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145-2012 - Finance Lease - West End Bank
EQUIPMENT LEASE/PURCHASE AGREEMENT This Equipment Lease/Purchase Agreement (the "Agreement ) is entered into October 31, 2012 by and between West End Bank, S.B., a state banking association ("Lessor'), and City of Richmond, Indiana, a public body existing under the laws of the State of Indiana ("Lessee'). WITNESSETH: WHEREAS, Lessee desires to lease and acquire from Lessor certain Equipment described in Exhibit A, subject to the terms and conditions of and for the purposes set forth in this Lease; and WHEREAS, Lessee is authorized under the laws of the State of Indiana to enter into this Agreement for the purposes set forth herein. Now, THEREFORE, in consideration of the terms and conditions set forth herein, including the above stated recitals, the parties agree as follows: ARTICLE I Section 1.01. Definitions. The following terms will have the meanings indicated below unless the context clearly requires otherwise: "Acceptance Certificate" means a Certificate evidencing unconditional acceptance of the Equipment subject to the Lease in the form of Exhibit E attached hereto. "Acquisition Amount" means the amount specified in the Lease and represented by Lessee to be sufficient to acquire all or the portion of the Equipment listed in such Lease. "Acquisition Period" means, with respect to the Lease, that period stated in the Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be expended on Equipment Costs. "Agreement" means this Equipment Lease/Purchase Agreement, including the exhibits hereto, together with any amendments and modifications to the Agreement pursuant to Section 13.04. "Code " means the Internal Revenue Code of 1986, as amended. Each reference to a Section of the Code herein shall be deemed to include the United States Treasury Regulations proposed or in effect thereunder. "Commencement Date " means, the date of this Lease, the date on which Lessee's obligation to pay Rental Payments listed on Exhibit B commences. Contract # 145-2012 "Contract Rate" means the rate payable on this Lease, and as also identified on Exhibit B as 1.850% per annum plus an upfront processing fee of $295.00. "Disbursement Payments" means the Disbursement Payments totally approximately of $98,071.00, as also set forth in Exhibits A and B. "Equipment" means the property listed in Exhibit A and all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment, such reference shall be deemed to include all such replacements, repairs, restorations, modifications and improvements of or to such Equipment. "Equipment Costs" means the total cost of the Equipment, including soft costs such as freight, installation and taxes paid up front by Lessor. "Event of Default " means an Event of Default described in Section 12.01. "Lease" means this Agreement. "Lease Proceeds " means, with respect to the Lease, the total amount of money to be paid by Lessor to Lessee and/or its Vendor(s) pursuant to the Disbursement Payments. "Lease Term " means the Original Term and all Renewal Terms therein provided and for this Agreement means the period from the date hereof until this Agreement is terminated. "Lessee " means the entity referred to as Lessee in the first paragraph ,of this Agreement. "Lessor" means (a) the entity referred to as Lessor in the first paragraph of this Agree- ment or (b) any assignee or transferee of any right, title or interest of Lessor in and to the Equipment under the Lease (including Rental Payments thereunder) pursuant to Section 11.01. "Material Adverse Change " means (a) prior to the Utilization Period Expiration Date, a downgrade in Lessee's external debt rating of two or more subgrades by either Moody's Investors Service, mc, or Standard & Poor's Ratings Group or any equivalent successor credit rating agency, or any downgrade by either such agency that would cause Lessee's credit rating to be below investment grade, and (b) thereafter, any change in Lessee's creditworthiness that could have a material adverse effect on (i) the financial condition or operations of Lessee, or (ii) Lessee's ability to perform its obligations under this Agreement or the Lease. 'Maximum Equipment Cost" means the cumulative amount for all equipment specified in the latest Schedule A executed under this Agreement, which amount is anticipated to be the sum of $98,071.00. 2015. "Original Term" means the period from the date of this Agreement through June 30, :2 "Purchase Price" means, with respect to the Equipment listed on Exhibit A, the amount that Lessee may pay to Lessor to purchase such Equipment as provided in this Lease. "Rental Payments" means the basic rental payments payable by Lessee under this Lease pursuant to Section 4.01, in each case consisting of a principal component and an interest component. "Schedule " means the Schedule of Property substantially in the form of Exhibit A hereto together with the Rental Payment Schedule attached thereto substantially in the form of Exhibit B hereto, as such Schedules may be adjusted from time to time pursuant to Section 4.01, and all documents related thereto. "State " means the State of Indiana. "Utilization Period Expiration Date " means the date listed in Exhibit A by which Lessee must deliver an Acceptance Certificate for the Equipment under the Lease. "Vendor" means the manufacturer or supplier and any of their agents or dealers and any other entity from or through which Lessee has acquired or financed the Equipment pursuant to the Lease. "Vendor Agreements" means each purchase agreement, contract and related documentation entered into between Lessee and a Vendor. ARTICLE 11 Section 2.01. Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of the Lease as follows: (a) Lessee is a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State, with full power and authority to enter into this Agreement and this Lease and the transactions contemplated hereby and to perform all of its obligations hereunder and under this Lease. (b) Lessee has duly authorized the execution and delivery of this Agreement and the Lease by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Lease. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof (d) Lessee will do or cause to be done all things necessary to preserve and keep in full 3 force and effect its existence as a public body. (e) Lessee has complied with such public bidding requirements as may be'applicable to this Agreement/Lease and the acquisition .by Lessee of the Equipment as provided in this Lease. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee's authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment scheduled to be paid under this Lease. (g) Lessee shall report its financial results on an annual basis in accordance with accounting principles and practices generally accepted in the United States of America applicable to governmental entities, and the standards contained in Government Auditing Standards issued by the Comptroller General of the United States, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows and notes, and (4) schedules and attachments to the financial statements) within 270 days of its fiscal year end, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) its annual budget for the following fiscal year when approved but not later than 30 days prior to its current fiscal year end. The financial statements described in subsection (i) shall be accompanied by an unqualified opinion of Lessee's auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment listed on the Schedule and expects to make immediate use of the Equipment listed on the Schedule. Lessee's need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Lease Term to such item. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of the Lease or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Equipment Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. 0) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee's financial condition or impairs its ability to perform its obligations hereunder. Lessee will, at its expense, maintain its legal existence in good standing and do any 4 further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor's security interest in the Equipment and Lessor's rights and benefits under this Lease. (k) In order to qualify this Lease and all Exhibits ("the Initial Lease") as a "qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code, Lessee further represents, warrants and covenants the following for the benefit of Lessor: (i) the obligations evidenced by this Lease are not "private activity bonds" as defined in Section 141 of the Code; (ii) Lessee hereby designates the principal payments on this Lease as "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the Code; (iii) the reasonably anticipated amount of tax-exempt obligations (other than private activity bonds, treating qualified 501(c)(3) bonds as not being private activity bonds) which will be issued by Lessee (and all entities treated as one issuer with Lessee, and all subordinate entities whose obligations are treated as issued by Lessee) during the current calendar year will not exceed $30,000,000; and (iv) not more than $30,000,000 of obligations issued by Lessee during the current calendar year have been designated for purposes of Section 265(b)(3) of the Code. (1) Lessee is the fee owner of the real estate where the Equipment is and will be located and has good and marketable title thereto and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such real estate. ARTICLE III Section 3.01. Lease of Equipment. Subject to the terms of this Lease, Lessor agrees to provide the funds specified to be provided by it to acquire the Equipment, up to an amount equal to the Maximum Equipment Cost. Upon the execution of this Lease, Lessor demises, leases, transfers and Iets to Lessee, and Lessee acquires, rents and Ieases from Lessor, the Equipment as set forth in Exhibit A and in accordance with the terms hereof. Section 3.02. Continuation of Lease Term. Lessee intends, subject to Section 3.03, to continue the Lease Term of the Lease through the Original Term and to pay the Rental Payments thereunder. Lessee affirms that sufficient finds are available for the current fiscal year, and Lessee reasonably believes that an amount sufficient to make all Rental Payments during the entire Lease Term of the Lease can be obtained from legally available funds of Lessee. Lessee further intends to do all things lawfully within its power to obtain and maintain funds sufficient and available to discharge its obligation to make Rental Payments due hereunder, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable provisions of law, to have such portion of the budget or appropriation request approved and to exhaust all available reviews and appeals in the event such portion of the budget or appropriation request is not approved. Section 3.03. Non -appropriation. Lessee is obligated only to pay such Rental Payments under the Lease as may lawfully be made from funds budgeted and appropriated for that purpose during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or otherwise make available funds to pay Rental Payments under the Lease following the then current Original Term, such Lease or Leases shall be deemed terminated at the end of the then current Original Term. Lessee agrees to deliver notice to Lessor of such termination promptly after any decision to non -appropriate is made, but failure to give such notice shall not extend the term beyond such Original Term. [If Lease is terminated in accordance with this Section, Lessee agrees to peaceably deliver the Equipment to Lessor at the location(s) to be specified by Lessor.] Notwithstanding this provision, Lessee shall make all good faith efforts to retain sufficient appropriations to make payment herein. Section 3.04. Conditions to Lessor's Performance. (a) As a prerequisite to the performance by Lessor of any of its obligations pursuant to the Lease, Lessee shall deliver to Lessor the following: (i) A fully completed Exhibit A, executed by Lessee; (ii) A Incumbency and Authorization Certificate executed by the Clerk or Secretary or other comparable officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the satisfaction of Lessor; (iii) A certified copy of a resolution, ordinance or other official action of Lessee's governing body authorizing the execution and delivery of this Agreement and Lease and performance by Lessee of its obligations hereunder and thereunder; (iv) An opinion of counsel for Lessee in substantially the form attached hereto as Exhibit D respecting this Agreement and Lease and otherwise satisfactory to Lessor; (v) Evidence of insurance as required by Section 7.02 hereof; (vi) All documents, including financing statements, affidavits, notices and similar instruments, in form satisfactory to Lessor, which Lessor reasonably deems necessary or appropriate at that time pursuant to Section 6.02; (vii) A copy of a fully completed and executed Form 8038-G; (viii) Such other items, if any, as are set forth in this Lease or are reasonably required by Lessor. C.1 (b) In addition, the performance by Lessor of any of its obligations pursuant to the Lease shall be subject to: (i) no material adverse change in the financial condition of Lessee since the date of this Lease, (ii) no Event of Default having occurred, and (iii) the Equipment must be accepted by Lessee no later than the date listed as the Utilization Period Expiration Date in the applicable Schedule. (c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount for Equipment described in a Schedule to the Vendor or, if authorized by Lessee's governing body, will reimburse Lessee for the prior payment of any such Acquisition Amounts by Lessee to the Vendor, upon receipt of the documents described in Sections 5.01(a) and (b). ARTICLE IV Section 4.0I. Rental Payments; Adjustments. (a) Subject to Section 3.03, Lessee shall promptly pay Rental Payments, in lawful money of the United States of America, to Lessor annually on the dates and in such amounts as provided in this Lease. In addition, Lessee shall pay Lessor a "Iate charge" on any Rental Payment not paid within 5 days of the date such payment is due at a rate equal to the Contract Rate plus 5% per annum or the maximum amount permitted by law, whichever is Iess, from such date. Lessee shall not permit the federal government to guarantee any Rental Payments under the Lease. Rental Payments consist of principal and interest payments and are more fully detailed in the Rental Payment Schedule attached as Exhibit B. Interest at the Contract Rate shall accrue on the Disbursement Payment indicated in the chart in the Schedule beginning on the date such disbursement is made. Lessee shall be unconditionally obligated to pay to Lessor such interest as indicated in the chart in the Schedule. On the Commencement Date, Lessee shall commence making Rental Payments in an amount sufficient to amortize the Equipment Cost, including any capitalized interest, over the Lease Term as indicated in Exhibit B thereto. If an Event of Default occurs during the Acquisition Period, the aggregate amount of the Disbursement Payment together with any accrued interest shall become immediately due and payable. Section 4.02. Interest and Principal Components. A portion of each Rental Payment is paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as, and represents payment of, principal. The Schedule shall set forth the principal and interest components of each Rental Payment payable thereunder during the Lease Term. Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Rental Payments under this Lease shall constitute a current expense of Lessee payable solely from its general fund or other funds that are legally available for that purpose and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitation or requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein or in a Lease constitute a pledge of the general tax revenues, finds or moneys of Lessee. Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03, the obligations of Lessee to make Rental Payments and to perform and observe the other 7 covenants and agreements contained in the Lease shall be absolute and unconditional in all events without abatement, diminution, deduction, set-off or defense, for any reason, including without limitation any failure of the Equipment, after it has been accepted by Lessee, any - defects, malfunctions, breakdowns or infirmities in the Equipment or any accident, condemnation or unforeseen circumstances. Section 4.05. Tax Covenant. Lessee agrees that it will not take any action that would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes, nor will it omit to take or cause to be taken, in timely manner, any action, which omission would cause the interest component of Rental Payments to be or to become ineligible for the exclusion from gross income of the owner or owners thereof for federal income tax purposes. Section 4.06 Event of Taxability. Upon the occurrence of an Event of Taxability, the interest component shall be at a Taxable Rate retroactive to the date as of which the interest component is determined by the Internal Revenue Service to be includible in the gross income of the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional amount as will result in Lessor or its successors or assigns receiving the interest component at the Taxable Rate identified in the related Lease. For purposes of this Section, "Event of Taxability" means a determination that the interest component is includible for federal income tax purposes in the gross income of the owner thereof due to Lessee's action or failure to take any action. Section 4.07. Mandatory Prepayment if any Lease Proceeds are for any reason not paid by the Utilization Period Expiration Date to a Vendor or to reimburse Lessee as part of the Equipment Costs, such Lease Proceeds remaining on the Utilization Period Expiration Date shall be applied by Lessor on the next Rental Payment date, pro rata, to the prepayment of the principal component of the outstanding Rental Payments due under the applicable Schedule. ARTICLE V Section 5.01. Delivery, Installation and Acceptance of Equipment. (a) Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified, and pay any and all delivery and installation costs and other Equipment Costs in connection therewith. When the Equipment listed in the Lease has been delivered and installed, Lessee shall promptly accept such Equipment and evidence said acceptance by executing and delivering to Lessor an Acceptance Certificate(s) in the form attached hereto as Exhibit E. (b) Lessee shall deliver to Lessor original invoices and bills of sale relating to each item of Equipment accepted by Lessee. Lessor shall, immediately prior to making the first Disbursement Payment under the Schedule, prepare a Schedule and Rental Payment Schedule in the forms attached hereto as Exhibits A and B, respectively. Lessee shall execute and deliver 8 such Schedules to Lessor within 5 business days of receipt. Section 5.02. Quiet Enjoyment of Equipment. So long as Lessee is not in default under the related Lease, neither Lessor nor any entity claiming by, through or under Lessor, shall interfere with Lessee's quiet use and enjoyment of the Equipment during the Lease Term. Section 5.03. Location; Inspection. Once installed, no item of the Equipment will be relocated from the base location specified for it in this Lease on which such item is listed without Lessor's consent, which consent shall not be unreasonably withheld. Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment. Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use, operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative, or judicial body; provided that Lessee may contest in good faith the validity or application of any such law, regulation or ruling in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary interest) of Lessor in and to the Equipment or its interest or rights under the Lease. Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and working order, in a condition comparable to that recommended by the manufacturer. Lessor shall have no responsibility to maintain, repair or make improvements or additions to the Equipment. In all cases, Lessee agrees to pay any costs necessary for the manufacturer to recertify the Equipment as eligible for manufacturer's maintenance upon the return of the Equipment to Lessor as provided for herein. Lessee shall not alter any item of Equipment or install any accessory, equipment or device on an item of Equipment if that would impair any applicable warranty, the originally intended function or the value of that Equipment. All repairs, parts, accessories, equipment and devices furnished, affixed to or installed on any Equipment, excluding temporary replacements, shall thereupon become subject to the security interest of Lessor. ARTICLE VI Section 6.0.1. Title to the Equipment. During the Lease Term, and so long as Lessee is not in default under Article XII hereof, all right, title and interest in and to each item of the Equipment shall be vested in Lessee immediately upon its acceptance of each item of Equipment, subject to the terms and conditions of the applicable Lease. Lessee shall at all times protect and defend, at its own cost and expense, its title in and to the Equipment from and against all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all such claims, Iiens and processes. Upon the occurrence of an Event of Default or upon termination of a Lease pursuant to Section 3.03 hereof, fill and unencumbered legal title to the 7 Equipment shall pass to Lessor, and Lessee shall have no further interest therein. In addition, upon the occurrence of such an Event of Default or such termination, Lessee shall execute and deliver to Lessor such documents as Lessor may request to evidence the passage of such legal title to Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor in accordance with Section 12.02. Upon purchase of the Equipment under the Lease by Lessee pursuant to Section 10.01, Lessor's security interest or other interest in the Equipment shall terminate, and Lessor shall execute and deliver to Lessee such documents as Lessee may request to evidence the termination of Lessor's security interest in the Equipment subject to the Lease. Section 6.02. Security Interest. To secure the payment of all of Lessee's obligations under this Lease, Lessee grants to Lessor a security interest constituting a first lien on (a) the Equipment, (b) the Vendor Agreements, and (c) any and all proceeds of any of the foregoing. Lessee agrees to execute and authorizes Lessor to file such notices of assignment, chattel mortgages, financing statements and other documents, in form satisfactory to Lessor, which Lessor deems reasonably necessary or appropriate to establish and maintain Lessor's security interest in the Equipment and the proceeds thereof. Section 6.03. Personal Property. Lessee shall not create, incur, assume or permit to exist any mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on any of the real estate where the Equipment is or will be located without the prior consent of Lessor; provided, that if Lessor or its assigns is furnished with a waiver of interest in the Equipment acceptable to Lessor or its assigns in its discretion from any party taking an interest in any such real estate prior to such interest taking effect, such consent shall not be unreasonably withheld. ARTICLE VII Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee shall keep the Equipment free of all levies, liens, and encumbrances except those created by this Lease. The parties to this Agreement contemplate that the Equipment will be used for a govern- mental or proprietary purpose of Lessee and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to such Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period of years, Lessee shall be obligated to pay only such installments as accrue during the Lease Term. Section 7.02. Insurance. Lessee shall during the Lease Term maintain or cause to be maintained (a) casualty insurance naming Lessor and its assigns as loss payee and insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State, and any other risks reasonably required by Lessor, in an amount at least equal to the then applicable Purchase Price of the Equipment; (b) liability insurance naming Lessor as additional insured that protects Lessor from liability in all events in 10 form and amount satisfactory to Lessor; and (c) worker's compensation coverage as required by the laws of the State; provided that, with Lessor's prior written consent, Lessee may self -insure against the risks described in clause (a). Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage throughout the Lease Term. Lessee shall not cancel or modify such insurance or self-insurance coverage in any way that would affect the interests of Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such cancellation or modification. Section 7.03. Risk of.Loss. Whether or not covered by insurance or self-insurance, Lessee hereby assumes all risk of loss of, or damage to and liability related to injury or damage to any persons or property arising from the Equipment from any cause whatsoever, and no such loss of or damage to or liability arising from the Equipment shall relieve Lessee of the obligation to make the Rental Payments or to perform any other obligation under this Lease. Whether or not covered by insurance or self-insurance, Lessee hereby agrees to reimburse Lessor (to the fullest extent permitted by applicable law, but only from legally available funds) for any and all liabilities, obligations, losses, costs, claims, taxes or damages suffered or incurred by Lessor, regardless of the cause thereof and all expenses incurred in connection therewith (including, without limitation, counsel fees and expenses, and penalties connected therewith imposed on interest received) arising out of or as a result of (a) entering into this Agreement or any of the transactions contemplated hereby, (b) the ordering, acquisition, ownership use, operation, condition, purchase, delivery, acceptance, rejection, storage or return of any item the Equipment, (c) any accident in connection with the operation, use, condition, possession, storage or return of any item of the Equipment resulting in damage to property or injury to or death to any person, and/or. (d) the breach of any covenant of Lessee in connection with this Lease or any material misrepresentation provided by Lessee in connection with this Lease. The provisions of this paragraph shall continue in full force and effect notwithstanding the full payment of all obligations under this Lease or the termination of the Lease Term under the Lease for any reason. Section 7.04. Advances. In the event Lessee shall fail to keep the Equipment in good repair and working order, Lessor may, but shall be under no obligation to, maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the then current Original Term and Lessee covenants and agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until paid at a rate equal to the Contract Rate plus S% per annum or the maximum amount permitted by law, whichever is less. ARTICLE VM Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have exercised its option to purchase the Equipment by making payment of the Purchase Price as provided in this Lease, if - prior to the termination of the Lease Term - (a) the Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or by any person, 11 firm or corporation acting pursuant to governmental authority, Lessee and Lessor will cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. If Lessee elects to replace any item of the Equipment (the "Replaced Equipment') pursuant to this Section, the replacement equipment (the "Replacement Equipment') shall be of similar type, utility and condition to the Replaced Equipment and shall be of equal or greater value than the Replaced Equipment. Lessor shall receive a first priority security interest in any such Replacement Equipment. Lessee shall represent, warrant and covenant to Lessor that each item of Replacement Equipment is free and clear of all claims, liens, security interests and encumbrances, excepting only those liens created by or through Lessor, and shall provide to Lessor any and all documents as Lessor may reasonably request in connection with the replacement, including, but not limited to, documentation in form and substance satisfactory to Lessor evidencing Lessor's security interest in the Replacement Equipment. Lessor and Lessee hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this paragraph shall constitute "Equipment" for purposes of this Agreement and the related Lease. Lessee shall complete the documentation of Replacement Equipment on or before the next Rental Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option with respect to the damaged equipment. For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining from the gross proceeds of any insurance claim or condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees, incurred in the collection thereof Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 8.01, Lessee shall either (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay or cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment, and, upon such payment, the Lease Term shall terminate and Lessor's security interest in the Equipment shall terminate as provided in Section 6.01 hereof. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after purchasing such Equipment and such other Equipment shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Article IV. ARTICLE IX Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation, either express or implied, as to the value, design, condition, merchantability or fitness for particular purpose or fitness for use of the Equipment, or any other warranty or representation, 12 express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment shall be on an "as is" basis. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this Agreement, the Lease, the Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or service provided for in this Agreement or the Lease. Section 9.02. Vendor's Agreements; Warranties. Lessee hereby collaterally assigns to Lessor, to the extent assignable, each Vendor purchase agreement, contract and related documentation ("Vendor Agreements"). Lessee covenants that it shall not amend, modify, rescind or in any way alter any Vendor Agreements without the prior written consent of Lessor. Lessor hereby irrevocably appoints Lessee its agent and attorney -in -fact during the Lease Term, so long as Lessee shall not be in default under the Lease, to assert from time to time whatever claims and rights (including without limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the applicable Vendors of the Equipment, and not against Lessor. Any such matter shall not have any effect whatsoever on the rights and obligations of Lessor with respect to the Lease, including the right to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and has made no representations or warranties whatsoever as to the existence or the availability of such warranties relating to the Equipment. ARTICLE X Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the Equipment listed in this Lease, at the following times and upon the following terms: (a) From and after the date specified in the Schedule shown as Exhibit A (the "Purchase Option Commencement Date'), on the Rental Payment dates specified in this Lease, upon not less than 30 days' prior written notice, and upon payment in full of the Rental Payments then due under the Lease plus the then applicable Purchase Price, which may include a prepayment premium on the unpaid balance as set forth in the Schedule; or In the event of substantial damage to or destruction or condemnation of substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to Lessor of its exercise of the purchase option (which shall be the earlier of the next Rental Payment date or 60 days after the casualty event) upon payment in full to Lessor of the Rental Payments then due under the Lease plus the then Purchase Price; or (b) Upon the expiration of the Lease Term, upon payment in full of all Rental Payments then due and all other amounts then owing under the Lease, and the payment of $1.00 to Lessor. After payment of the applicable Purchase Price, Lessee will own the Equipment, and Lessor's security interests in and to such Equipment will be terminated. 13 ARTICLE XI Section 11.01. Assignment by Lessor. (a) Lessor's right, title and interest in this Lease, and to Rental Payments and any other amounts payable by Lessee under this Lease, its security interest in the Equipment subject to the Lease, and all proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees or sub -assignees by Lessor, without the necessity of obtaining the consent of Lessee; provided, that any such assignment, transfer or conveyance to a trustee for the benefit of owners of certificates of participation, shall be made in a manner that conforms to any applicable State law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from executing any such assignment, transfer or conveyance that does not involve funding through the use of certificates of participation within the meaning of applicable State law, including any such assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust; provided such certificates are sold only on a private placement basis (and not pursuant to any "public offering") to a purchaser(s) who represent that (i) such purchaser has sufficient knowledge and experience in financial and business matters to be able to evaluate the risks and merits of the investment, (ii) such purchaser understands neither the Lease nor certificates will be registered under the Securities Act of 1933, (iii) such purchaser is either an "accredited investor" within the meaning of Regulation D under the Securities Act of 1933, or a qualified institutional buyer within the meaning of Rule 144A, and (iv) it is the intention of such purchaser to acquire such certificates (A) for investment for its own account or (B) for resale in a transaction exempt from registration under the Securities Act of 1933; provided further, that in any event, Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with respect to matters arising under a Lease with or to more than one individual or entity. (b) Unless to an affiliate controlling, controlled by or under common control with Lessor, no assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until Lessee shall have received a written notice of assignment that discloses the name and address of each such assignee; provided, that if such assignment is made to a bank or trust company as trustee or paying agent for owners of certificates of participation, trust certificates or partnership interests with respect to the Rental Payments payable under the Lease, it shall thereafter be sufficient that Lessee receives notice of the name and address of the bank or trust company as trustee or paying agent. During the Lease Term, Lessee shall keep, or cause to be kept, a complete and accurate record of all such assignments in fonn necessary to comply with Section 149 of the Code. Lessee shall retain, all such notices as a register of all assignees and shall make all payments to the assignee or assignees designated in such register. Lessee shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor or the Vendor. Assignments in part may include without limitation assignment of all of Lessor's security interest in and to the Equipment and all rights in, to and under this Lease related to such Equipment. The option granted in this Section may be separately exercised from time to time with respect to the Equipment listed in the Lease, but such option does not permit the assignment of less than all of Lessor's interests in the Equipment listed. 14 (c) if Lessor notifies Lessee of its intent to assign this Lease, Lessee agrees that it shall execute and deliver to Lessor a Notice and Acknowledgement of Assignment within five (5) business days after its receipt of such request. Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and interest in, to and under this Lease or any portion of the Equipment may be assigned or encum- bered by Lessee for any reason. ARTICLE XII Section 12.01. Events of Default Defined. Any of the following events shall constitute an "Event of Default" under this Lease: (a) Failure by Lessee to pay any Rental Payment or other payment required to be paid under this Lease within 10 days of the date when due as specified herein; (b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a period of 30 days after written notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period and diligently pursued until the default is corrected; (c) Any statement, representation or warranty made by Lessee in or pursuant to this Lease or its execution, delivery or performance shall prove to have been false, incorrect, misleading, or breached in any material respect on the date when made; (d) Any default occurs under any other agreement for borrowing money, lease financing of property or otherwise receiving credit under which Lessee is an obligor under which there is outstanding, owing or committed an aggregate amount of at least 10% of Lessee's aggregate current long- and short-term indebtedness, if such default consists of (i) the failure to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder and gives the holder of the indebtedness the right to accelerate the indebtedness; (e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy, reorganization or insolvency proceeding; or (f) An order, judgment or decree shall be entered by any court of competent 15 jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or Lessee or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed and in effect for any period of 30 consecutive days. Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) By written notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to the Lease and other amounts payable by Lessee under this Lease to the end of the then current Original Term or Renewal Term to be due; (b) With or without terminating the Lease Term under the Lease, Lessor may enter the premises where the Equipment listed in this Lease is located and retake possession of such Equipment or require Lessee at Lessee's expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable, but solely from legally available funds, for the difference between (i) the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease or the Equipment listed therein that are payable by Lessee to the end of the then current Original Term or Renewal Term, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer's and attorney's fees), subject, however, to the provisions of Section 3.03. The exercise of any such remedies respecting any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under this Lease or as a secured party in any or all of the Equipment subject to such Lease. Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under a Lease now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice other than such notice as may be required in this Article. Section 12.04. Application of Moneys. Any net proceeds from the exercise of any remedy under this Agreement, including the application specified in Section 12.02(b)(ii) (after deducting all expenses of Lessor in exercising such remedies including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all brokerage, 16 auctioneer's or attorney's fees), shall be applied as follows: (a) If such remedy is exercised solely with respect to this single Lease, Equipment listed in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other amounts related to such Lease or such Equipment. (b) If such remedy is exercised with respect to more than one Lease, Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such Leases pro rata. ARTICLE XIII Section 13.01. Notices. All notices, certificates or other communications under the Lease shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile transmission (with electronic confirmation) to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for notices to such party) and to any assignee at its address as it appears on the registration books maintained by Lessee. Section 13.02. Binding Effect. The Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. Section 13.03. Severability. In the event any provision of the Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof Section 13.04. Amendments, Changes and Modifications. This Agreement and the Lease may only be amended by Lessor and Lessee in writing. Section 13.05. Execution in Counterparts. This Agreement and the Lease may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 13.06 Applicable Law. This Agreement and the Lease shall be governed by and construed in accordance with the laws of the State. Section 13.07. Captions. The captions or headings in this Agreement and in the Lease are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this Agreement or the Lease. 17 IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above written, although signatures may be affixed on a different date. LESSOR: West End Bank, S.B. 34 South 7t" Street Richmond, IN 47374 Attention: Timothy R. Frame, Senior V.P Fax No.: (765) 935-7281 B ��- y: Name: %� n y ✓ r Title: 5v List of Exhibits LESSEE: City of Richmond, Indiana 50 North 5"' Street Richmond, IN 47374 Attention: Vicki Robinson, President Fax No.: (765) 983-7212 rlLv�1L► � (Seal) Attention: City Controller, Financing Office Attest: By: CJ a�� Name: -TA mrn Gle- Title: c► �roYt4 t[er Attention: Richmond City Mayor Approved: c� By: Name: _ '5;1C j' L- kL Title: Exhibit A _ Equipment List and Schedule Exhibit B _ Rental Payment Schedule Exhibit C _ Incumbency and Authorization Certificate Exhibit D _ Opinion of Counsel Form Exhibit E _ Acceptance Certificate 18 EXHIBIT A SCHEDULE OF PROPERTY Re: Equipment Lease/Purchase Agreement, dated October 31, 2012, between West End Bank, S.B.. as Lessor, and City of Richmond, Indiana, as Lessee L Defined Terins. All terms used herein have the meanings ascribed to them in the above -referenced Equipment Lease/Purchase Agreement (the "Lease "). 2. Equipment Description. The Equipment to be funded by this exhibit is described as follows: Vendor's Name and Address Invoice Number Dollar Amount Equipment Description P & W Machine Shop Contract # H 9-2012 S20,790.00 Lcaf Boxes (6) 280 North Main street 'Vender 4 04015 Ncw Madison, 01.1 45346 Best Equipment Company Contract if $77,281.00 Leaf Vacuums (4) 5550 Poindexter Drive Vender ri 00192 Indianapolis, IN 46235 3. Disbursement Payment Request Lessee has requested Lessor to make available to Lessee, or to one or more Vendors, as appropriate in connection with this Schedule, certain Lease Proceeds in the amount of $98,071.00, which disbursement shall occur on or about October 31, 2012, Specifically, Lease Proceeds shall be disbursed by Lessor from time to time during the Acquisition Period, pursuant to the following procedures: (a) Lessee has ordered the Equipment described in this Schedule from one or more Vendors. Pursuant to the Vendor's invoice(s) submitted with each Disbursement Payment Request, Lessee will request Lessor to pay certain interim amounts to Vendor or to reimburse Lessee for amounts it has paid to such Vendor. The invoices, cancelled checks and other documentation submitted from Vendor will contain the description, location and cost of the invoiced Equipment. (b) Upon receipt and approval of each Disbursement Payment Request, Lessor will pay the Vendor(s) or reimburse the Lessee within five (S) business days, subject to Lessee's compliance with the other provisions of this Schedule; provided that (i) Lessor will not be obligated to make any disbursements unless Lessee's representations and warranties set forth within the Lease are true and correct as of the date of each Disbursement Payment and (ii) Lessee may submit no more than one Disbursement (c) It is expected that by the day of , 2012, Lessee will have taken possession of all items of Equipment shown.above and that an Acceptance Certificate, or Acceptance Certificates, will be signed by Lessee and delivered to Lessor o'n or before sixty (60) days from the date of this Schedule. 4 AcquWtion Period and Utilization Period -cphradon :Date. The Acquisition Period applicable. to this Schedule shall end, .and the Utilization Period Expiration Date shall occur, at the coriclusion of sixty (60) days following the date hereof 5: The Lease. The terms and provisions of the. Master Equipment Lease are hereby incorporated into this, Schedule by reference and made a part hereof 6. Contract Rate. The Contract Rate for this Schedule is 1.850%. 7. Purchase Option Commencement Date. For purposes of Section 16.01 of the Lease, the Purchase -Option Commencement Date is November 30, 2011. 8. Pre -Payment Premium. On any payment .date commencing, with the Purchase Option Commencement date and with. 30, days prior :notice; the Lessee: shall have the. option to .prepay its obligations under the Lease/Purchase upon paympat of'the then -applicable Purchase Price, which is calculated as 101%a of the outstanding principal balance: Dated: 1 a 3i/2-c, 1 z LESSOR: West gild Bank, SB. 34 South 7`'k Simet Riclunond, IN 47374 Attention. Timothy R. Frame, Senior V.P. Fax No... (765) 935-7291 Title: LESSEE: City, of Richmond, Indiana. b North S" Street Richmond, IN 47374 AttentionrCity Controller, l;inancing Ofce Fax.No. (765)083-7212 By Name J AmmY e *11V^ �c Title: A R°'• 1-.+yam (Seal) e `rPC'' ;rya 4eW... 1"it1e;. EXHIBIT B AMORTIZATION SCHEDULE BOMOwer: City of R ChMand Oisburgemont Oat©: OMbO 31, 2012 lniore"st Rato: 71.850 Payment payment Payment Number Data Amount, Lender: Wost End Bank, S.B. Main Otfico. 34 S...7th Strout Riahinand..IN 47374 Repayment Sobadule: Installment Calculation Motltiod: 3651U5 U:S. Rule Interest Principal tlomdlning Paid_ Paid Balance 1 06.30.2013 33,699.72. 1,202.91 32,49G.87 _ mm 65.574.19 2 3 06;30.201,i 33,699.72. 1.21.3.12 32;486.60 '33,087.59 061Q-2015. 33,G99.7.1 612:12 33.057:59 t).i70 TOTALS: 101,099.15 3.02B.15 98.077.00 NOTICE: This is Ail estimated loan amortization schodula. Actual amount$ may vary if payt>i®nts are made on difforent dates ar in t iiferonl amounts. EXHIBIT C INCUMBENCY AND AUTHORIZATION CERTIFICATE The undersigned, as the duly elected and acting Mayor of the City of Richmond, Indiana ("Lessee') certifies as follows: A. The following listed persons are duly elected and acting officials of Lessee (the "Officials" ) in the capacity set forth opposite their respective names below and that the signatures below are true and correct as of the date hereof, B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and deliver the Equipment Lease/Purchase Agreement dated as of October 31, 2012 and the Exhibits and/or Schedule(s) thereunder and all future Schedule(s) (the "Agreements" ) by and between Lessee and West End Bank, S.B., and these Agreements are binding and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms. Name of Official Vicki Robinson Tammy Glenn T.L. Bosell Dated: Title President. Board of Works Finance Controller Director, Street Department Name: Sally Hutton _-- Title: Mayor (The signer of this Certificate cannot be listed above as authorized to execute the Agreements.) CITY OF RICHMOND DEPARTMENT OF LAW 50 NORTH FIFTH STREET RICHMOND, INDIANA 47374 PHONE (765) 983-7220 FAX (765) 962-7365 EXHIBIT D OPINION OF COUNSEL TO LESSEE West End Bank, S.B. 34 South 7d' Street Richmond, IN 47374 SARAH L. HUTTON Mayor WALTER S. CHIDESTER City Attorney KtMBERLY A. VESSELS Assistant City Attorney Re: Equipment Lease/Purchase Agreement, dated as of October 31, 2012, between West End Bank, S.B. as Lessor, and City of Richmond, Indiana as Lessee Ladies and Gentlemen: As legal counsel to City of Richmond, Indiana ("Lessee'), I have examined the following: (a) an executed counterpart of a certain Equipment Lease/Purchase Agreement, dated as of May 15, 2012, and Exhibits thereto by and between West End Bank, S.B. ("Lessor') and Lessee (the "Agreement') specifically including an executed Exhibit A (the "Schedule'), which, among other things, provides for the lease of certain property listed in the Schedule (the "Equipment'), (b) an executed counterpart of the ordinances or resolutions of Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule and (c) such other opinions, documents and matters of law as I have deemed necessary in connection with the following opinions. The Equipment Lease/Purchase Agreement, and all Exhibits and/or Schedules associated with such Lease, are hereinafter referred to collectively as the "Transaction Documents." Based on the foregoing, I am of the following opinions: 1. Lessee is a public body duly organized and existing under the laws of the State of Indiana, and is a political subdivision of a state within the meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code"). 2. Lessee has the requisite power and authority to lease and acquire the Equipment referenced within the Transaction Documents, and to execute and deliver the Transaction Documents and to perform its obligations thereunder. 3. All of the Transaction Documents have been duly authorized, approved, executed and delivered by and on behalf of Lessee, and such Transaction Documents have created valid and binding obligations of Lessee enforceable in accordance with their respective terms. 4. The authorization, approval, execution and delivery of the Transaction Documents and all other proceedings of Lessee relating to the transactions contemplated thereby have been performed in accordance with all open meeting laws, public bidding laws and all other applicable state or federal laws; and 5. There is no proceeding pending or threatened in any court or before any governmental authority or arbitration board or tribunal that, if adversely determined, would adversely affect the transactions contemplated by the Transaction Documents or the security interest of Lessor or its assigns, as the case may be, in the Equipment or other collateral thereunder. All capitalized terms herein shall have the same meanings as in the Transaction Documents unless otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled to rely on this opinion. Printed Name: Kimberly A. Vessels Title: Assistant City Attorney Address: 50 North 51h Street, Richmond Telephone No.: 765-983-7220 Signature: Dated: A/OUember 151 EXHIBIT E West End Bank, S.B. 34 South 7t' Street Richmond, IN 47374 Re: Equipment Lease/Purchase Agreement, dated as of October 31, 2012, between West End Bank, S.B. as Lessor, and City of Richmond, Indiana as Lessee Ladies and Gentlemen: In accordance with the Equipment Lease/Purchase Agreement (the "Agreemen("), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows: I. The Equipment (as such terra is defined in the Agreement) listed in the above - referenced Schedule of Property (the "Schedule"), and specifically on the attached Equipment List, has been delivered, installed and accepted on the date hereof. 2. Lessee has conducted such inspection and/or testing of the Equipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledges that it unconditionally accepts the Equipment for purposes of the Lease and for all other purposes. 3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of the Agreement. 4. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof. Date: l 2. [2-`7 ti Z LESSEE: CITY OF RICHMOND, INDIANA By: Name: T.L.Bosell Title: Director Street Dot. (Seal) EXHIBIT E West End Bank, S.B. 34 South 7'h Street Richmond, IN 47374 Re: Equipment Lease/Purchase Agreement, dated as of October 31, 2012, between West End Bank, S.B. as Lessor, and City of Richmond, Indiana as Lessee Ladies and Gentlemen: In accordance with the Equipment Lease/Purchase Agreement (the "Agreement"), the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows: 1. The Equipment (as such term is defined in the Agreement) listed in the above - referenced Schedule of Property (the "Schedule"), and specifically on the attached Equipment List, has been delivered, installed and accepted on the date hereof 2. Lessee has conducted such inspection and/or testing of the Equipment listed in the Schedule as it deems necessary and appropriate and hereby acknowledbes that it unconditionally accepts the Equipment for purposes of the Lease and for all other purposes. 3. Lessee is currently maintaining the insurance coverage required by Section 7.02 of the Agreement. 4. No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof. Date: 12�271 11 L LESSEE: CITY Or RICHMOND, INDIANA By: Name: T.L.Bosell Title: Director Street Dept. (Seal) c} BO OF THE CITY OF RICHMOND, INDIANA RESOLUTION NO. 19-2012 A RESOLUTION AUTHORIZING EXECUTION AND DELIVERY OF EQUIPMENT LEASE/PURCHASE AGREEMENT WITH WEST END BANK WHEREAS, On October 25, 2012, the Board of Public Works and Safety awarded the bid for the lease agreement in connection with the finance of purchases for four (4) leaf vacuums and six (b) leaf boxes for the Richmond Street Department and said award was approved for West End Bank at a rate of 1.85%; and WHEREAS, It is in the best interest of the City to authorize Vicki Robinson, President of the Board of Public Works and Safety, and Tammy Glenn as the Richmond City Controller, to execute and deliver a certain Agreement and Lease to West End Bank, S.S. a state banking association (Contract No. 145-2012) and such other documents relating to said Agreement and Lease, and to authorize the perfonnance of said Agreement and Lease in order that the City may fulfill its obligations under said Agreement and Lease. NOW, THEREFORE, BE IT RESOLVED by the City of Richmond Board of Public Works and Safety that the Board authorizes Vicki Robinson as President of the Board of Public Works and Safety and Tammy Glenn as the Richmond City Controller, to execute and deliver the West End Bank, S.B. Agreement and Lease (Contract No. 145-2012) and such other documents relating to said Agreement and Lease, and authorizes the performance of said Agreement and Lease in order that the City may fulfill its obligations under said Agreement and Lease. THIS RESOLUTION IS ADOPTED THIS l 5th DAY OF NOVEMBER, 2012. APPROVED: Sarah L. Hutton, Mayor Date: ' / Z' By: Vicki Robinson, President By: ion, ,9Dian LawMember By: An o iy Foster, II, Member