HomeMy WebLinkAboutPierce Fire Truck
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MUNICIPAL LEASE AGREEMENT
. BETWEEN '
REPUBLIC BANK & TRUST CO:MP ANY, as Lessor,
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and
CITY OF JEFFERSONVILLE, INDIANA, as Lessee
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TABLE OF CONTENTS
PAGE
LEASE ...... ........ ... .......... ........... .................. ...,..... ...,......... .... ...... ............. .......................... ...... ..... ................... .......... ..... .............. 1
TERM, TERMINATION AND NONAPPROPRIATION........................................................................................................... 1
RENEWAL OPTION................ ....................................... ........... .................................................................................,.......,.....;.;... .1
RENT ........................................ ...............................:....... ..................................................................,.......,..,.,......,..,...,......,.:.....i:..;. 1
NET LEASE; OBLIGATION TO PAY RENT tJNCONDmONAL.............................................:...,.........,:...,..,..:.~....:.,..~..;..... 2
~~~~E~ ~~~fJig~.:..~~~~~~~~.~~~~~~~~.:::::::::::::::::::::::::::::::::::::::::::::::::::::::::;!::::::::~:::::~:::::::::::::::::,:::::':, 'i.',
TITLE AND RETURN ...........................................;................... ........................................................... .....;...................,....;......;... 2
MARKINGS ...........................................................;................................................................................;.................................... 2
MAINTENANCE AND REPAIRS ............... .............................. ........ ......................................................................................... 3
ALTERATIONS .......................................................................................................................................................................... 3
NO WARRANTIES BY LESSOR..........................,.................................................................................................................... 3
INSURANCE......................................................................................;........................................................................................ 3
CASUALTY .......................................~...................:.................................................................................................................... 3
CASUALTY PAYMENT .......................................:.................................................................................................................... 4
TAXES AND GENERAL COVENANTS ..............,.................................................................................................................... 4
REPRESENTATIONS AND WARRANTIES OF THE LESSEE .............................................................................................. 4
EVENT OF DEFAULT ............................................................................................................................................................... 5
REMEDIES.................................................................................................................................................................................. 6
SECURITY ..............................,':.......... ................ ...+........... ........ ................ ........... ......... ............... ................ .................. ........... 6
LESSOR'S EXPENSES........................... ........................... ....... .................. ......... ........... ............... ..... .............. .......................... 7
ASSIGNMENT ............................................................................................................................................................................ 7
PERSONAL PROPERTY .......................................;..................................................................................................................... 7
LATE CHARGES ........................................................................................ ...... ............................................................... ........... 7
NON- W AIVER............................................................................................................................................................................ 7
'ENTIRE AGREEMENT .........................................~.................................................................................................................... 7
NOTICES ................................................................;................... .......................................... ..................... .................................. 7
GENDER; NUMBER ...............................................................................................................................,................................... 7
TITLES....... ............................ ....... ............ ................ .............................. ......................... ................ ....................... .... ..... ........... 7
TIME.........,... ...:............... .....................,...... .,.. ...::.. ...'........ ............ ............... ........... .............................. ................ ....... ................. 7
GOVERNING LAW ...........................:....................:..........................................................................................,......................... 7
CONSENT TO JURISDICTION .............................;.................................................................................................................... 8
INCORPORATiON BY REFERENCE ..................................................,.................................................................................... 8
FURTHER ASSURANCES......................................................................................................................................................... 8
DOCUMENTATION FEE.......................................'.................................................................................................................... 8
ACKNO'WLEDGMENT ..:.......................................,.................................................................................................................... 8
SCHEDULE AND EXHIBITS
EXHIBIT A - Incumbency Certificate
EXHIBIT B - Form of Opinion of Counsel
EXHIBIT C - Rider for $10,000,000 Small Issuer
EXHIBIT D - Request for Insurance (Completed)
EXHIBIT E - Form 8038G .and Instructions
EXHIBIT F - Acceptance Certificate
EXHIBIT G - Form UCC-l
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MUNICIPAL LEASE AGREEMENT
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THIS LEASE made as of
Jeffersonville, Indiana ("Lessee").
, 1. LEASE. Lessor hereby leases to Lessee, and Lessee hdebY lease~ from Lessor all machinery, equipment and other property (collectively the
"Equipment" and individually an "It= of Equipment") descnoed ill. (a) the schedule executed by the pa.rties concurrently herewith and made a part hereof;
and (b) any schedule or schedules hereinafter executed by the paTties hereto and made a part hereof (collectively the "Schedules" and individually a
"Schedule"). .
,2008, by and between Republic Bank & Trust Company ("Lessor") andCity of
2. TERM, TERMINATION AND NONAPPIWBJ,UATION.
(a) The initial term of the Lease with respect to each Iterri of Equipment shall commence on the date which is set out on the
Schedule for that Item of Equipment (the "Commencement Date")'and shall terminate on the last day of Lessee's current fiscal year (the "Initial Term").
The Lease term will be automatically renewed at the end of the ~itial Term and any subsequent fiscal year for an additional one year period (each, a
"Renewal Term"), unless it is terminated as the result of nonappropriation of funds by Lessee, pursuant to Section 2( c) hereof. The terms and conditions
during any Renewal Term shall be the same as the terms and conditions dUring the Initial Term, except that the rental payments shall be as provided in
the Schedule. The Initial Term and the subsequent Renewal TermS set forth in the Schedule for each Item of Equipment constitute the Lease Term (the
"Lease Term").
(b) The Lease Term will terminate upon the earliest of any of the following events:
(i) The expiration of the Initi!u Term or any Renewal Term of this Lease and the nonrenewal of this Lease in the
event of non appropriation of funds pursuant to Section 2( c) hereof.
(ii) A default by Lessee and r;essor's election to terminate the Lease under SectioJ1 20 hereof, or
(iii) The payment by Lessee o~ all rent required ):0 be paid by Lessee hereunder for the Equipment.
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( c) In the event sufficient funds shall not be appropriated for the payment of the rent required to be paid in the next occurring
Renewal Term, and if Lessee has no funds legally available for rent !rom other sources, then Lessee may terminate this Lease at the end of the then current
Initial Term or Renewal Term, and Lessee shall not be obligated to .rnake payment of the rent provided for in the Schedule of this Lease beyond the then
current Initial Term or Renewal Term. Lessee agrees to deliver notice to Lessor of such termination of Lease at least 60 days prior to the end of the then
current Initial Term or Renewal Term.
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(d) Lessee intends, subject to the provis~ons of Section 2( c) hereof, to continue the Lease Term through the Initial Term and
all Renewal.Terms and to pay the rent during the Initial Term ana each of the Renewal Terms, provided that lawful appropriations therefor can be
obtained. Lessee fun:her intends to all things lawfully within its .power to obtain and maintain funds from which the rent payments may be made,
including maldng provision for such rent paynients to the extent tiecessary in each fiscal year budget submitted and adopted in accordance with the
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applicable provisions of state law, to have such portion of the bud~et approved and to exhaust all available reviews and appeals in event such a portion
of the budget is not approved. . .
3. RENEWAL OPTION. Lessee shall have the option to renew this Lease for a renewal term following the end of the Lease Term
as to all Items of Equipment listed ana Schedule, but not less than'all of such Equipment, for the term and on conditions acceptable to Lessor. Lessee
must give Lessor written notice of its intention to request this option not less than sixty (60) days before expiration of the Lease Teim with respect to
such Items of Equipment.
4. RENT.
(a) The rent for each Item of Equipment' shall be that amount designated in the applicable Schedule and shall be payable in
ADVANCE in amounts and at the time and place as set forth in the Schedule, or to such other person, or at such other place as Lessor may from time
to time designate in writing.
(b) Lessor and Lessee understand that and intend that the obligation of the Lessee to pay rent hereunder shall constitute a
current expense of Lessee and shall not in any way be construed t9 be a debt of Lessee in contravention of any applicable constitutional or statutory
limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax
revenues, funds or monies of Lessee.
(c) Lessee shall pay rent, exclusively frorp legally a'(ailable funds, in lawful money of the United States of America to Lessor,
or in the event of assignment by Lessor, to its assignee, in the amounts and on the dates set forth in the Schedule hereto. The payment of rent shall be
in consideration for Lessee's use of the Equipment during the appli'cable year in which such payments are due.
r ! (d) A portion of each payment of rent is paid as, and represents payment of, interest, and the balance of each payment of rent
is paid as, and represents payment of, principal. The applicable Schedule for each Item of Equipment sets forth the interest component and principal
component of each payment of rent during the Lease Term. .
(e) Lessee shall have the right to prepay, in part or in whole, the rent due under the Lease,
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5. NET LEASE; OBLlGl-uION TO PAY RENT UNCONDITIONAL. This is a net lease. All rent and other sums payable by
Lessee shall be paid promptly when due without notice or demand' of any character. Lessee's obligation for the payment of rent hereunder is and shall
be absolute and unconditional and shall not be subject to any reduqtion, offset, counter-claim, abatement, suspension, defennent or diminution for any
reason whatsoever, including without limitation any destruction or damage to the Equipment, any limitation of or interference with the use or possession
~f the Equipment or any component thereof (including any such litmtation or interference arising out of any defect in Lessor's title to the Equipment),
cbndemnation or requisition of the Equipment or any component th~eof, or any other occurrence or circumstance (whether similar or dissimilar to those
enumerated) which prevents the Lessee from using, possessing or enjoying the Equipment. Lessee waives (a) any and all existing and future claims and
offsets against rent or other payments due to Lessor under this Leise, (b) all rights now or hereafter conferred by statute or otherwise to terminate or
surrender this Lease or the Equipment or any component of the Equipment, and (c) any abatement, suspension, deferment, diminution or reduction of
any rent or other sums payable hereunder on account of any such ~cc;urrence.
6. LESSEE'S INSPECTION: CONCLUSIVE PRESUMPTIONS. Lessee shall inspect each Item of Equipment within forty-eight
(48) hours after receipt thereof Unless Lessee within such period of time gives written notice to Lessor specifying any defect in or other proper objection
to the Equipment, Lessee agrees that it shall be conclusively presumed, as between Lessor and Lessee, that (a) Lessee has received and has fully inspected
the Equipment, (b) Lessee has aclmowledged that the Equipment is in good condition and repair; and (c) Lessee is satisfied with and has accepted the
Equipment in such good condition and repair and as satisfactory in all respects for the purposes of this Lease.
If Lessor so requests Lessee shall furnish Lessor a written statement (1) setting forth the matters stated in clauses to(a)," "(b)," and "(c)," and
(2) approving the contract or invoice for such Equipment, and (3) requesting Lessor to pay Vendor the purchase price thereof.
7. USES AND LOCATION.
(a) Lessee shall use the Equipment in a careful and proper manner, only in the normal and ordinary course of Lessee's business,
and Lessee shall comply with, and shall use the Equipment in accordance with, (1) any and all state, federal, and local laws, rules, regulations, statutes
and ordinances applicable to Lessor and/or Lessee relating to the use, possession, operation, licensing, registration, maintenance or inspection of the
Equipment, (2) insurance policies in effect with respect to the Equipment, (3) warranties of any and all vendors and manufacturers with respect to the
Equipment or any component thereof, and (4) operating instructions furnished by any and all manufacturers, vendors and other suppliers of the
Equipment.
(b) Lessor shall have the right to inspect the Equipment and observe its use during normal business hours and any other
'reasonable time and to enter into and upon the premises where the Equipment may be located for such purpose shall maintain possession of each Item
of Equipment at, and shall not remove any Item of Equipment from, its location as shown on the Schedule for that Item of Equipment without Lessor's
r prior written consent. Lessee shall give Lessor immediate notice 'of any attachment or other judicial process affecting any Item of Equipment and,
, whenever requested by Lessor, shall advise Lessor of the exact loc~tion of each Item of Equipment.
8. TITLE AND RETURN.
(a) The Equipment is, and at all times shall remain, the sole and exclusive property of Lessor, and the delivery of the
Equipment to the Lessee and Lessee's possession thereof shall constitute a bailment. Lessee shall have no right, title or interest therein or thereto except
as expressly set forth in this Lease.
(b) Upon the expiration of the Lease Tern1 (including, without limitation, the Initial Term and all Renewal Terms) with respect
to one or more Items of Equipment, provided that Lessee has fully and faithfully performed all of the terms, conditions and provisions of this Lease
(including, without limitation, all Schedules with respect to such Item or Items ofEquipmei:1t) with r~spect to such Item or Items of Equipment, and also
provided that there has been no Casualty Occurrence (as defined in Section 14 below) to such Item or Items of Equipment and no Event of Default has
occurred and is continuing, title to and such Item or Items of EquipI1'1ent shall automatically transfer from Lessor to Lessee without requirement of further
act or deed. Without limiting the generality of the foregoing, title to such Item or Items of Equipment shall NOT transfer from Lessor to Lessee at any
time during which any Event of Default, or any act, occurrence or thing which would constitute an Event of Default with the giving of notice and/or the
passage of any time or period or opportunity for cure, shall have' occurred and be continuing. Any transfer of title under this paragraph shall be
WITHOUT WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO ANY MATIER WHATSOEVER, INCLUDING, WITHOUT LIMITATION,
THE DESIGN OR THE CONDITION OF THE EQUIPMENT OR ITS MERCHANTIBILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE,
AND SHALL BE A TRANSFER "AS IS". LESSOR'S ONLY WARRANTY OF TITLE TO SUCH ITEM OR ITEMS OF EQUIPMENT WILL BE
THAT SUCH ITEM OR ITEMS OF EQUIPMENT AS WAS CONVEYED TO LESSOR BY LESSOR'S PREDECESSOR IN TITLE, AND THAT
SUCH TITLE IS FREE FROM LIENS AND ENCUMBRANCES THAT AROSE FROM AN ACT OR OMISSION OF LESSOR OTHER THAN A
CLAIM OF ANY PERSON OR ENTITY BY WAY OF lNFRINGE~ENT OR THE LIKE. SUCH TRANSFER OF TITLE WILL BE WITHOUT ANY
OTHER WARRANTY BY LESSOR WITH RESPECT TO TITLE; TO SUCH EQUIPMENT. The provisions of this paragraph are intended to be a
complete exclusion and negation of any express or implied waminty by Lessor with respect to such Item or Items of Equipment, whether arising under
the Uniform Commercial Code or any other law now or hereafter in effect, onltherwise, except the limited warranty of Lessor with respect to title to
such Item or Items of Equipment as set forth above and only as set forth above.
9. MARKINGS. If at any time during the term ~ereof, Lessor supplies Lessee with labels, plates or other marking, stating that the
(Equipment is owned by Lessor, Lessee shall affix such marking to and keep them on a permanent and prominent place onthe Equipment. Lessee shall
not allow the name of any person, association or corporation to be placed on any Item of Equipment as a designation that might be interpreted as a claim
of ownership, provided that Lessee may cause any Item of Equipment to be lettered with Lessee's corporate name and/or corporate symbol, if applicable,
as an appropriate and convenient way to identify Lessee's interests,' under this Lease.
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10. MAINTENANCE Al' :EPAIRS. Lessee, at its own cost and expense, ~ (a) maintain and keep the Equipment and all
components thereof in good repair, condition and working order an~ in good condition as to appearance and mechanical performance, ordinary wear and
tear from authorized use excepted, (b) make all reasonable and necessary repairs, (c) purchase replacements for and replace worn or defective components
of the Equipment, so as to keep the Equipment in good mechanical.and working order, and (d) cause the Equipment and all components thereof to meet
~'. the applicable standards of any applicable governmental agency with, jurisdiction over Lessor, Lessee or the Equipment wh, ether or not such requirements
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, by their terms, are normally imposed upon Lessee. Lessee shall pay for any and all replacement parts and components required by this section; and all
slich replacement parts and components shall be free and clear of all liens and encumbrances. Title to all such replacement parts and components shall
immediately pass to Lessor upon Installation thereof.
11. AL TEM nONS. Without the prior written consent of Lessor, Lessee shall not ma.!$:e any alterations, additions or improvements
to the Equipment, except that Lessee shall make any and all alteratibns and additions to the Equipment that are required by any governmental authority
having relevant jurisdiction, if such alterations or additions are required to comply with health, safety or environmental standards. All additions and
improvements of whatsoever kind or nature made to the Equipmen't shall belong to and become the property of Lessor upon the expiration, or earlier
termination of this Lease.
12. NO WARRANTIES BY LESSOR. LESSEE HAS SELECTED BOTH (A) THE EQUIPMENT AND (B) THE PERSON OR
ENTITY FROM WHOM LESSOR IS TO ACQUIRE THE EQUIPNrnNT OR THE RIGHT TO POSSESSION AND USE OF THE EQUIPMENT (THE
"VENDOR"). LESSOR MAKES NO WARRANTY,.EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, THE DESIGN OR THE CONDITION dF THE EQUIPMENT OR ITS MERCHANTABILITY OR ITS FITNESS FOR ANY
PARTICULAR PURPOSE, AND, AS TO LESSOR, LESSEE LEASES THE EQUIPMENT "AS-IS". LESSOR HAS ONLY THE TITLE TO THE
EQUIPMENT THAT WAS CONVEYED TO LESSOR BY LESSOR'S PREDECESSOR IN TITLE, AND THAT TITLE IS FREE FROM LIENS AND
ENCUIvIBRANCES THAT AROSE FROM AN ACT OR OMISSION OF LESSOR OTHER THAN A CLAIM OF ANY PERSON OR ENTITY BY
WAY OF INFRINGEMENT OR THE LIKE. LESSOR IvlAKES :No OTHER WARRANTY WITH RESPECT TO TITLE TO THE EQUIPMENT.
IF ANY ITEM OF EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE AS REPRESENTED OR W AR.RA.."l\JTED BY THE
VENDOR AND/OR THE MANUFACTURER, OR IS,UNSATISFACTORY FOR ANY REASON, LESSEE SHALL MAKE ANY CLAIM ON
ACCOUNT THEREOF SOLELY AGAINST SUCH VENDOR AND/OR MANUFACTURER AND SHALL, NEVERTHELESS, PAY LESSOR ALL
RENTS PAYABLE UNDER THIS LEASE. LESSOR HEREBY AGREES TO ASSIGN TO LESSEE, SOLELY FOR THE PURPOSE OF MAKING
AND PROSECUTING ANY SUCH CLAIM, ALL OF THE RIGHTS WHICH LESSOR HAS AGAINST SUCH VENDOR AND/OR THE
MANUFACTURER FOR BREACH OF WARRANTY OR OTHER REPRESENTATION REPRESENTING THE EQUIPMENT. LESSEE'S
OBLIGATION TO PAY RENTALS UNDER THIS LEASE IS I)lliEVOCABLE, ABSOLUTE, UNCONDITIONAL, AND INDEPENDENT OF
LESSOR'S OBLIGATIONS UNDER THIS LEASE, AND SHALI,- NOT BE SUBJECT TO ANY REDUCTION, OFFSET OR COUNTERCLAIM.
LESSOR SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL DAMAGES INCURRED BY LESSEE AS A RESULT OF ANY
BREACH OF WARRANTY OR REPRESENTATION WITH RESPECT TO THE EQUIPMENT AND LESSOR SHALL NOT BE LIABLE TO
r,LESSEE FOR LOSS OF USE OF THE EQUIPMENT, OR FOR ANY INTERRUPTION IN LESSEE'S BUSINESS OCCASIONED BY LESSEE'S
INABILITY TO USE THE EQUIPMENT, FOR ANY REASON WHATSOEVER. THE PROVISIONS OF THIS PARAGRAPH ARE INTENDED
TO BE A COMPLETE EXCLUSION AND NEGATION OF ANY EXPRESS OR IMPLIED W ARRANTlES BY LESSOR WITH RESPECT TO THE
EQUIPMENT, WHETHER ARISING UNDER THE UNIFORM COMMERCIAL CODE OR UNDER ANY OTHER LAW NOW OR HEREAFTER
IN EFFECT, OR OTHERWISE EXCEPT THE LIMITED W ARRANTI' OF THE LESSOR WITH RESPECT TO THE TITLE TO THE EQUIPMENT,
SET FORTH ABOVE.
13. INSURANCE. Lessee shall provide, maintain and pay (a) insurance against the loss or theft of or damage to the Equipment, for the
amount of the Casualty Payment from time to time, naming Lessor as a loss-payee or mortgagee, and (b) public liability and property damage insurance,
naming Lessor as an additional insured. All such insurance shall be ,in form and amount and with companies satisfactory to Lessor. Lessee shall deliver
the policies of insurance or duplicates thereof or a certificate of insurance to Lessor. All insurance which Lessee is required by this Lease to maintain
shall provide that any loss thereunder shall be payable notwithstanding any action, inaction, breach of warranty or condition, breach of declarations,
misrepresentation or negligence of Lessee, its employees or agents. Each such policy shall contain an agreement by the insurer that, notwithstanding
lapse of any policy for any reason, or right of cancellation by the irisurer or any cancellation by Lessee, such policy shall continue in full force for the
benefit of Lessor, for at least thirty (30) days after written notice thereof to Lessor, and no alteration in any such policy shall be made except upon thirty
(30) days written notice of such proposed alteration to Lessor and wiitten approval by Lessor. If Lessee fails to acquire any policy of insurance required
to be maintained pursuant to this paragraph, or fails to renew or replace any such policy at least twenty (20) days prior to the expiration thereof, or fails
to keep any such policy in full force and effect, Lessor shall have the option (but not the obligation) to pay the premiums on any such policy of insurance
or to take out new insurance in an" amount, type, coverage and terms satisfactory to Lessor. Any amounts paid therefor by Lessor shall be irnmediately
due and payable to Lessor by.Lessee upon demand by Lessor. No exercise by Lessor of such options shall in any way affect the provisions of this Lease,
including, but not limited to, the provision that failure by Lessee to maintain the prescribed insurance shall constitute an Event of Default (as that term
is defined in Section 19 below). Lessee hereby assigns to Lessor all sums which become payable under any insurance covering the Equipment, directs
any insurer to pay and all such proceeds to Lessor, and authorizes tpe Lessor to act as Lessee's attorney-in-fact to make claim for, receive payment of
and execute and endorses all documents, checks or drafts for, loss or damage under any such insurance policy. The proceeds of such insurance, at the
option of the Lessor, shall be applied (a) toward the replacement, restbration or repair of the Equipment or (b) toward payment ofthe obligations of Lessee
hereunder.
14. CASUALTY. For the purposes of this Lease, "Casualty Occurrence" shall mean any of the following events:
r ! (a) The Equipment or any Item of Equiprhent no longer operates in the manner and for the purposes originally contemplated,
- for any reason, and it is not made to so operate by repairs or install~tion of replacement parts in accordance with paragraph 10 of this Lease within 60
days from the time it ceased to operate.
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(b) Any Item o~ lipment is requisi~oned, condemned or taken ove.any governmental authority under the power of
eminent domain or otherwise for a definite period which exceeds the then remaining Lease Term, or for any indefinite period of time.
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(c) Any Item of Equipment suffers damage which, in the good faith judgement of the Lessor would require the expenditure
I of an amount equal to or greater than fifty percent of Lessor's cost of that Item of Equipment (as shown on the Schedule for that Item) to repair or restore
it to its condition and operating capacity immediately prior to suffering such damage. .
(d) Any Item of Equipment is lost, stol~n or commandeered.
15. CASUALTY PAYMENT. If any Item of Equipment shall suffer a Casualty Occurrence, Lessee shall promptly ~d fully inform
Lessor with respect thereto. Lessee shall pay to Lessor, on the fir~ date that any installment of rent for that Item becomes due after the giving of such
notice, an amount (a "Casualty Payment") equal to the sum of (a) thy Stipulated Loss Value (defined below) calculated as provided in this Section 15,
for that Item of Equipment, computed as of the date the Casualty PaYment is due, ~ (b) all installments of rent then due in connection with that Item
as of the date of such Casualty Payment, ~ ( c) any and all of the other payments due to Lessor under this Lease as of the date of such Casualty Payment
with respect to that Item Upon tender of the Casualty Payment, this Lease shall terminate with respect to the Item of Equipment for which the Casualty
Payment was made, and Lessee and/or Lessee's insurer shall becbme entitled to such Item of Equipment, for salvage purposes, in such Item's then
condition and location, AS-IS- WHERE-IS, WlTHOUT ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR
PURPOSE, OR ANY OTHER WARRANTY, EXPRESS OR OOLIED. For purposes of this Section 15, "Stip~lated Loss Value" shall be determined
through the following three steps: First step - the "Affected Equipment Percentage" shall be determined by dividing (1) the total cost to the Lessor to
acquire the Equipment suffering the Casualty Occurrence 121 (2) the Lessor's Cost of all Equipment. Second step -- the "Unrecovered Investment" shall
be determined by adding the Lessor's assumed residual value for all ofthe Equipment ~ the principal remaining for all of the Equipment as shown
on the applicable Schedule. Third step - the "Stipulated Loss Value" shall be the amount determined by multiplying the Affected Equipment Percentage
times the Lessor's Unrecovered Investment, and then adding to that !amount any and all taxes arising out of or in connection with the Casualty Occurrence
and/or the transfer of the Item of Equipment for salvage purposes. LESSOR'S DETERMINATION OF THE STIPULATED LOSS VALUE AND THE
RESULTING CASUALTY PAYMENT SHALL BE BINDING AND CONCLUSIVE UPON LESSEE.
16. TAXES AND GENERAL COVENANTS.
(a) This Lease is a lease to a governmental agency pursuant to Indiana Code and, as such, the Equipment is currently
exempt from all tax.ation by the State of Indiana and any of its pol'itical subdivisions.
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(b) To the extent required by law, Lesse~ shall prepare and file all personal property tax returns and shall pay when due any
l:ffid all sales, use, property and excise taxes, license and registrati'on fees, ad valorem taxes and assessments, charges and other duties of any nature
~hatsoever (except for taxes based on Lessor's net income), however designated, now or hereafter imposed by any governmental entity, whether based
upon the rent or the Equipment or the purchase, delivery, ownership, leasing, use, possession orretum thereof. If Lessee shall rail to pay any such taxes,
fees, assessments, charges or other duties when due, Lessor may, bl,l! is not obligated to, pay such amounts. Lessee shall promptly reimburse Lessor for
any and all such amounts paid by Lessor, and the failure of Lessee to reimburse Lessor promptly shall constitute an Event of Default hereunder.
(c) Lessee shall keep the Equipment free and clear of all levies, liens and encumbrances.
(d) Within fifteen (15) days of availability, and in any event within one hundred twenty (120) days after the end of each fiscal
year, Lessee shall furnish to Lessor a balance sheet of Lessee and the related statement of operations, changes in financial position and profit and loss,
showing sources and uses of income for such fiscal year, all in re~onable detail and stating in comparative form the figures as of the end of the fiscal
year and for the previous corresponding period. If requested by Lessor, such financial statements shall be audited, or certified by an independent certified
public accountant satisfactory to Lessor, accompanied by an opinion (in form and substance satisfactory to Lessor) of such public accountant, and must
be signed by an appropriately authorized official of Lessee.
17. REPRESENTATIONS AND WARRANT~S OF THE LESSEE. The Lessee represents and warrants as follows:
(a) Lessee is a public body, corporate ahd politic, duly organized and existing under the constitution and the laws of the
Commonwealth of Kentucky.
(b)
corporate and politic.
Lessee will do or cause to be done alIi things necessary to preserve and keep in full force and effect its existence as a body
(c) Lessee is authorized under the const'itution and laws of the State of Indiana to enter into this Lease and the transactions
contemplated hereby, and to perform all of its obligations hereunder.
(d) Lessee has been duly authorized to execute and deliver this Lease under the terms and provisions of the resolution of its
governing body, by appropriate official approval, and further represents, covenants and warrants that all requirements have been met and procedures have
occurred in order to insure the enforceability of this Lease, and Lessee has complied with such pll,blic bidding requirements as may be applicable to this
r'L,ease and the. acquisition by Lessee of the equipment hereunder. Lbssee shall cause to be executed and delivered to Lessor the Incumbency Certificate,
. substantially in. the form attached hereto as Exhibit A, and an opinron of counsel substantially in the forn attached hereto as Exhibit. B.
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(e) During the t( )f this Lease, the Equipment will be used by Less lly for the purpose of performing one or more
governmental or proprietary functions of the Lessee consistent with the permissible scope of Lessee's authority and will not be used in a trade or business
of any person or entity other than the Lessee.
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, Renewal Terms.
(f)
The Equipment will have a useful life in the hands of the Lessee that is substantially in excess of the Initial Term and all
(g) The Lease has been duly anthorized, executed and delivered by the Lessee and is a legal, valid and binding obligation of
the Lessee, enforceable against the Lessee in accordance with its terms.
(h) The Lessee's execution and delivery onp.is Lease and the performance of its obligations hereunder Will not be inconsistent
With the Lessee's enabling legislation, do not and will not contravene ally hiw, governmental rule or regulation, judgment or order applicable to the Lessee,
and do not and will not contravene any provisions of, or constitute a default under, any indenture, mortgage, contract or other instrument to which the
Lessee is a party or by which it is bound.' .
(i) Neither the consent of or approval of, nor the giving of notice to, registration with or taking of any action with respect of
or by, any federal, state or local governmental agency or instrumeIltalities required with respect to the Lessee's execution, delivery and performance of
this Lease.
(j) Lessee shall execute and deliver to Lessor, if applicable, the rider for $10,000,000 Small Issuer, substantially in the form
attached hereto as Exhibit C.
(Ie) Lessee shall cause the Form 8038G tq be timely filed with the Internal Revenue Service. An example of Form 8038G, and
the instructions therefor, are attached hereto as Exhibit E.
(I) Lessee shall execute and deliver to L~ssor the Acceptance Certificate, substantially in the form attached hereto as Exhibit
.E, for all Items of Equipment subject to the Lease.
(n) Lessee shall execute and deliver to Lessor a completed UCC- 1, substantially in the form attached hereto as Exhibit G.
18. EVENT OF DEFAULT. The occurrence orany of the following events (each of them, an "Event of Default") shall constitute a
default under this Lease:
r i . (a) Failure of Lessee to pay any installment of rent or any other sum required by this Lease to be paid by Lessee within ten
('10) consecutive calendar days after such payment first became du~. '.
I I
(b) Failure of Lessee to observe, perform or comply with any term, obligation, covenant or condition contained in this Lease
, I
or any Schedule (other than an obligation referred to in subparagraph (a) above) and the expiration of the applicable cure period, if any, with respect to
that failure. '
(c) Any attempted sale or encumbrance or any unpermitted sublease by Lessee of the Equipment or any Item of Equipment,
or any unpermitted assignment by Lessee of this Lease.
(d) The Equipment or any Item ofEqui~ment shall become an accession of goods not subject to this Lease.
(e) Failure of Lessee to contest a levy, s~izure, attachment, lien or encumbrance known toLessee and asserted against the
Equipment or any Item of Equipment.
(f) . Failure to maintain any insurance required under Section 13 ofthis Lease.
(g) Lessee ceases to do business as a going concern.
(h) Lessee shall (i) be generally not paying its debts as they become due, (ii) admit Lessee's inability to pay Lessee's debts
generally as they become due, (iii) be insolvent, either in that Lessee's liabilities exceed Lessee's assets or in that Lessee is unable to pay Lessee's debts
as they become due, (iv) make a general assignment for the benefit of creditors, (v) file a petition in banlauptcy, or admit (by answer, default or otherwise)
the material allegations of any petition in bankruptcy filed against it under the federal bankruptcy Laws (as in effect on the date of this Lease or as they
may be amended from time to time), or under any other law for the 'relief of debtors or for the discharge, arrangement or compromise of debtors' debts,
or (vi) consent to the appointment of a receiver, liquidator, assignee, custodian"trustee, sequester or other official with similar powers over Lessee or
a substantial part of its assets.
(i) the dissolution, liquidation and/or termination ofthe Lessee.
riG) A petition shan be filed against Less~e in proceedings under the federal bankruptcy laws (as in effect at the date of the
Lease, or as they be amended from time to time), or under any other laws for the relief of debtors or for the discharge, arrangement or compromise of
debtors' debts, or any order shall be rendered by any court of competent jurisdiction appointing a receiver, trustee, or liquidator of Lessee or of all or part
of Lessee's assets, and such petition or order is not dismissed or stayed within sixty (60) consecutive calendar days after entry thereof.
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(k)
Lessee's WTe
J rejection orrevocation of acceptance ofthe Equi.
1t or any Item thereof.
(1) Lessee's repudiation of any term or provision of this Lease.
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(m) Any Equipment should become the subject matter of litigation which, in Lessor's opinion, might result in substantial
impairment or loss of Lessor's rights under this Lease or with respect to such Equipment.
(n) Any other default provided by law.
The foregoing provisions of this Section 19 are subject to the provisions of Section 2( c) hereof, with respect to nonappropriation.
19. REMEDIES.
(a) Whenever any Event of Default referred to in Section 19 hereof shall have happened and be continuing, Lessee agrees to
return the Equipment to Lessor and Lessor shall have the right arid sole option without any further demand or notice, to take either one or both the
following remedial steps:
(1) Declare the eptire amount of all rent under the Lease (including, by way of illustration and not by way of
limitation, installments of rent which would otherwise become due after the Event of Default) and any and all other amounts set forth in any Schedule
hereto, if any, remaining to be paid or coming due within the Initial Term of the then-current Renewal Term to be due 'and payable immediately.
(2) Terminate this Lease as to any or all Items of Equipment, whereupon all rights of Lessee to the use of that
Equipment shall absolutely cease and terminate, but Lessee shall remain liable for all of Lessee's obligations remaining to be paid or coming due within
the Initial Term or the then-current Renewal Term. Any such termination shall occur only by written notice by Lessor to Lessee. Any such termination
shall not impair Lessor's right to exercise the other remedies set out herein.
(3) Take possession of the Equipment immediately and wherever found, and for this purpose Lessee consents to
Lessor's entry upon any premises of Lessee without any liability for such entry.
(4) Require Lessee, at Lessee's own expense, promptly to assemble any or all of the Equipment and deliver such
Equipment to Lessor in accordance with this Lease.
r.
(5) Sell the Equipment or any portion or Item thereof, with or wifuout taking possession of it, at public auction or
private sale, at such time and upon such terms as Lessor may determine, free and clear of any and all rights of Lessee, without any requirement that Lessor
give any notice of such sale and/or act in a commercially reasonab)e manner.
(6) Lease the Equipment or an)' portion or Item thereof, with or wifuout taking possession of it, for such period and
rental, to such persons or entities, and upon such other terms and conditions, as Lessor may elect, without any requirement that Lessor give any notice
of such lease and/or act in a commercially reasonable manner in Lessor's sole discretion.
(7) Recover from Lessee any and all expenses paid or incurred by or on behalf of Lessor in the pursuit and enforce-
ment of Lessor's rights under this Lease, including, without limitation, Lessor's attorney's fees, legal expenses, Lessor's own administrative costs and any
other costs incurred in connection with the repossession, holding, repair and subsequent sale, lease or other disposition of the Equipment, or any portion
or Item thereof.
(8) Proceed by appropriate action to enforce the Lessee's obligations under this Lease and to recover damages for
Lessee's breach of this Lease, including, without limitation, any and all losses and damages that Lessor may have suffered or may suffer as a result of
the Event of Default, provided that losses and damages for lost rent shall not exceed the amount of rent due for the Initial Term or the then-current
Renewal Term in which the Event of Default occurs.
(9) Withhold delivery of any Equipment not already delivered to Lessee.
(10) Stop delivery to Lessee of any Equipment held by any bailee.
(11) Pursue any other remedy at law or in equity.
20. SECURITY. Lessee has deposited with Lessor the "Deposit" set forth in fue Schedule as security for its payment of rent and of the
other amounts due hereunder, and performance of its other obligations under this Lease (if an amount is filled in the schedule under "Deposit"). Lessor
may, but shall not be obligated to, apply such deposit (or any part thereof) to C14re any Event of Default of Lessee hereunder, in which event Lessee shall
promptly restore the deposit to the full amount originally deposited. The remaining balance of the deposit shall be returned to Lessee upon the termination
hereof or the period set forth in any Schedule hereto, ifno Event of Default has occurred.
r, 21. LESSOR'S EXPENSES. Lessee shall pay Les~or all costs and expenses, including, but not limited to, attomey'sfees and court costs,
, incurred by Lessor in exercising any of its rights or remedies herednder or enforcing any of the terms, conditions, or provisions hereof.
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22. ASSIGNMENT.
f\
. (a) WITHOUT LESSOR'S PRIOR WRITTEN CONSENT, LESSEE SHALL NOT (1) ASSIGN, TRANSFER, PLEDGE OR
HYPOTHECATE THIS LEASE, THE EQUIPMENT OR ANY ITEMS THEREOF, OR ANY INTEREST THEREIN, OR (2) SUBLET OR LEND THE
EQUIPMENT OR ANY ITEMS THEREOF, OR PERMIT THE EQUIPMENT OR ANY ITEMS THEREOF TO BE USED BY ANYONE OTHER
THAN LESSEE OR LESSEE'S EMPLOYEES. Consent to anyone ofthe foregoing acts applies only in the given instance and is not a consent to any
subsequent like acts by Lessee or any other person or entity.
(b) If Lessor enters .upon Lessee's premises to remove any of the Equipment, Lessee expressly waives any right Lessee may
have against Lessor for trespass or for any damage which may be occaSioned by Lessor's removal of any of the Equipment from Lessee's premises, and
shall hold Lessor harmless against any other party's claim of damage;-
(c) Lessee's interest herein may not be assigned or transferred by operation of law.
(d) Lessor may assign this Lease or mortgage the Equipment or both in whole or in part, without notice to Lessee. If Lessee
is given notice of such assignment, Lessee shall (if Lessor requests) acknowledge receipt thereof in writing. Each such assignee or mortgages shall have
all of the rights, BUT NONE OF THE OBLIGATIONS, of Lessor under this Lease. Lessee shall not assert against any assignee and/or mortgages any
defense, counterclaim or offset that the Lessee may haye against Lessor. Lessee agrees that it shall not assert against an assignee and/or mortgagee any
defense, counterclaim or offset that Lessee may have against Lessor. Lessee agrees and understands that the waiver of defenses provision contained in
the next preceding sentence imposes upon Lessee all the risks that rtright be associated with any failure by Lessor to perform all obligation that it might
have under this Lease, and obligates Lessee to pay to the assignee all rent and other sums due under this Lease irrevocably, absolutely, unconditionally
and in all events, despite any occurrence which might cause this Lease to be terminated (either as a matter of law or otherwise) or prevent Lessee from
enjoying the use of any item of Equipment or all of the Equipment, or reduce its value or utility to Lessee. Notwithstanding any such assignments, Lessor
agrees the Lessee may quietly enjoy use of the Equipment subject to, and so long as Lessee complies with, all ofthe terms and conditions ofthis Lease.
Subject to the foregoing, this lease inures to the benefit of and is binding upon the heirs legatees, personal representatives, successors and assigns of the
parties hereto.
23. PERSONAL PROPERTY. The Equipment is, and at all times shall be and remain, personal property notwithstanding that the
Equipment or any Item thereof may now be, or hereafter become, in any manner affixed or attached to, or imbedded in, or permanently resting upon,
real property or any improvement thereon, or attached in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws or otherwise
and not withstanding the provisions of any lease, mortgage or other instrument affecting any such real property. At Lessee's sole cost and expense, Lessee
shall take all actions that may be necessary or desirable to cause the Equipment and each component thereof to retain its character as personal property.
(\ i 24. LATE CHARGES. If Lessee fails to pay any'installment of rent or any other sum to be paid by Lessee to Lessor within ten (10)
.... days after the due date thereof, Lessee shall pay Lessor a late charge'equal to (a) 5% of such installment as service charge, and (b) interest on such unpaid
installment or other amount at an annual rate equal to the lesser of 17% per annum or the maximum contract rate fixed by law, computed from the date
the installment first came due until it is paid in full.
25. NON-WAIVER. No covenant or condition of this Lease can be waived except by the written consent of Lessor. Forbearance or
indulgence by Lessor in any regard whatsoever, shall not constitute a waiver of the covenant or condition to be performed by Lessee to which such
forbearance or indulgences may apply, and until complete performance by Lessee of such covenant or condition, Lessor shall be entitled to invoke any
remedy available to Lessor under this Lease or by law or in equity despite said forbearance or indulgence.
26. ENTIRE AGREEMENT. This instrument, the Schedules and any annexes or supplements hereto which refer to this Lease and state
that they become part hereof constitute the complete and exclusive statement of Lessor's and Lessee's agreement concerning the subject matter hereof,
and shall not be amended, altered or changed except by written agreement signed by the parties.
27. NOTICES. Services of all notices under this Lease shall be sufficient if given personally or mailed to the party involved at its
respective address set forth at the foot hereof, or at such address as such party may provide in writing from time to time. Any such notice mailed to such
address shall be effective when deposited in the United States mail, duly addressed and with first-class postage prepaid.
28. GENDER; NUMBER. 'Whenever the contextofthis Lease requires, the masculine gender includes the feminine or neuter, and the
singular number includes the plural; and whenever the word "Lessor" is used herein, it shall include all assignees of Lessor. If there is more than one
Lessee named in this lease, the liability of each shall be joint and severaL
29. TITLES. The titles to the paragraphs of this Lease are solely for the convenience of the parties, and are not an aid in the
interpretation of the instrument.
30. TIME. Time is of the essence of this Lease and each and,illl of its provisions.
31. GOVERNING LAW. The validity, constructibn and performance of this Lease shall be governed by the laws (including, without
~.lifTIitation, the conflict of the laws rules) of the Commonwealth of Kentucky.
f 'i !
32. CONSENT TO JURISDICTION. Lessee acknowledges that Lessor's principal place of business is in Jefferson County,
Kentucky. Lessee hereby consents and agreeSth'at the Jefferson County, Kentucky, Circuit Court shall have jurisdiction over any legal action
7
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with respect to this Lease, any and all ~ iules, Annexes, if :j.ny, the Equipment and any a U disputes with respect thereto. Lessee agrees
that Lessee shall not me any action, or h...aate any proceeding, in any other state, federal or other court ofIaw or equity with respect to those
matters; and if Lessee should file such -claim or initiate such proceeding in violation of Lessee's agreement in this Section, Lessee agrees that
Lessor may cause that action or proceeding to be dismissed.
r, 33. INCORPORATION BY REFERENCE. All Schedules, annexes or other attachments to this Lease are incorporated into this Lease
as if set out in full at the first place in this Lease that references is made thereto.
34. FURTHER ASSURANCES. At Lessor's request, from time to time, Lessee shall sign financing assignments or other documents
or instruments necessary to make public filings reflecting Lessor's ownership of and interest in the Equipment, and Lessee authorizes Lessor to make
any such fIlings that Lessor may deem appropriate. Such filings and,this provision are precautionary only and do not evidence any intention that this
Lease create a security interest. In addition to the foregoing, Lessee sPall provide to Lessor any comrrmation andlorrea.f:firrnation of the representations
and warranties contained in this Lease from any legal counselor certified public accountant acceptable to Lessor as Lessor may require.
35. DOCUMENTATION FEE. Lessee agrees to pay Lessor $50.00 to offset Lessor's lease documentation processing costs at the time
of the execution of this Lease.
36. ACKNOWLEDGMENT. Lesse~ acknowledges that it has received a copy of this Lease and all Schedules and Annexes thereto,
as fully executed by the parties thereto. Lessee acknowledges that it (a) has READ THIS LEASE, SCHEDULES AND ANNEXES OR HAS
CAUSED SUCH DOCUMENTS TO BE EXAMINED BYLE$SEE'SREPRESENTATIVES OR ADVISORS; (b) is thoroughly familiar with
the transactions contemplated in this Lease, Schedules and Annexes; and (c) together with Lessee's representatives or advisors, if any, has had
the opportunity to ask such questions to representatives of Lessor, and receive answers thereto, concerning the terms and conditions of the
transactions contemplated in this Lease, Schedules and Annexes as Lessee deems necessary in connection with Lessee's decision to enter into
this Lease.
IN WITNESS ViTHEREOF, the parties hereto have executed these presents the day and year first written above.
LESSOR:
LESSEE:
By:
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City of Jeffersonville, I:J:dia '>".
'!!if ' tl L
By:, ~J
Title. .rMljfl/u!i~JJ ~,
Republic Bank & Trust Company
Title:
601 W. Market"Street
Louisville, KY 40202
500 Quartermaster Ct #300
Jeffersonville, IN 47130
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SCHEDULE OF RENT PAYMENTS
Lease Dated
2./ /i/ Z"O~
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First payment in advance, due at closing of $129,795.10,
followed by nine annual payments as follows:
Payment
Number
2
3
4
5
6
7
8
9
10
Payment
Date
2/13/2009
2/13/2010
2/13/2011
2/13/2012
2/13/2013
2/13/2014
2/13/2015
2/13/2016
2/13/2017
Payment
Amount
129,795.10
129,795.10
129,795.10
129,795.10
129,795.10
129,795.10
129,795.10
129,795.10
129,795.10
Principal
Amount
95,649.75
98,949.67
102,363.43
105,894.97
109,548.35
113,327.76
117,237.57
121,282.27
125,466.51
LESSEE:
CityO..fJe fferson.~~. ' _
~. dI;
Tie: .' ; j{ alP ~
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Interest
Amount
34,145.35
30,845.43
27,431.67
23,900.13
20,246.75
16,467.34
12,557.53
8,512.83
4,328.59