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.
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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
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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
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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,
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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.
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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,
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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
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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
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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
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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.
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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
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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