HomeMy WebLinkAboutPK18-263 - Original - TCF Equipment Finance - Riverbend Maintenance Equipment Master Lease Purchase Ageement - 05/17/2018 ANT Records Management Document
CONTRACT COVER SHEET
This is to be completed by the Contract Manager prior to submission
to the City Clerk's Office. All portions are to be completed.
If you have questions, please contact the City Clerk's Office at 253- 56-5725.
❑ Blue/Motion Sheet Attached
❑ Pink Sheet Attached
Vendor Name: TCF Equipment Finance
Vendor Number (JDE):
Contract Number (City Clerk): R -ILD3
Category: Contract Agreement
Sub-Category (if applicable): Choose_.a g._ .._-._...�__
Project Name: Riverbend Maintenance Equipment
Contract Execution Date: Termination Date: 6-30-22
Contract Manager: Pete Petersen Department: Parks
Contract Amount: $704.540.64
Approval Authority: ❑ Director ❑ Mayor ❑ City Council
Other Details:
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MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO. 742593L
..._ ------ --- .............. -- .. __ ..._.._..._ ..,.....
Master Equipment Lease Purchase Agreement Number 742593L Dated May 17,2018
.._.... ------..........
"Lessee"
__... _..___..._.. ........._. ........m......_ _....................
City of Kent,Washington,220 Fourth Ave.S,Kent,WA 98032
.__........................... ......_......._ .—. ..................._.......
Fax E-mail:
.-...._........ .._..._
.,Lessor" ._._. ....,....
TCF Equipment Finance, a division of ICE National Bank, fill West San Marnan Dr, Suite A2 West, Waterloo, IA 50701-
8926
.................... ._._. ................ ..... _....---- _..........._ ._....._
Fax:319-833-4577 E-nail: customerservice@financediv.com
RECITALS:
L Lessee desires to lease certain property from the Lessor described in the schedules to this Agreement that are to be
executed front time to time by the parties hereto (such schedules. whether now of hereafter executed, are hereby incorporated
herein and are hereinafler collectively referred to as the "Schedules," and the items of property, leased to Lessee hereunder,
together with all substitutions, proceeds, replacement parts, repairs, additions, attachments, accessories and replacements thereto,
thereof or therefor, are hereinafter collectively referred to as the "Equipment") subject to the terms and conditions of and for the
purposes set forth in this Agreement.
2. The relationship between the parties shall be a continuing one and items of property may be added to or deleted front the
Equipment from time to time by execution of additional Schedules by the parties hereto and as otherwise provided herein.
3. Lessee is authorized tinder the constitution and laws of the State to enter into this Agreement for the purposes set forth
herein.
NOW,THEREFORE,for and in consideration of the premises hereinafter contained,the parties hereby agree as follows-
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires
otherwise:
"Agreement"means this Master Equipment Lease Purchase Agreement No. 742593L including the Schedules and any other
schedule,exhibit or escrow agreement made a part hereof by the parties hereto,together with any amendments to this.Agreement,
"Code"means the Internal Revenue Code of 1986,as amended.
"Commencement Date" means, with respect to any Schedule,the date when the term of this Agreement with respect to that
Schedule and Lessee's obligation to pay rent under that Schedule commence, which date (a) Lessee hereby authorizes Lessor to
fill in on the executed payment scheduled attached to each Schedule, and (b) shall be the earlier of(i) the date on which the
Equipment listed in that Schedule is accepted by Lessee in the manner described in Section 5.01, or (ii) the date on which
sufficient moneys to purchase the Equipment listed in that Schedule are deposited for that purpose with an escrow agent.
"Equipment" means the property described in a Schedule and all replacements, substitutions, repairs, restorations,
modifications, attachments, accessions, additions and improvements thereof or thereto. Whenever reference is made in this
Agreement to Equipment listed in a Schedule, that reference shall be deemed to include all replacements, repairs, restorations,
modifications and improvements of or to that Equipment.
"Event of Default"means, with respect to any Lease,an Event of Default described in Section 12.01,
"Issuance Year" is the calendar year in which the Commencement Date occurs.
"Lease" means an individual Schedule and this Agreement.
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"Lease Term" means, with respect to any Lease, the Original Term and all Renewal Terns of that Lease, but ending an the
occurrence of the earliest event specified in Section 3.03.
"Lessee"means the entity described as such in the header of this Agreement,its successors and its assigns.
"Lessor" means, with respect to each Schedule and the Lease of which that Schedule is a part, (i)if Lessor's interest in,to
and under that Schedule has not been assigned pursuant to Section 11.01, the entity described as such in the header of this
Agreement or its successor, or (ii) if Lessor's interest in, to and under that Schedule has been assigned pursuant to Section
11.01,the assignee thereof or its successor.
"Maximum Lease Term"means, with respect to any Lease, the Original Term and all Renewal Terms through the Renewal
Tenn including the last Rental Payment Date set forth on the Schedule that is part of that Lease.
"Net Proceeds" means the amount remaining from the gross proceeds of any insurance claim or condemnation award after
deducting all expenses(including attorneys' fees)incurred in the collection of such claim or award.
"Original Term" means, with respect to any Lease, the period from the first Commencement Date for any Schedule under
that Lease until the end of the fiscal year of Lessee in effect at that Commencement Date.
"Purchase Price" means the amount set forth on any Schedule that Lessee may, at its option, pay to Lessor to purchase the
Equipment listed on that Schedule.
"Renewal Terms" means, with respect to any Lease.the optional renewal terns of that Lease,each having a duration of one
year and a term co-extensive with Lessee's fiscal year.
"Rental Payment Dates"means the dates set forth in the Schedules on which Rental Payments are due,
"Rental Payments" means the basic rental payments payable by Lessee pursuant to Section 4.01.
"Schedule"means any schedule to this Agreement. executed from time to time by the parties hereto.
"State"means the State of Lessee's organization.
"Vendor" means a manufacturer of Equipment as well as the agents or dealers of the manufacturer from whom Lessor
purchased or is purchasing Equipment.
ARTICLE It
REPRESENTATIONS AND COVENANTS OF LESSEE
Section 2.01. Representations and Covenants of Lessee. Lessee represents, warrants and covenants for the benefit of
Lessor as follows:
(a) Lessee is a political subdivision duly organized and existing under the constitution and laws of the State. Lessee
1......... will do or cause to be done all things to preserve and keep in full force and effect its existence as a body corporate and
politic. Lessee has a substantial amount of one or more of the following sovereign powers: (a)the power to tax, (b)the
power of eminent domain,and(c)police power.
(b) Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the transaction
contemplated hereby and to perform all of its obligations hereunder.
(e) Lessee has been duly authorized to execute and deliver this Agreement by proper action and approval of its
governing body at a meeting duly called, regularly convened and attended throughout by a requisite majority of the
members thereof or by other appropriate official approval.
(d) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its
terms,except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors'
rights generally.
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(e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute,
an Event of Default exists at the date hereof,
(f) Lessee has,in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the
current fiscal year to make the Rental Payments scheduled to come due during the current fiscal year and to meet its other
obligations under this Agreement,and such funds have not been expended for other purposes.
(g) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the
acquisition by Lessee of the Equipment hereunder.
(h) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public
board or body, pending or threatened against or affecting Lessee, nor to the best knowledge of Lessee is there any basis
therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions
contemplated by this Agreement or any other document,agreement or certificate which is used or contemplated for use in
the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial
condition or properties of Lessee.
(i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the
execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations
hereunder have been obtained.
0) The entering into and performance of this Agreement or any other document or agreement contemplated hereby
to which Lessee is or is to be a party will not violate anyjudgment,order, law or regulation applicable to Lessee or result
in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other
encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or
credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound,except as herein
provided.
(k) The Equipment is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has
an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not
temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose
of performing one or more of Lessee's governmental or proprietary functions consistent with the permissible scope of
Lessee's authority.
(I) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in
property used or to be used in a trade or business of a non-exempt person(within the meaning of Section 103 of the Code)
or in payments in respect of such property or(if)derived from payments in respect of property,or borrowed money, used
or to be used in a trade or business of a non-exempt person(within the meaning of Section 103 of the Code). No portion
of the Equipment will be used directly or indirectly in any trade or business carried on by any non-exempt person(within
the meaning of Section 103 of the Code).
(m) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and
141-150 thereof, and the applicable regulations of the Treasury Department that relate to each Lease in order to establish
and maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal
income taxation. In furtherance of the foregoing, Lessee covenants and agrees to prepare(or engage a tax professional to
prepare on Lessee's behalf)and file all necessary ail'i'lninaticmal returns on a timely basis with the IRS, including, but not
'..... limited to,IRS Series 80:38 Forms,which must generally be filed on or before the 15"'of the 2nd calendar month after the
close of the calendar quarter in which the Commencement Date occurs. Lessee agrees to provide Lessor with copies of
all such filed returns relating to each Lease contemporaneously with Their filing. If Lessee fsM to file the necessary
informational returns with the IRS on a timely basis, Lessee hereby authorizes Lessor to engage a tax professional of
Lessor's choosing to complete the required returns on Lessee's behalf and at Lessee's expense, which Lessee agrees to
execute and tile. If Lessee files informational returns containing incorrect or incomplete information, Lessee hereby
authorizes Lessor to engage a tax professional of Lessor's choosing to file an amendment to the incorrect or incomplete
informational return on Lessee's behalf and at Lessee's expense,which Lessee agrees to execute and file.
(n) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the
purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in
any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use
had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this
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Agreement to be or become "arbitrage bonds" within the meaning of Section I03(b)(2)or Section 148 of the Code and
the applicable regulations of the Treasury Department.
(o) Lessee represents and warrants that it is a governmental unit under the laws of the State;this Agreement is not a
private activity bond as defined in Section 141 of the Code, and 95%or more of the net proceeds of this Agreement will
be used for local govemmental activities of Lessee.
(p) Lessee has never failed to pay payments coming due under any bond issue, lease purchase agreement or other
indebtedness obligation of Lessee.
(q) The useful life of the Equipment will not be less than the Maximum Lease Tenn.
(r) The application, statements mid credit or financial information reviewed by Lessor are true and correct and
made to induce Lessor to enter into this Agreement and the escrow agreement, if any, and Lessee has experienced no
material change in its financial condition since the dates)of such information.
(s) Lessee shall pay the excess(if any)of the actual costs of acquiring the Equipment under the Agreement over the
amount deposited by Lessor in the escrow fund, if any.. established under any related escrow agreement and interest
earnings thereon.
it) Lessee understands and acknowledges that Lessor has not acted and will not act as a fiduciary for Lessee or as
Lessee's agent or municipal advisor; Lessor has not and will not provide financial, legal, tax, accounting or other advice
to Lessee or to any financial advisor or placement agent engaged by Lessee with respect to this Agreement. Lessee, its
financial advisor, placement agent or municipal advisor, if any. shall each seek and obtain its own financial, legal, tax,
accounting and other advice with respect to this Agreement from its own advisors (including as it relates to structure,
timing,terms and similar matters).
Section 2.02. Conditions to Lessor's Performance under Schedules. As a prerequisite to the performance by Lessor of
any of its obligations pursuant to the execution and delivery of any Schedule, Lessee shall deliver to Lessor the following:
(a) An Opinion of Counsel to Lessee, in fort and substance acceptable to Lessor in its sole discretion, respecting
such Schedule.
(b) A Lessee's Closing Certificate executed by the Clerk or Secretary or other comparable officer of Lessee,in form
and substance acceptable to Lessor in its sole discretion,completed to the satisfaction of Lessor.
(c) An Essential Use Certificate executed by a duly authorized officer of Lessee, in form and substance acceptable
to Lessor in its sole discretion,completed to the satisfaction of Lessor.
(d) All documents, including financing statements,affidavits, notices and similar instruments, in form satisfactory to
Lessor, which Lessor deems necessary or appropriate at that time pursuant to Section 6.02.
(e) Such other items,if any.as are set forth in such Schedule or are reasonably required by Lessor.
This Agreement is not a commitment by Lessor to enter into any Schedule not currently in existence, and nothing in this
Agreement shall be construed to impose any obligation upon Lessor to enter into any proposed Schedule, it being understood that
whether Lessor enters into any proposed Schedule shall be a decision solely within Lessor's discretion.
Lessee will cooperate with Lessor in Lessor's review of any proposed Schedule. Without limiting the foregoing, Lessee will
provide Lessor with any documentation or information Lessor may request in connection with Lessor's review of any proposed
Schedule. Such documentation may include, without limitation, documentation concerning the Equipment and its contemplated
use and location and documentation or information concerning the financial status of Lessee and other matters related to Lessee,
ARTICLE III
LEASE OF EQUIPMENT
Section 3.01. Lease of Equipment. Lessor hereby demises, leases and lets to Lessee,and Lessee rents, leases and hires from
Lessor, the Equipment listed in each Schedule in accordance with the provisions of this Agreement and that Schedule for the
Lease Term for the Lease of which that Schedule is a part.
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Section 3.02. Lease Term. The Original Term of each Lease will commence on the Commencement Date and will terminate
on the last day of Lessee's current fiscal year. The Lease Term for each Lease may be continued, solely at the option of Lessee,at
the end of the Original Term or any Renewal Term for an additional Renewal Term up to the Maximum Lease Term for that
Lease. At the end of the Original Term mid at the end of each Renewal Tenn until the Maximum Lease Term has been completed
for a Lease, Lessee will be deemed to have exercised its option to continue that Lease for the next Renewal Term unless Lessee
has terminated that Lease pursuant to Section 3.03 or Section 10.01. The terms and conditions during any Renewal Term will be
the same as the terms and conditions during the Original Term, except that the Rental Payments will be as provided in the
Schedules.
Section 3.03. Termination of Lease Term. The Lease Term for each Lease will terminate upon the earliest of any of the
following events:
(a) the expiration of the Original Term or any Renewal Term of that Lease and the nomenewal of that Lease in the
event of nonappropriation of funds pursuant to Section 3.05;
(b) the exercise by Lessee of the option to purchase the Equipment granted under that Lease under the provisions of
Article X and payment of the Purchase Price and all amounts payable in connection therewith;
(c) a default by Lessee and Lessor's election to terminate that Lease under Article XII;or
(d) the payment by Lessee of all Rental Payments required to be paid by Lessee wider that Lease when such
payments are due through the expiration of the Maximum Lease Tenn.
Section 3.04. Continuation of Lease Term. Lessee currently intends, subject to the provisions of Section 3.05 and Section
4.04, to continue the Lease Term for each Lease through the Original Term and all of the Renewal Terms and to pay the Rental
Payments hereunder. Lessee reasonably believes that legally available funds in an amount sufficient to make all Rental Payments
during the Maximum Lease Tenn for each Lease can be obtained. The responsible financial officer of Lessee will do all things
lawfully within his or her power to obtain and maintain funds from which the Rental Payments may be made, including making
provision for such Rental Payments to the extent necessary in each proposed annual budget submitted for approval in accordance
with applicable procedures of Lessee and to exhaust all available reviews and appeals in the event such portion of the budget is not
approved. Notwithstanding the foregoing, the decision whether or not to budget or appropriate funds or to extend a Lease for any
Renewal Term is solely within the discretion of the then current governing body of Lessee.
Section 3.05. Nonappropriation. Lessee is obligated only to pay such Rental Payments under this Agreement as may
lawfully be made front funds budgeted and appropriated for that purpose during Lessee's then current fiscal year. In the event
sufficient funds will not be appropriated or are not otherwise legally available to pay the Rental Payments required to be paid
under a Lease in the next occurring Renewal Term, that Lease will be deemed to be terminated at the end of the then current
Original Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination at least 90 days prior to the end of
the then current Original Tenn or Renewal Term, but failure to give such notice will not extend the Lease Term beyond such
I Original Term or Renewal Term. If a Lease is terminated in accordance with this Section, Lessee agrees, at Lessee's cost and
expense,to peaceably deliver the Equipment then subject to that Lease to Lessor at the location or locations specified by Lessor.
ARTICLE IV
RENTAL PAYMENTS
Section 4.01. Rental Payments. Lessee will pay Rental Payments,exclusively from legally available funds,in lawful money
of the United States of America to Lessor in the amounts and on the dates set forth in the Schedules without notice or demand.
Rental Payments will be in consideration for Lessee's use of the Equipment during the fiscal year in which such payments are due.
Any Rental Pavment not received on or before its due date will be assessed a late payment fee of 10%or the maximum amount
permitted by law, whichever is less, from its due date. Lessee agrees to pay Lessor a fee, in an amount determined by Lessor, not
to exceed the maximum amount from time to time permitted by applicable law, for any check or automatic payment withdrawal
request that is returned to Lessor because of insufficient funds available in Lessee's account or a slop payment.
In the event that it is determined that any of the interest components of Rental Payments may not be excluded from gross
income for purposes of federal income taxation, Lessee agrees to pay to Lessor promptly after any such determination mid on each
Rental Payment Date thereafter an additional amount determined by Lessor to compensate Lessor for the loss of such
excludability (including without limitation, compensation relating to interest expense, penalties or additions to tax), which
determination shall be conclusive absent manifest error.
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Section 4.02. Interest Component. As set forth on the payment schedules attached to the Schedules, a portion of each
Rental Payment is paid as,and represents payment of, interest.
Section 4.03. Rental Payments To Be Unconditional. Except as provided in Section 3.05,the obligations of Lessee to
make Rental Payments and to perform and observe the other covenants and agreements contained herein shall be absolute
and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any failure of the Equipment to be delivered or installed, any defects, malfunctions, breakdowns or
infirmities in the equipment or any accident,condemnation or unforeseen circumstances.
Section 4.04. Rental Payments to Constitute a Current Expense of Lessee. The obligation of Lessee to pay Rental
Payments hereunder will constitute a current expense of Lessee, are from year to year and do not constitute a mandatory payment
obligation of Lessee in any fiscal year beyond the then current fiscal year of Lessee. Lessee's obligation hereunder will not in any
way be construed to be an indebtedness of Lessee in contravention of any applicable constitutional, charter or statutory limitation
or requirement concerning the creation of indebtedness by Lessee, nor will anything contained herein constitute a pledge of the
general credit,tax revenues,funds or moneys of Lessee.
ARTICLE V
EQUIPMENT
Section 5.01. Delivery, Installation and Acceptance of the Equipment. Lessee will order the Equipment, cause the
Equipment to be delivered and installed at the location specified in the applicable Schedule and pay any and all costs, charges,
expenses and obligations of every kind and nature incurred regarding the importation, shipment,delivery, possession, use, lease,
return, repossession, storage and transfer of any of Equipment When the Equipment listed in any Schedule has been delivered
and installed, Lessee will immediately inspect such Equipment and accept such Equipment after Lessee, in its sole discretion,
determines that such Equipment is satisfactory,and evidence said acceptance by executing and delivering to Lessor an acceptance
certificate in form and substance acceptable to Lessor. .After it has been installed, the Equipment will not be moved from the
location specified in the applicable Schedule,or if rolling stock, its permanent base will not be changed,without Lessor's consent,
which consent will not be unreasonably withheld. If Lessor, in its discretion,pays any tax, fee,charge or other amount described
in this paragraph, Lessee shall reimburse Lessor therefor on demand, together with Lessor's administrative and other costs of
paying and invoicing such amounts and, if Lessee fails to pay Lessor any such amount within ten (10) days of such demand,
Lessee shall pay interest thereon until paid at the rate of 180%per annual or the maximum rate allowable by law,whichever is less,
Section 5.02. Enjoyment of Equipment. Lessor hereby covenants to provide Lessee with quiet use and enjoyment of the
Equipment during the Lease Term, and Lessee will peaceably and quietly have and hold and enjoy the Equipment during the
Lease Term,without suit,trouble or hindrance from Lessor,except as otherwise expressly set forth in this Agreement.
Section 5.03. Right of Inspection. Lessor will have the right at all reasonable times during regular business hours to enter
into and upon the property of Lessee for the purpose of inspecting the Equipment.
Section 5.04. Use of the Equipment. Lessee will not install, use, operate or maintain the Equipment improperly, carelessly,
in violation of any applicable law or in a manner contrary to that contemplated by this Agreement. Lessee will obtain all permits
and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all
respects(including,without limitation, with respect to the use, maintenance and operation of each item of the Equipment)with all
applicable laws, regulations and rulings of any legislative, executive, administrative or judicial body; provided, however, that
Lessee may contest in good faith the validity or application of any such law, regulation of ruling in any reasonable manner that
does not, in the opinion of Lessor,adversely affect the interest of Lessor in and to the Equipment or its interest or rights under this
Agreement.
Section 5.05. Maintenance of Equipment; Alterations. Lessee agrees that it will. at Lessee's own cost and expense,
maintain.. preserve and keep the Equipment in good repair, working order and condition. Lessor will have no responsibility to
maintain,repair or make improvements or additions to the Equipment. If any item of Equipment is such as is customarily covered
by a maintenance contract, Lessee will enter into a maintenance contract for that Equipment with the applicable Vendor. Lessee
will not make any alterations, additions or improvements to the Equipment without Lessor's prior written consent unless such 1
alterations,additions or improvements nmy be readily removed without damage to the Equipment,
.ARTICLE VI ''....
TITLE TO EQUIPMENT;SECURITY INTEREST
Section 6,01. Title to the Equipment. During the Lease Tenn, title to the Equipment and any and all additions, repairs,
replacements or modifications will vest in Lessee, subject to the rights of Lessor under this Agreement; provided that title to the
Equipment that is subject to any Lease will thereafter immediately and without any action by Lessee vest in Lessor, and Lessee
will immediately surrender possession of the Equipment to Lessor upon (a) any termination of that Lease other than termination
pursuant to Section 10.01 (including but not limited to any termination pursuant to Section 3.05)or(b)the occurrence of an Event
of Default with respect to that Lease. It is the intent of the parties hereto that any transfer of title to Lessor pursuant to this Section
will occur automatically without the necessity of any bill of sale, certificate of title or other instrument of conveyance. Lessee
will, nevertheless, execute and deliver any such instruments as Lessor may request to evidence such transfer. Lessee, irrevocably
designates, makes, constitutes and appoints Lessor and its assignee as Lessee's true and lawful attorney (and agent in-fact) with
power, at such time of termination or times thereafter as Lessor in its sole and absolute discretion may determine, in Lessee's or
Lessor's or such assignee's name, to endorse the name of Lessee upon any bill of sale,document,instrument, invoice, freight bill,
bill of lading or similar document relating to the Equipment in order to vest title in Lessor and transfer possession to Lessor.
Section 6.02. Security Interest. To secure the payment of all of Lessee's obligations under this Agreement and to the extent
permitted by law, Lessee grants to Lessor a first and prior security interest in the Equipment and on all additions,attachments and
accessions thereto and substitutions therefor and proceeds therefrom. Lessee agrees to execute such additional documents in form
satisfactory to Lessor,that Lessor deems necessary or appropriate to establish and maintain its security interest. Lessee agrees that
financing statements may be filed with respect to the security interest in the Equipment created herein.
As further security therefor, Lessee grants to Lessor a first priority security interest in the cash and negotiable instruments
from time to time comprising each escrow fund established under any related escrow agreement and all proceeds (cash and non-
cash)thereof,and agrees with respect thereto that Lessor shall have all the rights and remedies of a secured party.
Section 6.03. Personal Property. Lessor and Lessee agree that the Equipment is and will remain personal property. The
Equipment will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwithstanding that the
Equipment or any part thereof may be or hereafter become in any manner physically affixed or attached to such real estate or any
building thereon. Upon the request of Lessor, Lessee will, at Lessee's expense,furnish a waiver of any interest in the Equipment
Brom any party having an interest in any such real estate or building.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.01. Liens,Taxes,Other Governmental Charges and Utility Charges. Lessee will keep the Equipment free and
clear of all liens.. charges and encumbrances, except those created under this Agreement. The parties to this Agreement
contemplate that the Equipment will be used for a governmental or proprietary purpose of Lessee and, therefore, that the
Equipment will be exempt front all property taxes and other similar charges. If the use, possession or acquisition of the
Equipment is found to be subject to taxation in any form. Lessee will pay all lazes and govemmental charges lawfully assessed or
levied against or with respect to the Equipment. Lessee will pay all utility and other charges incurred in the use and maintenance
of the Equipment. Lessee will pay such taxes and charges as the same become due; provided that, with respect to any such taxes
and charges that may lawfully be paid in installments over a period of years,Lessee will be obligated to pay only such installments
that accrue during the Lease Term.
Section 7.02. Insurance. At its own expense, Lessee will maintain(a) casualty insurance insuring the Equipment against
loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any
other risks reasonably required by Lessor in an amount at least equal to the then applicable Purchase Price of the Equipment, and
(b) liability insurance that protects Lessor from liability in all events in form and amount satisfactory to Lessor with a minimum
limit of$1,000,000.00 combined single limit or such greater amount as may be prescribed by any applicable state law specifying
minimum insurance requirements; provided that, with Lessor's prior written consent, Lessee may self-insure against the risks
described in clauses (a) and (b) of this Section. If required by Lessor, Lessee shall also provide to Lessor payment and
performance bands naming Lessor as a dual obligee and issued by a surety company rated "A" or better by AM Best. All
insurance proceeds from casualty losses will be payable as hereinafter provided. Lessee will fumish to Lessor certificates
evidencing such coverage throughout the Lease Term.
All such casualty and liability insurance will be with insurers that are acceptable to Lessor, will name Lessor as a loss payee
and additional insured and will contain a provision to the effect that such insurance will not be cancelled or modified materially
without first giving written notice thereof to Lessor at least thirty days in advance of such cancellation or modification. All such
casualty insurance will contain a provision making any losses payable to Lessee and Lessor, as their respective interests may
appear.
Section 7.03. Advances. In the event Lessee fails to maintain the insurance required by this Agreement, pay taxes or charges
required to be paid by it under this Agreement or fails to keep the Equipment in good repair and operating condition, Lessor may
(but will be under no obligation to)purchase the required policies of insurance and pay the cost of the premiums thereof,pay such
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taxes and charges and make such Equipment repairs or replacements as are necessary and pay the cost thereof. All amounts so
advanced by Lessor will become additional rent for the then current Original Term or Renewal Term. Lessee agrees to pay such
amounts with interest thereon from the date paid at the rate of 18% per annum or the maximum permitted by law, whichever is
less.
Section 7.05. Financial Information. Lessee will annually provide Lessor with current financial statements, budgets and
proofs-of appropriation for the ensuing fiscal year and such other financial information relating to the ability of Lessee to continue
this Agreement as may be requested by Lessor_
Section 7.05. Release and Indemnification. Lessee assumes all risks and liabilities, whether or not covered by insurance,
for loss or damage to the Equipment and for injury to or death of any person or damage to any property whether such injury or
death be with respect to agents or employees of Lessee or of third parties, and whether such property damage be to Lessee's
property or the property of others which is proximately caused by the negligent conduct of Lessee, its officers, employees or
agents. To the extent permitted by law, Lessee will indemnity, protect and hold harmless Lessor from and against any and all
liability, obligations, losses, claims and damages whatsoever, regardless of cause thereof, and expenses in connection therewith
(including, without limitation, counsel fees and expenses and anv federal income tax and interest and penalties connected
therewith imposed on interest received) arising out of or as the result of(a)the entering into this Agreement, (b)the ownership of
any item of Equipment, (e)the manufacturing, ordering, acquisition. maintenance, use,operation, condition, purchase, delivery,
rejection, storage or return of any item of the Equipment, (d)any accident in connection with the operation, maintenance, use,
condition, possession,storage or return of any item of Equipment resulting in damage to property or injury or death to any person
or(e)the breach of any covenant herein or anv material misrepresentation contained herein. The indemnification arising under
this paragraph will continue in full force and effect notwithstanding the full payment of all obligations under this Agreement or the
termination of any Lease Term for any reason.
ARTICLE Vlll
DAMAGE, DESTRUCTION.AND CONDEMNATION;
USE OF NET PROCEEDS
Section 8.01. Risk of Loss. Lessee assumes, from and including the Commencement Date, all risk of loss of or damage to
the Equipment from WV cause whatsoever. No such loss of or damage to the Equipment nor defect therein nor unfitness or
obsolescence thereof will relieve Lessee of the obligation to make Rental Payments or to perform any other obligation under this
Agreement.
Section 8.02. Damage,Destruction and Condemnation; Use of Net Proceeds. If(a)the Equipment or any portion thereof
is destroyed,in whole or in part,or is damaged by fire or other casualty, or(b)title to, or the temporary use of,the Equipment or
any part thereof or the interest of Lessee or Lessor in the Equipment or any part thereof will be taken under the exercise of the
power of eminent domain by any governmental body or by any person, firm or corporation acting under governmental authority,
Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award to be applied to the prompt
replacement,repair,restoration,modification or improvement of the Equipment, unless Lessee has exercised its option to purchase
the Equipment pursuant to Section 10.01. Any balance of the Net Proceeds remaining after such work has been completed will be
paid to Lessee.
Section 8.03. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair,
restoration, modification or improvement referred to in Section 8,02, Lessee will either (a) complete such replacement, repair.
restoration, modification or improvement and pay aqv costs thereof in excess of the amount of the Net Proceeds, or(b)purchase
Lessor's interest in the Equipment pursuant to Section 10,01. if Lessee will make any payments pursuant to this Section, Lessee
will not be entitled to any reimbursement therefor from Lessor nor will Lessee be entitled to any diminution of the amounts
payable under Article IV.
ARTICLE IX
WARRANTIES
Section 9.01. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
IMPLIED,AS TO THE IALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR USE
OR PURPOSE OF THE EQUIPMENT OR AGAINST INFRINGEMENT, OR .ANY OTHER WARRANTY OR
REPRESENTATION WITH RESPECT THERETO. LESSEE HEREBY WAIVES ANY CLAIM IT MIGHT HAVE
AGAINST LESSOR FOR ANY LOSS, DAMAGE OR EXPENSE CAUSED BY THE EQUIPMENT OR BY ANY DEFECT
THEREIN, OR BY THE L/SE OR MAINTENANCE OF, OR SERVICING OR ,ADJUSTMENT TO, THE EQUIPMENT
1 AND,AS TO LESSOR, LEASES THE EQUIPMENT AS-IS AND WITH ALL FAULTS AND WITHOUT WARRANTY OF
f
ANYKIN'D. IN NO EVENT SHALL LESSOR BE LIABLE FOR.ANY ACTUAL,INCIDENTAL, INDIRECT,SPECIAL OR
Nu Lcnrtu[1: lj 1—1', ) 11,II 'IN?]6/12011 11 Pi hVf
PvyeD aFll
CONSEQUENTIAL DAMAGE /N CONNECTION W'/TH OR ARISING OUT OF THIS AGREEMENT OR THE
EXISTENCE, FURNISHING, FUNCTIONING OR LESSEE'S USE OR MAINTENANCE OF ANY EQUIPMENT OR
i
SERVICES PROVIDED FOR IN THIS AGREEMENT
!. Section 9.02, Vendor's Warranties. Lessee acknowledges that Lessor is not a dealer or manufacturer of Equipment of any
kind and is not the seller of the Equipment, and that each unit of Equipment is of a type,size,design and capacity selected solely
by Lessee. Lessee also acknowledges that Lessor finances the Equipment without any obligation to install, test, erect, service or
maintain the Equipment. The only warranty applicable to any Equipment is the Vendor's warrant, and Lessor makes no warranty
of any kind to Lessee. Lessee may have rights under the contract evidencing the purchase of the Equipment, Lessee is advised to
contact the applicable Vendor for a description of any such rights. To the extent such warranties are transferable and so long as an
Event of Default has not occurred and is not continuing hereunder, Lessor hereby assigns to Lessee during the Lease Term all
warranties running from Vendor to Lessor and during such time Lessee may assert from time to time whatever claims and rights
(including without limitation warranties)related to the Equipment that Lessor may have against the Vendor. Lessee's sole remedy
for the breach of any such warranty, indemnification or representation will be against the Vendor, and not against Lessor. Any
such matter will not have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including
The right to receive full and timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no
representations or warranties whatsoever as to the existence or availability of such warranties by the Vendor. Lessee
acknowledges that each Lease constitutes a "finance lease' under UCC Article 2A in all respects, and that Lessor's sole
obligations to Lessee under each Lease is not to interfere with Lessee's quiet enjoyment of the Equipment so long as Lessee is not
in default thereunder.Subject to the foregoing sentence and to the extent permitted by law, Lessee unconditionally and irrevocably
waives any and all rights and remedies against Lessor at law or in equity (including, without limitation, any rights and remedies
granted Lessee under Article 2A of the Uniform Commercial Code and/or the right to reject any Equipment or repudiate each
Lease), Lessee agrees that Lessor assumes no liability for and makes no representation as to the treatment by Lessee of each
Lease,the Equipment or the Rental Payments for financial statement or tax purposes.
ARTICLE X
OPTION TO PURCHASE
Section 10.01. Purchase Option. Provided no Event of Default has occurred hereunder, Lessee will have the option to
purchase the Equipment listed in any Schedule, in whole, but not in part, upon giving written notice to Lessor at least 30 days
before the date ofpurchase,at the tollowing times and upon the following terms:
(a) On any Rental Payment Date, upon payment in full of the Rental Payment then due hereunder plus all other
amounts due under that Lease plus the then-applicable Purchase Price set forth on that Schedule to Lessor, if
applicable;or
(b) on the date the last Rental Payment is due (assuming the applicable Lease is renewed for the Maximum Lease
Term), if the applicable Lease is still in effect on that day,upon payment in full of all Rental Payments and all
other amounts then due and the payment of One Dollar to Lessor;or
(e) In the event of substantial damage to or destruction or condemnation (other than by Lessee or any entity
controlled by or otherwise affiliated with Lessee)of substantially all of the Equipment listed in that Schedule, on the day
Lessee specifies as the purchase date in Lessee's notice to Lessor of its exercise of the purchase option, upon payment in
full of the Rental Payment and all other amounts then due under that Lease plus (i) the Purchase Price set forth on that
Schedule for such purchase date if such purchase date is a Rental Payment Date or the Purchase Price for the immediately
preceding Rental Payment Date if such purchase date is not a Rental Payment Date, and(it) if such day is not a Rental
Payment Date, an amount equal to the portion of the interest component of the Rental Payment scheduled to come due
under that Schedule on the following Rental Payment Date acented from the immediately preceding Rental Payment Date
to such purchase date,computed on the basis of a 360-day year of twelve 30-day months,
Upon the exercise of the option to purchase set forth above,title to the Equipment so purchased will be vested in Lessee on an as-
is,where-is basis, free and clear of any claim by or through Lessor.
Section 10.02. Determination of Fair Purchase Price. Lessee and Lessor hereby agree and determine that the Rental
Payments under each Schedule during the Original Tenn and each Renewal Term represent the fair value of the use of the
Equipment listed in that Schedule and that the amount required to exercise Lessee's option to purchase the Equipment listed in that
Schedule pursuant to Section 10.01 represents, as of the end of the Original Term or any Renewal Term under that Schedule,the
fair purchase price of the Equipment listed in that Schedule. Lessee hereby determines that the Rental Payments do not exceed a
reasonable amount so as to place Lessee under a practical economic compulsion to renew the term of any Schedule or to exercise
its option to purchase the Equipment under any Schedule. In ranking such determinations, Lessee and Lessor have given
VI iIc ,lt4 P tp%,41, f P )( II V f HI�61',20P I I S 11 AIS1 P",Ior6
consideration to (a)the costs of the Equipment, (b)the uses and purposes for which the Equipment will be employed by Lessee,
(e)the benefit to Lessee by reason of the acquisition and installation of the Equipment and the use of the Equipment pursuant to
the terms and provisions of this Agreement, and (d)Lessee's option to purchase the Equipment. Lessee hereby determines and
declares that the acquisition and installation of the Equipment and the leasing of the Equipment pursuant to this Agreement will
result in equipment of comparable quality and meeting the same requirements and standards as would be necessary it the
acquisition and installation of the Equipment were performed by Lessee other than pursuant to this Agreement. Lessee hereby
determines and declares that the Maximum Lease Term does not exceed the useful life of the Equipment,
ARTICLE XI
ASSIGNMENT AND SUBLEASING
Section 11.01. Assignment by Lessor. Lessor's interest in,to and under this Agreement,each Lease and the Equipment may
be assigned and reassigned in whole or in part to one or more assignees by Lessor without the necessity of obtaining the consent of
Lessee; provided that any assignment will not be effective against Lessee until Lessee has received written notice of the name and
address of the assignee. Lessee will retain all such notices as a register of all assignees and will make all payments,to the assignee
or assignees designated in such register, Lessee agrees to execute all documents, including notices of assignment and chattel
mortgages or financing statements that may be reasonably requested by Lessor or any assignee to protect its interest in the
Equipment and in this Agreement and each Lease and agrees to the tiling of financing statements with respect to the Equipment
and this Agreement and each Lease. Lessee will not have the right to and will not assert against any assignee any claim,
counterclaim,defense,set-off or other right Lessee may have against Lessor.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title and interest in, to and under this
Agreement, any Lease or the Equipment may be assigned or encumbered by Lessee for any reason, except that Lessee may
sublease all or part of the Equipment if Lessee obtains the prior written consent of Lessor and an opinion of regionally recognized
"Red Book"-listed counsel in the area of tax-exempt municipal obligations satisfactory, to Lessor that such subleasing will not
adversely affect the exclusion of the interest components of the Rental Payments under the applicable Lease from gross income for
federal income tax purposes. Anv such sublease of all or part of the Equipment will be subject to this Agreement and the rights of
Lessor in,to and under this Agreement,the applicable Lease and the Equipment.
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.01. Events of Default Defined. Sub)ectto the provisions of Section 3.05,any of the following will be"Events of
Default"under any Lease:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid under that Lease at the time
specified in that Lease;
(b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or
performed under that Lease, other than as referred to in Section 12.01(a), for a period of 20 days after written notice,
specifying such failure and requesting that it be remedied, is given to Lessee by Lessor, unless Lessor will agree in
writing to an extension of such time prior to its expiration; provided, however, if the failure stated in the notice cannot be
corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if
corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to that Lease or its execution, delivery
or performance will prove to have been false, incorrect, misleading or breached in any material respect on the date when
made;
(d) Any provision of that Lease will at any time for any reason cease to be valid and binding on Lessee, or will be
declared to be null and void, or the validity or enforceability thereof will be contested by Lessee or any governmental
agency or authority, if the loss of such provision would materially adversely affect the rights or security of Lessor, or
Lessee will deny that it has any further liability or obligation under that Lease;
(e) Lessee will (i)apply for or consent to the appointment of a receiver,trustee,custodian or liquidator of Lessee,or
of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its
debts as they become due,(in) make a general assignment for the benefit of creditors,(iv)have an order for relief entered
against it under applicable federal bankruptcy law,or(v) file a voluntary petition in bankruptcy or a petition or an answer
seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer
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admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency
proceeding;or
(f) An order,judgment or decree will be entered by any court of competent judstliction, approving a petition or
appointing a receiver, tru.gtee, custodian or liquidatm-of Lessee or of all or a substamial part of the assets of Lessee, in
each case without its application, approval or consent, and such order,judgment or decree will continue unstayed and in
effect for any period of 30 consecutive days.
Section 12.02. Rernedies on Default. Whenever any Event of Default under any Lease exists, Lessor will have the right, at
its sole option withoul tiny further demand or notice,to take one or any combination of the following remedial steps:
(a) By written notice to Lessee, Lessor may declare all Rental Payments and other amounts payable by Lessee
under that Lease to the end of the then current Original Tenn or Renewal Tenn to be.due;
(b) With or without terminating that Lease, Lessor may enter the premises where the Equipment that is subject to
that Lease is located and retake possession of that Equipment or require Lessee at Lessee's expense to promptly return
arty or all ofthat hquipmcnl to tile possession of Lessor at a place specified by Lessor, and sell or lease that Equipment
or, for the account of Lessee, sublease that Equipment, holding Lessee liable for the difference between (i) the Rental
Payments and other amounts payable by Lessee under that Lease plus the applicable Purchase Price, and (it.) the net
proceeds of any such sale, lease or sublease(after deducting all expenses of Lessor in exercising its remedies under this
.Agreement, including without.lilinlation,all expenses of taking possession,storing, reconditioning and selling or leasing
that Equipment and all brokerage,auctioneers' and attorneys' fees), provided that.the amount of Lessee's liability under
this subparagraph (Ir)shall hart exceed the Rental Payments and other amounts otherwise due under that Lease plus the
remaining Rental Payments and other amounts payable by Lessee to the end of the then current Original Term or
Renewal Term;and
(c) Lessor may take whatever other action at law or in equity may appear necessary or desirable to enforce its rights
under this Agreement as the owner of the Equipment that is subject to that Lease.
Any net proceeds from the exercise of any remedy hereunder (after deducting all expenses of Lessor in exercising such
remedies including without lionnn.ion all expenses of taking lat)ssession, storing, reconditioning and selling or leasing Equipment
and all brokerage,auctioneer's or attorneys' fees)shall be applied as follows:
(i) If such remedy is exercised solely with respect to a single Lease, Equipment subject to that Lease or rights under this
Agreement related to that Lease, then to amounts due pursuant to that Lease and other amounts related to that Lease or
that Equipmenh or
(it.) If such remedy is exercised with respect to more than one Lease, Equipment subject to more than one Lease or rights
under this Agreement related to more than one Lease.then to amounts due pursuant to those Leases pro rate.
In addition, Lessee will remain liable for all covenants and indemnities under this Agreement and for all legal fees and other
costs and expenses, including court costs, incurred by Lessor with respect to the enforcement of any of the remedies listed above
or any other remedy available to Lessor.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive
and every such remedy will be cumulative and will be in addition to every other remedy given under this .Agreement or now or
hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default will impair
any such right or power or will be construed to be a waiver thereof,but any such right and power may be exercised from time to
time and as often as may be deemed expedient. In order to entitle Lessor to exercise any rerrredy reserved to it in this Agreement it
will not be necessary to give any notice,other than such notice as may be required in this Agrccmetn.. -
.ARTICLE XIII
MISCELLANEOUS
Section 13.01. Nofitms. Any wrinen mike hereunder to Lessee or Lessor shall be deemed to have been given when
delivered persoraa.11,y,deposited with a nationally recogniMl overnight courier(with all ferns pre-paid),delivered via facsimile or e-
mail(with confirmation of transmission)),or deposited in tl'tc United States mail,certified or registered mail,addressed to recipient
at its address set forth above or at such other address as may be substituted therefor by notice given pursuant to the[ernes llurLof.
Lessee hereby agrees that Lessor, including its vendors,service providers,partners, affihates,successors and assigns, may contact
Lessee at any telephone number provided to Lessor, by placing voice telephone calls (including the use of aalomadic telephone
19 L:, — 1_.. o'r ebt I,D ID>i +:1U II ',I,M i,,IIItII
dialing systems or prerecorded voice messaging)or, in the case of wireless telephones or other wireless devices, by sending email
or automated(SMS)text messages.
Section 13.02. Binding Effect This Agreement will inure to the benefit of and will be binding upon Lessor and Lessee and
their respective successors and assigns.
Section 13.03. Severahility. In the event any provision ofthis Agreement will be held invalid or unenforceable by any court
of competent jurisdiction,such holding will not invalidate or render unenforceable any other provision hereof.
Section 13.04. Entire Agreement. This Agreement constitutes the entire agreement between Lessor and Lessee.
Section 13.05. Amendments. 'This Agreement may be amended, changed or modified in any manner by written agreement
of Lessor and Lessee. Any waiver of any provision of this Agreement or any right or remedy hereunder must be affirmatively and
expressly made In writing and will not be implied from inaction,course of dealing or otherwise.
Section 13.06. Execution in Counterparts. This Agreement may he simultaneously executed in several counterparts, each
of which will be an original and all or which will constitute but one and the same instrument. There shall be only one original
counterpart of this- Agreement and it shall bear Lessor's original signature and be marked "Original" I o the extent that this
Agreement constitutes chattel paper (as that term is defined by Article 2A of the Cniform Commercial Code).. a security or
ownership interest intended to be created through the transfer and possession of this Agreement can be done only by the
transfer of such original bearing Lessor's original signature_
Section 13.07. Captions. The captions or headings in this Agreement are For convenience only and in no way define, limit or
describe the scope or intent of any provisions or sections of this Agreement,
Section 13.08, Applicable Law; Jury Trial. This Agreement will be governed by and construed in accordance with federal
law and, to the extent not preempted by federal law, the laws of the State. 'TO THE EXTENT PER-MITTED BY LAW, THE.
PARTIES HERETO, AFTER CONSULTING (OR HAVING HAD AN OPPORTUNITY TO CONSULT) WITH COUNSEL
OF THEIR CHOICE., KNOWINGLY AND VOLUNTARILY WAIVE. ANY RIGHT T'D TRIAL, BY JURY IN ANY ACTION
OR PROCEEDING RELATING TO TI ITS AGREEMENT.
Section 13.04. Electronic Transactions. Lessor, in its sole discretion, may permit Lessee to electronically copy and/or
deliver by tetecomer or other electronic means of transmission an executed counterpart of this Agreement, and any document,
schedule, amendment, addendum, supplement or agreement related hereto or executed in connection herewith, By so copying
and/or delivering any such document, Lessee hereby represents and agrees (a) that such transmission constitutes due delivery
of such executed document, (b) that the counterpart of such executed document as printed by the recipient, including Lessee's
signature thereon, shall be deemed to constitute an original and shall be admissible in any court or other legal proceeding as an
original, and (c) to deliver to Lessor, promptly on request, such document bearing Lessee's original "wet ink" signature;
provided that neither delivery nor failure to deliver the document bearing Lessee's original "wet ink" signature shall limit or
modify the representations and agreements set forth in clauses(a)and (b).
IN WITNESS WHIsREOF, Lessor and Lessee have caused this Agreement to be executed in their corporate names by their
duly authorized officers as of the date first above written.
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Print Name and `title Print dame and Title __ W is fn.._
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1,the undersigned, do hereby certify that the officer of Lessee who executed the foregoing Agreement on behalf of Lessee and
whose genuine signature appears thereon, (i) is the duly qualified and acting officer of Lessee as stated beneath his or her
eC �, signature, (it) is duly authorized to execute and deliver the foregoing Agreement on behalf of Lessee, and (iii) that the fiscal
UO �' year of Lessee trds on the last da of Decc nbo.
;.i Signnlurr. _ , Title: K�..��... Date:
_ .__. ....- ....--
U O `n THE ABOVE(:T:>RTI ' :A"HON MUST BE SIGNED BY THE CLERK OR SECRETARY OF LESSEE,AND THE CLERK
OR SECRETARY MUST BE A DIFFERENT INDIVIDUAL THAN THE OFFICER SIGNING IN THE "LESSEE
SIGNATURE"BOX.
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LESSEE'S CLOSING CERTIFICATE TO
SCHEDULE OF EQUIPMENT NO.008-0742593-300 TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.742593L
The "Agreement": Schedule of Equipment No. 008-0742593-300 dated May 17, 2018 (the "Schedule"), to Master Equipment
Lease Purchase Agreement No.742593L dated as of May 17.2018
.."Lessee" .".
City of Kent,Washington,220 Fourth Ave.S,Kent,WA 98032
"Lessor"
TCF Equipment Finance, a division of TCF National Bank, I111 West San Maman Dr, Suite A2 West, Waterloo, IA 50701-
8926
I, the undersigned, the duly appointe , qualified and acting Q1 _ (Clerk or Secretary) of the
above-captioned Lessee,do hereby certify as of u � 20 as follows:
(1) Lessee did., at a meeting of the governing body of Lessee held �Iy' d 20JJ, by motion duly
made,seconded and carried, in accordance with all requirements of law,approve until authorize the execution.and delivery of
the above-referenced Agreement and the related escrow agreement,if my,on its behalf by the following named representatives
of Lessee:
prin-d_Name yg' ,l
( � � I Stan Let cr1�4q t�n
time the office designatedeo e + and p of V ..� u
(2) The sieve-ruamad re rosentativas o Lessee held
Stir time of such autharizattio "8ii tlu ds at the present
signature set forth opposite his or her name is the true and correct specimen of his or
her genuine signature.
(3) The meeting of the governing body of Lessee at which the Agreement was approved and authorized to be
executed was duly called,regularly convened and attended throughout by the requisite majority of the members thereof or by
otter appropriate official approval and that the action approving the Agreement and authorizing the execution thereof has not
been altered or rescinded.
(4) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would
constitute,an Event of Default(as such term is defined in the Agreement)exists at the date hereof.
(5) All insurance required in accordance with the Agreement is currently maintained by Lessee.
(6) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for
the current fiscal year to make the Rental Payments scheduled to come due during the Original Tenn and to meet its other
obligations for the Original Term(as such terms are defined in the Agreement), and such funds have not been expended for
other purposes.
(7) There is no proceeding pending or threatened in any court or before any governmental authority or arbitration
hoard or tribunal that, if adversely determined,would adversely affect the transactions contemplated by the Agreement or the
interest of Lessor or its assigns,as the case may be,in the Equipment.
(8) The Equipment has not been the subject of a referendum that failed to receive the approval of the voters of
Lessee within the preceding four years,
(9) This Agreement is. hereby NOT designated as a qualified tax-exempt obligation" as defined in Section
265(b)(3XB)of the Internal Revenue Code.
(10) The Equipment is located at the following address:2019 W Meeker St,Kent,WA 98032
(11) The Equipment is located in the following county: 'KI0 G
Mwi L—Ma>_9d 11.1021 2017 3 539 77 511?I201e 7 N W 5
(12) The correct bit ling address for Rental Payments is as follows:
Street Address: 400 W.Gowe St.,Suite 406,
Kent WA 98032 -'
Phone: 253 856 5264
Fax:
Email: ➢ mance(47Kcntsva.gov - . '✓
Attention Acc"i)l¢tIM E'i r9c _(".;aty t�('I citt�fttape4
(13) The contact information of person responsible for preparing and filing Lessee's Farm 8038-G or 8038-GC is
as follows:
Name: Lavina Arennecke
Street Address- 900W (JoWeSi.,Suite 406, _
Kant WA 9A072
Phone: 253-856-5265
Fax: ,,,..,, , , .. ....... ......
Email: LBIiIiNNli(,KI(g7KIiN'I'WA.(OV _
(14) Lessee's Tax ID number is:91-6001254,
1N WITNESS WHEREOF, 1 hereunto set my hand and the seal of the governing body of Lessee the day and year
first above written. ffffff
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punted Name of Cte or Secretary
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LESSEE'S PAYMENT INsTRUCTIONs
AND ACCEPTANCE CERTIFICATE TO
SCHEDULE OF EQUIPMENT NO.008-0742593-300 TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.7425931,
The "Agreement": Schedule of Equipmenl No. 008-0742593-300 dated May 17, 2018 (the "Schedule"), to Master Equipment
Lease Purchase Agreement No.7425931.dated as of May 17,2018
"Lessee" ......
City of Kan[ Washington 22o Fourth Ave. S Kcn1 WA 98032
Lessor
TCF Equipment Finance, a division of TCF National Bank, I I I I West San Marnan Dr, Suite A2 West, Waterloo, (A 50701-
8926
ladies and Gentlemen:
In accordance with the Agreement, the undersigned Lessee hereby certifies and represents to, and agrees with, Lessor as
follows:
(1) Lessee has reviewed and approved the invoice(s) referenced in the table below. Pursuant to the
Agreement, Lessee hereby irrevocably authorizes and requests Lessor to make payment of the invoice(s)to the vendar(s),
licensor(s)or designee(s)of licensor(s)of the Equipment. Lessee agrees that all terms and conditions ofthe Lease are in full
rorce and effect and Lessee shall make all payments when and as required thereby.
Pavee Invoice Number Amount
Turf Star Inc/Western Equipment Distributor(T) Toro Turf Package $639,447.28
Total 8G39,447'28
(2) All of the Equipment has been, or if this Lease includes an escrow agreement, all of the Equipment will
be, delivered,installed and accepted,and is located at the following address:2019 W Meeker St, Kent,WA 98032.
(3) Lessee has conducted such inspection and/or testing of the Equipment as it deems necessary and
appropriate and hereby acknowledges that it accepts the Equipment for all purposes, except that if this Lease includes an
escrow agreement, Lessee will conduct such inspection and/or testing of the Equipment prior to authorizing disbursement
from the escrow fund for such Equipment.
(4) Lessee is currently maintaining,or if this Lease includes an escrow agreement, prior to Lessee's receipt of
any Equipment, Lessee will maintain,the insurance coverage required by Section 7.02 of the Agreement.
0) No event or condition that constitutes,or with notice or lapse of time, or both, would constitute,an Event
of Default(as defined in the Agreement)exists at the date hereof.
(6) We acknowledge that Lessor is neither the vendor nor manufacturer or distributor of the Equipment and
has no control,knowledge or familiarity with the condition,capacity,functioning or other characteristics ofthe Equipment.
(7) 9'he serial number for each item of Equipment that is set forth in the applicable Schedule is correct.
DATED:
Lessee City of Kent,Washington uly: �, ,�, I.ana Ralph,Mayor
M,I, --, 11 21110111111 eevzme,:ae nna P
tc
er tlpment
ESSENTIAL USE CERTIFICATE TO
SCHEDULE OE EQUIPMENT NO.008-0742593-300TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.742593L
May 17,2018
.._ _..................... _.._........._ ..... .....
The "Agreement": Schedule of Equipment No. 008-0742593-300 dated May 17, 2018 (the "Schedule"), to Master Equipment
Lease Purchase Agreement No. 742593L dated as of May 17,2018
"Lessee" - _. ......_.... ._ __..
......_-_......._-. ...... ..... ............._.
City of Kent,Washington 220 Fourth Ave.S, Kent, WA 98032
....__....... ._... .m. ...-.._...
_. ..........
Lessor" ..... _.... ...- -._....._..
... _....._ -�-. . ......... _.__ .........._. - ......._ --------
......
TCF Eqpment Finance, a division of TCF National Bank. 1111 West San Marnan Dr, Suite A2 West Waterloo, IA 50701.
'..... 8926
a duly elected, appointed, or designated representative of City of Kent, Washing
ton
(`Lessee ) out qu liked to answer the questions set forth below regarding the Equipment to be acquired by Lessee in connection
with the above-referenced Agreement.
L What is the specific use ojihe Equipmem7
c.oL-F couRtE MAINTENANCE
2. What increased capabilities will the Equipment provide'
lmrAIVF-D EFFIGIfNcIES A"D Ar-4-1WETIG1,
3. Why is the Equipment essential to your ability to deliver governmental services?
Op MP.A-i ION Ar.10 M A trJ"T 1_I4`N C.F O F A MUw11 C, L C%0 LF GoV pcE
4. Does the Equipment replace existing equipment?
(If so,please explain why you are replacing the existing equipment)
1ri, p-MPLnat wr. Ig, s(&AR OL-D F6lV I FM r=J-r
5. 6yhy did you choose this.specific Equipment'
cav ►�I�e. rMICIR AND PVRCN,&r1 JG FRow.a A GIry of KEN7 B%jS1M6tS
6, For how many years do you expect to tdilize the Equipment?
LEV Ertel
T What revenue source will he utilized to make Rental payments due under the Agreement?
GOLF c.oMpl,px c.A.raTAL Fv,aa
Lessee: City of Kent, Washington By Dana Ralph,Mayor
kM li�'a hM I AubA:: ll'Y 11i1�)5111'I�SII FY�I�tlp6 klN W
tcf
cqu(pnrent
filt;rtu�a
SCHEDLLE OF EQUIPMENT NO,008-0742593-300 TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.742593L
......... .. _ ....__..__....._............... .__...-.�... ...
The "Agreement": Schedule of Equipment No. 008-0 742 5 93-3 00 dated May 17, 2018 (the "Schedule"), to Master Lquipment
Lease Purchase Agreement No.142593L dated as of May 17,2018
"Lessee"
City of Kent,Washington, 220 Fourth Ave. S. Kent, WA 98032 -�� ----- -
"Lessor"
'I'CF Liquipment Finance, a division of TC'F National Bank, 1111 West San Marnan Dr, Suite A2 West, Waterloo, IA 50701-
8926
____. ___.._._ ______.....m._..._..�..._._.._ .....�.�.®......
1. Defined Terms. All[eons used herein have
the meanings ascribed to them in the Agreement_
2, Equipment. The Equipment included under this Schedule is comprised of the items described in the Equipment
Description attached hereto as Attachment I, together with all replacements, substitutions, repairs, restorations, modifications,
attachments,accessions,additions and improvements thereof or thereto.
3. Payment Schedule. The Rental Payments and Purchase Prices under this Schedule are set forth in the Payment
Schedule attached as Attachment 2 hereto.
4. Representations,Warranties and Covenants of Lessee.
(a) Lessee hereby represents, warrants and covenants that its representations, warranties and covenants set forth in the
Agreement are true and correct as though made on the date of commencement of Rental Payments on this Schedule.
(b) Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet
Rental Payments due hereumder since the date of the most recent audited financial statement's reviewed by Lessor.
(c) Lessee understands and acknowledges that Lessor has not acted and will not act as a fiduciary for Lessee or as Lessee's
agent or municipal advisor; Lessor has not and will not provide financial, legal,tax,accounting or other advice to Lessee or to any
financial advisor or placement agent engaged by Lessee with respect to this Schedule. Lessee, its financial advisor, placement
agent or municipal advisor, fany,shall each seek and obtain its own financial, legal,tax,accounting and other advice with respect
to this Schedule from its own advisors(including as it relates to structure, timing, terms and similar matters).
5. Certification as to Arbitrage and Tax Covenants. Lessee hereby represents as; follows:
(a) The estimated total costs of the F.quipnrenf listed in this Schedule, together with any costs of entering into this Schedule
that are expected to be financed hereunder, will not be less than the total Principal Portion of the Rental Payments listed in this
Schedule.
(b) The Equipment listed in this Schedule has been ordered or is expected to be ordered within six months of the
commencement of this Schedule, and the Equipment is expected to be delivered and installed, and the Vendor fully paid, within
eighteen months from the commencement of this Schedule,
(c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i)
that is reasonably expected to be used to pay the Rental Payments listed in thin Schedule,or(ill that may be used solely to prevent
a default in the payment of the Rental Payments listed in this Schedule_
(d) The Equipment listed in this Schedule has not been and is not expected to be sold or otherwise disposed of by Lessee,
either in whale or in major part,prior to the last maturity of the Rental Payments listed in this Schedule.
(e) To the best of tiny knowledge, information and belief. the above expectations are reasonable.
(f) Lessee has not been notified of any listing or proposed listing of it by the Internal Revenue Service as an issuer whose
arbitrage certificates may not be relied upon.
(g) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended, including without
limitation Sections 103, 141 and 143 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion
of the interest components of Rental Payments from gross income for purposes of federal income taxation.
6. The Agreement ibis Schedule is hereby made as purl of the Agreement, and Lessor and Lessee hereby ratify and
confirm the Agreement. The terns and provisions of the Agreement (other than f) the extent that they relate solety to other
Schedules or L-.4 aillLnent_listed on other Schedulesy are.hareh inco crated by reference and made a art hereof:
('i y rf Kent.Washington TCF I:c u'p metif Filtatrcc a division of TC'F"National(Sang(
Name g Lessee y Name of Lessor
h {}� A J
(� 7„
St nature p Signature
1 ..
.i Print Name and Title.
�� �� C` 1t"�'r Print Name and Title:
Sz .�tx- rv)s -t�n Lb , ,V-
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etptlpr'mrm:
fieaaaare
ATTACHMENT I TO
SCHEDULE OF EQUIPMENT NO.008-0742593-300 TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.742593L
EQUIPMENT DESCRIPTION
,.m.m..__....�...de ._ ......_ ..._ ..____......_
Description/Serial No./Model No. Location _ Total Cost
(2) Toro Reelmaster 3555-D, (2) Toro 2019W Meeker St,Kent, WA $639,447.28
Groundsmaster 4500-D, (1)'foro Multi Pro 1750, (4) 98032
Toro Greensmaster 3320 Triflex with additional
accessories, (1) Toro Reelmaster 3100-D, (1) Toro
Groundsmaster 3500-D, (1) Toro ProPass 200
Wireless, (I) Toro Sand Pro 5040. (1) Toro ProCore
648, (1) Toro Pro Force Debris Blower, (1) True
Surface GCC Frames, (1) True Surface GCC Vacu-
Cutter Inserts, (I) Salsco HP I I Roller together with
all attachments and accessories thereto
r
1
I
This Equipment Description shall be deemed to be supplemented by the descriptions of the Equipment included in the certificates
of acceptance and payment requests submitted pursuant to the escrow agreement, if any, entered into among Lessor, Lessee and
the escrow agent named therein,which descriptions shall be deemed to be incorporated herein.
tra Ralph, Mayor
Lessee: City of Kent,Washington B �I7a
9 LpmO_M1 ,ScM1etlile F(9II lQIZl3]&Tl.'I],to IPi 100 AI1i1
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etKlu.ttxipnrtneolat
I
ATTACHMENT 2 TO
SCHEDULE OF EQUIPMENT NO.008-0742593-300 TO
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT NO.742593L
PAYMENTSCHEDULE
Rental payments will be made in accordance with Section 4.01 and this Payment Schedule.
LESSOR: TCF Equipment Finance,a division of TCF National Bank
LESSEE: City of Kent,Washington
COMMENCEMENT DATE*:
INTEREST RATE: 5,05%
PAYMENT FREQUENCY: Monthly
The first Rental Payment shall be due in advance on the Commencement Date, and subsequent Rental Payments shall be due
monthly on the same day of each month thereafter until paid in full.
Payment Rental Interest Principal Purchase
Number _ Payment Portion Portion Price_
639,447.28
1 14,677,93 0.00 14,677,93 624,769.35
2 14.677,93 2,627.72 12,050,21 612,719.14
3 14,67793 2,577.04 12,100.89 600,618.25
4 14,677.93 2,526.14 12,151.79 588,466.46
5 14,677,93 2,475.03 12,202,90 576,263.56
6 14,677.93 2,423.71 12,254.22 564,009.34
7 14,677.93 2,372.17 12,305.76 551,703.58
8 14,677,91 2,320.41 12,35752 539,346,06
9 14,677.93 2,268,44 12,409.49 526,936.57
10 14,677.93 2,216.24 12,461.69 514,474.88
11 14,677.93 2,163.83 12.514.10 50L960,78
12 14,677.93 2'111r20 12,566.73 489,394,05
13 14,677.93 2,05834 12,619.59 476,774,46
14 14,677,93 2,005,27 12,672,66 464,101,80
15 14,677.93 1,951.97 12,725.96 451,375,84
16 14,677.93 1,898.44 12,779.49 418,596.35
17 14,677.93 1,844.69 12,833.24 425,763.11
18 14,677.93 1.790.72 12,887.21 412,875,90
19 14,677.93 1,736.52 12,941.41 399,934.49
20 14,677,93 1,682.09 12,995.84 386,938.65
21 14,677.93 1,627.43 13,050.50 373,888.15
22 14,677.93 1,572.54 13,105.39 360,782.76
23 14,677.93 1,517.42 13,160.51 347,622.25
24 14,677.93 1,462.06 13,215.87 334,406.38
25 14,677.93 1,406.48 13,27L45 321,134.93
26 14,677.93 1,350.66 13,327.27 307,807.66
27 14,677.93 1,294.61 13,383.32 294,42434
28 14,677.93 1,238,32 13,439.61 280,934,73
29 14,677,93 1,181.79 13,496.14 267,488,59
30 14,677.93 1,125.03 13,552.90 253,935.69
31 14,677.93 1,068.03 13,609.90 240,325.79
32 14,677.93 1,010.79 13,667.14 226,658.65
33 14,67T93 953.30 13,724.63, 212,934.02
34 14,677.93 895.58 13,782.35 199,151,67
Miji, Leuc,'.M ztcL A;dhMt ev09]12017MU-9 17, N Iiffi.41b9 y
35 14,677.93 837.61 13,840.32 185,311.35
36 14,677,93 779.40 13,898.53 171,412.82
37 14,677.93 720.95 13,956.98 157,455.84
38 14,677.93 662.24 14,015.69 143,440.15
39 14,677.93 603.30 14,074.63 129,365.52
40 14,677.93 544.10 14.133.83 115,231.69
41 14,677.93 484.65 14,19328 101,038.41
42 14,677.93 424,96 14,252.97 86,785.44
43 14,677,93 365,01 14,312.92 72,472.52
44 14,677.93 304.81 14,373.12 58,099.40
45 14,677.93 244.36 14,433.57 43,665.83
46 14,677.93 183.65 14,494,28 29,171.55
47 14,677.93 122.69 14,555,24 14,616.3 I
48 14,677.93 61.62 14.616.31 0.00
Grand Totals 704,540,64 65,093.36 639,447.28
Lessee: City of Kent,Washington 13y� _ __ _ <113 Ralph, Mayor
Lessee hereby authorizes Lessor to fill in the Commencement Date based on the earlier of the date that Lessor disburses
funds to the Vendor of the Equipment following receipt of Lessee's executed acceptance certificate,or the date on which
Lessor deposits funds for the purchase of the Equipment with an escrow agent.
At Prnnc l� t :.vaA,de.v00L YQh 3411C�9^I'HSQIB JOL Afd
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