to Borrower without further
action by the parties. The parties agree to cooperate with each other in the documentation of such title
transfers.
Section 5.04 Disclaimer of Warranties
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(a) THE BORROWER ACKNOWLEDGES AND AGREES THAT (1) LENDER IS NOT AN
AGENT OF ANY MANUFACTURER, SUPPLIER, CONTRACTOR OR WARRANTY PROVIDER; (2)
BORROWER HAS SELECTED AND CAUSED THE PURCHASE OF THE EQUIPMENT AND HAS
SELECTED EACH SUPPLIER AND WARRANTY PROVIDER; (3) BORROWER EXPRESSLY
DISCLAIMS ANY RELIANCE UPON THE LENDER WITH RESPECT THERETO, AND (4) THE
BORROWER IS ENTITLED UNDER IC 26-1-2.1 TO ALL WARRANTIES AND OTHER RIGHTS
PROVIDED TO LENDER BY WARRANTY PROVIDERS WITH RESPECT TO THE EQUIPMENT AND
TO CONTACT SUCH WARRANTY PROVIDERS FOR AN ACCURATE AND COMPLETE STATEMENT
OF ANY SUCH EXPRESS WARRANTIES AND OTHER RIGHTS AND ANY DISCLAIMERS OR
LIMITATIONS OF SUCH RIGHTS OR OF REMEDIES. LENDER SHALL AND HEREBY DOES ASSIGN
TO BORROWER ALL WARRANTIES AND OTHER RIGHTS PROVIDED TO LENDER TO BORROWER
WITH THE RIGHT TO ACT AS LENDER'S ATTORNEY-IN-FACT WITH REGARD TO THE
ADMINISTRATION OF SUCH WARRANTIES AND RIGHTS.
(b) THE BORROWER ACKNOWLEDGES AND AGREES THAT THE EQUIPMENT IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY BORROWER AND THAT LENDER HAS NOT MADE,
AND DOES NOT HEREBY MAKE, ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS
OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION, THE VALUE,
PATENT, LICENSING, MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN,
CONSTRUCTION, OPERATION, FITNESS FOR USE OR SUITABILITY OF THE EQUIPMENT, OR
CONFORMITY TO THE SPECIFICATIONS OF ANY ORDER RELATING THERETO OR ITS
COMPLIANCE WITH OR SATISFACTION OF THE REQUIREMENTS OF ANY APPLICABLE LAW OR
CONTRACT, IN ANY RESPECT WHATSOEVER OR IN CONNECTION WITH OR FOR THE PURPOSES
AND USES OF BORROWER, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO, AND LENDER
SHALL NOT BE OBLIGATED OR LIABLE FOR ACTUAL, INCIDENTAL, CONSEQUENTIAL,
PUNITIVE, OR OTHER DAMAGES OF OR TO BORROWER OR ANY OTHER PERSON OR ENTITY
ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE EQUIPMENT
AND THE MAINTENANCE THEREOF OR FOR THE SUITABILITY THEREOF FOR THE PURPOSES
OF THE BORROWER.
Section 5.05 Waivers by Borrower
(a) To the extent permitted by law, the.Borrower waives any and all rights and remedies
conferred by IC 26-1-2.1 including, without limitation, any rights to (1) cancel or repudiate this Master
Governmental Lease Agreement, (2) reject or revoke acceptance of the Equipment, (3) recover damages
from the Lender for breach of warranty or for any other reason, (4) claim a security interest in any rejected
portion of the Equipment in the Borrower's possession or control, (5) deduct from the Financing Payments
all or any part of any claimed damages resulting from the Lender's default under this Master Governmental
Lease Agreement, (6) accept partial delivery of the Equipment, (7) "cover" by making any purchase or lease
of substitute Equipment, (8) recover from the Lender or any assignee of the Lender any general, special,
incidental or consequential damages for any reason whatsoever, and (9) specific performance, repletion or
the like for any of the Equipment.
(b) The Borrower also waives any statutory right it may have now or in the future to require
the Lender to sell or re -lease any of the Equipment or otherwise to mitigate damages.
Section 5.06 Remedies Against Vendors, Contractors, Suppliers, Warranty Providers
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(a) In the event of default of any vendor, contractor, sub -contractor or surety therefor, under
any contract or purchase order for acquisition, construction or installation of any portion of the Equipment,
the Borrower may, in its own name or in the name of the Lender, prosecute or defend any action or
proceeding or take any other action involving any such vendor, contractor, subcontractor or surety which
the Borrower deems reasonably necessary. Any amounts recovered by way of damages, refunds,
adjustments or otherwise in connection with the foregoing shall be applied to the payment of the costs of
the Equipment.
(b) Lender hereby authorizes Borrower, at Borrower's expense, to assert for Lender's account,
during the term of the applicable Schedule, all of Lender's rights, if anv, under any manufacturer's,
vendor's or dealer's warranty on the Equipment to the extent permitted by law and agreement; provided,
however, that Borrower shall, to the extent and limits permitted by Applicable Law, indemnify and hold
harmless Lender for and against any and all claims, and all costs, expenses, damages, losses and liabilities
incurred or suffered by Lender in connection therewith, as a result of, or incident to, any action by Borrower
in connection therewith or pursuant to the above authorization. Any amount received by Lender as
payment under any warranty pursuant to the above authorization shall be applied to restore the
Equipment to as good condition as it was or should have been (but for defects giving rise to such payment
under warranty) when delivered to Borrower hereunder, ordinary wear and tear excepted, with the balance
of such amount, if any, to be paid over by Borrower.
Section 5.07 Payment of Taxes
The Borrower will pay promptly as and when due, and will to the extent and limits permitted by
Applicable Law indemnify and hold Lender harmless from, all sales, use, personal property, leasing, leasing
use, stamp, intangibles or other taxes, levies, imposts, duties, charges, fees or withholdings of any nature
(together with any penalties, fines or interest thereon) imposed against Lender, Borrower or the Equipment
by any Governmental Authority upon or with respect to the Equipment or upon the purchase, ownership,
delivery, leasing, possession, use, operation, return or other disposition thereof, or upon the payments,
receipts or earnings arising therefrom, or upon or with respect to this Master Governmental Lease
Agreement (excluding, however, federal, state and local taxes on, or measured by, the net income of
Lender); provided, however, to the extent only that any such tax, levy, impost, duty, charge, or withholding
is being contested by Borrower in good faith and by appropriate proceedings, staying payment (but only so
long as Lender reasonably determines that same does not adversely affect Lender's interest in the
Equipment or this Master Governmental Lease Agreement), Borrower may withhold prompt payment but
shall indemnify and hold Lender harmless therefrom to the extent and limits permitted by Applicable Law.
Section 5.08 Use, Maintenance; Identification Marking; Inspection
(a) The Borrower will use, operate and maintain the Equipment only in the careful, proper
and normal manner and for its intended use and in accordance with manufacturer's specifications.
15
(b) After the expiration of the manufacturer's or vendor's warranty period applicable to the
Equipment, Borrower shall provide for the service, repair, and maintenance of the Equipment at its own
expense as to keep the Equipment in at least as good condition, repair and working order as when accepted
hereunder, ordinary wear and tear excepted. Any maintenance/service agreement entered into by the
Borrower shall provide for preventive and remedial maintenance which will include the replacement of any
and all portions of the Equipment which may from time to time become worn out or rendered unfit for use
due to the normal operation of the Equipment. All such replaced parts and accessories (and any other parts
or accessories added to or attached to the Equipment which are not readily removable without damage or
diminution in operation or value of the Equipment) shall be free and clear of Liens and, when substituted or
integrated into the Equipment, said parts shall become a part thereof and shall be covered by the terms of
this Master Governmental Lease Agreement to the same extent as the Equipment originally acquired
hereunder.
(c) To the extent permitted by law, Borrower agrees to place such markings, plates, or other
identification on Items of Equipment showing Lender's interest therein as Lender may from time to time
request, provided such identification markings, furnished by Lender, are placed so as not to interfere with
the usefulness of the said Equipment. Except as above provided, Borrower will not allow the name of any
person, association or corporation to be placed on the Equipment as a designation that might be interpreted
as a claim of ownership or Lien. The foregoing provision shall not preclude the Borrower from adding City
markings to any vehicles which constitute a part of the Equipment.
(d) Upon the request of Lender, Borrower shall advise Lender as to the location of each Item
of Equipment and shall, at any reasonable time, make the Equipment available to Lender or Lender's agent
for inspection at the place where it is ordinarily located, and shall make Borrower's records pertaining to
the Equipment available for Lender's inspection.
Section 5.09 Loss or Destruction
(a) The Borrower shall bear the risk of loss with respect to any damage, destruction, loss,
theft, or governmental taking of any Item of Equipment, whether partial or complete and whether or not
through any default or neglect of Borrower. Except as provided in this Master Governmental Lease
Agreement, no such event shall relieve Borrower of its obligation to pay Obligations hereunder. In the
event any Item of Equipment shall be lost, stolen, destroyed, damaged beyond repair, subject to
governmental taking, or permanently rendered unfit or unavailable for use for any reason whatsoever
("Event of Loss"), Borrower shall promptly, but in any event within ten (10) days of the Event of Loss, give
written notification to Lender of said loss and of the facts pertaining thereto, in which notification Borrower
shall elect either (1) to replace such Item of Equipment at Borrower's own cost, or (2) to pay Lender the
"Collateral Value" (as hereinafter defined) of such Item of Equipment or Items of Equipment.
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(b) If the Borrower elects to replace such Item of Equipment, any replacement Item of
Equipment shall be free and clear of all Liens, and shall be in as good condition and shall have a value and
utility determined by Lender to be at least equal to the replaced Item of Equipment, as if such Item of
Equipment were in the condition and repair required to be maintained by the terms hereof. Each
replacement Item of Equipment shall be delivered on or before that date which is thirty (30) days from the
date of the notice of Event of Loss, shall upon delivery immediately become subject to this Master
Governmental Lease Agreement (and be subject to Lender security interest hereunder), and shall be
deemed part of the Equipment for all purposes hereof, to the same extent as the property originally
comprising the Equipment; whereupon Lender shall hold title in and to such replacement Item of
Equipment in the same manner as the original Equipment, as provided in Section 5.03(a). In the event
Borrower elects to replace such Item of Equipment, Borrower's obligation to pay Obligations as set forth in
this Master Governmental Lease Agreement shall remain unchanged. Notwithstanding the foregoing,
Borrower shall not have the right to replace any such Item of Equipment unless Lender is satisfied, in its
sole discretion, that it has received a first priority purchase money security interest in such replacement
Item of Equipment.
(c) If the Borrower elects not to replace such Item of Equipment then Borrower shall pay to
Lender the Collateral Value of such Item of Equipment or Items of Equipment on the next succeeding date
on which a Rent Payment is due with respect to such Equipment. As used herein, "Collateral Value" shall
mean that portion of the outstanding principal amount of the Advance as set forth in the Schedule for such
Item of Equipment or Items of Equipment which is reasonably allocated to such Item of Equipment or
Items of Equipment by Lender, together with interest on such portion from the immediately preceding Rent
Payment date to the date of payment at the Applicable Rate specified in such Schedule.
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Section 5.10 Insurance
(a) At its own expense, the Borrower shall maintain (i) insurance on each Item of Equipment
for an amount not less than the greater of the unpaid Financing Payments with respect to such Item of
Equipment or the replacement value thereof or the actual value of such Item of Equipment, and (ii)
adequate comprehensive general public liability, motor vehicle liability if applicable, products liability and
property damage insurance with respect to each Item of Equipment, said insurance to be in an amount not
less than the amount specified in the Schedule applicable to said Item of Equipment and, in any event, in
an amount sufficient to provide full coverage against all loss and liability.
(b) All such insurance shall name Lender as an additional insured or loss payee and shall
provide that it may be altered or canceled by the insurer only after thirty (30) days prior written notice to,
and that losses shall be adjusted only with and paid to, Lender and its assignee; if any, and Borrower, as
their interests may appear. Certificates or other evidence satisfactory to Lender showing the existence of
such insurance, the terms and conditions of the policy, and payment of the premium therefor shall be
delivered to Lender prior to execution of each Schedule and periodically prior to each expiration of such
insurance.
(c) In the event Borrower shall fail to obtain or maintain insurance in accordance with the
provisions of this Section, Lender shall have the right to obtain such insurance as Lender deems necessary,
and Borrower shall be obligated to, and shall upon demand, reimburse Lender for the payment of all
premiums therefor together with interest computed from the date of Lender's payment at the Default Rate.
(d) If any insurance proceeds are received with respect to an occurrence which does not
constitute an Event of Loss under Section 5.09 of this Master Governmental Lease Agreement, or if
Borrower elects to replace the Item of Equipment or Items of Equipment so lost or destroyed under the
provision of Section 5.09 (a) of this Master Governmental Lease Agreement, then the proceeds of such
insurance will be applied in payment for repairs and replacement property required pursuant to this
Master Governmental Lease Agreement, or to reimburse Borrower for having made such payments.
Section 5.11 Advances by Lender
If the Borrower shall fail to perform any of its covenants in this Master Governmental Lease
Agreement, the Lender may (but shall have no obligation), at any time and from time to time, after written
notice to the Borrower if no Event of Default_ exists, make advances to effect performance of any such
covenant on behalf of the Borrower.
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ARTICLE 6
Term of Agreement; Payments by Borrower
Section 6.01 Term of Agreement
The Borrower and the Lender covenant and agree that:
(a) This Master Governmental Lease Agreement shall become effective on the Date of
Delivery.
(b) The term of this Master Governmental Lease Agreement with respect to any Item of
Equipment shall commence on the date specified in the applicable Schedule with respect to such Item of
Equipment and shall, subject to the operation of Section 6.01(c) and Article 12, continue until and
terminate on the last day of each Fiscal Year of the Borrower, except with respect to such agreements or
covenants of the Borrower herein which by the express terms thereof survive the termination of this Master
Governmental Lease Agreement.
(c) Subject to the operation of Article 12, this Master Governmental Lease Agreement will be
automatically renewed and extended for each successive Fiscal Year of the Borrower as set forth in the
Schedules through the maximum term specified in each such Schedule, which term shall not exceed ten (10)
years from the final advance date listed in 5.01(c), or the date when all amounts owed by Borrower
pursuant to any Schedule is paid in full, whichever is later.
Section 6.02 Financing Payments
The Borrower hereby covenants and agrees to pay to the Lender, in accordance with the provisions
of this Master Governmental Lease Agreement, during the period in which this Master Governmental
Lease Agreement is in effect and subject to the provisions of Article 12, the Financing Payments in the
amounts and on the dates set forth in each Schedule with respect thereto.
Section 6.03 Late Charges and Interest on Overdue Amounts.
With respect to all amounts payable to the Lender pursuant to this Master Governmental Lease
Agreement which are not paid on the due date, in the case of amounts payable on a specified date, or which
are not paid within ten days of written notice to the Borrower, in the case of amounts payable on demand,
the Borrower agrees to pay to the Lender on demand (i) a late charge of five percent (5%) of any such
amount or amounts which shall not have been paid within 10 days of the due date as specified above and
(ii) interest on such amounts or amounts at an interest rate equal to the Default Rate for each day from the
specified date of payment, or the date of written demand for payment, as the case may be, to the. date such
payment is made. Notwithstanding the foregoing, the parties agree that any late charge shall never exceed
the maximum amount permitted by law.
Section 6.04 Payments Due Upon Determination of Taxability
(a) Capitalized terms used in this Section shall have the respective meanings assigned in the
applicable Schedule and in this Master Governmental Lease Agreement.
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Lender:
(b) Upon the occurrence of a Determination of Taxability, the Borrower shall pay to the
(1) an amount by which (i) the interest which would have accrued on the principal
amount of the applicable Advance at the Taxable Rate during the period beginning on the
Taxability Date and ending on the earlier to occur of the date of conversion to the Taxable Rate or
the date of payment in full and retirement of the principal amount of the applicable Advance,
exceeds (ii) the interest actually paid on the principal amount of the applicable Advance for such
period; and
(2) all penalties, additions to federal income tax, costs, expenses, attorneys fees, and
other losses which shall have been paid or are payable by the Lender as a result of the failure to
include interest on the Advances in the gross income of the Lender for federal income tax purposes.
(c) The obligation of the Borrower to pay such amounts and such other costs, expenses,
interest, penalties, attorneys' fees and other losses shall survive, and remain in full force and effect from
and after, the termination of this Master Governmental Lease Agreement, including without limitation
termination under Article 12.
Section 6.05 Costs and Attorneys' Fees of Lender
The Borrower shall promptly reimburse the Lender for any and all reasonable costs, out-of-pocket
expenses and attorneys' fees which the Lender may incur in connection with (1) the preparation and
delivery of any Schedule, (2) for each consent, waiver, amendment or other approval with respect to this
Master Governmental Lease Agreement requested by the Borrower, plus all attorneys' fees of the Lender
incurred in connection therewith, (3) the enforcement of the rights of the Lender in connection with this
Master Governmental Lease Agreement including but not limited to, the reasonable fees and disbursements
of counsel to the Lender, (4) the protection or perfection of the Lender's rights and interest hereunder, (5)
the exercise by or for the Lender of any of the rights or powers herein conferred upon the Lender, and (6) in
the prosecution or defense of any action or proceeding by or against the Lender concerning any matter
arising out of, connected with or related to this Master Governmental Lease Agreement. Notwithstanding
the foregoing, the Borrower shall not be required to reimburse the Lender to the extent of any costs,
expenses or fees occasioned by the Lender's negligence or willful misconduct.
Section 6.06 Indemnity of Lender
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(a) The Borrower hereby covenants and agrees, to the extent and limitations permitted by
Applicable Law, to pay, and to indemnify and hold the Lender, and each officer, director, employee or agent
thereof (collectively the "Indemnified Parties"), harmless against, any and all liabilities, losses, damages,
claims or actions (including all reasonable attorneys' fees and expenses) of any nature whatsoever incurred
by any of the Indemnified Parties without willful misconduct thereby (i) arising out of, connected with or
resulting from, this Master Governmental Lease Agreement; (ii) relating to the Equipment or any part
thereof including without limitation the manufacture, construction, selection, purchase, delivery,
installation, ownership, use or return of the Equipment or as a result of the use, maintenance, repair,
replacement, operation or the condition thereof (whether defects are patent, latent or discoverable by
Lender or by Borrower); (iii) by reason of Borrower's failure or refusal to accept the Equipment "AS IS"
when delivered to Borrower; (iv) by reason or as the result of any act or omission of Borrower or its agent or
employee; (v) as a result of claims for patent or trademark infringements; (vi) based on any event which
results in any claim for negligence or strict liability in tort; or (vii) based on any personal injury, or death,
or damage to property, caused by the Equipment, or caused by or resulting from its use, maintenance,
repair, replacement, operation or condition.
(b) The Borrower agrees that the Indemnified Parties shall not incur any liability to the
Borrower, and shall be indemnified against all liabilities, in exercising or refraining from asserting,
maintaining or exercising any right, privilege or power of the Indemnified Parties under this Master
Governmental Lease Agreement, if the applicable Indemnified Parties, as the case may be, are acting in
good faith and without willful misconduct or in reliance upon a written request by the Borrower.
(c) If any Indemnified Party shall be obligated to pay any claim, liability or loss, and if in
accordance with all applicable provisions of this Section the Borrower shall be obligated to indemnify and
hold such Indemnified Party harmless against such claim, liability or loss, then, in such case, the Borrower
shall have a primary obligation to pay such claim, liability or loss on behalf thereof and may not defer
discharge of its indemnity obligation hereunder until such Indemnified Party shall have first paid such
claim, liability or loss and thereby incurred actual loss.
(d) The covenants of indemnity contained in this Section shall survive the termination of this
Master Governmental Lease Agreement with respect to events or occurrences happening prior to or upon
the termination of this Master Governmental Lease Agreement and shall remain in full force and effect
until the commencement of an action with respect to any such event or occurrence shall be prohibited by
law.
Section 6.07 Computation of Charges and Interest
(a) The fees, interest and charges provided for in the Obligations and in this Master
Governmental Lease Agreement payable in arrears based upon annual rates shall be computed on an
Actual/360 Basis.
(b) All interest rates based upon the Prime Rate shall change when and as the Prime Rate
shall change, effective on the opening of business on the date of any such change, unless such change is
announced after the close of regular banking hours, in which case such change shall be effective on the
following day.
Section 6.08 Payments by the Borrower to the Lender
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(a) All payments by the Borrower to the Lender under this Master Governmental Lease
Agreement shall be made in lawful currency of the United States of America and in immediately available
funds to the Lender at such place or by such method as shall be specified by the Lender by written notice to
the Borrower.
(b) All amounts payable by the Borrower to the Lender under this Master Governmental
Lease Agreement for which a payment date is expressly set forth shall be payable without notice or written
demand by the Lender. All amounts payable by the Borrower to the Lender under this Master
Governmental Lease Agreement for which no payment date is expressly set forth shall be payable within 30
days of written demand by the Lender to the Borrower. The Lender may, at its option, send written notice
to the Borrower of amounts payable as set forth in this Master Governmental Lease Agreement, but the
failure to send such notice shall not affect or excuse the Borrower's obligation to make payment of the
amounts required by this Master Governmental Lease Agreement on the due date specified therefor.
(c) All amounts payable by the Borrower to the Lender hereunder which are due on a day
which is not a Business Day shall be payable on the next succeeding Business Day, and any interest
payable thereon shall be payable for such extended time at the specified rate.
Section 6.09 Preferences
To the extent that the Lender receives any payment from or on behalf of the Borrower or any
Obligor which payment or any part thereof is subsequently: (a) invalidated; (b) declared to constitute a
fraudulent conveyance or preferential transfer; (c) set aside; or (d) required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause;
then, to the extent of such payment received, the obligations or part thereof intended to be satisfied shall be
revived and continue in full force and effect, as if such payment has not been received by the Lender.
Section 6.10 Initial Interest Rates
(a) Notwithstanding anything contained herein, any schedules executed and delivered on the
date of delivery shall bear interest at the tax-exempt rate of 2.12%.
The rates set forth in this Section 6.10 are tax-exempt rates and to be fixed for the term of the respective
schedule and shall be calculated by the Lender. In the event a schedule entered into under this Master
Governmental Lease Agreement does not bear tax-exempt interest, taxable rates would apply as
determined by the Lender. The swap rates used to calculate the rates set forth in Section 6.10(b) are based
on the swap rates as of the day prior to closing of any schedule, quoted in the FRB H. 15
(http://www,federalreserve.gov/releases/hl5/currentl).
Section 6.11 Term of Schedules
The term of any schedules entered into hereunder shall not exceed 120 months, unless otherwise
agreed to be the Lender.
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ARTICLE 7
Representations and Covenants of the Borrower
Section 7.01 Representations by the Borrower
The Borrower hereby represents and warrants as follows:
(a) Incorporation. The Borrower is duly organized as a municipal corporation, created under
the laws of the State.
(b) Power and Authorization.
(1) The Borrower has the authority and power to consummate the Transaction.
(2) By proper action of its governing body, the Borrower has duly authorized the
Transaction.
(3) The Borrower has properly complied with all applicable procurement laws and
requirements necessary for its entry into the transaction.
(c) Governmental Consents. The Borrower has filed, made and obtained, or will have filed,
made or obtained, on or prior to the date of delivery hereof, all filings, notices, registrations, consents,
approvals, and authorizations of any Governmental Authority that are required as a condition to the
consummation of the Transaction.
(d) Agreements.
(1) • The Borrower has obtained the approval or consent of, and made all certifications
and filings with, any creditor or trustee of the Borrower under any agreement, contract or
indenture that are required as a condition to consummation of the Transaction.
(2) The Borrower is, and will be upon consummation of the Transaction, in
compliance with all material agreements, contracts and indentures to which the Borrower is a
party or by which the Borrower or the Property thereof is bound.
(e) No Conflicts. The consummation of the Transaction by the Borrower will not (1) conflict
with, be in violation of, or constitute (upon notice or lapse of time or both) a default under its organization
documents, any contract, agreement or instrument to which the Borrower is a party or is subject, or any
resolution, order, rule, regulation, writ, injunction, decree or judgment of any Governmental Authority or
(2) result in or require the creation or imposition of any Lien of any nature upon or with respect to any of its
properties now owned or hereafter acquired, except as described or provided herein.
(f) Proceeds of Advances. The proceeds of the Advances will be applied as provided in the
applicable Schedules.
23
(g) No Litigation. There is no action, suit, proceeding, inquiry or investigation pending before
any Governmental Authority, or threatened against or affecting the Borrower or its Property, that
(1) involves the consummation of the Transaction or the validity or enforceability of this Master
Governmental Lease Agreement, or (2) could have a Material Adverse Effect.
(h) Compliance with Law.
(1) The Borrower is in compliance in all material respects with Applicable Law,
including without limitation Environmental Laws.
(2) The consummation of the Transaction will not violate any material provision of
Applicable Law.
(3) The Borrower will properly comply with all applicable procurement laws and
requirements prior to its entry into any schedules hereunder.
6) Licenses and Permits. The Borrower has obtained all necessary licenses and permits to
carry on its business and operate all its properties and facilities.
(k) Financial Statements. The Borrower has furnished to the Lender the audited financial
statements thereof which the Lender has requested. Such financial statements are complete and correct
and present fairly the financial condition of the Borrower as of the dates indicated therein and the results of
its operations for the periods specified, and have been prepared in conformity with Accounting Principles
consistently applied throughout the periods presented. Except as described in writing to the Lender, there
has been no material adverse change in its financial condition or operations since the date of its latest
financial statements delivered to the Lender.
(1) (INTENTIONALLY LEFT BLANKI
(m) Insurance. The Borrower currently maintains insurance that meets or exceeds the
requirements of Section 5.10.
(n) Governmental Retirement Plan. The Borrower has fulfilled its obligations under any
minimum funding standards of the applicable Governmental Retirement Plan and is in compliance in all
material respects with the applicable Governmental Retirement Plan.
Section 7.02 Reporting Requirements
The Borrower shall furnish to the Lender each of the following:
24
(a) Annual Financial Statements. The Borrower will maintain proper books of record and
account, in which full and correct entries will be made_, in accordance with Accounting Principles, of all its
business and affairs. The Borrower shall furnish to the Lender for so long as this Agreement remains
outstanding: (i) annually, within 60 days of receipt, audited financial statements of the Borrower (including
a statement of revenues and expenses, balance sheet, retained earnings and statement of cash flows for
such Fiscal Year) together with supporting schedules, all on a comparative basis with the prior Fiscal Year,
in reasonable detail, prepared by an Independent Auditor in accordance with Accounting Principles
consistently applied throughout the periods involved, and showing the financial condition of the Borrower
at the close of such year and the results of the operations of the Borrower during such year, (ii) annual
internally -prepared financial statements of the Borrower by June 30th of each year, (iii) a list of the top ten
taxpayers, a summary of taxes levied and collected and assessed values within the City of Carmel, Indiana
by June 30th of each year, and . (iv) such other financial statements and other information regarding the
financial condition of the Borrower as shall be reasonably requested by the Lender.
(b)_ Other Information. Such other information respecting the business, properties or the
condition or operations, financial or otherwise, of the Borrower, as the Lender may from time to time
reasonably request.
Section 7.03 Notices
The Borrower shall provide to the Lender:
(a) Notice of Default. Immediate notice by telephone, promptly confirmed in writing, of any
event, action or failure to take any action which constitutes an Event of Default.
(b) Litigation. Within 30 days after service of process, written notice of all actions, suits and
proceedings before any Governmental Authority, domestic or foreign, against (i) the Borrower or any
Obligor or (ii) Property of the Borrower or any Obligor which, if such litigation were determined adversely,
could have a Material Adverse Effect.
(c) Material Adverse Effect. Prompt (within 15 days) written notice of any event which has or
is reasonably anticipated to have a Material Adverse Effect.
(d) Claimed Default. Prompt (within 15 days) upon receipt of any notice from, or the taking of
any action by, the holder of any Material Debt of the Borrower or any Obligor with respect to a claimed
default, copies of such notice or a report of such action.
- (e) Governmental Retirement Plan. Promptly after becoming aware of any violation of the
applicable Governmental Retirement Plan, written notice thereof and as to the nature of the violation and
the action to be taken by the Borrower with respect thereto.
Section 7.04 Compliance with Applicable Law
The Borrower shall comply with all Applicable Law except for matters being contested in good faith
by appropriate proceedings diligently pursued.
Section 7.05 Visitation
RR
The Borrower shall permit (after having received reasonable advance written notice from the
Lender), any employees, agents or other representatives of the Lender and any attorneys, accountants or
other agents or representatives designated by the Lender to (a) have access to and visit and inspect any of
the accounting systems, books of account, financial records and Property, thereof, (b) examine and make
abstracts from any such accounting systems, books and records, and (c) discuss the affairs, finances and
accounts thereof with the officers, employees or agents, all at such reasonable business times as the Lender
deems necessary or advisable to protect its interests.
Section 7.06 No Transfer or Encumbrance of Equipment
Without the prior written consent of the Lender, the Borrower (1) will not sell, transfer or convey
the Equipment or any part thereof, except as provided in this Master Governmental Lease Agreement, and
(2) except as provided herein, will not create or incur or suffer or permit to be created or incurred or to exist
any Lien on the Equipment or any part thereof.
Section 7.07 Further Assurances
The Borrower shall, at the Borrower's cost and expense, upon request of the Lender, duly execute
and deliver, or cause to be duly executed and delivered, to the Lender such further instruments (including,
without limitation, financing statements, agreements, and other instruments) and do and cause to be done
such further acts as may be reasonably necessary or proper in the reasonable opinion of the Lender or its
counsel to carry out more effectively the provisions and purposes of this Master Governmental Lease
Agreement.
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ARTICLE 8
Compliance with Federal Tax Law
Section 8.01 Tax Exemption of Interest Portion of Financing Payments
(a) The Borrower shall not take any action, or omit to take any action, which action or
omission will adversely affect the exclusion from gross income for federal income tax purposes of the
Interest Portion of the Financing Payments with.respect to any Advance, and in the event of such action or
omission will promptly, upon receiving notice thereof, take all lawful actions, based on advice of counsel, as
may be possible to rescind or otherwise to negate the effect of such action or omission.
(b) The Borrower shall duly and punctually observe, perform and comply with all agreements
and covenants made thereby in the Tax Certificate and Agreement.
Section 8.02 Record of Assignments
The Borrower shall keep a complete and accurate record of all assignments and transfers of this
Master Governmental Lease Agreement in form and of content necessary to comply with Section 149(a) of
the Code.
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ARTICLE 9
Events of Default and Remedies
Section 9.01 Events of Default
The occurrence of any one or more of the following shall constitute an event of default (a "Event of
Default") under this Master Governmental Lease Agreement (whatever the reason for such event and
whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any Governmental Authority):
(a) failure of the Borrower to pay any amount of the Obligations as and when due and payable;
or
(b) violation of, or default in the observance or performance of, any term, agreement, covenant,
condition or stipulation contained or referred to in this Master Governmental Lease Agreement or in any
document executed in connection with this Master Governmental Lease Agreement or in any other note,
endorsement, guaranty or other document evidencing or securing any of the Obligations (other than as
specified in subsection (a) of this Section), and the continuance of such default or breach for a period of 30 days
after there has been given, by registered or certified mail, to the Borrower by the Lender a written notice
specifying such default or breach and requiring it to be remedied and stating that such notice is a "notice of
default" hereunder, unless the nature of the default is such that it can be remedied but cannot be remedied
within the 30 -day period and the Lender agrees in writing to an extension of time (which agreement shall not
be unreasonably withheld) and the Borrower institutes corrective action within the period agreed upon and
diligently pursues such action until the default is remedied; or
(c) any warranty, representation, financial statement (specifically not including projections or
estimates of financial performance or results), report, schedule, certificate, statement or other document
heretofore, now, or hereafter, made or furnished to the Lender by or on behalf of the Borrower or any Obligor
in compliance with, or in reference to, this Master Governmental Lease Agreement, shall prove to be false or
misleading in any material respect as of the date on which it was made, and action which eliminates or
corrects such falsity or misleading character is not completed for a period of 30 days after the Lender or the
applicable party becomes aware thereof; or
(d) an Act of Insolvency occurs with respect to the Borrower or any Obligor; or
(e) any material provision of this Master Governmental Lease Agreement which, in the
reasonable opinion of the Lender is material to the rights of the Lender hereunder or the obligations of the
Borrower hereunder, shall at any time for any reason cease to be the legal, valid and binding obligation of any
Obligor or shall cease to be in full force and effect, or shall be declared to be null and void, or any Obligor shall
renounce the same or deny that it has any further liability hereunder; or
(f) the independent certified public accountant retained by the Borrower delivers an opinion on
the financial statements of the Borrower which expresses concern over the ability of the Borrower or any
Obligor thereof to continue to operate as a going concern and the Lender shall not have delivered, within 15
days of the receipt of such opinion of such accountant, to the Borrower a waiver of any Event of Default under
this Section 9.01; or
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(g) the occurrence of a default or an event of default as defined in any other agreement or
contract under which any Obligor is now or hereafter obligated to the Lender or an Affiliate thereof, that is not
cured within the applicable cure period provided therein; or
(h) any Obligor shall fail to keep in full force and effect any material permit or approval issued
by any Governmental Authority and such failure could have, in reasonable judgment of the Lender, a Material
Adverse Effect; or
(i) one or more non -interlocutory judgments, orders or decrees shall be entered against any
Obligor involving in the aggregate (existing at any one time for such Obligor) a liability (not fully covered by
independent third -party insurance) as to any single or related series of transactions, incidents or conditions, of
$500,000 or more, and the same shall remain unsatisfied following the entry of a final, nonappealable
judgment for a period of sixty (60) days after the entry thereof; or
6) this Master Governmental Lease Agreement for any reason shall cease to create a valid Lien
on any of the Collateral purported to be covered thereby, or shall cease to be a perfected and first priority Lien
on such Collateral; or
(k) (1) any Obligor (i) fails to make any payment in respect of any Material Debt when due
(whether at scheduled maturity, by required prepayment, acceleration, demand, or otherwise) and
such failure continues after the applicable grace or notice period, if any, specified in the document
relating thereto on the date of such failure, provided such failure results in a Material Adverse Effect;
or (ii) shall default in the due performance or observance by it of any term, covenant or agreement
contained in, or any other event shall occur or condition exist under, any agreement or instrument
relating to any Material Debt, the effect of such default, event or condition is to cause, or to permit
the holder or holders of such Material Debt or beneficiary or beneficiaries of such Material Debt (or a
trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, such
Material Debt to be declared to be due and payable prior to its stated maturity, or to become payable
or cash collateral in respect thereof to be demanded, provided such failure results in a Material
Adverse Effect; or
(2) any Material Debt of any Obligor shall be declared to be due and payable, or
required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated
maturity thereof, provided such failure results in a Material Adverse Effect; or
(1) any Obligor acts in any manner that may cause Lender to reasonably believe that such
Obligor has engaged in or intends to engage in any suspicious activity as described in or contemplated under
the Bank Secrecy Act, the USA Patriot Act, or any other similar or related law, whether now or hereafter in
effect, or under any regulation issued pursuant to any such law, or if the name of any Obligor (or a derivation
thereofl appears on a list of suspects issued to financial institutions by the Office of Foreign Assets Control,
the Financial Crimes Enforcement Network, the Federal Reserve Board, or any other Governmental
Authority; or
(m) there shall exist a violation of the applicable Governmental Retirement Plan which results
or could reasonably be expected to result in a Material Adverse Effect.
Section 9.02 Remedies; Application of Moneys; Residual Liability of Borrower
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(a) If any Event of Default shall have occurred and be continuing, the Lender may exercise
any one or more of the following remedies:
(1) Without further notice to the Borrower terminate this Master Governmental
Lease Agreement as to all or any Schedules whereupon all rights of the Borrower to the use of the
Equipment shall absolutely cease and terminate and within ten (10) days after termination, the
Borrower will fully comply with all provisions of Section 12.03 hereof; or
(2) Whether or not this Master Governmental Lease Agreement is terminated as to
all or any Schedules, foreclose the security interest and chattel mortgage in the Equipment hereby
created and, without notice to the Borrower or any other person, take possession of any or all of the
Equipment on any Schedule, wherever situated or wherever the same may be found, for such
purpose in or upon any premises without liability for so doing, and after giving notice in the
manner provided by law of the time, place and terms of sale, sell or otherwise dispose of the
Equipment, or any portion or part thereof, in front of the courthouse door of said County or at any
other place deemed by Lender to be appropriate and reasonably conducive to an advantageous sale,
such sale to be a public outcry to the highest bidder for cash, for the account of the Borrower,
holding the Borrower liable for the difference between (i) the purchase price, rent and other
amounts paid by the purchaser or such other Person pursuant to such sale or other disposition and
(ii) the entire unpaid Obligations for the then current annual term of the Agreement, whether such
term be the original term, a renewal term, or extension of an existing term, plus interest at the
Default Rate specified in the Schedule and other amounts payable by the Borrower under and
pursuant to this Master Governmental Lease Agreement; or
(3) By written notice to the Borrower declare the entire unpaid Obligations for the
then current annual term of this Master Governmental Lease Agreement, whether such term be
the original term, a renewal term, or extension of an existing term, plus interest thereon at the
Default Rate from the date specified in such notice, to be due and payable as liquidated damages
for loss of bargain and not as a penalty, on the date specified in such notice and Lender may
proceed by attachment, ,suit or otherwise to collect the entire amount which, absent a default,
would have been payable by the Borrower hereunder for such current annual term hereof from the
Borrower's available funds; or
(4) Exercise any other right, remedy, election or recourse provided for in this Master
Governmental Lease Agreement or which may be available to the Lender under the UCC or any
other Applicable Law.
(b) The Lender may proceed directly against the Borrower or any Obligor without resorting to
any other remedies which it may have and without proceeding against any security hold by the Lender.
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(c) Moneys received by the Lender from a sale or other disposition permitted by Section
9.02(a) hereof shall be the absolute property of the Lender and the Borrower shall have no right thereto, nor
shall the Borrower be entitled to any credit in the event of a deficiency (with respect to the then current
Fiscal Year) in the Obligations received by the Lender for the Equipment. In the event that moneys
received by the Lender exceed all Obligations payable hereunder (which, in case of a non -appropriation of
funds by Borrower as provided for in Section 12.01 hereof, shall include the entire unpaid Obligations for
the maximum term of this Master Governmental Lease Agreement, whether the then current annual term
be the original term, a renewal term, or extension of an existing term, plus interest thereon at the Default
Rate), the Lender shall pay such surplus to the Borrower. To accomplish the foregoing, the Borrower
hereby irrevocably appoints the Lender as the agent and attorney-in-fact of the Borrower to enter upon and
sell or lease the Equipment as provided herein.
(d) The Borrower shall in any event remain fully liable for reasonable damages as are
provided by law and for all costs and expenses incurred by the Lender on account of such default, including,
but not limited to, all court costs and reasonable attorneys' fees, expenses for storing Equipment, and
expenses in connection with locating another borrower, in each case, payable solely from the Borrower's
Available Funds.
Section 9.03 Rights and Remedies of Lender in the Event of Act of Insolvency Affecting
Any Obligor
In case of the pendency of any Act of Insolvency relative to the Borrower or any Obligor, the Lender
(irrespective of whether there has been a default under this Master Governmental Lease Agreement) shall
be entitled and empowered to intervene in such proceedings, to file and prove a claim or claims for the
whole amount owing and unpaid and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Lender (including any claim for reasonable compensation to the
Lender, its agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred,
and all advances made, by the Lender except as a result of its gross negligence or bad faith) allowed in any
such judicial proceedings, to collect and receive any moneys or other property payable or deliverable on any
such claims, and to take such other action therein as the Lender may deem necessary or appropriate to
protect its interests.
Section 9.04 Waivers.
(a) The Lender may waive any past default hereunder and its consequences. Upon any such
waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have
been cured for every purpose of this Master Governmental Lease Agreement but no such waiver shall extend
to any subsequent or other default or impair any right consequent thereon.
(b) If any agreement contained in this Master Governmental Lease Agreement should be
breached by the Borrower and thereafter waived by the Lender, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach hereunder.
(c) Neither any failure nor any delay on the part of the Lender in exercising any right, power or
privilege under this Master Governmental Lease Agreement shall operate as a waiver thereof, nor shall a
single or partial exercise thereof preclude any other or further exercise or the exercise of any other right,
power or privilege..
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(d) No waiver by the Lender of any breach of any obligation of this Master Governmental Lease
Agreement shall be construed to be a waiver of the obligation itself or of any subsequent breach of the same
obligation or of a breach of any obligation. The acceptance by the Lender of payment by the Borrower of any
Obligations or the delay or omission to exercise any right or remedy upon occurrence of any breach by the
Borrower shall not constitute a waiver of such breach, regardless of the Lender's knowledge thereof. The
acceptance and deposit by the Lender of any check or instrument, regardless of any endorsements or
statements thereon or in any letter or transmittal from the Borrower, shall not constitute an accord and
satisfaction.
Section 9.05 Availability of Remedies
(a) No remedy herein conferred upon or reserved to the Lender is intended to be exclusive of
any other available remedy or remedies, but each and every such remedy shall, to the extent permitted by
law, be cumulative and in addition to every other remedy given under this Master Governmental Lease
Agreement or now or hereafter existing at law or in equity or otherwise. No delay or omission by the
Borrower or the Lender to exercise any right or power accruing upon any default shall impair :any such
right or power or shall be construed to be a waiver thereof but any such right or power may be exercised
from time to time and as often as may be deemed expedient.
(b) All rights, remedies and powers provided by this Article may be exercised only to the
extent the exercise thereof does not violate any applicable provision of law in the premises, and all the
provisions of this Article are intended to be subject to all applicable mandatory provisions of law which may
be controlling in the premises and to be limited to the extent necessary so that they will not render this
Master Governmental Lease Agreement invalid or unenforceable.
Section 9.06 Continuance of Proceedings
In case the Lender shall proceed to invoke any right, remedy or recourse permitted hereunder and
shall thereafter elect to discontinue or abandon the same for any reason, the Lender shall have the
unqualified right so to do and, in such event, the Borrower and the Lender shall be restored to their former
positions with respect to this Master Governmental Lease Agreement and the Obligations, and otherwise,
and the rights, remedies, recourse and powers of the Lender hereunder shall continue as if the samehad
never been invoked.
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ARTICLE 10
Amendment and Assignment of Master Governmental Lease Agreement
Section 10.01 Assignment or Transfer of Master. Governmental Lease Agreement
(a) With the prior written consent of the Lender, the Borrower may assign, delegate or
transfer the obligation to observe or perform any agreement, covenant, duty, or obligation of the Borrower
under this Master Governmental Lease Agreement to any Person, or, with the prior written consent of the
Lender, the Borrower may assign, encumber, pledge, or transfer any interest of the Borrower under this
Master Governmental Lease Agreement to any Person; provided, in each case:
(1) The Borrower will not assign, delegate or transfer this Master Governmental
Lease Agreement to any Person; and
(2) The Borrower delivers to the Lender, simultaneously with the assignment or
transfer of this Master Governmental Lease Agreement, a true and correct copy of the instrument
of assignment or transfer.
(b) (1) The Lender may, with or without consideration and without the approval,
authorization or consent of the Borrower, assign or transfer its interests in and rights under this
Master Governmental Lease Agreement and the Obligations, in accordance with Section 8.02.
(2) Any such assignee or transferee shall have all of the rights of Lender with respect
to such interests assigned under this Master Governmental Lease Agreement, including the right
to assign, convey, or transfer such interest. Upon written notification by Lender, the Borrower
shall pay all Obligations and other payments when due under this Master Governmental Lease
Agreement to the party and at the address designated in such notice, without offset or deduction
whatsoever. The Borrower shall deem and treat the Person in whose name any interest in this
Master Governmental Lease Agreement shall be recorded (as provided above) as the absolute
owner of such interest for the purpose of receiving Obligations relating to such interest.
(c) Simultaneously with the assignment or transfer of this Master Governmental Lease
Agreement by the Lender, in accordance with this Section, the. Lender shall deliver to the Borrower the
following agreements and representations of the assignee or transferee (the "transferee"):
(1) The transferee has such knowledge and experience in financial and business
matters that it is capable of evaluating the merits and risks of its acquisition of this Master
Governmental Lease Agreement.
(2) The transferee is acquiring the Master Governmental Lease Agreement for its
own account and not with a view to distributing this Master Governmental Lease Agreement or
any interest therein other than to one of its affiliates.
Section 10.02 Modification; Amendment; Waiver of Master Governmental Lease
Agreement
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No modification, amendment or waiver of any agreement, covenant, or provision of this Master
Governmental Lease Agreement, and no consent to any departure by the Borrower therefrom, shall be
effective unless the same shall be in writing and signed by the Lender, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given.
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ARTICLE 11
Provisions of General Application
Section 11.01 Effect of Headings
The Article and Section headings herein are for convenience only and shall not affect the
construction hereof.
Section 11.02 Enforceability
If any provision in this Master Governmental Lease Agreement shall be invalid, illegal or
unenforceable, the remaining provisions shall remain in full force and effect and shall operate and be
construed in favor of the Lender to effectuate the purposes and terms of such provisions.
Section 11.03 Governing Law
This Master Governmental Lease Agreement shall be construed in accordance with and governed
by the laws of the State.
Section 11.04 Counterparts
This Master Governmental Lease Agreement may be executed in any number of counterparts, each
of which so executed shall be deemed an original, but all such counterparts shall together constitute but one
and the same instrument.
Section 11.05 Notices
(a) Any request, demand, authorization, direction, notice, consent, waiver or other document
required or permitted by this Master Governmental Lease Agreement to be made upon, given or furnished
to, or filed with, the Lender or the Borrower shall be sufficient for every purpose hereunder if in writing and
delivered as follows to the intended recipient's address set forth as Schedule 11.05 (or such other address as
may have been provided in writing by the intended recipient and of which receipt shall have been
acknowledged in writing): (i) personally to the party or, if such party is not an individual, to an officer or
other legal representative of the party to whom the same is directed, (ii) by certified mail return receipt
requested, (iii) by telecopy or other facsimile transmission system, or (iv) by nationally recognized courier
service.
(b) The hand delivery, mailing address and telecopy number for the parties are set forth on
Schedule 11.05.
(c) Notices or other communications shall be deemed to have been duly given or made (a)
upon personal delivery, (b) when sent by facsimile (confirmation of receipt received), (c) on the third (3rd)
day after the date of mailing, or (d) on the day after the date of delivery to a nationally recognized courier
service, as the case may be.
(d) Rejection, refusal to accept or inability to deliver because of a changed address of which no
notice was given shall not affect the validity of any notice or other communication given in accordance with
the provisions of this Master Governmental Lease Agreement.
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Section 11.06 Successors and Assigns
All covenants and agreements in this Master Governmental Lease Agreement by the Lender and
the Borrower shall inure to the benefit of and be binding upon the respective successors and assigns thereof.
Section 11.07 Prior Agreements
This Master Governmental Lease Agreement shall completely and fully supersede all prior
agreements, both written and oral, among the Lender and the Borrower relating to the terms and
provisions of the Master Governmental Lease Agreement and the Equipment. None of the Lender or the
Borrower shall hereafter have any rights under such prior agreements, except as otherwise herein provided,
but shall look solely to this Master Governmental Lease Agreement for definition and determination of all
of their respective rights, liabilities and responsibilities relating to the Equipment.
Section 11.08 Service, Waiver of Jury Trial
(a) Service of process in any action shall be duly served if mailed by registered mail, postage
prepaid, to Borrower at its address described in Section 11.05 or if served by any other means permitted, by
Applicable Law.
(b) The Borrower hereby (a) covenants and agrees not to elect a trial by jury of any issue
triable of right by a jury, and (b) waives any right to trial by jury fully to the extent that any such right
shall now or hereafter exist. This waiver of right to trial by jury is separately given, knowingly and
voluntarily, by Borrower, and this waiver is intended to encompass individually each instance and each
issue as to which the right to a jury trial would otherwise accrue. The Lender is hereby authorized and
requested to submit this Master Governmental Lease Agreement for resolution, so as to serve as conclusive
evidence of such waiver of the right to jury trial by Borrower. Further, Borrower hereby certifies that no
representative or agent of Lender (including Lender's counsel) has represented, expressly or otherwise, to
Borrower that Lender shall not seek to enforce this waiver of right to jury trial provision.
(c) The waivers made pursuant to this Section shall be irrevocable and unmodifiable, whether
in writing or orally, and shall be applicable to any subsequent amendments, renewals, supplements or
modifications of this Master Governmental Lease Agreement. In the event of litigation, this Master
Governmental Lease Agreement may be filed as a written consent to a trial by the court.
Section 11.09 Reproduction of Documents
The Borrower hereby agrees that this Master Governmental Lease Agreement and all documents
relating thereto, including, without limitation, (a) supplements, consents, waivers and modifications which
may hereafter be executed, and (b) financial statements, certificates and other information previously or
hereafter furnished to the Lender, may be reproduced by the Lender by any photographic, photostatic,
microfilm, microcard, miniature photographic or other similar process and they may destroy any original
document so reproduced. To the extent permitted by law, the Borrower agrees and stipulates that any such
reproduction shall be admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such reproduction was made by
them in the regular course of business) and that any enlargement, facsimile or further reproduction of such
reproduction shall likewise be admissible in evidence.
W
Section 11.10 Role of Purchaser
The Lender and its representatives are not registered municipal advisors and do not provide advice
to municipal entities or obligated persons with respect to municipal financial products or the issuance of
municipal securities (including regarding the structure, timing, terms and similar matters concerning
municipal financial products or municipal securities issuances) or engage in the solicitation of municipal
entities or obligated persons for the provision by non-affiliated persons of municipal advisory services
and/or investment advisory services. With respect to this Agreement and any other information, materials
or communications provided by the Lender: (a) the Lender and its representatives are not recommending an
action to any municipal entity or obligated person; (b) the Lender and its representatives are not acting as
an advisor to any municipal entity or obligated person and do not owe a fiduciary duty pursuant to Section
15B of the Securities Exchange Act of 1934 to any municipal entity or obligated person with respect to this
Agreement, information, materials or communications; (c) the Lender and its representatives are acting for
their own interests; and (d) the Borrower has been informed that the Borrower should discuss this
Agreement and any such other information, materials or communications with any and all internal and
external advisors and experts that the Borrower deems appropriate before acting on this Agreement or any
such other information, materials or communications.
Section 11.11 Privately Negotiated Facility
The Borrower acknowledges and agrees that the Lender is purchasing the debt instrument in
evidence of a privately negotiated credit facility and in that connection the credit facility shall not be (i)
assigned a separate rating by any municipal securities rating agency, (ii) registered with The Depository
Trust Company or any other securities depository, (iii) issued pursuant to any type of offering document or
official statement or (iv) assigned a CUSIP number by Standard & Poor's CUSIP Service.
01
ARTICLE 12
Non -Appropriation of Funds; Termination; Non -Substitution of Property
Section 12.01 Appropriation of Borrower's Available Funds
(a) Notwithstanding anything to the contrary contained herein, payments of the Obligations
are to be made only after an appropriation by the governing body of the Borrower is lawfully made therefor.
from the Borrower's Available Funds. The Borrower shall not be obligated to make any appropriation for
any Obligations due hereunder and the full faith and credit of the Borrower is not pledged for payment of
amounts due hereunder and the contractual obligation hereunder to request an appropriation to pay same
does not constitute an indebtedness of the Borrower within the meaning of any constitutional, statutory or
charter provision or limitation.
(b) The Borrower shall cause its Clerk -Treasurer to include all Obligations due hereunder in
its proposed annual budget and to request the governing body of the Borrower to appropriate in each Fiscal
Year, from the Borrower's Available Funds, an amount necessary to pay the Obligations due in such Fiscal
Year and to identify same in a line item for such purpose in the budget as enacted. During the term of this
Master Governmental Lease Agreement the Borrower will furnish to Lender copies of each proposed budget
of the Borrower within twenty (20) days after it is filed and of each final budget of the Borrower within
twenty (20) days after it is printed.
(c) Anything in this Master Governmental Lease Agreement notwithstanding, Lender agrees
that this Master Governmental Lease Agreement and all of the Borrower's obligations to make the
Obligations are subject to, and can be terminated by the Borrower upon the happening of, a non -
appropriation of funds as described in Section 12.02 hereof.
Section 12.02 Termination Upon Non -Appropriation of Funds
(a) If the Borrower has not appropriated funds in a line item identified for such purpose for
the next succeeding Fiscal Year thereof to continue the payment of Obligations hereunder, or has not
otherwise agreed to continue payment of Obligations hereunder, this Master Governmental Lease
Agreement, without further act, shall terminate at the end of the Borrower's then current Fiscal Year and
the Borrower shall not be obligated to make any Obligations beyond the end of the Borrower's then current
Fiscal Year except for obligations hereunder accruing prior to such termination which, by the terms thereof,
expressly survive termination hereof.
(b) In the event that the Borrower does not appropriate funds and this Master Governmental
Lease Agreement is to be terminated as provided in Section 12.02(a), the Borrower shall promptly notify the
Lender in writing, specifying the amount, if any, which the Borrower has appropriated for purposes of
paying Obligations, or which is otherwise available for such purpose in the Borrower's fiscal budget for the
succeeding year. The Lender shall have the option, exercisable within 10 Business Days after its receipt of
such notice (but in no event after the beginning of the next Fiscal Year of Borrower) to restructure this
Master Governmental Lease Agreement by (i) reducing the Obligations to an amount which will not exceed
funds appropriated by the Borrower for such purpose and (ii) increasing the repayment term of this Master
Governmental Lease Agreement for an additional period of time necessary to allow an orderly amortization
of the balance due plus any additional charges associated with such restructuring.
Section 12.03 Termination by Prepayment by Borrower
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Should the Borrower desire to terminate this Master Governmental Lease Agreement or any
Schedule thereto for reasons other than pursuant to Section 12.02, the Borrower may do so only by paying
to the Lender the outstanding principal balance plus accrued interest at the interest rate stated in the
applicable Schedule, whereupon the Lender shall release all of its security interest in the Equipment,
transfer its entire right, title and interest in and to the Equipment, and this Master Governmental Lease
Agreement shall terminate with respect to the Equipment.
Section 12.04 Delivery of Equipment Upon Termination
In the event of termination of this Master Governmental Lease Agreement pursuant to Section
12.02(a), the Borrower shall: (i) deliver, at the Borrower's expense, all of the Equipment to an address
within the continental United States as designated by the Lender; (ii) certify that the Equipment is not
encumbered in any way whatsoever (other than encumbrances created by the Lender and by this Master
Governmental Lease Agreement); (iii) furnish, at the Borrower's expense, a certification by the
manufacturer's authorized service representative of each Item of Equipment that each Item of Equipment is
in good working condition and is acceptable to be placed under a maintenance contract, if and to the extent
that the Lender reasonably determines that same is readily available; and (iv) furnish (a) any documents
that Lender shall reasonably request to evidence release of any interest that Borrower may have in such
Equipment, or, (b) if it is determined that Borrower owns such Equipment, a Bill of Sale (with warranties
as to title), UCC records search, and such other documentation as is reasonably requested by the Lender to
establish transfer to the Lender of good and marketable title to the Equipment, free and clear of any Liens
or claims by third parties, such documentation to be satisfactory to the Lender.
Section 12.05 Non -Substitution Provisions
For a period of two (2) years after the end of the Fiscal Year in which this Master Governmental
Lease Agreement is so terminated for lack of appropriated funds pursuant to Section 12.02, the Borrower,
shall not purchase, lease, rent or otherwise acquire equipment or Property performing functions similar to
those performed by the Equipment under this Master Governmental Lease Agreement, nor will the
Borrower acquire the use of such equipment or Property through any other party, agency or entity
including but not limited to those affiliated with or hired by the Borrower. The Borrower consents to the
enforcement of this provision in the courts by injunctive relief or otherwise, and expressly waives any
immunity, now or hereafter existing, against suit by the Lender, its transferee or assignee for its
enforcement.
Section 12.06 Continued Use of Equipment
As long as this Master Governmental Lease Agreement shall be in effect, the Borrower will use the
Equipment for the intended purpose thereof to the maximum extent of the capacity of the Equipment, and
the Borrower will not acquire, lease, use or contract with any person to provide, any facilities or equipment
of the same type as the Equipment, other than the Equipment, or other services for the Borrower; provided,
however, notwithstanding the foregoing, if the Borrower shall determine that the need of the Borrower for
property of the kind and nature as that of the Equipment exceeds the maximum capacity of the Equipment
plus the maximum capacity of all other assets or facilities then owned, leased or used by the Borrower
which are of the same type as the Equipment, then the Borrower may, without violating the covenants
contained in this Section, acquire, lease, use or contract with any person to provide, new or additional
assets or facilities (the "Additional Assets") to the extent necessary to perform the functions which cannot
be performed by the Equipment and subject to the covenant and agreement by the Borrower that should the
RD]
need diminish after the acquisition of such Additional Assets, the Borrower shall correspondingly decrease
the use of such Additional Assets in favor of the use of the Equipment to the maximum extent thereof.
Until such time as the Equipment shall be and remain fully utilized, the Borrower shall not enter into any
lease or rental agreement or service contract or renew any existing lease or rental agreement or service
contract for, or otherwise acquire any interest in, any assets or facilities to be used for the same purpose for
which the Equipment is capable of being used.
[SIGNATURE PAGE FOLLOWS]
40
IN WITNESS WHEREOF, the Borrower and the Lender have each caused this Master Governmental
Lease Agreement to be executed in its name, under seal, and attested to the extent provided, by an officer or
officers thereof duly authorized thereunto, on the Date of Delivery set forth above.
CITY OF CARMEL, INDIANA
as Borrower
Approved and Adopted this day of , 201 L11-7
CITY OF CARMEL, INDIANA
By and through its Board of Public Works and Safety
BY:
C�
James Brainard, Presidixg�0f�e�
Date: � vv
ATT
" � 3 /14-, e;_
JA ?-." � �� �
Christine S. Pifi2ey, C r e�� zr
ate:
UNITED FIDELITY BANK, F.S.B.
as Lender
ByJd' 4eA'e
Name .b &?C4 Id %l. � e{l I
rt..q ?res;Ae.1 � a# -,0e e C-
41
41
Schedule 11.05
NOTICES
(1) if to the Borrower:
City of Carmel, Indiana
Camel City Hall, third floor
One Civic Square
Carmel, IN 46032
Attention: Clerk -Treasurer
With a copy to:
City of Carmel, Indiana
Camel City Hall, third floor
One Civic Square
Carmel, IN 46032
Attention: Doug Haney, Corporation Counsel
City of Carmel, Indiana
Camel City Hall, third floor
One Civic Square
Carmel, IN 46032
Attention: Office of the Mayor
(3) if to the Lender:
Donald R. Neel
President & CEO
United Fidelity Bank, f.s.b.
18 N.W. Fourth Street
Evansville, IN 47708
with a copy to:
Ron Brown, General Counsel
One Pedcor Square
770 3rd Avenue S.W.
Carmel, IN 46032
Appendix I
Form of Schedule
SCHEDULE NO.
TO
MASTER GOVERNMENTAL LEASE AGREEMENT
Dated 2017
by and between
CITY OF CARMEL, INDIANA
and
UNITED FIDELITY BANK, F.S.B.
,20—
This
20_
This Schedule is made and delivered on the above date pursuant to the above -referenced Master
Governmental Lease Agreement (the "Agreement") by the undersigned City of Carmel, Indiana (the 'Borrower")
and United Fidelity Bank, F.S.B., as lender (the "Lender").
A. Integration of Agreement; Definition of Terms
(a) This Schedule is delivered pursuant to the Agreement and is hereby integrated into and made
a part of the Agreement as provided therein.
(b) Capitalized terms used herein without definition shall have the respective meanings assigned
in the Agreement.
B. Advance for Equipment
Pursuant to Section 5.01 of the Agreement, and at the written request of the Borrower, which request
the Borrower hereby confirms, the Lender has advanced the amount of $ (the "Advance") to effect
the acquisition of the within described Equipment for the use and benefit of the Borrower pursuant to the
Agreement.
C. Description and Location of the Equipment; Insurance
(1) The Equipment to be acquired with the proceeds of the Advance is described or
identified on Exhibit A hereto.
(2) The Equipment shall be located and used within the jurisdiction of the Borrower, on
Property owned by the Borrower, as described on Exhibit B hereto.
(3) The Borrower shall provide insurance with respect to the Equipment described herein
as provided in the Agreement, including without limitation the following:
D. Term of Schedule
(1) The term of this Schedule shall be a period of years of consecutive
calendar months, which term shall, subject to Article 12 of the Agreement, consist of an initial term
beginning on , 20_ and ending on . 20_ (being the last day of the Fiscal Year of
the Borrower in which this Schedule is delivered) and continuing thereafter for consecutive
renewal terms of one year each coincident with the Fiscal Year of the Borrower.
(2) As provided in Section 6.01 of the Agreement, and subject to all provisions of the
Agreement, the Agreement with respect to the Equipment described in this Schedule shall be
automatically and successively renewed at the end of the initial term, and at the end of each successive
renewal term thereafter, for the then next succeeding renewal term until the term of this Schedule
shall have expired.
E. Financing Payments
(1) The respective principal and interest portions of the Financing Payments are set forth
on Exhibit C hereto.
(2) The outstanding principal amount of the Advance made by the Lender pursuant to .
this Schedule shall bear interest at a per annum rate of interest (computed on an Actual/360 Basis)
equal to the Applicable Rate, as determined by the Lender and adjusted from time to time as provided
herein, in accordance with the Agreement.
(3) Pursuant to Section 6.02 of the Agreement, and subject to Article 12 of the
Agreement, the Borrower shall pay Financing Payments to the Lender in respect of the Advance made
by the Lender pursuant to this Schedule in the amounts and on the dates as follows:
(a) On the first day of each January and July of each Fiscal Year Borrower shall
pay all then accrued interest, plus a principal payment that is adequate to amortize the
principal on or before the date set forth in Section 3(b) of this schedule, and
(b) on 20_, an amount equal to the then unpaid outstanding
principal amount of such Advance plus interest accrued thereon to such date of payment.
(4) The Borrower may, on any date, pay in advance the entire unpaid principal amount of
the Advance or any portion or portions thereof by paying to the Lender the principal amount to be
prepaid, plus interest accrued on such principal amount to the date of such prepayment, plus the
applicable premium (if any) set forth on the Prepayment Premium Schedule attached hereto.
(5) The Applicable Rate shall be determined by the Lender as provided therefore and
shall become effective on each Interest Rate Adjustment Date and shall remain in effect until the next
succeeding Interest Rate Adjustment Date.
(6) For purposes of determining the Applicable Rate, the following terms shall have the
following meanings:
Applicable Rate shall mean:
(a) the Tax -Exempt Rate for the period beginning on the date of delivery of this
Schedule and ending on the date immediately preceding the Taxability Date; and
(b) the Taxable Rate for the period beginning on the Taxability Date and
continuing thereafter.
Tax -Exempt Rate shall mean a fixed per annum rate of interest equal to 2.12%.
Taxability Date shall mean the earliest date from which the Interest Portion of the
Financing Payments with respect to the Advance under this Schedule is determined to be Taxable.
Taxable Rate shall mean a per annum rate of interest [equal to %] [(fixed, or variable
subject to periodic adjustment) that would provide the Lender an after-tax yield on the then
outstanding principal amount of the Advance at least, equal to the after-tax yield the Lender would
have received if a Determination of Taxability had not been made.
F. Conditions Precedent
The conditions of the Lender precedent to the Advance are set forth on Exhibit D.
G. Miscellaneous
The Borrower hereby represents and warrants to the Lender that it has properly complied with all
applicable procurement laws and requirements for its entry into this Schedule.
The Borrower hereby agrees, to the extent the UCC is ever deemed not applicable to the pledge of the
Collateral made under the Agreement and this Schedule, such pledge shall be effective pursuant to IC 5-1-14-4.
IN WITNESS WHEREOF, the Borrower and the Lender have each caused this Schedule to be executed
and delivered, under seal, and attested to the extent provided, by officers thereof duly authorized thereunto, on
the date set forth above.
SEAL
Attest:
Clerk -Treasurer
CITY OF CARMEL, INDIANA
Lm
Mayor
UNITED FIDELEITY BANK, F.S.B.
BE
Its
Exhibit A to Schedule
Description or Identification of Equipment
Exhibit B to Schedule
Location of Equipment
Exhibit C to Schedule
The principal and interest portions of the Financing Payments to be made pursuant to the above
Schedule are set forth, and separately stated for purposes of compliance with the Code, as follows:
Exhibit D to Schedule
CONDITIONS PRECEDENT
The agreement of the Lender to make the Advance is subject to the satisfaction by'the Borrower of
each of the following conditions precedent thereto:
(a) (1) No Event of Default shall have occurred and be continuing.
(2) The representations and warranties made by the Borrower in the Master
Governmental Lease Agreement shall be true and correct.
(3) The Borrower shall have performed or observed all agreements, covenants, and
conditions required by the Lender to be performed or observed by the Borrower.
(b) Any proceedings taken in connection with the performance and observance of the
provisions of this Master Governmental Lease Agreement shall be reasonably satisfactory to the Lender
and the Lender shall have received, in form and substance satisfactory to Lender and counsel therefor:
(1) Master Governmental Lease Agreement. The Master Governmental Lease
Agreement, duly and validly executed and delivered by or on behalf of the Borrower, together with
(A) acknowledgment copies of financing statements duly filed under the UCC of all jurisdictions
necessary or, in the opinion of the Lender, desirable to perfect the security interests created by
such Master Governmental Lease Agreement, and (B) evidence of the public recordation or filing of
such of the Master Governmental Lease Agreement as the Lender deems it necessary or desirable
to record or file publicly, in such offices as the Lender shall require.
(2) Perfected Security Interest. Evidence of Lien searches, through a date
satisfactory to the Lender, showing no Liens affecting the Collateral securing the Obligations other
than Liens in favor of the Lender in connection herewith.
(3) Consents. Evidence that the Borrower and the Obligors have obtained all
requisite consents and approvals required to be obtained from any Person to permit the
consummation of the Transaction.
(4) Opinion of Counsel. If requested by Lender in writing, an Opinion of Counsel in
form and of content satisfactory to the Lender, to the effect that (i) the Master Governmental Lease
Agreement is the valid and binding obligation of the Borrower and the Obligors, if any, and is
enforceable against the Borrower and the Obligors, if any, in accordance with its terms under the
laws -of the State of Indiana, (ii) the Interest Portion of the Financing Payments is excludable from
the gross income of the Lender under Section 103 of the Code for federal income tax purposes and
is not an item of tax preference for purposes of the federal alternative minimum tax imposed on
individuals and corporations, and (iii) in entering into the Agreement and Schedules, the Borrower
has properly complied with all applicable procurement laws and requirements.
(5) Organization and Approvals. A certified copy of (i) the incorporation and
organization papers of the Borrower and all Obligors and (ii) all action taken by the Borrower and
all Obligors under the Master Governmental Lease Agreement approving and authorizing the
Master Governmental Lease Agreement, and all amendments or supplements thereto, and the
consummation of the Transaction.
(6) Certificate of Borrower. A certificate by the Borrower to the effect that, as of such
date, and after giving effect thereto: (i) no Event of Default shall have occurred and be continuing;
and (ii) the representations and warranties made by the Borrower in the Master Governmental
Lease Agreement are true in all material respects on and as of such date with the same force and
effect as if made on and as of such date.
(7) Federal Tax Documents. Such agreements, certificates, documents, and notices
(including without limitation such certificates as may be required by Treas. Reg. Section 1.148-
2(b)(2)(i) and Treas. Reg. Section 1.149(e)-1) as may be required to establish or provide for the
exclusion of the Interest Portion of the Financing Payments from the gross income of the Lender
for purposes of federal income taxation.
(8) Additional Evidence. Such additional legal opinions, certificates, proceedings,
instruments and other documents as the Lender or its counsel may reasonably request to evidence
(a) compliance by the Borrower and all Obligors with contractual and legal requirements, (b) the
truth and accuracy, as of such date, of the respective representations of the Borrower and all
Obligors contained in the Master Governmental Lease Agreement, and (c) the due performance or
satisfaction by the Borrower and all Obligors, at or prior to such date, of all agreements then
required to be performed and all conditions then required to be satisfied pursuant to the Master
Governmental Lease Agreement.
r
Appendix II
C
CERTIFICATE OF ACCEPTANCE
The Borrower), having entered into a Master Governmental Lease Agreement (the "Agreement")
dated _, 2017, with United Fidelity Bank, F.S.B. ender does hereby certify on this day
of 20_ to the Lender as to the equipment and personal property set forth herein (the
"Equipment") that:
A. Equipment Description:
B. The Borrower has inspected the Equipment and hereby accepts the Equipment for all purposes
under the Agreement.
C. Each Item of Equipment is of a size, design, capacity, specification and manufacture selected by
Borrower, is in good condition, and has been satisfactorily delivered.
D. The Equipment is personal property and is not now nor will it become either real property or a
fixture or inventory.
E. The use of the Equipment is essential, necessary, useful, and appropriate to the lawful purposes of
Borrower.
F. There is not existing, and Borrower will not directly or indirectly create, incur, assume or suffer to
exist, any Lien on or with respect to the Equipment, title thereto or any interest therein, except the
respective rights of Lender and Borrower under this Master Governmental Lease Agreement and
further excepting any Lien granted by Lender.
G. The Borrower is satisfied that the Equipment is suitable for Borrower's purposes and responsibly
selected the vendor, manufacturer or supplier of the Equipment.
H. Lender is not a manufacturer of the Equipment nor a dealer in property of the kind of the
Equipment.
I. The Borrower waives any defenses which it may have now or in the future against Lender arising
from the Equipment, its operation, delivery, condition, defects, installations, or any other matter
concerning the Equipment.
J. The Borrower accepts the Equipment AS IS, WHERE IS and acknowledges Lender's disclaimer of
warranties contained in Section 5.04 of the Agreement.
K. The Borrower has no agreement regarding the Equipment with any vendor, manufacturer, broker,
repair service, landlord or other party (excluding Lender) except as listed here:
Lender is not bound by any representation, warranty or agreement made by any other party.
L. The Borrower acknowledges and confirms that the Agreement is in full force and effect and is the
legal, valid and binding obligation of the Borrower enforceable against the Borrower in accordance
with its terms and that no default or Event of Default under the Agreement exists on the date
hereof. The Borrower hereby makes and republishes all of its agreements, covenants,
representations and warranties under the Agreement and acknowledges that it has no defenses or
claims against Lender under the Agreement on the date hereof.
M. The Borrower authorizes Lender to pay $ for the previously described Equipment
upon receipt of an original invoice from the vendor or manufacturer.
. In Witness Whereof, the Borrower has caused this Certificate of Acceptance to be executed and
delivered by an officer thereof duly authorized thereunto on the day the same bears date.
Date . 20_ CITY OF CARMEL, INDIANA
By
Its