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HomeMy WebLinkAbout7843RESOLUTION NO. 7343 A RESOLUTION APPROVING A MASTER LEASE PURCHASE AGREEMENT BETWEEN PUEBLO, A MUNICIPAL CORPORATION AND BANC ONE LEASING CORPORATION AND ALL RELATED DOCUMENTS WITH RESPECT THERETO AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE MASTER LEASE PURCHASE AGREEMENT AND RELATED DOCUMENTS WHEREAS, Pueblo is a political subdivision of the State of Colorado (the "State ") and is duly organized and existing pursuant to the Constitution and laws of the State, and WHEREAS, pursuant to applicable law, the City Council of Pueblo is authorized to acquire, dispose of and encumber real and personal property, including, without limitation, rights and interest in property, leases and easements necessary to the functions or operations of Pueblo, and WHEREAS, the City Council hereby finds and determines that the execution of one or more lease - purchase agreements ( "Equipment Leases ") in the principal amount not exceeding $307,509 for the purpose of acquiring the property ( "Equipment ") to be described in the Equipment Leases is appropriate and necessary to the functions and operations of Pueblo, and WHEREAS, Banc One Leasing Corporation ( "Lessor ") shall act as Lessor under said Equipment Leases. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1 The President of the City Council, acting on behalf of Pueblo, is hereby authorized to negotiate, enter into, execute, and deliver one or more Equipment Leases in substantially the form set forth in the documents presently before the City Council, which documents are available for public inspection at the office of the City Clerk. The President of the City Council acting on behalf of Pueblo is hereby authorized to negotiate, enter into, execute, and deliver such other documents relating to the Equipment Lease as the President of the City Council deems necessary and appropriate. All other related contracts and agreements necessary and incidental to the Equipment Leases are hereby authorized. SECTION 2 The aggregate original principal amount of the Equipment Leases shall not exceed $307,509 and shall bear interest as set forth in the Equipment Leases and the Equipment Leases shall contain such options to purchase by Pueblo as set forth therein. SECTION 3 Pueblo's obligations under the Equipment Leases shall be subject to annual appropriation or renewal by the City Council as set forth in each Equipment Lease and Pueblo's obligations under the Equipment Leases shall not constitute a general obligation of the Municipality or indebtedness under the Constitution or laws of the State. SECTION 4 This Resolution shall take effect immediately upon its adoption and approval. INTRODUCED: April 22, 1996 Al PEST: By Al Gurule Councilperson APPROVED: City Clerk Presi nt of the City Council -2- LESSEE ACKNOWLEDGMENT AND CONSENT This Lessee Acknowledgment and Consent is made as of this April 16, 1996 by the Lessee named below and BANC ONE LEASING CORPORATION ( "Banc One ") in favor of the Buyer named below. "Lease" shall mean, collectively, the Lease identified below, together with all exhibits, schedules, addenda and attaclnnents thereto, all of which are by and between Banc One and Lessee. LEASE: City of Pueblo, Lease # 1000050131 1. Lessee consents to the sale and assignment by Banc One to Buyer of all of Banc One's present and future right, title and interest in, to and under the Lease including, without limitation, the right to receive all rentals or installments payable under the Lease and all other monies from time to time payable under the Lease (collectively, "Rental Payments ") and all rights, benefits and remedies of Banc One under the Lease. Lessee agrees to pay all Rental Payments directly to Buyer at such address as may be specified from time to time by Buyer. Buyer hereby directs Lessee to continue to pay all Rental Payments to Banc One, as servicer for Buyer, until further notice. 2. Lessee agrees that , as of the date first written above, the following information about the Lease is accurate and complete (excluding taxes thereon): Total Amount of Rental Payments Remaining: $315,797.52 Frequency of Rental Payment: Annual Number of Rental Payments Remaining: Six 6 Amount of Each Rental Payment (excluding taxes): $ 52,632.92 Next Rental Payment Due: Apri 122, 1997 3. Lessee represents and warrants that: (a) the document attached hereto is a true and complete copy of the Lease; (b) all dates, amounts, equipment descriptions and other facts set forth in the Lease are correct; (c) the equipment identified in the Lease ( "Equipment ") is in Lessee's possession and control at the address shown in the Lease and has been irrevocably accepted by Lessee for all purposes of the Lease; (d) other than the Lease, there are no agreements between Banc One and Lessee relating to the Equipment; and (e) Lessee is not in default under the Lease. BANC ONE: BANC ONE LEASING CORPORATION By: Title: 2400 Corporate Exchange Columbus, OH 43231 LESSEE City of Pueblo (Name of Lessee) y� By: Av Title: Address: TO. Box 1472 Pueblo, CO 81003 BUYER IDENTIFIED BELOW: CARGILL INVESTMENT CORPORATION ADDRESS: 6000 Clearwater Drive Minnetonka, MN 55343 MASTER LEASE- PURCHASE AGREEMENT Dated as of March 28, 1996 This Master Lease- Purchase Agreement together with all addenda, riders and attachments hereto, as the same may from time to c -:::e be amended, modified or supplemented ( "Master Lease") is made and entered by and between Banc One Leasing Corporation. ( "Lessor ") and the lessee identified below ( "Lessee "). LESSEE: City of Pueblo 1. LEASE OF EQUIPMENT. Subject to the terms and conditions of this Master Lease, Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, all Equipment described in each Schedule signed from time to time by Lessee and Lessor. 2. CERTAIN DEFINITIONS. All terms defined in the Lease are equally applicable to both the singular and plural form of such terms. (a) "Schedule" means each Lease Schedule signed and delivered by Lessee and Lessor, together with all addenda, riders, attachments, certificates and exhibits thereto, as the same may from time to time be amended, modified or supplemented. Lessee and Lessor agree that each Schedule (except as expressly provided in said Schedule) incorporates by reference all of the terms and conditions of the Master Lease. (b) "Lease" means any one Schedule and this Master Lease as incorporated into said Schedule. (c) "Equipment" means the property described in each Schedule, together with all attachments, additions, accessions, parts, repairs, improvements, replacements and substitutions thereto. (d) "Lien" means any security interest, lien, mortgage, pledge, encumbrance, judgment, execution, attachment, warrant, writ, levy, other judicial process or claim of any nature whatsoever by or of any person. 3. LEASE TERM. The term of the lease of the Equipment described in each Lease ( "Lease Term ") commences on the first date any of such Equipment is accepted by Lessee pursuant to Section 5 hereof and, unless earlier terminated as expressly provided in the Lease, continues until Lessee's payment and performance in full of all of Lessee's obligations under the Lease. 4. RENT PAYMENTS. (mun i leas. master) Page 1 4.1 For each Lease, Lessee agrees to pay to Lessor the rent payments in the amounts and at the times as set forth in the Payment Schedule attached to the Schedule ( "Rent Payments ") . A portion of each Rent Payment is paid as and represents the payment of interest as set forth in the Payment Schedule. Lessee acknowledges that its obligation to pay Rent Payments including interest therein accrues as of the Accrual Date stated in the Schedule or its Payment Schedule; provided, that no Rent Payment is due until Lessee accepts the Equipment under the Lease or the parties execute an escrow agreement. Rent Payments will be payable for the Lease Term in U.S. dollars, without notice or demand at the office of Lessor (or such other place as Lessor may designate from time to time in writing). 4.2 If Lessor receives any payment from Lessee later than ten (10) days from the due date, Lessee shall pay Lessor on demand as a late charge five per cent (50) of such overdue amount, limited, however, to the maximum amount allowed by law. 4.3 EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 6 HEREOF OR IN ANY WRITTEN MODIFICATION TO THE LEASE SIGNED BY LESSOR, THE OBLIGATION TO PAY RENT PAYMENTS UNDER EACH LEASE SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS AND SHALL NOT BE SUBJECT TO ANY SETOFF, DEFENSE, COUNTERCLAIM, ABATEMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER. 5. DELIVERY; ACCEPTANCE; FUNDING CONDITIONS. 5.1 Lessee shall arrange for the transportation, delivery and installation of all Equipment to the location specified in the Schedule ( "Location ") by Equipment suppliers ( "Suppliers ") selected by Lessee. Lessee shall pay all costs related thereto. 5.2 Lessee shall accept Equipment as soon as it has been delivered and is operational. Lessee shall evidence its acceptance of any Equipment by signing and delivering to Lessor the applicable Schedule. If Lessee signs and delivers a Schedule and if all Funding Conditions have been satisfied in full, then Lessor will pay or cause to be paid the costs of such Equipment as stated in the Schedule ( "Purchase Price ") to the applicable Supplier. 5.3 Lessor shall have no obligation to pay any Purchase Price unless all reasonable conditions established by Lessor ( "Funding (munileas.master) Page 2 Conditions ") have been satisfied, including, without limitation, the following: (a) Lessee has signed and delivered the Schedule and its Payment Schedule; (b) no Event of Default shall have occurred and be continuing; (c) no material adverse change shall have occurred in the Internal Revenue Code of 1986, as amended, and the related regulations and rulings thereunder (collectively, the "Ccde "); (d) no material adverse change shall have occurred in the financial condition of Lessee or any Supplier; (e) the Equipment is reasonably satisfactory to Lessor and is free and clear of any Liens (except Lessor's Liens); (f) all representations of Lessee in the Lease remain true, accurate and complete; and (g) Lessor has received all of the following documents, which shall be reasonably satisfactory, in form and substance, to Lessor: (1) evidence of insurance coverage required by the Lease; (2) an opinion of Lessee's counsel; (3) reasonably detailed invoices for the Equipment; (4) Uniform Commercial Code (UCC) financing statements; (5) copies of resolutions by Lessee's governing body authorizing the Lease and incumbency certificates for the person(s) who will sign the Lease; (6) such documents and certificates relating to the tax - exempt interest payable under the Lease (including, without limitation, IRS Form 8038G or 8038GC) as Lessor may request; and (7) such other documents and information previously identified by Lessor or otherwise reasonably requested by Lessor. 6. TERMINATION FOR GOVERNMENTAL NON - APPROPRIATIONS. 6.1 For each Lease, Lessee represents and warrants: that it has appropriated and budgeted the necessary funds to make all Rent Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; and that it currently intends to make Rent Payments for the full Lease Term as scheduled in the applicable Payment Schedule if funds are appropriated for the Rent Payments in each succeeding fiscal year by its governing body. Without contractually committing itself to do so, Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can and will lawfully be appropriated and made available therefor. Lessee directs the person in charge of its budget requests to include the Rent Payments payable during each fiscal year in the budget request presented to Lessee's governing body for such fiscal year; provided, that Lessee's governing body retains authority to approve or reject any such budget request. All Rent Payments shall be payable out of the general funds of Lessee or out of other funds legally available (muni leas. master) Page 3 therefor. Lessor agrees that no Lease will be a general obligation of Lessee and no Lease shall constitute a pledge of either the full faith and credit of Lessee or the taxing power of Lessee. 6.2 If Lessee's governing body fails to appropriate sufficient funds in any fiscal year for Rent Payments or other payments due u -_der a Lease and if other funds are not legally available for sucn payments, then a "Non- Appropriation Event" shall be deemed to have occurred. If a Non - Appropriation Event occurs, then: (a) Lessee shall give Lessor immediate notice of such Non - Appropriation Event and provide written evidence of such failure by Lessee's governing body; (b) on the Return Date, Lessee shall return to Lessor all, but not less than all, of the Equipment covered by the affected Lease, at Lessee's sole expense, in accordance with Section 21 hereof; and (c) the affected Lease shall terminate on the Return Date without penalty to Lessee, provided, that Lessee shall pay all Rent Payments and other amounts payable under the affected Lease for which funds shall have been appropriated or are otherwise legally available, provided further, that Lessee shall pay month -to -month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee fails to return the Equipment under this Section 6.2. "Return Date" means the last day of the fiscal year for which appropriations were made for the Rent Payments due under a Lease. , during -the twelve (12) month period following the Return Date, Lessee g`rees not to acquire (by purchase, lease or otherwise) lacement equipment which is functionally similar to the Equi ent covered by such terminated Lease, or to appropriate funds or the acquisition of such replacement equipment. Notwiths ding the foregoing of this Section 6.3, the restriction of this section 6.3 shall automatically and without fu er action of the parties be ineffective and be deleted- a) from any terminated Lease if the net proceeds of the sa of the returned Equipment is sufficient to pay the Terminati Value of the Equipment as of the Return Date; or (b) from Lease if the application of the restrictions in this sec 'on 6.3 would not be permitted by then applicable law or wou cause such Lease to be invalid or unenforceable in any resne t. 7. LIMITATION ON WARRANTIES. LESSOR MARES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, (munileas.master) Page 4 INCLUDING, WITHOUT LIMITATION, AS TO THE MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY OF THE EQUIPMENT OR AS TO THE VALUE, DESIGN, CONDITION, USE, CAPACITY OR DURABILITY OF ANY OF THE EQUIPMENT. For and during the Lease Term, Lessor hereby assigns to Lessee any manufacturer's or Supplier's product warranties, express or implied, applicable to any Equipment and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties at Lessee's sole expense. Lessee agrees that (a) all Equipment will have been purchased by Lessor in accordance with Lessee's specifications from Suppliers selected by Lessee, (b) Lessor is not a manufacturer or dealer of any Equipment and has no liability for the delivery or installation of any Equipment, (c) Lessor assumes no obligation with respect to any manufacturer's or Supplier's product warranties or guaranties, (d) no manufacturer or Supplier or any representative of said parties is an agent of Lessor, and (e) any warranty, representation, guaranty or agreement made by any manufacturer or Supplier or any representative of said parties shall not be binding upon Lessor. 8. TITLE; SECURITY INTEREST° 8.1 Upon Lessee's acceptance of any Equipment under a Lease, title to the Equipment shall vest in Lessee, subject to Lessor's security interest therein and all of Lessor's other rights under such Lease including, without limitation, Sections 6, 20 and 21 hereof. 8.2 As collateral security for the Secured Obligations, Lessee hereby grants to Lessor a first priority security interest in any and all of the Equipment (now existing or hereafter acquired) and any and all proceeds thereof. Lessee agrees to execute and deliver to Lessor all necessary documents to evidence and perfect such security interest, including, without limitation, UCC financing statements and any amendments thereto. 8.3 "Secured Obligations" means Lessee's obligations to pay all Rent Payments and all other amounts due and payable under all present and future Leases and to perform and observe all covenants, agreements and conditions (direct or indirect, absolute or contingent, due or to become due, or existing or hereafter arising) of Lessee under all present and future Leases. (munileas.master) Page 5 9. PERSONAL PROPERTY. All Equipment is and will remain personal property and will not be deemed to be affixed or attached to real estate or any building thereon. 10. MAINTENANCE AND OPERATION. Lessee agrees it shall, at its sole expense: (a) repair and maintain all Equipment in good condition and working order and supply and install all replacement parts or other devices when required to so maintain the Equipment or when required by applicable law or regulation, which parts or devices shall automatically become part of the Equipment; and (b) use and operate all Equipment in a careful manner in the normal course of its operations and only for the purposes for which it was designed in accordance with the manufacturer's warranty requirements, and comply with all laws and regulations relating to the Equipment. If any Equipment is customarily covered by a maintenance agreement, Lessee will furnish Lessor with a maintenance agreement by a party reasonably satisfactory to Lessor. No maintenance or other service for any Equipment will be provided by Lessor. Lessee will not make any alterations, additions or improvements ( "Improvements ") to any Equipment without Lessor's prior written consent unless the Improvements may be readily removed without damage to the operation, value or utility of such Equipment, but any such Improvements not removed prior to the termination of the applicable Lease shall automatically become part of the Equipment. 11. LOCATION; INSPECTION. Equipment will not be removed from, or if Equipment is rolling stock its permanent base will not be changed from, the Location without Lessor's prior written consent which will not be unreasonably withheld. Upon reasonable notice to Lessee, Lessor may enter the Location or elsewhere during normal business hours to inspect the Equipment. 12. LIENS, SUBLEASES AND TAXES. 12.1 Lessee shall keep all Equipment free and clear of all Liens except those Liens created under its Lease. Lessee shall not sublet or lend any Equipment or permit it to be used by anyone other than Lessee or Lessee's employees. 12.2 Lessee shall pay when due all Taxes which may now or hereafter be imposed upon any Equipment or its ownership, leasing, (munileas.master) Page 6 rental, sale, purchase, possession or use, upon any Lease or upon any Rent Payments or any other payments due under any Lease. If Lessee fails to pay such Taxes when due, Lessor shall have the right, but not the obligation, to pay such Taxes. If Lessor pays any such Taxes, then Lessee shall, upon demand, immediately reimburse Lessor therefor. "Taxes" means present and future taxes, levies, duties, assessments or other governmental charges that are not based on the net income of Lessor, whether they are assessed to or payable by Lessee or Lessor, including, without limitation (a) sales, use, excise, licensing, registration, titling, gross receipts, stamp and personal property taxes, and (b) interest, penalties or fines on any of the foregoing. 13. RISK OF LOSS. 13.1 Lessee bears the entire risk of loss, theft, damage or destruction of any Equipment in whole or in part from any reason whatsoever ( "Casualty Loss ") . No Casualty Loss to any Equipment shall relieve Lessee from the obligation to make any Rent Payments or to perform any other obligation under any Lease. Proceeds of any insurance recovery will be applied to Lessee's obligations under this Section 13. 13.2 If a Casualty Loss occurs to any Equipment, Lessee shall immediately notify Lessor of the same and Lessee shall, unless otherwise directed by Lessor, immediately repair the same. 13.3 If Lessor determines that any item of Equipment has suffered a Casualty Loss beyond repair ( "Lost Equipment "), then Lessee shall either: (a) immediately replace the Lost Equipment with similar equipment in good repair, condition and working order free and clear of any Liens (except Lessor's Liens) and deliver to Lessor a bill of sale covering the replacement equipment, in which event such replacement equipment shall automatically be Equipment under the applicable Lease; or (b) on earlier of 60 days after the Casualty Loss or the next scheduled Rent Payment date, pay Lessor (i) all amounts owed by Lessee under the applicable Lease, including the Rent Payments due on or accrued through such date plus (ii) an amount equal to the Termination Value as of the Rent Payment date (or if the Casualty Loss payment is due between Rent Payment dates, then as of the Rent Payment date preceding the date that the Casualty Loss payment is due) set forth in the Payment Schedule to the applicable Lease. If Lessee is making such payment (munileas.master) Page 7 with respect to less than all of the Equipment under a Lease, then Lessor will provide Lessee with the pro rata amount of the Rent Payment and Termination Value to be paid by Lessee with respect to the Lost Equipment and revised Payment Schedule. 13.4 Lessee shall bear the risk of loss for, shall pay directly, and shall defend against any and all claims, liabilities, proceedings, actions, expenses (including reasonable attorney's fees), damages or losses arising under or related to any Equipment, including, but not limited to, the possession, ownership, lease, use or operation thereof. These obligations of Lessee shall survive any expiration or termination of any Lease. Lessee shall not bear the risk of loss of, nor pay for, any claims, liabilities, proceedings, actions, expenses (including attorney's fees), damages or losses which arise directly from events occurring after any Equipment has been returned by Lessee to Lessor in accordance with the terms of the applicable Lease or which arise directly from the gross negligence or willful misconduct of Lessor. 14. INSURANCE. 14.1 (a) Lessee at its sole expense shall at all times keep all Equipment insured against all Casualty Losses for an amount not less than the Termination Value of the Equipment. Proceeds of any such insurance covering damage or loss of any Equipment shall be payable to Lessor as loss payee. (b) Lessee at its sole expense shall at all times carry public liability and property damage insurance in amounts reasonably satisfactory to Lessor protecting Lessee and Lessor from liabilities for injuries to persons and damage to property of others relating in any way to any Equipment. Proceeds of any such public liability or property insurance shall be payable first to Lessor as additional insured to the extent of its liability, and then to Lessee. 14.2 All insurers shall be reasonably satisfactory to Lessor. Lessee shall promptly deliver to Lessor satisfactory evidence of required insurance coverage and all renewals and replacements thereof. Each insurance policy will require that the insurer give Lessor at least 30 days prior written notice of any cancellation of such policy and will require that Lessor's interests remain insured regardless of any act, error, misrepresentation, omission or neglect of Lessee. The insurance maintained by Lessee shall be primary without any right of contribution from insurance which may (munileas.master) Page 8 be maintained by Lessor. 15. PURCHASE OPTION. Upon thirty (30) days prior written notice by Lessee to Lessor, and so long as there is no Event of Default then existing, Lessee shall have the option to purchase all, but not less than all, of the Equipment covered by a Lease on any Rent Payment due date by paying to Lessor all Rent Payments then due (including accrued interest, if any) plus the Termination Value amount set forth on the Payment Schedule to the applicable Lease for such date. Upon satisfaction by Lessee of such purchase conditions, Lessor shall release its Lien on such Equipment and Lessee shall retain its title to such Equipment "AS -IS, WHERE -IS ", without representation or warranty by Lessor, express or implied, except for a representation that such Equipment is free and clear of any Liens created by Lessor. 16. LESSEE'S REPRESENTATIONS AND WARRANTIES. With respect to each Lease and its Equipment, Lessee hereby represents and warrants to Lessor that: (a) Lessee has full power, authority and legal right to execute and deliver the Lease and to perform its obligations under the Lease, and all such actions have been duly authorized by appropriate findings and actions of Lessee's governing body; (b) the Lease has been duly executed and delivered by Lessee and constitutes a legal, valid and binding obligation of Lessee, enforceable in accordance with its terms; (c) the Lease is authorized under, and the authorization, execution and delivery of the Lease complies with, all applicable federal, state and local laws and regulations (including, but not limited to, all open meeting, public bidding and property acquisition laws) and all applicable judgments and court orders; (d) the execution, delivery and performance by Lessee of its obligations under the Lease will not result in a breach or violation of, nor constitute a default under, any agreement, lease or other instrument to which Lessee is a party or by which Lessee's properties may be bound or affected; (e) there is no pending, or to the best of Lessee's knowledge threatened, litigation of any nature which may have a material (muni leas. master) Page 9 adverse effect on Lessee's ability to perform its obligations under the Lease; and (f) Lessee is a state, or a political subdivision thereof, as referred to in Section 103 of the Code, and Lessee's obligation under the Lease constitutes an enforceable obligation issued on Behalf of a state or a political subdivision thereof. 17. TAX COVENANTS. Lessee hereby covenants and agrees that: (a) Lessee shall comply with all of the requirements of Section 149(a) and Section 149(e) of the Code, as the same may be amended from time to time, and such compliance shall include, but not be limited to, keeping a complete and accurate record of any assignments of any Lease and executing and filing Internal Revenue Form 8038G or 8038GC, as the case may be, and any other information statements reasonably requested by Lessor; (b) Lessee shall not do (or cause to be done) any act which will cause, or by omission of any act allow, any Lease to be an "arbitrage bond" within the meaning of Section 148(a) of the Code or any Lease to be a "private activity bond" within the meaning of Section 141(a) of the Code; and (c) Lessee shall not do (or cause to be done) any act which will cause, or by omission of any act allow, the interest portion of — any Rent Payments,.to be or become includable in gross income for Federal income taxation purposes under the Code. 18. ASSIGNMENT. 18.1 Lessee shall not assign, transfer, pledge, hypothecate, nor grant any Lien on, nor otherwise dispose of, any Lease or any Equipment or any interest in any Lease or Equipment. 18.2 Lessor may assign its rights, title and interest in and to any Lease or any Equipment, and /or may grant or assign a security interest in any Lease and its Equipment, in whole or in part, to any party at any time. Any such assignee or lienholder (an "Assignee ") shall have all of the rights of Lessor under the applicable Lease. LESSEE AGREES NOT TO ASSERT AGAINST ANY ASSIGNEE ANY CLAIMS, ABATEMENTS, SETOFFS, COUNTERCLAIMS, RECOUPMENT OR ANY OTHER SIMILAR DEFENSES WHICH LESSEE MAY HAVE AGAINST LESSOR. (muni leas. master) Page 10 Unless otherwise agreed by Lessee in writing, any such assignment transaction shall not release Lessor from any of Lessor's obligations under the applicable Lease. An assignment or reassignment of any of Lessor's right, title or interest in a Lease or its Equipment shall be enforceable against Lessee only after Lessee receives a written notice of assignment which discloses the name and address of each such Assignee; provided, that such notice from Lessor to Lessee of any assignment shall not be so required if Lessor assigns a Lease to BANC ONE CORPORATION or any of its direct or indirect subsidiaries. Lessee shall keep a complete and accurate record of all such assignments in the form necessary to comply with Section 149(a) of the Code. Lessee agrees to acknowledge in writing any such assignments if so requested. 18.3 Each Assignee of a Lease hereby agrees that: (a) the term Secured Obligations as used in Section 8.3 hereof is hereby amended to include and apply to all obligations of Lessee under the Assigned Leases and to exclude the obligations of Lessee under any Non - Assigned Leases; (b) said Assignee shall have no Lien on, nor any claim to, nor any interest of any kind in, any Non - Assigned Lease or any Equipment covered by any Non - Assigned Lease; and (c) Assignee shall exercise its rights, benefits and remedies as the assignee of Lessor (including, without limitation, the remedies under Section 20 of the Master Lease) solely with respect to the Assigned Leases. "Assigned Leases" means only those Leases which have been assigned to a single Assignee pursuant to a written agreement; and "Non- Assigned Leases" means all Leases excluding the Assigned Leases. 18.4 Subject to the foregoing, each Lease inures to the benefit of and is binding upon the heirs, executors, administrators, successors and assigns of the parties hereto. 19. EVENTS OF DEFAULT. For each Lease, "Event of Default" means the occurrence of any one or more of the following events as they may relate to such Lease: (a) Lessee fails to make any Rent Payment (or any other payment) as it becomes due in accordance with the terms of the Lease, and any such failure continues for ten (10) days after the due date thereof; (b) Lessee fails to perform or observe any of its obligations under Sections 12.1, 14 or 18.1 hereof; (c) Lessee fails to perform or observe any other covenant, condition or agreement to be performed or observed by it under the Lease and such failure is not cured within thirty (30) days after (munileas.masterl Page 11 receipt of written notice thereof by Lessor; (d) any statement, representation or warranty made by Lessee in the Lease or in any writing delivered by Lessee pursuant thereto or in connection therewith proves at any time to have been false, misleading or erroneous in any material respect as of the time when made; (e) Lessee applies for or consents to the appointment of a receiver, trustee, conservator or liquidator of Lessee or of all or a substantial part of its assets, or a petition for relief is filed by Lessee under any federal or state bankruptcy, insolvency or similar law, or a petition in a proceeding under any federal or state bankruptcy, insolvency or similar law is filed against Lessee and is not dismissed within sixty (60) days thereafter; or (f) Lessee shall be in default under any other Lease or under any other financing agreement executed at any time with Lessor. 20. REMEDIES. If any Event of Default occurs, then Lessor may, at its option, exercise any one or more of the following remedies: (a) Lessor may require Lessee to pay (and Lessee agrees that it shall pay) all amounts then currently due under all Leases and all remaining Rent Payments due under all Leases during the fiscal year in effect when the Event of Default occurs together with interest on such amounts at the highest lawful rate from the date of Lessor's demand for such payment; (b) Lessor may require Lessee to promptly return all Equipment to Lessor in the manner set forth in Section 21 (and Lessee agrees that it shall so return the Equipment) , or Lessor may, at its option, enter upon the premises where any Equipment is located and repossess such Equipment without demand or notice, without any court order or other process of law and without liability for any damage occasioned by such repossession; (c) Lessor may sell, lease or otherwise dispose of any Equipment, in whole or in part, in one or more public or private transactions, and if Lessor so disposes of any Equipment, then Lessor shall retain the entire proceeds of such disposition free of any claims of Lessee and Lessor may hold Lessee liable for any deficiency between the net proceeds of such disposition and any remaining amounts payable by Lessee under the Leases; (d) Lessor may terminate, cancel or rescind any Lease as to any and all Equipment; (munileas.master) Page 12 (e) Lessor may exercise any other right, remedy or privilege which may be available to Lessor under applicable law or, by appropriate court action at law or in equity, Lessor may enforce any of Lessee's obligations under any Lease; and /or (f) Lessor may require Lessee to pay (and Lessee agrees that it shall pay) all out -of- pocket costs and expenses incurred by Lessor as a result (directly or indirectly) of the Event of Default and /or of Lessor's actions under this section, including, without limitation, any attorney fees and expenses and any costs related to the repossession, safekeeping, storage, repair, reconditioning or disposition of any Equipment. None of the above remedies is exclusive, but each is cumulative and in addition to any other remedy available to Lessor. Lessor's exercise of one or more remedies shall not preclude its exercise of any other remedy. No delay or failure on the part of Lessor to exercise any remedy under any Lease shall operate as a waiver thereof, nor as an acquiescence in any default, nor shall any single or partial exercise of any remedy preclude any other exercise thereof or the exercise of any other remedy. 21. RETURN OF EQUIPMENT. If Lessor is entitled under the provisions of any Lease, including any termination thereof pursuant to Sections 6 or 20 of this Master Lease, to obtain, possession of any Equipment or if Lessee is obligated at any time to return any Equipment, then (a) title to the Equipment shall vest in Lessor immediately upon Lessor's notice thereof to Lessee, and (b) Lessee shall, at its sole expense and risk, immediately de- install, disassemble, pack, crate, insure and return the Equipment to Lessor (all in accordance with applicable industry standards) at any location in the continental United States selected by Lessor. Such Equipment shall be in the same condition as when received by Lessee (reasonable wear, tear and depreciation resulting from normal and proper use excepted), shall be in good operating order and maintenance as required by the applicable Lease, shall be free and clear of any Liens (except Lessor's Lien) and shall comply with all applicable laws and regulations. Until Equipment is returned as required above, all terms of the applicable Lease shall remain in full force and effect including, without limitation, obligations to pay Rent Payments and to insure the Equipment. Lessee agrees to execute and deliver to Lessor all documents reasonably requested by (munileas.master) Page 13 Lessor to evidence the transfer of legal and beneficial title to such Equipment to Lessor and to evidence the termination of Lessee's interest in such Equipment. 22. LAW GOVERNING. Each Lease shall be governed by the laws of the state of Lessee (the "State "). 23. NOTICES. All notices to be given under any Lease shall be made in writing and either personally delivered or mailed by regular or certified mail or sent by an overnight courier delivery company to the other party at its address set forth herein or at such address as the party may provide in writing from time to time. Any such notices shall be deemed to have been received five (5) days subsequent to mailing. 24. FINANCIAL INFORMATION. Within thirty (30) days of their completion in each fiscal year of Lessee during any Lease Term, Lessee will deliver to Lessor upon Lessor's request the publicly available annual financial information of Lessee. 25. SECTION HEADINGS. All section headings contained herein or in any Schedule are for convenience of reference only and do not define or limit the scope of any provision of any Lease. 26. EXECUTION IN COUNTERPARTS. Each Schedule to this Master Lease may be executed in several counterparts, each of which shall be deemed an original, but all of which shall be deemed one instrument. Only one counterpart of each Schedule shall be marked "Lessor's Original" and all other counterparts shall be deemed duplicates. An assignment of or security interest in any Schedule may be created through transfer and possession only of the counterpart marked "Lessor's Original ". 27. ENTIRE AGREEMENT; WRITTEN AMENDMENTS. Each Lease, together with the exhibits, schedules and addenda attached thereto and made a part hereof and other attachments thereto constitute the entire agreement between the parties with respect to the lease of the Equipment covered thereby, and such Lease shall not be modified, amended, altered, or changed except with the written consent of Lessee and Lessor. Any provision of any Lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of the Lease. (muni leas. master) Page 14 LESSEE: LESSOR: Cy of Pueblo Banc One Leasing Corporation By. By. Title: Title: 41 Citv Hall Place 2400 Corporate Exchange Drive (Street Address) Columbus, Ohio 43231 Pueblo, Colorado 81003 (City, State, Zip) ( mun i leas. master) Page 15 COLORADO MASTER LEASE - PURCHASE ADDENDUM (Colorado Municipal Lease) Dated As Of 3/28/96 Master Lease - Purchase Agreement Dated 3/28/96 Lessee: City of Pueblo Reference is made to the above Master Lease - Purchase Agreement ( "Master Lease ") by and between Banc One Leasing Corporation ( "Lessor ") and the above lessee ( "Lessee "). This Addendum amends and modifies the terms and conditions of the Master Lease and is hereby made a part of the Master Lease. Unless otherwise defined herein, capitalized terms defined in the Master Lease shall have the same meaning when used herein. NOW, THEREFORE, as part of the valuable consideration to induce the execution of Leases, Lessor and Lessee hereby agree to amend the Master Lease as follows: 1. Section 3 of the Master Lease is deleted and replaced with the following: "3. TERM. (a) The term of the lease of the Equipment described in each Lease ( "Lease Term ") commences on the first date any of such Equipment is accepted by Lessee pursuant to Section 5 hereof and, unless earlier terminated as expressly provided in the Lease, continues until Lessee's payment and performance in full of all of Lessee's obligations under the Lease. Each Lease Term shall consist of an Original Term and, if renewed as stated below, such number of Renewal Terms as shall extend the Lease Term of a Lease to the date that the last Rental Payment stated in the Payment Schedule to such Lease is due and payable. (b) The Original Term of each Lease will commence on the first date any of the Equipment is accepted by Lessee pursuant to Section 5 hereof and shall extend to the last day of the fiscal year of Lessee in which such commencement date occurs. Lessee has the option to renew the Lease Term of each Lease and each Renewal Term of a Lease shall be twelve months, shall (munilease.col) Page 1 correspond to Lessee's fiscal year and shall commence on the first day following the last day of the Original Term or the preceding Renewal Term, as the case may be; provided, that the last scheduled Renewal Term of a Lease shall be such lesser number of months as may be necessary to extend the Lease Term of the Lease to the date that the last Rent Payment stated in the Payment Schedule is due and payable. (c) The Original Term of each Lease shall terminate on the last day of the fiscal year of Lessee that corresponds to the Original Term and each Renewal Term shall terminate on the last day of the fiscal year of Lessee that corresponds to said Renewal Term; provided, that the Original Term and each Renewal Term of each Lease may be renewed for the succeeding Renewal Term, but only if a Renewal Act is taken by Lessee. "Renewal Act" means the affirmative act of Lessee whereby Lessee gives notice of its intent to renew the affected Lease for the applicable Renewal Term; provided, that, if permitted by applicable State law, the act of the governing body of Lessee whereby it appropriates funds to pay Rent Payments for a Lease that are due and payable in such succeeding Renewal Term shall be deemed such an affirmative act of Lessee." 2. Section 6 of the Master Lease is deleted and replaced with the following: "6. TERMINATION FOR NON- RENEWAL. "6.1 For each Lease, Lessee represents and warrants: that it has appropriated and budgeted the necessary funds to make all Rent Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; and that it currently intends to make Rent Payments for the full Lease Term as scheduled in the applicable Payment Schedule. Without contractually committing itself to do so, Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can and will lawfully be appropriated and made available therefor. All Rent Payments shall be payable out of the general funds of Lessee or out of other funds legally available therefor. Lessor agrees that no Lease will be a general obligation of Lessee and no Lease shall constitute a pledge of either the full faith and credit of Lessee or the taxing power of Lessee. (munilease.col) Page 2 "6.2 If Lessee fails to renew a Lease Term of a Lease as provided above, then a "Non- Renewal Event" shall be deemed to have occurred. If a Non - renewal Event occurs, then: (a) Lessee shall give Lessor immediate notice of such Non - Renewal Event; (b) on the Return Date, Lessee shall return to Lessor all, but not less than all, of the Equipment covered by the affected Lease, at Lessee's sole expense, in accordance with Section 21 hereof; and (c) the affected Lease shall terminate on the Return Date without penalty to Lessee, provided, that Lessee shall pay all Rent Payments and other amounts payable under the affected Lease for which funds shall have been appropriated or are otherwise legally available, provided further, that Lessee shall pay month -to -month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee fails to return the Equipment under this Section 6.2. "Return Date" means the last day of the fiscal year for which appropriations were made for the Rent Payments due under a Lease." 3. Except as expressly amended by this Addendum and other modifications signed by Lessor, the Master Lease remains unchanged and in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Addendum as of the date first referenced above. City of Pueblo (Lessee) Banc One Leasing Corporation (Lessor) By Title: ` Title: (munilease.col) Page 3 ESCROW AGREEMENT Dated as of 3/28/96 (Gross Fund - Earnings to Lessee) This Escrow Agreement together with all addenda, riders and attachments hereto, as the same may from time to time be amended, modified or supplemented ( "Agreement ") is made and entered. as of the date set forth above by and among the Escrow Agent identified below ( "Escrow Agent "), the Lessee identified below ( "Lessee ") and Banc One Leasing Corporation ( "Lessor "). Escrow Agent: Banc One Leasing Corporation Lessee: City of Pueblo For good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows: Section 1. Recitals 1.01 Lessor and Lessee have entered into the Lease identified below, a duplicate original of which has been furnished to the Escrow Agent, whereby Lessor has agreed to lease and sell certain property described therein (the "Equipment ") to Lessee, and Lessee has agreed to lease and purchase the Equipment from Lessor, in the manner and on the terms set forth in the Lease. 1.02 "Lease" means, collectively, the Lease Schedule identified below and the Master Lease - Purchase Agreement identified in said Lease Schedule (to the extent that it relates to said. Lease Schedule) together with all exhibits, schedules, addenda, riders and attachments thereto. Lease Schedule No. 1000050131 dated 3/28/96 1.03 LESSOR'S DEPOSIT: 5307,508.96. Lessor shall pay or cause to be paid to the Escrow Agent the amount of the Lessor's Deposit which will be credited to the Equipment Acquisition Fund established in Section 2 hereof. To the extent that the Purchase Price of the Equipment exceeds the Lessor's Deposit, Lessee shall either deposit with Escrow Agent funds which will be credited to the Equipment Acquisition Fund and used to pay the balance of the Purchase Price of the Equipment or Lessee shall pay such balance directly to the Suppliers. (muniescr.ag2) Page 1 1.04 Funding Expiration Date: 9 /26/96 . Lessee and Lessor agree that all Equipment should be delivered and installed, and all funds disbursed from the Equipment Acquisition Fund, no later than the above Funding Expiration Date. 1.05 Under the Lease, Lessee will cause each item of Equipment to be ordered from the applicable Suppliers. Lessee shall furnish to the Escrow Agent as soon as available, a copy of the purchase orders or purchase contracts for all Equipment ordered pursuant to the Lease, showing the Supplier, the Purchase Price and the estimated delivery dates. 1.06 Subject to such control by Lessee and Lessor as is provided herein, Lessor and Lessee agree to employ the Escrow Agent to receive, hold, invest and disburse the moneys to be paid to the Escrow Agent as described in Section 1.03, all as hereinafter provided. The Escrow Agent shall not be obligated to assume or perform any obligation of Lessee or Lessor under the Lease or of any Supplier with respect to any Equipment by reason of anything contained in this Agreement. Any funds in the Equipment Acquisition Fund not needed to pay the Purchase Price of Equipment will be paid to Lessor or Lessee, all as hereinafter provided. 1.07 This Agreement is noe- intended to alter or change in any way the rights and obligations of Lessor and Lessee under the Lease, but is entirely supplemental thereto. The terms capitalized in this Agreement but not defined herein shall have the meanings given to them in the Lease. 1.08 Each of the parties hereto has authority to enter into this Agreement, and has taken all actions necessary to authorize the execution of this Agreement by the officers whose signatures are affixed hereto. Section 2. Equipment Acquisition Fund 2.01 The Escrow Agent shall establish a special escrow fund designated as the Equipment Acquisition Fund (the "Equipment Acquisition Fund "), shall keep such fund separate and apart from all other funds and money held by it, and shall administer such fund as provided in this Agreement. 2.02 The Lessor's Deposit and any funds deposited by Lessee (muniescr.ae2) Page 2 under = ection 1.03 hereof shall be credited to the Equipment Acquisition Fund which shall be used to pay the balance of the Purchase Price of each item of Equipment subject to the Lease. The Escrow Agent shall pay to the Suppliers of the Equipment the payment amounts then due and payable with respect thereto upon receipt of all of the following: (a) a Receipt Certificate /Payment Request (in the form attached hereto as Exhibit A or B) executed by Lessor and Lessee which describes the items of Equipment for which payment is to be made and specifies the Suppliers and the applicable portion of the Purchase Price of the items of Equipment to be paid; (b) the Suppliers' invoices specifying the applicable portion of the Purchase Price of the items of Equipment described in said Receipt Certificate; and (c) if the item of Equipment is a titled vehicle, a copy of the Manufacturer's Statement of Origin (MSO) covering such item showing Lessor as first and sole lienholder. 2.03 if Lessor delivers to the Escrow Agent written notice of the occurrence of an event of default under the Lease or of a termination of the Lease due to a non - appropriation event or non - renewal event under the Lease, then the Escrow Agent shall immediately remit to Lessor the remaining balance of the Equipment Acquisition Fund. 2.04 Upon the Escrow Agent's receipt of a Full Funding Notice, the Escrow Agent shall apply the balance remaining in the Equipment Acquisition Fund: . first, to all reasonable fees and expenses incurred by the Escrow Agent in connection herewith as evidenced by its statement forwarded to Lessee and Lessor; and second, to Lessee to be used or applied as may be determined by Lessee in its discretion. "Full Funding Notice" means the Final Receipt Certificate /Payment Reauesz which confirms that all Equipment covered by the Lease has been __ livered to and accepted by Lessee under the Lease. (munies ;.l Page 3 2.05 Upon the Funding Expiration Date stated in Section 1.04 above, the Escrow Agent shall apply the balance of the Lessor's Deposit remaining in the Equipment Acquisition Fund: first to all reasonable fees and expenses incurred by the Escrow Agent in connection herewith as evidenced by its statement forwarded to Lessee and Lessor; and second to Lessor to be applied by Lessor for benefit of Lessee either: (a) toward the principal portion of the Rent Payment next coming due under the Lease; or (b) toward a partial prepayment of the principal amount remaining due under the Lease and thereupon Lessor shall prepare and deliver to Lessee a revised Payment Schedule reflecting such partial prepayment of principal. Upon the Funding Expiration Date stated in Section 1.04 above, the Escrow Agent shall apply the interest earnings on the Lessor's Deposit as set forth in Section 2.04 above. 2.06 The Escrow Agent shall not be responsible for the sufficiency of the moneys credited to the Equipment Acquisition Fund to make the payments herein required. Section 3. Money in Equipment Acquisitions Fund; Investment 3.01 The money and investments held by the Escrow Agent under this Agreement are irrevocably held in trust for the benefit of Lessee and Lessor, and such money, together with any income or interest earned thereon, shall be expended only as provided in this Agreement, and shall not be subject to levy or attachment, or to any security interest or lien, by or for the benefit of any creditor of either Lessee or Lessor; provided, that the money and investments held by the Escrow Agent under this Agreement shall be subject to the security interests provided in Sections 3.07 and 4.03 hereof. 3.02 Money held by the Escrow Agent hereunder shall be invested and reinvested by the Escrow Agent on behalf of Lessee in Qualified Investments (as defined below) . Such investments shall be registered in the name of the Escrow Agent and held by the Escrow Agent. The Escrow Agent may purchase or sell to itself or any (muniescr.ag2) Page 4 affiliate, as principal or agent, investments authorized by this Section. Such investments and reinvestments shall be made giving consideration for the time at which funds are required to be available. No investment shall be made that would cause the Agreement to be deemed an "arbitrage bond" within the meaning of Section. 148(a) of the Internal Revenue Code of 1986, as amended. 3.03 The term "Qualified Investments" means: (a) direct general obligations of the United States of America; (b) obligations guaranteed by the United States of America; (c) general obligations of the agencies and instrumentalities of the United States of America; (d) certificates of deposit, time deposits or demand deposits with any bank or trust company incorporated under the laws of the United States of America or any state thereof, and which is owned by a holding company whose long term debt or commercial paper is rated at least investment grade by any nationally recognized rating agency; (e) open market commercial paper with a maturity not in excess of one year from the date of acquisition thereof which on the date of acquisition has the highest credit rating by any rating agency; and (f) any money market or short term investment fund investing in or consisting solely of and secured by any of the obligations described in clauses (a) , (b) and (c) above. 3.04 If any of the above- described Qualified Investments are not legal investments of Lessee, then Lessee shall immediately notify Escrow Agent which of said Qualified Investments are not legal investments of Lessee. 3.05 The Escrow Agent shall, without further direction, sell such investments as and when required to make any payment from the Equipment Acquisition Fund. Any income received on such investments shall be credited to the Equipment Acquisition Fund. 3.06 The Escrow Agent shall furnish an accounting of all investments. The Escrow Agent shall not be responsible or liable for any loss suffered in connection with any investments of moneys made by it in accordance with this Section. 3.07 Lessee hereby grants Lessor a security interest in the money and investments held by the Escrow Agent under this Agreement as collateral security for the payment and performance of all of Lessee's obligations under the Lease, this Agreement and anv (muniescr.aa?) Page 5 agreement, contract or instrument related to the Lease or this Agreement. Lessee represents and warrants to Lessor that the money and investments held by the Escrow Agent under this Agreement are free and clear of any liens, security interests or encumbrances other than the security interests created under this Agreement. Escrow Agent hereby acknowledges that it holds the money and investments held by the Escrow Agent under this Agreement subject to such security interest created by Lessee as bailee for Lessor; provided, that Escrow Agent's security interest in such money and investments as created under Section 4.03 hereof shall be superior to Lessor's security interest therein. Section 4. Escrow AcTent's Authority; Indemnification 4.01 The Escrow Agent may: act in reliance upon any writing, notice, certificate, instruction, instrument or signature which it, in good faith, believes to be genuine; assume the validity and accuracy of any statement or assertion contained in such a writing, notice, certificate, instruction or instrument; and assume that any person purporting to give any such writing, notice, certificate, instruction or instrument in connection with the provisions hereof has been duly authorized to do so. Except as expressly provided otherwise in this Agreement, the Escrow Agent shall not be liable in any manner for the sufficiency or correctness as to form of, the manner of execution of, or the validity, accuracy or authenticity of any writing, notice, certificate, instruction or instrument deposited with it, nor as to the identity, authority or right of any person executing the same. The Escrow Agent's duties hereunder (including, without limitation, its duties as to the safekeeping, investment and disbursement of moneys in the Equipment Acquisition Fund) shall be limited to those specifically provided herein. 4.02 Unless the Escrow Agent is guilty of gross negligence or willful misconduct with regard to its duties hereunder, Less and Lessor jointly and severally hereby agree to be responsible �o pay for, and to hold Escrow Agent harmless from, any actions, suits or proceedings (at law or in equity), any claims, liabilities or losses, or any expense, costs, fees or charges of any charac or nature (including reasonable attorney's fees and the costs of defending any action, suit or proceeding or resisting any claim) which Escrow Agent may incur or with which Escrow Agent may be threatened by reason of its acting as Escrow Agent under this Agreement and in connection therewith. (muniescr.a -,2) Page 6 4. 03 Lessee and Lessor hereby grant Escrow Agent a first priority security interest in the money and investments held by the Escrow Agent under this Agreement as collateral security for the costs and expenses of the foregoing of Section 4.02 and for any other expenses, costs, fees or charges of any character or nature which may be incurred by the Escrow Agent (including reasonable attorneys' fees and court costs) relating to any suit (interpleader or otherwise) or other dispute arising between Lessee and Lessor as to the correct interpretation of the Lease, this Agreement or any instructions given to the Escrow Agent hereunder, with the right of the Escrow Agent, regardless of the instructions aforesaid, to hold the said property until and unless said expenses, costs, fees and charges shall be fully paid. 4.04 If Lessee or Lessor disagree about the interpretation of the Lease or this Agreement, about their rights and obligations under the Lease or this Agreement, or about the propriety of any action contemplated by the Escrow Agent hereunder, then the Escrow Agent may, but shall not be required to, file an appropriate civil action to resolve the disagreement. Lessee and Lessor shall pay all costs, including reasonable attorneys' fees, in connection with such action. The Escrow Agent shall be fully protected in suspending all or any part of its activities under this Agreement until a final judgment in such action is received. 4.05 The Escrow Agent may consult with counsel of its own choice and shall have full and complete authorization and protection with the opinion of such counsel. The Escrow Agent shall otherwise not be liable for any mistakes of facts or errors of judgment, or for any acts or omissions of any kind unless caused by the Escrow Agent's gross negligence or willful misconduct. Section 5. Chancre of Escrow Agent 5.01 Upon agreement of the parties hereto, a national banking association or a state bank having capital (exclusive of borrowed capital) and surplus of at least $10,000,000.00, qualified as a depository of public funds, may be substituted to act as Escrow Agent under this Agreement. Such substitution shall not be deemed to affect the rights or obligations of the parties hereto. Upon any such substitution, the Escrow Agent agrees to assign to such substitute Escrow Agent all of its rights under this Agreement. (muniescr.ag2) Page 7 _. -'2 The Escrow Agent or any successor may at any time resign by gi-.•ing mailed notice to Lessee and Lessor of its intention to resign and of the proposed date of resignation, which shall be a date not less than thirty (30) days after such notice is deposited in the United States mail with postage fully prepaid, unless an earlier resignation date and the appointment of a successor Escrow Agent has been approved by Lessee and Lessor. 5.03 The Escrow Agent may appoint an agent to exercise any of the powers, rights or remedies granted to the Escrow Agent under this Agreement, to hold title to property or to take any other action which may be desirable or necessary hereunder. Section 6. Administrative Provisions 6.01 The Escrow Agent shall keep complete and accurate records of all money received and disbursed under this Agreement, which shall be available for inspection by Lessee or Lessor, or the agent of either of them, at any time during regular business hours. 6.02 All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received three (3) days after deposit in the United States mail, with postage fully prepaid. 6.03 This Agreement shall be construed and governed in accordance with the laws of the State of Lessee. 6.04 Any provision of this Agreement found to be prohibited by law shall be ineffective only to the extent of such prohibition, and shall not invalidate the remainder of this Agreement. 6.05 This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Specifically, the term "Lessor" as used herein means any person or entity to whom Lessor has assigned its right to receive Rent Payments under the Lease and any other payments due to Lessor hereunder from and after the date when a written notice of such assignment is filed with the Escrow Agent. 6.06 This Agreement may be simultaneously executed in several (muniescr.ag2) Page 8 counterparts, each of which shall be an original and all of which shall constitute but one and the same Agreement. 6.07 This Agreement shall terminate upon disbursement by the Escrow Agent of all money held by it hereunder. Section 7. Escrow Agent Fees $ 0.00 ( "Service Fee "). As compensation for Escrow Agent's services hereunder, Lessee agrees to pay Escrow Agent the above Service Fee. Lessee authorizes Escrow Agent either to deduct said service fee from the interest and earnings otherwise payable to Lessee under this Agreement or to bill and collect said service fee at the Funding Expiration Date. In addition, Lessee agrees to reimburse Escrow Agent for its reasonable out -of- pocket costs and expenses for performing its obligations hereunder and to pay all other amounts expressly due and payable to Escrow Agent hereunder. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. Banc One Leasing Corporation ( "Escrow Agent ") By. Title . 2400 Corporate Exchange Dr. Columbus, Ohio 43235 Banc One Leasing Corporation ( "Lessor ") By. Title: City of Pueblo ( "Lessee ") By: Title: 2400 Corporate Exchange Dr. Columbus, Ohio 43235 #1 City Hall Place (Street Address) Pueblo , Colorado 81003 (City, State, Zip) (muniescr.aa2) Page 9 LEASE SCHEDULE NO. 1000050131 Dated As Of March 28,1996 This Lease Schedule, together with its Payment Schedule is attached and :~lade a part of the Master Lease - Purchase Agreement described below ( "Master Lease ") between the Lessee and Lessor named below. All terms and conditions of the Master Lease are incorporated herein by reference. Unless otherwise defined herein, capitalized terms defined in the Master Lease will have the same meaning when used herein. Master Lease - Purchase Agreement dated March 28, 1996 A. EQUIPMENT DESCRIBED: The Equipment includes all of the property described on Schedule A -1 attached hereto and made a part hereof. B. EQUIPMENT LOCATION: 130 Central Main, Police Dent., Pueblo, Colorado 81003 C. ACCEPTANCE OF EQUIPMENT: AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT: (a) LESSEE HAS RECEIVED AND INSPECTED ALL EQUIPMENT; (b) ALL EQUIPMENT IS IN GOOD WORKING ORDER AND COMPLIES WITH ALL PURCHASE ORDERS, CONTRACTS AND SPECIFICATIONS; (c) LESSEE ACCEPTS ALL EQUIPMENT FOR PURPOSES OF THE LEASE "AS -IS, WHERE -IS "; AND (d) LESSEE WAIVES ANY RIGHT TO REVOKE SUCH ACCEPTANCE. D. ESSENTIAL USE; CURRENT INTENT OF LESSEE: Lessee represents and agrees that the use of the Equipment is essential to Lessee's proper, efficient and economic functioning or to the services that Lessee provides to its citizens and the Equipment will be used by Lessee only for the purpose of performing its governmental or proprietary functions consistent with the permissible scope of its authority. Lessee currently intends for the full Lease Term: to use the Equipment; to continue this Lease; and to make Rental Payments if funds are appropriated in each fiscal year by its governing body. E. RENTAL PAYMENTS; LEASE TERM: The Rental Payments to be paid by Lessee to Lessor, the commencement date thereof and the Lease Term of this Lease Schedule are set forth on the Payment Schedule attached to this Lease Schedule. (munileas.schedule) Page 1 F. RE- AFFIRMATION OF THE MASTER LEASE: Lessee hereby re- affirms all of its representations, warranties and obligations under the Master Lease (including, without limitation, its obligation to pay all Rental Payments, its disclaimers in Section 7 thereof and its representations in Sections 6.1 and 16 thereof). G. BANK QUALIFIED: LESSEE CERTIFIES THAT IT HAS DESIGNATED THIS LEASE AS A QUALIFIED TAX - EXEMPT OBLIGATION IN ACCORDANCE WITH SECTION 265(b)(3) OF THE CODE, THAT IT HAS NOT DESIGNATED MORE THAN $10,000,000 OF ITS OBLIGATIONS AS QUALIFIED TAX- EXEMPT OBLIGATIONS IN ACCORDANCE WITH SUCH SECTION FOR THE CURRENT CALENDAR YEAR AND THAT IT REASONABLY ANTICIPATES THAT THE TOTAL AMOUNT OF TAX- EXEMPT OBLIGATIONS TO BE ISSUED BY LESSEE DURING THE CURRENT CALENDAR YEAR WILL NOT EXCEED $10,000,000. Equipment /Escrow Acceptance Date: LESSEE: City of Pueblo By Titl LESSOR: Banc One Leasing Corporation By: Title: #1 City Hall Place (Street Address) Pueblo, Colorado 81003 (City, State, Zip) 2400 Corporate Exchange Drive Columbus, Ohio 43231 (muni leas. schedule) Page 2 PAYMENT SCHEDULE This Pavment Schedule is attached and made a Dart of the Lease Schedule identified below which is part of the Master Lease- Purchase Agreement identified therein, all of which are between the Lessee and Lessor named below. Lease Schedule No. 1000050131 dated Accrual Date: 4/15 %96 amount Financed: $ 30".508.96 Rent Rent Kent Number Date Pavment Loan 04/15/1996 1 04/15/1996 2 04/15/1997 3 04/15/1998 4 04/15/1999 5 04/15/2000 6 04/15/2001 7 04/15/2002 Grand Totals 52, 089.70 52,089.70 52,089.70 52,089.70 52,089.70 52,089.70 52,089.70 364, 627.90 LESSEE. Citv of Pueblo By Title: Interest Portion 0.00 15, 555.03 13,330.07 10,969.61 8,465.40 5,808.68 2,990.15 57,118.94 LESSOR: Principal Terminaticn Portion Value 52,089.70 36,534.67 38,759.53 41,120.09 43,624.30 46,281.02 49,099.55 307, 508.96 307, 508.96 255,419.26 218,884.59 180,124.96 139,004.87 95, 380.57 49, 099.55 0.00 Banc One Leasing Corporation By. T : (munifeas.pay) SCHEDULE A -1 Equipment Description Lease Schedule No. 1000050131 dated 3/28/96 The Equipment described below includes all attachrients, additions, accessions, parts, repairs, improvements, replacements and substitutions thereto. Equipment Location 130 Central Main Police Department Pueblo, Colorado 81003 Pueblo County Police Station Dispatch Center including but not limited to: Motorola Radios Dictaphone Call Recording System Dictaphone Call Checks Z -Trop System Dispatch furniture and Equipment PC Computers and Printers Expected Equipment Purchase Price Minus Lessee Down Payment /Trade -in Net Amount Financed $ 307,508.96 S $ 307,508.96 This Schedule A -1 is attached to the Lease Schedule or a Receipt- Certificate/Payment Request relating to the Lease Schedule. City of Pueblo Banc One Leasing Corporation (Lessee) (Lessor) Bv. Title. By: Title. (munileas.a -1) REVISED INSTRUCTIONS ON BACK UCC -1 UNIFORM COMMERCIAL CODE FINANCING STATEMENT 1ST DEBTOR CHECK IF APPLICABLE SSN /FED Tax ID . 84- 6000615 Check One: J Business J This statement is to be recorded in ] Personal the real estate records ONLY. Name trst ts� Pueblo Police Department __7i This statement is to be filed in real Street 130 Central Main estate AND UCC records. p City, State. Z' Pueblo, C o l or - a do R I 00 The debtor is a transmitting utility For Office Use Cnly COLORADO SECRETARY OF STATE - UCC1 1560 BROADWAY STE 200 DENVER CO 80202 -5169 void Here 2ND DEBTOR Additional debtor(s) on attachment SSN /FED Tax ID Check One: Business Personal Name (hest Street City, State, Zip 1ST SECURED Additional secured party on attachment PARTY PLEASE CHECK APPROPRIATE BOX. THIS STATEMENT IS SIGNED BY THE SECURED PARTY INSTEAD OF THE DEBTOR TO PERFECT A SECURITY INTEREST IN COLLATERAL Already subject to a security interest in another jurisdiction wnen it was brought into this state, or when the debtor's location was changed to this state; Which is proceeds of the original collateral described bekow in which a security interest was perfected As to which the filing has lapsed; or Name (mot is,, Banc One Leasing Corporation ] Acquired after a change of name, Street 2400 Corporate Exchange Drive, Suite 300 identity or corporate str=ure of the City, State, Zip Columbus, Ohio 43213 debtor. Foid Hem ASSIGNED PARTY :1 Additional assigned party on attachment Name Gast isn Bank One, Colorado, NA Street 1125 17th Street City, State, Zip Denver, Colorado 80202 (Codatenl Desmpnon) . See Attached Schedule A -1 Lease - Purchase Agreement 1000050131 Debtor Signature(s) Printed Namejs) e COLLATERAL CLASSIFICATION: (Supply full description) Accounts, Accounts Receivable Fixtures Proceeds Equipment, Machinery Livestock, Farm Animals, Etc. Contract Rights Inventory Products Truck, Car, Vehicle Other Secured Party S gnature,,si Panted Name(si Tile Rev:08/12/93 Farm 8038 -G Information Return for Tax - Exempt Governmental Obligations ► Under Internal Revenue Code section 149(e) OMB No. 1545 - 0720 (Rev. May 1995) ► See separate Instructions. Department of the Treasury Internal Revenue Service (Note: Use Form 8038 -GC if the issue puce is under $100,000.) Reporting Authority If Amended Return, check here ► 1 Issuer's name 2 Issuer's employer identification number C', o R�� 6/0 0v 3 Number an street (orP.O. box if mail is not delivered to street address) Room/suite 4 Report number G19 - 5 City, town, or post office, state, and ZIP code 6 Date of Issue 7 Name of issue 8 CUSIP number 20 Entire issue R OOG' 3 ( 1 7 years . o °io ! °/6 Uses of Proceeds of Bond Issue (including underwriters' discount Type of Issue (check applicable box(es) and enter the issue price) Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . . 21 9 ❑ Education (attach schedule -see instructions) . . . . . . . . . . . . . . . . . 9 23 10 ❑ Health and hospital (attach schedule -see instructions) . . . . . . . . . . . . . . 10 11 ❑ Transportation . . . . . . . . . . . . . . . . . . . . . . . . . . . j 11 ` 12 25 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 7 13 ❑Environment (including sewage bonds) _ 13 14 ❑ Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 15 ❑ Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . j 15 29 16 ❑ Other. Describe (see instructions) ► 16 bonds.) 30 17 If obligations are tax or other revenue anticipation bonds, check box ► ❑ 31 18 If obligations are in the form of a lease or installment sale, check box li Enter the last date on which the refunded bonds will be called , . . . . . . . . . . ► 33 Enter the date(s) the refunded bonds were issued ► Description of Obligations Miscellaneous (a) (b) Maturity date Interest rate (a) Issue price Stated redemption price at maturity I Weghted average maturity (� Yield Net �n cost 19 Final maturity % i F 20 Entire issue R 30? SD S, y(p 1 7 years . o °io ! °/6 Uses of Proceeds of Bond Issue (including underwriters' discount 21 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . . 21 22 Issue price of entire issue (enter amount from line 20, column (c)) . . . . . . . . 22 23 Proceeds used for bond issuance costs (including underwriters' discount) 23 �\ 24 Proceeds used for credit enhancement . . . . . . . . . . . . 24 ` 25 Proceeds allocated to reasonably required reserve or replacement fund . . 25 26 Proceeds used to currently refund prior issues . . . . . . . . . 26 27 Proceeds used to advance refund prior issues . . . . . . . . . 27 28 Total (add lines 23 through 27) . . . . . . . . . . . . . . . . . . . . . . . 28 29 Nonrefunding proceeds of the issue (subtract line 28 from line 22 and enter amount here) . 29 EMIU=Description of Refunded Bonds (Complete this part only for refunding bonds.) 30 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► years 31 Enter the remaining weighted average maturity of the bonds to be advance refunded . . , ► years 32 Enter the last date on which the refunded bonds will be called , . . . . . . . . . . ► 33 Enter the date(s) the refunded bonds were issued ► Miscellaneous 34 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 34 35 Enter the amount of the bonds designated by the issuer under section 265(b)(3)(B)(i)(111) (small issuer exception) 1 35 1 30 7, QF_- 6 36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a _ b Enter the final maturity date of the guaranteed investment contract ► 37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other covemmental units 37a _ b If this issue is a loan made from the proceeds of another tax- exempt issue, check box ► ❑ and enter the name of the issuer ► and the date of the issue ► 38 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . ► 39 If the issuer has identified a hedoe. check box . . . . . . . . . . . . . . Under penames of Derjury. I deciare that I have exam!ned this return and accompanying scneautes and statements, and to the oest of -y Knowiecge and belief, they are true, correct, and complete. Please Sign Here , Signatu of is suer's authorized rep Date ' Type or print name and title I _ For Paperwork Reduction Act Notice, see page 1 of the Instructions. cat. No. 63773s Form 8038 -G (Rev. 5 -951 ® Pnnted on recycled paper *U.S. Government Printing office: 19% — 387 - 095/'20109