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MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT
Agreement No.: 48048
Date: December 6. 2018
LESSEE: LESSOR: Banc of America Public Capital Corp
City of Fresno 555 California Street, 4t" Floor
2600 Fresno Street San Francisco, California 94104
Fresno, California 93721 Attention: Contract Administration
Fax No.: (415) 765-7373
For and in consideration of the mutual promises and agreements herein contained, and
other good valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless the context otherwise clearly requires, the following terms shall
have the respective meanings set forth below for all purposes of this Agreement and of each
Lease:
"Acceptance Certificate"means a certificate in substantially the form attached as Exhibit
A-1 to each Lease and which shall be delivered by Lessee to Lessor upon receipt and
acceptance of the Equipment subject to such Lease as provided therein.
"Acquisition Period" means the period commencing on the execution of this Agreement
and, unless mutually extended as provided herein, ending on the earlier of (a) December 31,
2021, or (b) the aggregate leasing of $65,000,000 (Sixty-five Million Dollars) of Equipment, or
(c) the occurrence of a Material Adverse Change (as defined below). During the Acquisition
Period of this Agreement, there will be an initial amount of financing of (i) $11,550,000 from the
date of execution of this Agreement until June 30, 2019, $36,354,000 from July 1, 2019 until
June 30, 2020, and $10,554,000 from July 1, 2020 until June 30, 2021, and $6,542,000 from
July 1, 2021 until December 31, 2021, all subject to satisfactory completion of the Lessor's
credit review and approval process on an annual basis, which approval may be withheld by
Lessor only in the event that Lessee's rating by Moody's or Standard & Poor's has been
downgraded two or more levels from Lessee's rating as of the date of the execution of this
Agreement. Lessor and Lessee by mutual consent may extend this Agreement for two
successive one-year acquisition periods for an amount to be determined upon mutual
agreement, subject to satisfactory completion of the Lessor's credit and pricing reviews and
approval processes on an annual basis, for which credit approval may be withheld by Lessor
only in the event that Lessee's rating by Moody's or Standard & Poor's has been downgraded
two or more levels from Lessee's rating as of the date of the execution of this Agreement. Any
extension shall be memorialized in a written amendment duly executed by Lessor and Lessee.
Based on the needs of the Lessee, the amount set forth above for annual financing can be
increased upon mutual agreement, subject to satisfactory completion of the Lessor's credit
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review and approval process on an annual basis, which approval may be withheld by Lessor
only in the event that Lessee's rating by Moody's or Standard & Poor's has been downgraded
two or more levels from Lessee's rating as of the date of the execution of this Agreement.
"Additional Payments"means any amounts (other than Rental Payments) required to be
paid by Lessee pursuant to the terms of each Lease.
"Agreement" means this Master Equipment Lease-Purchase Agreement, as
supplemented and amended from time to time as herein provided.
"Code" means the Internal Revenue Code of 1986, as it may be amended from time to
time. Each reference to a section of the Code herein shall be deemed to include the United
States Treasury Regulations proposed or in effect thereunder.
"Agreement Documents" means the "Notice Inviting Proposals," "Instructions to
Proposers," "Proposal" and the "Specifications" for the following: Master Equipment Lease
Purchase Agreement (Request for Proposals No. 09182018PH).
"Equipment" means (a) the equipment, vehicles, aircraft and other personal property
identified in each Schedule, (b) any property acquired in substitution, renewal, repair or
replacement for, or as additions, improvements, accessions and accumulations to, any of such
equipment and (c) any accessories, equipment, vehicles, aircraft and other personal property,
parts and appurtenances appertaining or attached to any of such equipment, vehicles, aircraft
and other personal property or from time to time incorporated therein or installed thereon.
"Event of Default"is defined in Paragraph 24 of this Agreement.
"Event of Non-appropriation"means the failure of the City Council to appropriate money
for any Fiscal Year of Lessee sufficient for the continued performance by Lessee of all of
Lessee's obligations under a Lease.
"Fiscal Period" means the annual period used from time to time by Lessee for its
financial accounting and budgeting purposes. Lessee's current Fiscal Period is identified in
each Schedule.
"Index" means the then current average-life SWAP Rate as set forth below and as
applicable to two, three, four, five, six, seven, eight, nine and ten year terms each as published
on the Intercontinental Exchange Inc. website as of the Notification Date. Index for two year
term is the one-Year SWAP Rate x 79%, for three and four year terms is two-Year SWAP Rate
x 79%, for five and six year terms is three-Year SWAP Rate x 79%, for seven and eight year
terms is four-Year SWAP Rate x 79%, and for nine and ten year terms is five-Year SWAP Rate
x 79%. If the Intercontinental Exchange, Inc. website discontinues such announcement or
posting of SWAP Rates, then the Lessor and Lessee shall agree to substitute a comparable
source of information.
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"Initial Term" means, with respect to each Lease, the period determined as provided in
Paragraph 3 hereof.
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule, together with the Exhibits attached to each such Schedule.
"Legally Available Funds" means funds that the governing body of Lessee duly
appropriates and are legally available for the purpose of making Payments under each Lease.
"Lessee"means the entity referred to as Lessee in the heading for this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the heading for this Agreement or
(b) any assignee or transferee of any right, title or interest of Lessor in and to any Lease
(including Rental Payments and the Equipment thereunder) pursuant to Paragraph 27 hereof,
but does not include any entity solely by reason of that entity's retaining or assuming any
obligation of Lessor to perform under any Lease.
"Material Adverse Change" means that the Lessee's general obligation bonds credit
rating (or if no general obligation bonds are currently rated, then the issuer's long-term credit
rating) without regard to credit enhancements, has been reduced two or more levels from
Lessee's rating as of the date of the execution of this Agreement by Moody's Investors Service
or Standard & Poor's Ratings Group (or any successor to either such rating agency).
"Net Proceeds" means the amount remaining from the gross proceeds of any insurance
claim or condemnation award after deducting all expenses (including reasonable attorneys'
fees) incurred in the collection of such claim or award.
"Notification Date" means the date as of which the Index is established for each Lease.
The Notification Date for each Lease shall be set forth in the applicable Schedule.
"Payments"means, with respect to each Lease, the Rental Payments and the Additional
Payments thereunder, collectively.
"Prepayment Option Amount" means, with respect to each Lease for which a
Prepayment Option Amount is identified under the column titled "PREPAYMENT OPTION AMOUNT"
on the related Schedule, the amount determined pursuant to such Lease at which Lessee may
prepay the aggregate principal component of Rental Payments thereunder on any Rental
Payment date provided in such Lease prior to the scheduled payment of all Rental Payments
to be paid thereunder for the Equipment identified therein.
"Purchase Price" means, with respect to each Lease, the total cost of the Equipment
subject to such Lease, including all delivery charges, installation charges, capitalizable
consulting and training fees, legal fees, financing costs, motor vehicle registration fees,
recording and filing fees and other costs necessary to vest full, clear legal title to such
Equipment in Lessee, subject to the security interest granted to and retained by Lessor as set
forth in such Lease, and otherwise incurred in connection with the financing provided by the
lease-purchase of the Equipment as provided in such Lease.
PAGE 3
"Renewal Term"means, with respect to each Lease, each successive period, in addition
to the applicable Initial Term, that is coextensive with Lessee's Fiscal Period and for which
Lessee has extended the term of such Lease as provided therein.
"Rental Payments" means, with respect to each Lease, the amounts (allocable to a
principal component, and an interest component) payable by Lessee pursuant to such Lease,
as payments for the installment financing of the Purchase Price for the Equipment as set forth
in such Lease. The interest component of Rental Payments shall be a fixed rate of interest
established on the Notification Date of each Lease by adding the Spread Bid to the Index
published for the term on the Notification Date.
"Schedule" means a Lease Schedule in substantially the form attached to this
Agreement as Exhibit A that may be executed by Lessor and Lessee from time to time
pursuant to this Agreement.
"Spread Bid" means the spread in basis points ("bps.") bid by the Lessor which is to be
applied to the Index in the calculation of the Rental Payments in a Lease. The Spread Bid for
leases of a two-year term is +65.86 bps., the Spread Bid for leases of a three-year term is
+59.02 bps., the Spread Bid for leases of a four-year term is +68.07 bps., the Spread Bid for
leases of a five-year term is +71.05 bps., the Spread Bid for leases of a six-year term is +78.07
bps., the Spread Bid for leases of a seven-year term is +78.43 bps., the Spread Bid for leases
of an eight-year term is +89.72 bps., the Spread Bid for leases of a nine-year term is +94.99
bps., and the Spread Bid for leases of a ten-year term is +101.51 bps.
"State"means the State of California.
2. Agreement to Lease-Purchase Equipment Under Each Lease. Lessee hereby
agrees to acquire, purchase and lease all of the Equipment identified in each of the Schedules
that may from time to time be executed by Lessor and Lessee pursuant hereto, and Lessor
hereby agrees to furnish the Equipment under each such Schedule to Lessee, all on the terms
and conditions set forth in this Agreement. Each Schedule executed and delivered by Lessor
and Lessee pursuant to this Agreement shall constitute a separate and independent Lease.
The termination of a Lease as a consequence of an Event of Non-appropriation shall not
terminate any other Lease.
Lessor is committed to enter into Leases identified in the Agreement Documents during
the Acquisition Period on the terms and conditions provided in this Agreement so long as (a)
the Equipment identified in a Schedule (i) is of the type generally described in Lessee's
request for proposals related to this Agreement (such as copiers, furniture, public safety
equipment, vehicles [including aircraft] and other capital equipment for general governmental
purposes), and (ii) constitutes a capital asset that can be financed on a federally tax-exempt
basis over the term stated in such Schedule; and (b) no Material Adverse Change has
occurred.
Alternative Procedure: Escrow Agreement. Notwithstanding the provisions in this
Paragraph 2, if upon agreement by Lessor and Lessee as to any Equipment to be acquired
and leased by Lessee under a Lease, Lessor and Lessee may enter into an escrow agreement
PAGE 4
in substantially the form attached as Exhibit B establishing a fund from which the Equipment
cost is to be paid, and an amount equal to such cost is deposited therein by Lessor. Lessor
and Lessee shall immediately complete and execute Exhibits A and B relating to the
Equipment and the Payments relating to the Equipment shall be due and payable commencing
upon the date of said deposit of funds as provided in Exhibit A.
3. Term. The term of this Agreement begins as of the date set forth above and will
continue so long as any amount remains unpaid under any Lease. The Initial Term of each
Lease begins as of the date identified in such Lease and expires at midnight on the last day of
the Fiscal Period during which such Lease is executed and delivered. Beginning at the
expiration of its Initial Term, the term of each Lease shall automatically be extended upon the
successive appropriation by Lessee's governing body of amounts sufficient to pay Rental
Payments and reasonably estimated Additional Payments during the next succeeding Renewal
Term, for the number of Renewal Terms, each coextensive with Lessee's Fiscal Period, as are
necessary for all Rental Payments identified in the applicable Schedule to be paid in full,
unless such Lease is terminated as provided therein.
The term of each Lease will expire upon the first to occur of (a) the expiration of the
Initial Term or any Renewal Term of such Lease during which an Event of Non-appropriation
occurs, (b) the day after the last scheduled Rental Payment under such Lease is paid in full,
(c) the day after the Prepayment Option Amount under such Lease is paid in full or (d) an
Event of Default under such Lease and a termination of Lessee's rights thereunder as provided
therein.
The term of this Agreement for purposes of the signing of Leases shall be the
Acquisition Period.
4. Rental Payments. Lessee hereby agrees to pay (but only from Legally Available
Funds) Rental Payments for the Equipment identified in each Schedule. All Rental Payments
shall be made to Lessor at Lessor's mailing address set forth above (or at such other address
as may be designated from time to time pursuant to Paragraph 27 hereof) in the amounts and
on the dates provided in the pertinent Schedule. Rental Payments made by check will be
accepted subject to collection.
Lessee's obligation under each Lease to make Rental Payments and to pay any
Additional Payments thereunder constitutes a current obligation payable exclusively from
Legally Available Funds and shall not be construed to be an indebtedness within the meaning
of any applicable constitutional or statutory limitation or requirement. Lessee has not pledged
its full faith and credit or its taxing power to make any Rental Payments or Additional Payments
under any Lease. Lessee shall not permit any person or entity (including the federal
government) to guarantee any Rental Payments under any Lease.
5. Agreement to Seek Appropriations; Notice of Event of Nonappropriation. Lessee
agrees that its primary business official will do all things lawfully within such official's power (a)
to include amounts to make Payments under each Lease in each annual or biennial budget (as
appropriate) to be submitted to Lessee's governing body and (b) and to maintain and utilize
PAGE 5
any such amounts appropriated in any given Fiscal Period for the purpose for which those
funds were appropriated.
Lessee hereby agrees to notify Lessor immediately (and in no case later than thirty days
prior to the last day of its then current Fiscal Period) of the occurrence of an Event of Non-
appropriation under any Lease. It is understood that neither this Agreement nor any
representation by any public employee or officer creates any legal or moral obligation to
appropriate or make moneys available for the purpose of this Agreement.
6. Prepayment Option. Lessee is hereby granted the option to prepay (in whole but
not in part) the aggregate principal component of Rental Payments identified in a Lease, prior
to the scheduled payment of the Rental Payments in full pursuant to such Lease, with such
prepayment permitted to be made on any Rental Payment date for which a Prepayment Option
Amount is identified under the column titled "PREPAYMENT OPTION AMOUNT" in the applicable
Schedule. Assuming that all Rental Payments and Additional Payments due under such Lease
on and prior to the prepayment date have been paid, such prepayment amount shall equal the
Prepayment Option Amount shown for the Rental Payment date on which such prepayment is
to be effective under the column titled "PREPAYMENT OPTION AMOUNT" in the applicable
Schedule. To exercise the option provided in this Paragraph 6 and granted in a Lease, Lessee
shall give Lessor a written notice exercising such option and designating the affected Lease,
the Rental Payment date on which such prepayment is to be effective and the applicable
Prepayment Option Amount, which notice shall be delivered to Lessor at least thirty days in
advance of the proposed prepayment date. The prepayment option herein granted may be
exercised by Lessee with respect to a Lease whether or not one or more Events of Default
have occurred and are then continuing under such Lease at the time of such exercise;
provided, however, that the prepayment of such principal component of Rental Payments
under the applicable Lease upon the exercise of such option during the continuance of an
Event of Default thereunder shall not limit, reduce or otherwise affect liabilities or obligations
that Lessee has incurred as a result of such Event of Default.
Immediately upon any such prepayment's being made or the last scheduled Rental
Payment under the Lease is paid in full, Lessor shall execute all documents necessary to
confirm in Lessee title in and to the Equipment under the affected Lease, free and clear of any
lien, encumbrance or other interest created by Lessor, but without warranties and in "As Is,
Where Is" condition, and to release Lessor's security interest in such Equipment, and Lessor
shall deliver such documents to Lessee. Lessor shall further cooperate in providing for the
filing of any necessary releases, termination statements or other similar documents and the
release of certificates of title or certificates of origin to Lessee.
7. Essentiality. Lessee's present intention is to make Rental Payments and
Additional Payments under each Lease for the Initial Term and all Renewal Terms applicable
thereto as long as it has Legally Available Funds. In that regard, Lessee represents with
respect to each Lease that at the time Lessee enters into each Lease (a) the use and
operation of the Equipment under each Lease is essential to its proper, efficient and economic
governmental operation and (b) Lessee does not have other equipment or does not have
sufficient equipment available to perform the same functions as the Equipment. Lessee does
not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last
PAGE 6
Rental Payment scheduled (including all applicable Renewal Terms) to be paid under the
pertinent Lease. To the extent that Lessee may ultimately decide to use other equipment for
the same purpose for which Lessee leased equipment under any given Lease for the benefit
of the health, safety and welfare of the public, such decision shall not be considered an Event
of Default nor a material misrepresentation under this Agreement.
8. Reserved.
9. Delivery and Installation. Lessee shall select the type, quantity and supplier of
each item of Equipment designated in a Schedule. Once Lessor and Lessee have executed
the related Lease, Lessee (as Lessor's agent for this purpose) shall then order the Equipment
identified in such Lease from such supplier. Any executed purchase order existing at the time
of the execution of a Lease, and relating to any portion of the Equipment therein identified that
has not as of such Lease execution date been delivered and installed, shall be deemed to
have been executed by Lessee in its capacity as Lessor's agent for purposes of such Lease.
Lessor shall have no liability for any delay in delivery or failure by the supplier to deliver any
Equipment under any Lease or to fill any purchase order or meet the conditions thereof.
Lessee, at its expense, will pay or cause the supplier to pay all transportation, packing, taxes,
duties, insurance, installation, testing and other charges in connection with the delivery,
installation and use of the Equipment under all Leases. As soon as practicable after receipt of
the Equipment identified in a Lease, Lessee shall furnish Lessor with an executed Acceptance
Certificate relating thereto. Execution of an Acceptance Certificate with respect to the
Equipment identified in a Lease by any employee, official or agent of Lessee having authority
in the premises or having managerial, supervisory or procurement duties with respect to
equipment of the same general type as the Equipment described in such Acceptance
Certificate shall constitute acceptance of such Equipment on behalf of Lessee. By making a
Rental Payment after its receipt of the Equipment identified in a Lease, regardless of whether
Lessee has furnished an Acceptance Certificate with respect to such Equipment as herein
provided, Lessee shall be deemed to have accepted such Equipment on the date of such
Rental Payment for all purposes of such Lease. All Rental Payments paid prior to the delivery
of an Acceptance Certificate with respect to the Equipment identified in a Lease shall be
credited to Rental Payments as they become due under such Lease.
Lessee understands and agrees that neither the manufacturer, seller, nor supplier of
any Equipment under any Lease, nor any salesman or other agent of any such manufacturer,
seller or supplier, is an agent of Lessor. No salesman or agent of the manufacturer, seller or
supplier of any Equipment under any Lease is authorized to waive or alter any term or
condition of any such Lease, and no representation as to Equipment or any other matter by the
manufacturer, seller or supplier of any Equipment under any Lease shall in any way affect
Lessee's duty to pay the Rental Payments thereunder and perform its other obligations as set
forth in such Lease. Lessee hereby acknowledges that it has or will have selected the
Equipment identified in each Schedule using its own criteria and not in reliance on any
representations of Lessor.
10. Disclaimer of Warranties. LESSOR, NOT BEING THE MANUFACTURER, SELLER OR
SUPPLIER OF ANY OF THE EQUIPMENT UNDER ANY LEASE, NOR A DEALER IN ANY OF SUCH EQUIPMENT,
HAS NOT MADE AND DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR COVENANT, EXPRESS OR
PAGE 7
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING BUT NOT LIMITED TO: THE MERCHANTABILITY OF
THE EQUIPMENT OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE DESIGN OR CONDITION OF THE
EQUIPMENT, THE QUALITY OR CAPACITY OF THE EQUIPMENT, THE WORKMANSHIP IN THE EQUIPMENT,
THE COMPLIANCE OF THE EQUIPMENT WITH THE REQUIREMENT OF ANY LAW, RULE, SPECIFICATION OR
CONTRACT PERTAINING THERETO, PATENT INFRINGEMENT OR LATENT DEFECTS. Lessee accordingly
agrees not to assert any claim whatsoever against Lessor based thereon. Specifically as to
any Disclaimer of Warranties by Lessor under this Paragraph 10, Lessee further agrees,
regardless of cause, not to assert any claim whatsoever against Lessor for any direct, indirect,
consequential, incidental or special damages or loss of any classification related to such
warranties. Lessor shall have no obligation to install, erect, test, adjust, service or maintain
any Equipment under any Lease. Lessee shall look solely to the manufacturer, seller and/or
supplier for any and all claims related to any and all of the Equipment. AS TO LESSOR (NOT
AS TO ANY VENDOR/ MANUFACTURER/ EQUIPMENT SELLER), LESSEE ACQUIRES,
PURCHASES AND LEASES THE EQUIPMENT"AS IS, WHERE IS"AND "WITH ALL FAULTS."
Lessor hereby acknowledges that, so long as no Event of Default or Event of
Nonappropriation has occurred and is continuing under a Lease, the warranties (if any) of the
manufacturer, seller and/or supplier of the Equipment under such Lease are for the benefit of
Lessee.
11. Title to Equipment. During the term of each Lease, title to the Equipment identified
therein shall be vested in Lessee, subject to the rights of Lessor under such Lease, unless
Lessor terminates such Lease pursuant to Paragraph 25 hereof as provided in such Lease or
an Event of Nonappropriation occurs with respect to such Lease, in which event title to the
Equipment identified in such Lease shall immediately vest in Lessor free and clear of any right,
title or interest of Lessee. Lessee, at its expense, will protect and defend Lessee's title to the
Equipment identified in each Lease and Lessor's rights and interests therein and will keep the
Equipment under each Lease free and clear from any and all claims, liens, encumbrances and
legal processes of Lessee's creditors and other persons. All items of Equipment shall at all
times be and remain personal property notwithstanding that any such Equipment may now or
hereafter be affixed to realty.
12. Tax Covenants; Tax Indemnity Payments. Lessee agrees that it will not take any
action that would cause the interest component of Rental Payments under any Lease 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 a timely manner,
any action, which omission would cause the interest component of Rental Payments under any
Lease to be or to become ineligible for the exclusion from gross income of the owner or
owners thereof for federal income tax purposes. Lessee agrees to (a) execute and deliver to
Lessor with respect to each Lease, upon Lessor's request, a tax certificate and agreement in
form and content acceptable to Lessor and Lessee, relating to the establishment and
maintenance of the excludability from gross income of the interest component of Rental
Payments under such Lease for federal income tax purposes, and (b) complete and file or
cause to be filed in a timely manner an information reporting return (either I.R.S. Form 8038-G
or I.R.S. Form 8038-GC, as appropriate) in the form attached as Exhibit A-2 to each Lease
with respect to such Lease as required by the Code.
PAGE 8
Lessee represents that neither Lessee nor any agency or unit of Lessee has on hand
any property, including cash and securities, that is legally required or would otherwise be
considered restricted under the Code or any United States Treasury Regulations (no matter
where held or the source thereof) to purchase, directly or indirectly, the Equipment under any
Lease. Lessee has not established and will not establish any funds or accounts (no matter
where held or the source thereof) which would be construed as "replacement proceeds" or a
"sinking fund" under Sections 1.148-1(c)(1) and (c)(2) and any related or replacement
provisions of the U.S. Treasury Regulations or the Code for paying Rental Payments, directly
or indirectly.
If Lessee breaches the covenant contained in this Paragraph 12 as provided in a Lease,
the interest component of Rental Payments under such Lease may become includible in gross
income of the owner or owners thereof for federal income tax purposes. In such event, Lessee
agrees to pay to Lessor, promptly after any such determination of taxability by a court of
competent jurisdiction, and on each Rental Payment date thereafter, an additional amount
determined by Lessor to compensate such owner or owners for the loss of such excludability
(including, without limitation, compensation relating to interest expense, penalties or additions
to tax), which determination shall be conclusive (absent manifest error). Notwithstanding
anything herein to the contrary, any additional amount payable by Lessee pursuant to this
Paragraph 12 as provided in a Lease shall be payable solely from Legally Available Funds.
It is Lessor's and Lessee's intention that each Lease not constitute a "true" lease for
federal income tax purposes, and therefore, it is Lessor's and Lessee's intention that Lessee
be considered the owner of the Equipment under each Lease for federal income tax purposes.
13. Use of Equipment, Inspection and Reports. During the term of each Lease,
Lessee shall be entitled to quiet enjoyment of the Equipment identified therein and may
possess and use the Equipment in accordance with such Lease, provided that Lessee is in
compliance in all respects with the terms of such Lease and that such possession and use are
in conformity with all applicable laws, any insurance policies and any installation requirements
(including environmental specifications) or warranties of the manufacturer, seller and/or
supplier with respect to the Equipment identified in such Lease. Lessee shall provide all
permits and licenses, if any, necessary for the installation and operation of the Equipment
under each Lease. Lessor shall have the right, upon reasonable prior notice to Lessee and
during regular business hours, to inspect the Equipment at the premises of Lessee or
wherever the Equipment may be located. Lessee shall promptly notify Lessor of any alleged
encumbrances on the Equipment identified in any Lease or any accident allegedly resulting
from the use or operation thereof or any claim relating thereto.
During the term of each Lease and at Lessor's request, Lessee shall provide Lessor, on
or before July 10th of any calendar year (commencing with Lessee's current Fiscal Period),
with current budgets or other proof of appropriation for the ensuing Fiscal Period and such
other information relating to Lessee's ability to continue the term of each Lease for the next
succeeding Renewal Term as may be reasonably requested by Lessor. In the event Lessee
shall have failed to approve its budget by July 10 of any calendar year and upon proof of such
failure by Lessee, Lessor shall grant to Lessee a reasonable extension of time within which
Lessee must provide the proof of appropriation described in this Paragraph 13.
PAGE 9
During the term of each Lease, Lessee shall furnish or cause to be furnished to Lessor,
at Lessee's expense, as soon as available and in any event not later than 180 days after the
close of each Fiscal Period, the audited financial statements of Lessee as at the close of and
for such Fiscal Period, all in reasonable detail, audited by and with the report of Lessee's
auditor.
14. Security Agreement; Further Assurances. To secure the performance of all of
Lessee's obligations under each Lease, Lessee grants to Lessor, and Lessor shall have and
retain, a security interest constituting a first and exclusive lien on the Equipment delivered
under each respective Lease, on all attachments, repairs, replacements and modifications
thereto or therefor and on any proceeds therefrom. Lessee agrees to execute and deliver
such additional documents, including, without limitation, financing statements, certificates of
title or certificates of origin (or applications therefor) noting Lessor's interest thereon, opinions
of counsel, notices and similar instruments, in form satisfactory to Lessor, which Lessor deems
necessary or appropriate to establish and maintain its security interest in the Equipment under
each Lease or for the confirmation or perfection of each Lease and Lessor's rights under each
Lease. Upon the occurrence of an Event of Default or an Event of Nonappropriation under a
Lease or if Lessee refuses or is otherwise unwilling to execute and file financing statements to
which Lessor is entitled in accordance with such Lease within ten days after Lessor's written
request to Lessee therefor, Lessor is authorized to file financing statements signed only by
Lessor in accordance with the applicable Uniform Commercial Code or signed by Lessor as
Lessee's attorney-in-fact.
15. Risk of Loss. All risk of loss, damage, theft or destruction to each item of
Equipment under each Lease shall be borne by Lessee. No such loss, damage, theft or
destruction of the Equipment under any Lease, in whole or in part, shall impair the obligations
of Lessee under any Lease (including, but not limited to, the obligation to pay Rental Payments
under each such Lease when due), all of which shall continue in full force and effect subject to
the terms of the applicable Lease. If (a) the Equipment or any portion thereof under a Lease 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 under a Lease is taken under the exercise
of the power of eminent domain, Lessee shall immediately notify Lessor. Lessee and Lessor
shall cause the Net Proceeds of any insurance claim or condemnation award to be applied, at
Lessor's option, to (i) the prompt repair, restoration, modification or replacement of the
Equipment so affected or (ii) the payment in full of the then applicable Prepayment Option
Amount. Any balance of Net Proceeds remaining after completion of such work or payment of
such Prepayment Option Amount shall be paid promptly to Lessee. If the Net Proceeds are
insufficient to pay the costs of such repair, restoration, modification or replacement or to pay
such Prepayment Option Amount in full, Lessee shall, at Lessor's direction, either complete the
work or pay the then applicable Prepayment Option Amount in full and in either case pay any
cost in excess of the amount of Net Proceeds, but only from Legally Available Funds.
16. Insurance. If Lessee is not self-insured as hereinafter provided, Lessee, at its
expense, shall throughout the term of each Lease keep the Equipment thereunder insured
against theft, fire, collision (in the case of vehicles) and such other risks as may be customary
for each item of Equipment, under a policy or policies containing a loss payable endorsement
in favor of Lessor. The policy required hereby shall provide that they may not be canceled or
PAGE 10
materially altered without at least thirty days' prior written notice to Lessor. Lessee shall
deliver to Lessor a certificate of insurance in evidence of each insurance policy and each
renewal thereof. Failure by Lessor to request evidence of such insurance policies or renewals,
or otherwise to verify the existence of such insurance, shall not constitute a waiver of the
requirements hereof. If Lessee is self-insured with respect to equipment such as the
Equipment under a Lease, Lessee shall maintain during the term of such Lease an actuarially
sound self-insurance program and shall provide evidence thereof to Lessor.
17. Maintenance and Repairs. Lessee shall use the Equipment under each Lease in a
careful and proper manner, in compliance with all applicable laws and regulations and, at its
expense, keep and maintain the Equipment under each Lease in good repair and working
order, performing all maintenance and servicing necessary to maintain the value and utility of
the Equipment, reasonable wear and tear excepted. Without the prior written consent of
Lessor, Lessee shall not make any alterations, modifications or attachments to the Equipment
under any Lease which cannot be removed without materially damaging the functional
capabilities, economic value or utility of such Equipment.
18. Taxes. Unless Lessee has provided Lessor with evidence necessary to sustain an
exemption therefrom, Lessee shall timely pay all assessments, license fees, taxes (including
sales, use, excise, personal property, ad valorem, stamp, documentary and other taxes) and
all other governmental charges, fees, fines or penalties whatsoever, whether payable by
Lessor or Lessee, now or hereafter imposed by any governmental body or agency on or
relating to the Equipment under each Lease, the Rental Payments under each Lease (to the
extent such Rental Payments are appropriated by Lessee) or the use, registration, rental,
shipment, transportation, delivery, ownership or operation of the Equipment under each Lease
and on or relating to each Lease; provided, however, that the foregoing shall not include any
federal, state or local income or franchise taxes of Lessor.
19. Lessor's Performance of Lessee's Obligations. If Lessee shall fail duly and
promptly to perform any of its obligations under a Lease, Lessor may, at its option, perform any
act or make any payment that Lessor deems necessary for the maintenance and preservation
of the Equipment under such Lease and Lessor's interests therein, including, but not limited to,
payments for satisfaction of liens, repairs, taxes, levies and insurance. All expenses incurred
by Lessor in performing such acts and all such payments made by Lessor, together with late
charges described in Paragraph 20 below as provided in each Lease, and any reasonable
attorneys' fees and expenses incurred by Lessor in connection therewith, shall be payable by
Lessee to Lessor on demand. The performance of any act or payment by Lessor as aforesaid
shall not be deemed a waiver or release of any obligation or default on the part of Lessee. In
the Event of Non-appropriation any obligations of Lessee under this Paragraph 19 shall be
limited to costs or liability incurred by Lessor to the end of the fiscal period represented by the
last Renewal Term or the end of the last Fiscal Period for which Lessee appropriated revenues
necessary to pay for Rental Payments under this Agreement, whichever is earlier.
20. Reserved.
21. Reserved
PAGE 11
22. No Offset; Unconditional Obligation. Except as provided in Paragraph 3, or in the
Event of Non-appropriation, the obligation of Lessee to make Rental Payments or any other
Payments required hereunder shall be absolute and unconditional in all events.
Notwithstanding any dispute between Lessee and Lessor or between Lessee and an
Equipment vendor or manufacturer or any other person, Lessee shall make all Rental
Payments and other payments required hereunder when due and shall not withhold any Rental
Payment or other payment pending final resolution of such dispute nor shall Lessee assert any
right of set-off or counterclaim against its obligation to make Rental Payments or other
payments required hereunder. Lessee's obligation to make Rental Payments shall not be
abated through accident, unforeseen circumstances, failure of the Equipment to perform as
desired, damage or destruction to the Equipment, loss of possession of the Equipment or
obsolescence of the Equipment.
23. Representations and Warranties of Lessee. Lessee hereby represents and
warrants to and agrees with Lessor that:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 103(c) of the Code.
(b) Lessee has the power and authority under applicable law to enter into the
transactions contemplated by this Agreement and each Lease and has been duly
authorized to execute and deliver this Agreement and each Lease and to carry out its
obligations under each Lease. Attached to each Lease as Exhibit A-3 is a full, true and
correct copy or an original of a resolution or other appropriate official action of Lessee's
governing body specifically authorizing Lessee to execute and deliver this Agreement
and the applicable Lease. Attached to each Lease as Exhibit A-4 is a full, true and
correct copy or an original of an Incumbency Certificate relating to the authority of the
officers who have executed and delivered, or will execute and deliver, this Agreement
and the applicable Lease on behalf of Lessee. Attached to each Lease as Exhibit A-5 is
a full, true and correct copy or an original of an opinion of Lessee's legal counsel
regarding the legal, valid and binding nature of this Agreement and each Lease on
Lessee and certain other related matters. For any Lease that is funded under this
Agreement in the amount of $5,000,000.00 or more, Lessor may require Lessee to
deliver an opinion from its bond counsel to the effect that the interest component of the
Rental Payment is not includable in the gross income of Lessor.
(c) All requirements have been met and procedures have occurred in order to
ensure the enforceability of this Agreement and each Lease, and Lessee has complied
with such public bidding requirements, if any, as may be applicable to the transactions
contemplated by this Agreement and each Lease.
(d) Lessee is not subject to any legal or contractual limitation or provision of
any nature whatsoever that in any way limits, restricts or prevents Lessee from entering
into this Agreement or any Lease or performing any of its obligations under this
Agreement or any Lease, except to the extent that such performance may be limited by
bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally.
PAGE 12
(e) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, public board or body, known to be pending or threatened
against or affecting Lessee, nor to the best knowledge of Lessee is there any basis
therefor, wherein an unfavorable decision, ruling or finding would materially adversely
affect the transactions contemplated by this Agreement, any Lease or any other
agreement or instrument to which Lessee is a party and which is used or contemplated
for use in the consummation of the transactions contemplated by this Agreement or any
Lease. All authorizations, consents and approvals of governmental bodies or agencies
required in connection with the execution and delivery by Lessee of this Agreement and
each Lease or in connection with the carrying out by Lessee of its obligations hereunder
and thereunder have been obtained, except with respect to annual budgeting and
appropriation procedures as required by State law relating to each Lease.
(f) The payment of the Rental Payments or any portion thereof under each
Lease is not (under the terms of such Lease or any underlying arrangement) directly or
indirectly (i) 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 (ii) 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. No Equipment
under any Lease will 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 Purchase Price
for the Equipment under any Lease will be used, directly or indirectly, to make or
finance loans to any person other than Lessee. Lessee has not entered into a contract
with a private third party for the used or operation of the Equipment that would result in
the related Lease being treated as a "private activity bond" within the meaning of
Section 141(b) of the Code, or would violate Lessee's tax covenants set forth in Section
12 hereof.
(g) The entering into and performance of this Agreement and each Lease will
not violate any judgment, order, law or regulation applicable to Lessee or result in any
breach of, or constitute a default under, or result in the creation of any lien, charge,
security interest or other encumbrance upon any assets of Lessee or on the Equipment
under any Lease pursuant to any indenture, mortgage, deed of trust, bank loan or credit
agreement or other instrument to which Lessee is a party or by which it or its assets
may be bound, except as provided in each Lease with respect to the granting of security
interests in and to the Equipment therein described.
(h) Reserved.
(i) The useful life of the Equipment identified in each Lease will not be less
than the stated full term of the applicable Lease, including all contemplated Renewal
Terms.
Q) Lessee has entered into, or will enter into, each Lease for the purpose of
purchasing, acquiring and leasing the Equipment identified therein and not for the
purpose of refinancing any outstanding obligation of Lessee more than ninety days in
PAGE 13
advance of its payment or prepayment date. The Purchase Price for the Equipment will
be paid directly by Lessor, at the direction of Lessee and upon presentation of proper
documentation, to the manufacturer, seller or supplier thereof, and no portion of the
Purchase Price for the Equipment under any Lease will be paid to Lessee as
reimbursement for any expenditure paid by Lessee more than sixty days prior to the
execution and delivery of the applicable Lease.
(k) Lessee has made sufficient appropriations to pay all Rental Payments due
during the Initial Term under each Lease.
(1) Lessee has not previously failed (for whatever reason) to appropriate
amounts sufficient to pay its obligations that are subject to annual appropriation.
24. Events of Default. Each of the following events constitutes an "Event of Default"
with respect to a Lease:
(a) Lessee fails to pay in full the Rental Payment due under such Lease on
any date upon which such Rental Payment is due;
(b) Lessee fails to comply with any other agreement or covenant of Lessee
under such Lease for a period of thirty days following receipt of written notice of
violation of such agreement or covenant and demand that such violation be remedied;
(c) Lessee institutes any proceedings under any bankruptcy, insolvency,
reorganization or similar law or a receiver or similar officer is appointed for Lessee or
any of its property.
(d) any warranty, representation or statement made in writing by or on behalf
of Lessee in connection with such Lease is found to be incorrect or misleading in any
material respect on the date made; or
(e) Any default occurs under any other agreement for borrowing money, lease
financing of property or otherwise receiving credit under which Lessee is an obligor, if
such default (i) arises under any other agreement for borrowing money, lease financing
of property or provision of credit provided by Lessor or any affiliate of Lessor (including,
without limitation, the occurrence of any event of default under any other Lease), or
(ii) arises under any obligation under which there is outstanding, owing or committed an
aggregate amount in excess of$100,000;
(f) Lessee's actual or attempted sale, lease or encumbrance of any of the
Equipment under such Lease or the making of any levy, seizure or attachment thereof
or thereon.
25. Repossession and Lessor's Other Rights Upon Event of Default or Event of
Nonappropriation. Immediately upon the occurrence of an Event of Default under a Lease or
immediately after the expiration of the Initial Term or any Renewal Term during which an Event
of Nonappropriation occurs, Lessor may terminate the affected Lease or Lessee's rights
PAGE 14
thereunder and in any such event repossess the Equipment thereunder, which Lessee hereby
agrees, at its expense, to surrender promptly to Lessor at such location in the continental
United States as Lessor shall direct. Such right of repossession and other rights as specifically
provided in this Paragraph 25 shall constitute the sole remedies for Lessee's failure to make
payments or otherwise perform its obligations when required under a Lease. If Lessor is
entitled to repossess the Equipment under a Lease, Lessee shall permit Lessor or its agents to
enter the premises where the affected Equipment is then located. In the event of any such
repossession, Lessee shall execute and deliver such documents as may reasonably be
required to transfer title to and possession of the Equipment under the affected Lease to
Lessor, free and clear of all liens and security interests to which such Equipment may have
become subject.
Any termination of a Lease at Lessor's option as described in this Paragraph 25 and as
provided in the applicable Lease shall take effect at the end of the Initial Term or the Renewal
Term then in effect under such Lease, unless Lessor at its option elects to terminate such
Lease on an earlier date.
Upon repossession, if the Equipment under the affected Lease is damaged or otherwise
made less suitable for the purposes for which it was manufactured than when delivered to
Lessee (reasonable wear and tear excepted), Lessee agrees, at its option, to: (a) repair and
restore such Equipment to the same condition in which it was received by Lessee (reasonable
wear and tear excepted) and, at its expense, promptly return such Equipment to Lessor (or to
a location identified in a written notice to Lessee) or (b) pay to Lessor the actual costs of such
repair, restoration and return.
If Lessor terminates a Lease as described in this Paragraph 25 and as provided in the
applicable Lease, or if an Event of Nonappropriation occurs under a Lease and Lessee
continues to use the Equipment after the Initial Term or any Renewal Term under such Lease
during which the Event of Default or the Event of Nonappropriation occurs, or if Lessee
otherwise refuses to pay Rental Payments due during a Renewal Term under a Lease for
which Lessee's governing body has appropriated sufficient Legally Available Funds to pay
such Rental Payments, Lessor shall be entitled to bring such action at law or in equity to
recover damages attributable to such holdover period for the Equipment subject to such Lease
that Lessee continues to use or to the remainder of such Renewal Term under such Lease for
which such appropriations have been made.
Lessor shall also be entitled to exercise any or all remedies available to a secured party
under the applicable Uniform Commercial Code and all other rights and remedies that Lessor
may have at law or in equity.
No right or remedy conferred upon or reserved to Lessor as described herein and as
provided in each Lease is exclusive of any other right or remedy herein or in any Lease or at
law or in equity or otherwise provided or permitted, but each shall be cumulative of every other
right or remedy given as described herein and as provided in each Lease or now or hereafter
existing at law or in equity or by statute or otherwise, and may be enforced concurrently
therewith or from time to time.
PAGE 15
No waiver of or delay or omission in the exercise of any right or remedy as described
herein and as provided in each Lease or otherwise available to Lessor shall impair, affect or be
construed as a waiver of its rights thereafter to exercise the same. Any single or partial
exercise by Lessor of any right hereunder or with respect to any Lease shall not preclude any
other or further exercise of any right as described herein and as provided in each Lease. The
exercise of any right or remedy herein provided with respect to a Lease shall not relieve
Lessee of any other obligations under any other Lease or the Equipment identified therein.
26. No Sale, Assignment or Other Disposition by Lessee. Lessee agrees not to (a)
sell, assign, transfer, lease, sublease, pledge or otherwise encumber or suffer a lien or
encumbrance upon or against any interest in this Agreement, any Lease or the Equipment
under any Lease, (b) remove the Equipment from its Equipment Location identified in the
applicable Lease, with the understanding that the "Equipment Location" is a base location for
rolling stock, shall remain at a Lessee location within the City of Fresno, or (c) enter into any
contract or agreement, with respect to the use and operation of any of the Equipment, under
any Lease that would result in the related Lease being treated as a "private activity bond"
within the meaning of Section 141(b) of the Code. Lessee shall at all times remain liable for
the performance of the covenants and conditions on its part to be performed, notwithstanding
any assigning, transferring or other conveyance that may be made with such consent. Lessee
shall at all times comply with Section 12 of this Agreement regarding tax covenants.
27. Assignment by Lessor.
(a) Lessor may, at any time and from time to time without Lessee's consent, assign,
transfer or otherwise convey all or any part of its interest in the Equipment under any Lease or
in any Lease, including Lessor's rights to receive the Rental Payments or any part thereof
under any Lease (in which event Lessee agrees to make all Rental Payments under the
affected Lease thereafter to the assignee designated by Lessor), to terminate any Lease or
Lessee's rights under any Lease, to receive tax indemnity payments as provided in each
Lease and to repossess the Equipment and exercise Lessor's other rights and remedies under
each Lease; provided, however, 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 Paragraph 27 shall be construed,
however, to prevent Lessor from executing any such assignment, transfer or conveyance with
respect to a Lease 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, interests in which are
offered and sold in a private placement or limited offering only to investors whom Lessor
reasonably believes are qualified institutional buyers or accredited investors within the
meaning of the applicable federal securities law; provided, however, that in any event, Lessee
shall not be required to make Rental Payments under any Lease, to send notices or to
otherwise deal with respect to matters arising under any Lease with or to more than one
individual or entity with respect to each Lease. No assignment, transfer or conveyance
permitted by this Paragraph 27 with respect to a Lease shall be effective until Lessee's
registration agent (Lessor, as provided below) shall have received a written notice of
assignment (in substantially the form attached as Exhibit A-6 to each Lease) that discloses the
name and address of each such assignee; provided, however, that if such assignment is made
PAGE 16
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
any Lease, it shall thereafter be sufficient that a copy of the agency or trust agreement shall
have been deposited with Lessee's registration agent until Lessee's registration agent shall
have been advised that such agency or trust agreement is no longer in effect. During the term
of this Agreement, Lessee shall keep, or cause to be kept, a complete and accurate record of
all such assignments with respect to each Lease in form necessary to comply with Section 149
of the Code. For this purpose, Lessee appoints Lessor to act as its registration agent, which
appointment Lessor hereby accepts. Lessor agrees on Lessee's behalf to maintain such
record of all assignments. Lessee agrees, if so requested, to acknowledge each such
assignment in writing within fifteen days after request therefor, but such acknowledgment shall
in no way be deemed necessary to make any assignment effective. Lessee further agrees that
any moneys or other property received by Lessor as a result of any such assignment, transfer
or conveyance shall not inure to Lessee's benefit.
(b) In addition to the notice required to be made to the registration agent in Section
27(a), if Lessor assigns the right to collect Rental Payments to anyone other than the Lessor,
then Lessee shall not be obligated to make any Rental Payments to any Lease assignee until
Lessor notifies City Controller in writing of Lessor's assignment of any Lease, and the name
and address of assignee for purposes of notice and payments.
(c) Notwithstanding anything to the contrary with this Paragraph 27 or this Agreement,
Lessor hereby acknowledges that Lessee, its counsel and its advisors bear no responsibility
for the accuracy or completeness of information (if any) with respect to the Agreement and any
Lease or the Lessee, including, without limiting the generality of the foregoing, any information
contained in any disclosure document related to the purchase by the purchasers of all or any
part of Lessor's interests in the Equipment under any Lease or all or any part of Lessor's
interest in any Lease.
(d) Lessor covenants and agrees to undertake all responsibility for compliance with
State and Federal securities laws. The Lessor acknowledges and agrees that the Lessee has
made no undertaking to provide nor has it approved any disclosure or other information for use
in connection with the sale of Lease Interests. The Lessor represents and warrants that the
sale of Lease Interests is exempt from Rule 15c2-12, and acknowledges and agrees that the
Lessee has made no undertaking to provide any continuing or other disclosure following the
execution and delivery of a Lease.
(e) Lessor acknowledges and agrees that the sale or assignment of Lease Interests is
subject to the restrictions contained in California Government Code Sections 5950-5955.
28. Costs. Lessee shall pay to Lessor all costs and expenses incurred by Lessor in
enforcing any of the terms, conditions or provisions of each Lease, including reasonable
attorneys' fees and costs related to repossession of the Equipment under any Lease
(including, without limitation, the costs and expenses to deliver possession of the Equipment
under such Lease to such location as Lessor directs pursuant to Paragraph 25 hereof) and the
exercise of remedies with respect to each Lease.
PAGE 17
29. Severability. If any provision of this Agreement or any Lease is or becomes invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability will not affect the other
provisions of this Agreement or any such Lease, which shall be valid and enforceable to the
fullest extent permitted by law.
30. Notices. All notices, reports and other documents provided for in this Agreement
or under any Lease shall be deemed to have been given or made when delivered (including by
facsimile transmission) or three days after being mailed by certified mail, postage prepaid,
addressed to Lessor or Lessee at their respective mailing addresses set forth above or at such
other addresses as either of the parties hereto may designate in writing to the other from time
to time for such purpose.
31. Amendments. This Agreement and each Lease (including the exhibits attached
thereto) constitute the entire agreement between Lessor and Lessee with respect to the
Equipment therein described and the subject matter hereof and thereof. No term or provision
of this Agreement or any Lease may be changed, waived, amended or terminated except by a
written agreement signed by both Lessor and Lessee, except that Lessor may insert in any
Schedule the serial number and additional description details of any item of Equipment after
delivery thereof.
32. Construction. This Agreement and each Lease shall in all respects be governed by
and construed in accordance with the laws of the State. The titles of the Paragraphs of this
Agreement are for convenience only and shall not define or limit any of the terms or provisions
hereof. Time is of the essence of this Agreement and each Lease in each of their respective
provisions.
33. Parties, Survival of Certain Obligations and Indemnities.
(a) The provisions of this Agreement and each Lease shall be binding upon, and
(subject to the limitations of Paragraph 26 hereof) shall inure to the benefit of, the respective
assignees and successors of Lessor and Lessee.
(b) The indemnities, assumptions of liabilities and obligations of Lessee provided for
in Paragraphs 12 and 21 of this Agreement and incorporated into each Lease shall continue in
full force and effect notwithstanding the expiration or termination of the term of this Agreement
or any applicable Lease, until the later of four years after the expiration or termination of the term
of this Agreement or any applicable Lease.
34. Counterparts. This Agreement and each Lease may be executed in several
counterparts, each of which when executed shall be deemed to be an original, but all together
shall constitute but one and the same instrument; provided, however, that only one counterpart
shall constitute the original for each Lease for purposes of the sale or transfer of a Lease as
chattel paper as provided in such Lease.
35. Interest. If under applicable law any part of the Rental Payments under any Lease
is deemed or determined to be imputed interest, finance charges or time-price differential
(`Interest'), Lessor and Lessee agree that the Rental Payments under such Lease shall be
deemed to be level payments of principal and Interest, with such Interest accruing on principal
PAGE 18
amounts outstanding from time to time. The rate of such Interest is not intended to exceed the
maximum rate or amount of interest permitted by applicable law. If the Interest exceeds such
maximum, then at Lessor's option, if permitted by law, the Interest payable under such Lease
will be reduced to the legally permitted maximum amount of interest, and any excessive
Interest under such Lease will be used to reduce the principal amount of Lessee's obligation
under such Lease or be refunded to Lessee.
36. Recycling Program. In the event Lessor maintains an office or operates a
facility(ies), or is required herein to maintain or operate same, within the incorporated limits of
the City of Fresno, Lessor at its sole cost and expense shall:
(a) After award, immediately establish and maintain a viable and ongoing recycling
program, approved by Lessee's Solid Waste Management Division for each office and
facility. Literature describing Lessee recycling programs is available from Lessee's Solid
Waste Management Division and by calling City of Fresno Recycling Hotline at (559) 621-
1111.
(b) Immediately contact Lessee's Solid Waste Management Division at (559) 621-
1452 and schedule a free waste audit, and cooperate with such Division in their conduct of the
audit for each office and facility.
(c) Cooperate with and demonstrate to the satisfaction of Lessee's Solid Waste
Management Division the establishment of the recycling program in paragraph (i)
above and the ongoing maintenance thereof.
37. Conflict of Interest and Non-Solicitation.
(a) Prior to Lessee's execution of this Agreement, Lessor shall complete a City of
Fresno conflict of interest disclosure statement in the form as set forth in Exhibit C. During the
term of this Agreement, Lessor shall have the obligation and duty to immediately notify Lessee
in writing of any change to the information provided by Lessor in such statement.
(b) Lessor shall comply, and require its subcontractors to comply, with all applicable
(i) professional canons and requirements governing avoidance of impermissible client conflicts;
and (ii) federal, state and local conflict of interest laws and regulations including, without
limitation, California Government Code Section 1090 et. seq., the California Political Reform
Act (California Government Code Section 87100 et. seq.) and the regulations of the Fair
Political Practices Commission concerning disclosure and disqualification (2 California Code of
Regulations Section 18700 et. seq.). Lessor shall take, and require its subcontractors to take,
reasonable steps to avoid any appearance of a conflict of interest. Upon discovery of any facts
giving rise to the appearance of a conflict of interest, Lessor shall immediately notify Lessee of
these facts in writing.
(c) In performing the work or services to be provided hereunder, Lessor shall not
employ or retain the services of any person while such person either is employed by Lessee
or is a member of any Lessee council, commission, board, committee, or similar Lessee
PAGE 19
body. This requirement may be waived in writing by the City Manager, if no actual or potential
conflict is involved.
(d) Lessor shall not employ an individual who, within twelve months immediately
preceding such employment did, in the individual's capacity as a Lessee official, officer or
employee, participate in, negotiate with or otherwise have an influence on the recommendation
made to the Administrator or City Council in connection with the selection of, or award of this
Agreement to, Lessor.
(e) Lessor represents and warrants that it has not paid or agreed to pay any
compensation, contingent or otherwise, direct or indirect, to solicit or procure this Agreement or
any rights/benefits hereunder.
(f) Neither Lessor, nor any of Lessor's subcontractors performing any services on
this Project, shall bid for, assist anyone in the preparation of a bid for, or perform any services
pursuant to, any other contract in connection with this Project unless fully disclosed to and
approved by the City Manager, in advance and in writing. Lessor and any of its subcontractors
shall have no interest, direct or indirect, in any other contract with a third party in connection
with this Project unless such interest is in accordance with all applicable law and fully disclosed
to and approved by the City Manager, in advance and in writing. Notwithstanding any approval
given by the City Manager under this provision, Lessor shall remain responsible for complying
with Section 12(b), above.
(g) If Lessor should subcontract all or any portion of the work to be performed or
services to be provided under this Agreement, Lessor shall include the provisions of this
Section 9 in each subcontract and require its subcontractors to comply therewith.
(h) This section shall survive termination or expiration of this Agreement.
38. Nondiscrimination. Lessor shall not employ discriminatory practices in the
provision of services, employment of personnel, or in any other respect on the basis of race,
religious creed, color, national origin, ancestry, physical disability, mental disability, medical
condition, marital status, sex, age, sexual orientation, ethnicity, status as a disabled veteran or
veteran of the Vietnam era. During the performance of this Agreement, Lessor agrees as
follows:
(a) Lessor will comply with all laws and regulations, as applicable. No person in the
United States shall, on the grounds of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, sexual
orientation, ethnicity, status as a disabled veteran or veteran of the Vietnam era be excluded
from participation in, be denied the benefits of, or be subject to discrimination under any
program or activity made possible by or resulting from this Agreement.
(b) Lessor will not discriminate against any employee or applicant for employment
because of race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era. Lessor shall take affirmative action to ensure
PAGE 20
that applicants are employed, and the employees are treated during employment, without
regard to their race, religious creed, color, national origin, ancestry, physical disability, mental
disability, medical condition, marital status, sex, age, sexual orientation, ethnicity, status as a
disabled veteran or veteran of the Vietnam era. Such action shall include, but not be limited to,
the following: employment, upgrading, demotion or transfer; recruitment or recruitment
advertising; layoff or termination; rates of pay or other forms of compensation; and selection for
training, including apprenticeship. Lessor agrees to post in conspicuous places, available to
employees and applicants for employment, notices setting forth the provision of this
nondiscrimination clause.
(c) Lessor will, in all solicitations or advertisements for employees placed by or on
behalf of Lessor, state that all qualified applicants will receive consideration for employment
without regard to race, religious creed, color, national origin, ancestry, physical disability,
mental disability, medical condition, marital status, sex, age, sexual orientation, ethnicity,
status as a disabled veteran or veteran of the Vietnam era.
(d) Lessor will send to each labor union or representative of workers with which it
has a collective bargaining agreement or other contract or understanding, a notice advising
such labor union or workers' representatives of Lessor's commitment under this section and
shall post copies of the notice in conspicuous places available to employees and applicants for
employment.
39. Federal Immigration Reform and Control Act of 1986: As a material part of any
contract for a City of Fresno project, every Contractor who has employees who will work on a
City of Fresno project, is required to comply with all of the provisions of the Federal
Immigration Reform and Control Act of 1986 (P.L. 99-603, 100 Stat. 3359). This requirement
includes compliance with all of the employee documentation provisions.
40. Alteration of Terms: No alterations or variations of the terms of this Agreement
shall be valid unless made in writing and signed by both parties.
41. Agreement Changes: No changes or modifications to the Agreement shall be
made unless agreed to and signed by both parties. No prior, current or post award verbal
agreement or agreements with any officer, agent or employee of the Lessee shall affect or
modify any terms or obligations of these Specifications or any Agreement resulting from this
procurement.
42. Independent Contractor In the furnishing of the services provided for herein, the
Lessor is acting as an independent contractor. Neither the Lessor, nor any of its officers,
associates, agents or employees shall be deemed an employee, joint venturer, partner or
agent of the Lessee for any purpose. However, the Lessee shall retain the right to verify that
the Lessor is performing its respective obligations in accordance with the terms of the
Agreement.
Because of its status as an independent contractor, Lessor and its officers, agents and
employees shall have absolutely no right to employment rights and benefits available to
Lessee employees. Lessor shall be solely liable and responsible for all payroll and tax
PAGE 21
withholding and for providing to, or on behalf of, its employees all employee benefits including,
without limitation, health, welfare and retirement benefits. In addition, together with its other
obligations under this Agreement, Lessor shall be solely responsible, indemnify, defend and
save Lessee harmless from all matters relating to employment and tax withholding for and
payment of Lessor's employees, including, without limitation, (i) compliance with Social
Security and unemployment insurance withholding, payment of workers compensation
benefits, and all other laws and regulations governing matters of employee withholding, taxes
and payment; and (ii) any claim of right or interest in Lessee's employment benefits,
entitlements, programs and/or funds offered employees of Lessee whether arising by reason of
any common law, de facto, leased, or co- employee rights or other theory. It is acknowledged
that during the term of this Agreement, Lessor may be providing services to others unrelated to
Lessee or to this Agreement.
43. Governing Law and Venue: The Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California, excluding, however, any
conflict of laws rule which would apply the law of another jurisdiction. Venue for purposes of
the filing of any action regarding the enforcement or interpretation of the Agreement and any
rights and duties thereunder shall be Fresno County, California.
44. Compliance with Law: In providing the services required under the Agreement,
Lessor shall at all times comply with all applicable laws of the United States, the State of
California and the City of Fresno, and with all applicable regulations promulgated by Federal,
State, regional, or local administrative and regulatory agencies, now in force and as they may
be enacted, issued, or amended during the term of the Agreement.
45. Interpretation: The Lessor acknowledges that the Agreement in its final form is the
result of the combined efforts of the parties and that, should any provision of the Agreement be
found to be ambiguous in any way, such ambiguity shall not be resolved by construing the
Agreement in favor or against any party, but rather by construing the terms in accordance with
their generally accepted meaning.
46. Maintenance of Records: Records of Lessor pertaining to the services hereunder
shall be kept on a generally recognized accounting basis and shall be provided to City or its
authorized representatives upon request during regular business hours throughout the life of
the Agreement and for a period of three years after final payment and for the period of time
required by law. In addition, all pertaining to the Agreement shall be available for the purpose
of making audits, examinations, excerpts, and transcriptions for the same period of time. For
the purposes of this Section, "Records" means all documents related to the Agreement and
delivered to Lessor in connection therewith, and any future modifications or amendments
thereof. This Section shall survive expiration or termination of the Agreement.
47. Notices: Any notice required or intended to be given to either party under the
terms of this Contract shall be in writing and shall be deemed to be duly given when delivered
or mailed by registered or certified mail, postage prepaid, or delivered by overnight
courieraddressed to the party to which notice is to be given at the party's address set forth on
the signature page of the Proposal in the case of the Contractor and at the address in the
Special Conditions for mailing of invoices in the case of City, or at such other address as the
PAGE 22
parties may from time to time designate by written notice.
48. Waiver. The waiver by either party of a breach by the other of any provision of this
Contract shall not constitute a continuing waiver or a waiver of any subsequent breach of
either the same or a different provision of this Contract. No provisions of this Contract may be
waived unless in writing and signed by all parties to this Contract. Waiver of any one provision
herein shall not be deemed to be a waiver of any other provision herein.
49. Cumulative Remedies: No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in
equity.
50. No Third Party Beneficiaries: The rights, interests, duties and obligations defined
within this Agreement are intended for the specific parties hereto as identified in the preamble
of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not
intended that any rights or interests in this Agreement benefit or flow to the interest of any third
parties.
51. Extent of Agreement: Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement represents the entire and
integrated agreement between the parties with respect to the subject matter hereof and
supersedes all prior negotiations, representations or agreements, either written or oral. This
Agreement may be modified only by written instrument duly authorized and executed by both
Lessee and Lessor.
52. Headings: The section headings in this Agreement are for convenience and
reference only and shall not be construed or held in any way to explain, modify or add to the
interpretation or meaning of the provisions of this Agreement.
LESSOR AND LESSEE EACH HEREBY ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS
THIS AGREEMENT.
[Signatures on following page.]
PAGE 23
IN WITNESS WHEREOF, Lessor, and Lessee have each caused this Master Equipment
Lease-Purchase Agreement to be duly executed and delivered as of the date first above
written.
Lessee: Lessor:
CITY OF FRESNO BANC OF AMERICA PUBLIC CAPITAL CORP
ti
1
By: By:
Print d Name Michael Lima Printed Name: Bridgett Arnold
Title: City Controller Title: Authorized Agent
ATTEST By:
YVONNE SPENCE, MMC Printed Name:
City Clerk Title.
By: CA;e)gL.AA2 �2��d11s
Deputy
,I'I?ROVED AS TO FORM:
6)OUGLAS T. SLOAN
City Attorney
By:
NDON M. COLLET
Senior Deputy City Attorney
PAGE 24
EXHIBIT A
Lease Schedule
MASTER EQUIPMENT LEASE-PURCHASE
AGREEMENT NO.:
DATE OF MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT:
LEASE SCHEDULE NO.:
DATE OF LEASE SCHEDULE:
NOTIFICATION DATE:
LESSEE: CITY OF FRESNO
1. DESCRIPTION OF THE EQUIPMENT:
SUPPLIER QUANTITY DESCRIPTION OF UNITS OF SERIAL NUMBERSI (IF
EQUIPMENT AVAILABLE)
together with all accessories, attachments, substitutions and accessions.
Z EQUIPMENT LOCATION:
3, The Rental Payments shall be made for the Equipment as follows:
1 As provided in Paragraph 31 of the Master Equipment Lease Purchase Agreement, Lessee authorizes Lessor to
insert serial numbers and additional description details of Equipment when determined by Lessor.
EXHIBIT A PAGE 1
PRINCIPAL INTEREST TOTAL RENTAL PREPAYMENT
DATE DUE COMPONENT COMPONENT PAYMENT DUE OPTION AMOUNT2
4. For purposes of this Lease, "State" means the State of California.
5. Lessee's current Fiscal Period extends from July 1, 20_ to June 30, 20_.
6. The terms and provisions of the Master Equipment Lease Purchase Agreement
described above (other than to the extent that they relate solely to other Schedules or to
Equipment listed on other Schedules) are hereby incorporated into this Schedule by reference
and made a part hereof.
7. Lessee hereby represents, warrants and covenants that its representations,
warranties and covenants set forth in such Master Equipment Lease Purchase Agreement
(particularly Paragraph 23 thereof) are true and correct as though made on the date of
execution of this Lease Schedule
Lessee: Lessor:
City of Fresno
By: By:
Printed Name: Printed Name:
Title: Title:
This is Counterpart No. of manually executed and serially numbered
counterparts. To the extent that this Lease constitutes chattel paper (as defined in the Uniform
Commercial Code), no security interest herein may be created through the transfer or
possession of any Counterpart other than Counterpart No. 1.
2 Assumes all Rental Payments and Additional Payments due on and prior to that date have been paid.
EXHIBIT A PAGE 2
EXHIBIT A-1
Acceptance Certificate
LESSEE: CITY OF FRESNO
MASTER EQUIPMENT LEASE-PURCHASE AGREEMENT NO..........................
LEASE SCHEDULE NO. .............................................................................
THE UNDERSIGNED ACKNOWLEDGES AND REPRESENTS THAT:
1. The Equipment identified in the above-referenced Lease Schedule is delivered,
installed, available for use and is placed in service as of the Acceptance Date indicated
below.
2. Such Equipment is in good operating condition and repair and is accepted as
satisfactory in all respects for the purpose of the applicable Lease.
3.
ACCEPTANCE DATE: X........................................................
AUTHORIZED SIGNATURE: X.........................................................
PRINTED NAME: X........................................................
TITLE: X...................................................:....
EXHIBIT A PAGE 3
EXHIBIT A-2
(To Lease Schedule No. _)
[Attach I.R.S. Form 8038-G or 8038-GC, as Appropriate]
EXHIBIT A PAGE 4
EXHIBIT A-3
(TO LEASE SCHEDULE NO.
[ATTACH FORM OF AUTHORIZING RESOLUTION]
EXHIBIT A PAGE 5
EXHIBIT A-4
(TO LEASE SCHEDULE NO.
INCUMBENCY CERTIFICATE OF LESSEE
The undersigned, the duly authorized representative of the named Lessee under that
certain Master Equipment Lease Purchase Agreement dated (the
"Agreement'), with , as Lessor, hereby certifies as follows in accordance with
the requirements of the Agreement, which is incorporated by reference into the above-
referenced Lease Schedule. Capitalized terms used herein have the same meaning as in the
Agreement.
I hold the position noted under my signature, and I have all authority necessary to
execute and deliver this Certificate. The following officers of the Lessee are duly elected or
appointed, and the signatures above the respective name and title are true and correct and,
where required, have been filed with the appropriate officials of the State.
Signature: Signature:
Printed Name: Printed Name:
Title: Title:
IN WITNESS WHEREOF, I have executed and delivered this certificate as of this _ day
of 20
Lessee: CITY OF FRESNO
By:
Printed Name:
Title:
EXHIBIT A PAGE 6
EXHIBIT A-5
[Attach Opinion of Lessee's Counsel]
EXHIBIT A PAGE 7
EXHIBIT A-6
(To Lease Schedule No. )
NOTICE AND ACKNOWLEDGMENT OF SALE OF
RENTAL PAYMENTS AND ASSIGNMENT OF LEASE
("Lessor') and CITY of FRESNO ("Lessee') have entered into
a Master Equipment Lease-Purchase Agreement No. dated , and
Lease Schedule No. dated (collectively the "Lease'), under which Lessee
has, or will have prior to its execution hereof, leased equipment (the "Equipment') described in
such Lease Schedule.
Lessee is hereby notified that Lessor has assigned to the assignee named below
('Assignee') all of Lessor's right, title and interest in and to the Lease, the leased Equipment
and the Rental Payments, all as permitted by the Lease.
Lessee is hereby directed to pay any and all Rental Payments and other amounts due
with respect to which Lessor's Assignee renders an invoice, at the address set out immediately
below or as otherwise directed in said invoice:
"Assignee"
By signing this Notice and Acknowledgment, Lessee agrees that it will pay all amounts
due under the Lease as directed in the invoice without any set-off or deduction whatsoever
notwithstanding any defect in, damage to or requisition of any of the Equipment leased under
the Lease, any other similar or dissimilar event, or any defense, set-off, counterclaim or
recoupment arising out of any claim of Lessee against Lessor or Assignee.
Lessee further acknowledges and agrees that Assignee has not assumed any of
Lessor's obligations or duties under the Lease or made any warranties whatsoever as to the
Lease or the Equipment. Lessee agrees that no change may be made to the Lease without
the prior written consent of Assignee.
By signing this Notice and Acknowledgment, Lessee warrants that its representations
and warranties under the Lease are true and correct on the date hereof.
Date: Lessee: CITY OF FRESNO
By:
Printed Name:
Title:
EXHIBIT A PAGE 8
EXHIBIT B
[Form of] Escrow and Account Control Agreement
This Escrow and Account Control Agreement (this "Agreement"), dated as of
. by and among Banc of America Public Capital Corp, a
Kansas corporation (together with its successors and assigns, hereinafter referred to as
"Lessor"), , a [city] [county] [special district] [body corporate
and politic] existing under the laws of the State of (hereinafter referred
to as "Lessee") and Bank of America, National Association, a national banking
association organized under the laws of the United States of America (hereinafter
referred to as "Escrow Agent").
Reference is made to that certain Schedule of Property No. dated as of
to Master Equipment Lease/Purchase Agreement dated as of
between Lessor and Lessee (hereinafter referred to as the
"Lease"), covering the acquisition and lease of certain Equipment described therein (the
"Equipment"). It is a requirement of the Lease that the Acquisition Amount
($ ) be deposited into a segregated escrow account under terms
satisfactory to Lessor, for the purpose of fully funding the Lease, and providing a
mechanism for the application of such amounts to the purchase of and payment for the
Equipment.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Creation of Escrow Account.
(a) There is hereby created an escrow fund to be known as the
it Escrow Account" (the "Escrow Account") to be held by the
Escrow Agent for the purposes stated herein, for the benefit of Lessor and Lessee, to
be held, disbursed and returned in accordance with the terms hereof.
(b) Lessee may, from time to time, provide written instructions for
Escrow Agent to use any available cash in the Escrow Account to purchase any money
market fund or liquid deposit investment vehicle that Escrow Agent from time to time
makes available to the parties hereto. Such written instructions shall be provided via
delivery to Escrow Agent of a signed and completed Escrow Account Investment
Selection Form (such form available from Escrow Agent upon request). All funds
invested by Escrow Agent at the direction of Lessee in such short-term investments (as
more particularly described in Escrow Agent's Escrow Account Investment Selection
Form) shall be deemed to be part of the Escrow Account and subject to all the terms
and conditions of this Agreement. If any cash is received for the Escrow Account after
EXHIBIT B PAGE 1
the cut-off time for the designated short-term investment vehicle, the Escrow Agent shall
hold such cash uninvested until the next Business Day. In the absence of written
instructions from Lessee (on Escrow Agent's Escrow Account Investment Selection
Form) designating a short-term investment of cash in the Escrow Account, cash in the
Escrow Account shall remain uninvested and it shall not be collateralized. Escrow
Agent shall have no obligation to pay interest on cash in respect of any period during
which it remains uninvested. Lessee shall be solely responsible for ascertaining that all
proposed investments and reinvestments are Qualified Investments and that they
comply with federal, state and local laws, regulations and ordinances governing
investment of such funds and for providing appropriate notice to the Escrow Agent for
the reinvestment of any maturing investment. Accordingly, neither the Escrow Agent nor
Lessor shall be responsible for any liability, cost, expense, loss or claim of any kind,
directly or indirectly arising out of or related to the investment or reinvestment of all or
any portion of the moneys on deposit in the Escrow Account, and Lessee agrees to and
does hereby release the Escrow Agent and Lessor from any such liability, cost,
expenses, loss or claim. Interest on the Escrow Account shall become part of the
Escrow Account, and gains and losses on the investment of the moneys on deposit in
the Escrow Account shall be borne by the Escrow Account. The Escrow Agent shall
have no discretion whatsoever with respect to the management, disposition or
investment of the Escrow Account. The Escrow Agent shall not be responsible for any
market decline in the value of the Escrow Account and has no obligation to notify Lessor
and Lessee of any such decline or take any action with respect to the Escrow Account,
except upon specific written instructions stated herein. For purposes of this Agreement,
"Qualified Investments" means any investments which meet the requirements of [state
law citation].
(c) Unless the Escrow Account is earlier terminated in accordance with
the provisions of paragraph (d) below, amounts in the Escrow Account shall be
disbursed by the Escrow Agent in payment of amounts described in Section 2 hereof
upon receipt of written instruction(s) from Lessor, as is more fully described in Section 2
hereof. If the amounts in the Escrow Account are insufficient to pay such amounts,
Lessee shall deposit into the Escrow Account any funds needed to complete the
acquisition of the Equipment. Any moneys remaining in the Escrow Account on or after
the earlier of (i) the expiration of the Acquisition Period or (ii) the date on which Lessee
executes an Acceptance Certificate shall be applied as provided in Section 4 hereof.
(d) The Escrow Account shall be terminated at the earliest of (i) the
final distribution of amounts in the Escrow Account, (ii) the date on which Lessee
executes a Final Acceptance Certificate or (iii) written notice given by Lessor of the
occurrence of an Event of Default under the Lease or termination of the Lease due to an
Event of Non-appropriation. Notwithstanding the foregoing, this Agreement shall not
terminate nor shall the Escrow Account be closed until all funds deposited hereunder
have been disbursed.
(e) The Escrow Agent may act in reliance upon any writing or
instrument or signature which it, in good faith, believes to be genuine and may assume
EXHIBIT B PAGE 2
the validity and accuracy of any statement or assertion contained in such a writing or
instrument. The Escrow Agent shall not be liable in any manner for the sufficiency or
correctness as to form, manner of execution, or validity of any instrument nor as to the
identity, authority, or right of any person executing the same; and its duties hereunder
shall be limited to the receipt of such moneys, instruments or other documents received
by it as the Escrow Agent, and for the disposition of the same in accordance herewith.
Notwithstanding and without limiting the generality of the foregoing, concurrent with the
execution of this Agreement, Lessee and Lessor, respectively, shall deliver to the
Escrow Agent an authorized signers form in the form of Exhibit A-1 (Lessee) and Exhibit
A-2 (Lessor) attached hereto. Notwithstanding the foregoing sentence, the Escrow
Agent is authorized to comply with and rely upon any notices, instructions or other
communications believed by it to have been sent or given by the parties or by a person
or persons authorized by the parties. The Escrow Agent specifically allows for receiving
direction by written or electronic transmission from an authorized representative with the
following caveat, Lessee and Lessor agree to indemnify and hold harmless the Escrow
Agent against any and all claims, losses, damages, liabilities, judgments, costs and
expenses (including reasonable attorneys' fees) (collectively, "Losses") incurred or
sustained by the Escrow Agent as a result of or in connection with the Escrow Agent's
reliance upon and compliance with instructions or directions given by written or
electronic transmission given by each, respectively, provided, however, that such
Losses have not arisen from the gross negligence or willful misconduct of the Escrow
Agent, it being understood that forbearance on the part of the Escrow Agent to verify or
confirm that the person giving the instructions or directions, is, in fact, an authorized
person shall not be deemed to constitute gross negligence or willful misconduct.
In the event conflicting instructions as to the disposition of all or any
portion of the Escrow Account are at any time given by Lessor and Lessee, the Escrow
Agent shall abide by the instructions or entitlement orders given by Lessor without
consent of the Lessee.
(f) Unless the Escrow Agent is guilty of gross negligence or willful
misconduct with regard to its duties hereunder, Lessee agrees to and does hereby
release and indemnify the Escrow Agent and hold it harmless from any and all claims,
liabilities, losses, actions, suits or proceedings at law or in equity, or any other expense,
fees or charges of any character or nature, which it may incur or with which it may be
threatened by reason of its acting as Escrow Agent under this Agreement; and in
connection therewith, does to the extent permitted by law indemnify the Escrow Agent
against any and all expenses; including reasonable attorneys' fees and the cost of
defending any action, suit or proceeding or resisting any claim.
(g) If Lessee and Lessor shall be in disagreement about the
interpretation of the Lease, or about the rights and obligations, or the propriety of any
action contemplated by the Escrow Agent hereunder, the Escrow Agent may, but shall
not be required to, file an appropriate civil action including an interpleader action to
resolve the disagreement. The Escrow Agent shall be reimbursed by Lessee for all
costs, including reasonable attorneys' fees, in connection with such civil action, and
EXHIBIT B PAGE 3
shall be fully protected in suspending all or part of its activities under the Lease until a
final judgment in such action is received.
(h) The Escrow Agent may consult with counsel of its own choice and
shall have full and complete authorization and protection with the opinion of such
counsel. The Escrow Agent shall otherwise not be liable for any mistakes of fact or
errors of judgment, or for any acts or omissions of any kind unless caused by its willful
misconduct.
(i) Lessee shall reimburse the Escrow Agent for all reasonable costs
and expenses, including those of the Escrow Agent's attorneys, agents and employees
incurred for non-routine administration of the Escrow Account and the performance of
the Escrow Agent's powers and duties hereunder in connection with any Event of
Default under the Lease, any termination of the Lease due to an Event of Non-
appropriation or in connection with any dispute between Lessor and Lessee concerning
the Escrow Account.
Q) The Escrow Agent or any successor may at any time resign by
giving mailed notice to Lessee and Lessor of its intention to resign and of the proposed
date of resignation (the "Effective Date"), which shall be a date not less than 60 days
after such notice is delivered to an express carrier, charges prepaid, unless an earlier
resignation date and the appointment of a successor shall have been approved by the
Lessee and Lessor. After the Effective Date, the Escrow Agent shall be under no further
obligation except to hold the Escrow Account in accordance with the terms of this
Agreement, pending receipt of written instructions from Lessor regarding further
disposition of the Escrow Account.
(k) The Escrow Agent shall have no responsibilities, obligations or
duties other than those expressly set forth in this Agreement and no implied duties
responsibilities or obligations shall be read into this Agreement.
2. Acquisition of Property.
(a) Acquisition Contracts. Lessee will arrange for, supervise and
provide for, or cause to be supervised and provided for, the acquisition of the
Equipment, with moneys available in the Escrow Account. Lessee represents the
estimated costs of the Equipment are within the funds estimated to be available
therefor, and Lessor makes no warranty or representation with respect thereto. Lessor
shall have no liability under any of the acquisition or construction contracts. Lessee
shall obtain all necessary permits and approvals, if any, for the acquisition, equipping
and installation of the Equipment, and the operation and maintenance thereof. Escrow
Agent shall have no duty to monitor or enforce Lessee's compliance with the foregoing
covenant.
(b) Authorized Escrow Account Disbursements. It is agreed as
between Lessee and Lessor that disbursements from the Escrow Account shall be
EXHIBIT B PAGE 4
made for the purpose of paying (including the reimbursement to Lessee for advances
from its own funds to accomplish the purposes hereinafter described) the cost of
acquiring the Equipment.
(c) Requisition Procedure. No disbursement from the Escrow Account
shall be made unless and until Lessor has approved such requisition. Prior to
disbursement from the Escrow Account there shall be filed with the Escrow Agent a
requisition for such payment in the form of Disbursement Request attached hereto as
Schedule 1, stating each amount to be paid and the name of the person, firm or
corporation to whom payment thereof is due and the manner of disbursement (check or
wire). The Escrow Agent is authorized to obtain and rely on confirmation of such
Disbursement Request and payment instructions by telephone call-back to the person
or persons designated for verifying such requests on Exhibit A-2 (such person verifying
the request shall be different than the person initiating the request). The Lessor and
Lessee hereby confirm that any call-back performed by Escrow Agent to verify a
disbursement instruction pursuant to a Disbursement Request submitted pursuant to
this Section 2(c) before release, shall be made to Lessor only and Escrow Agent shall
have no obligation to call-back Lessee.
Each such requisition shall be signed by an authorized representative of
Lessee (an "Authorized Representative") and by Lessor, and shall be subject to the
following conditions, which Escrow Agent shall conclusively presume have been
satisfied at such time as a requisition executed by Lessee and Lessor is delivered to it:
1. Delivery to Lessor of an executed Disbursement Request in the
form attached hereto as Schedule 1.
2. Delivery to Lessor invoices (and proofs of payment of such
invoices, if Lessee seeks reimbursement) and bills of sale (if title to
such Equipment has passed to Lessee) therefor as required by
Section 3.04 of the Lease and any additional documentation
reasonably requested by Lessor; and
3. The disbursement shall occur during the Acquisition Period.
Lessee and Lessor agree that their execution of the form attached hereto as
Schedule 1 and delivery of the executed form to Escrow Agent confirms that all of the
requirements and conditions with respect to disbursements set forth in this Section 2
have been satisfied.
3. Deposit to Escrow Account. Upon satisfaction of the conditions specified
in Section 3.04 of the Lease, Lessor will cause the Acquisition Amount to be deposited
in the Escrow Account. Lessee agrees to pay any costs with respect to the Equipment
in excess of amounts available therefor in the Escrow Account.
4. Excessive Escrow Account. Upon receipt of written instructions from
EXHIBIT B PAGE 5
Lessor including a representation that one of the following conditions has been satisfied
(upon which representation Escrow Agent shall conclusively rely, any funds remaining
in the Escrow Account on or after the earlier of (a) the expiration of the Acquisition
Period or (b) the date on which Lessee executes an Acceptance Certificate, or upon a
termination of the Escrow Account as otherwise provided herein, shall be distributed by
the Escrow Agent to the Lessor in order for the Lessor to apply such funds to amounts
owed by Lessee under the Lease in accordance with Section 4.07 of the Lease.
5. Security Interest. The Escrow Agent and Lessee acknowledge and agree
that the Escrow Account and all proceeds thereof are being held by Escrow Agent for
disbursement or return as set forth herein. Lessee hereby grants to Lessor a first
priority perfected security interest in the Escrow Account, and all proceeds thereof, and
all investments made with any amounts in the Escrow Account. If the Escrow Account,
or any part thereof, is converted to investments as set forth in this Agreement, such
investments shall be made in the name of Escrow Agent and the Escrow Agent hereby
agrees to hold such investments as bailee for Lessor so that Lessor is deemed to have
possession of such investments for the purpose of perfecting its security interest.
6. Control of Escrow Account. In order to perfect Lessor's security interest
by means of control in (i) the Escrow Account established hereunder, (ii) all securities
entitlements, investment property and other financial assets now or hereafter credited to
the Escrow Account, (iii) all of Lessee's rights in respect of the Escrow Account, such
securities entitlements, investment property and other financial assets, and (iv) all
products, proceeds and revenues of and from any of the foregoing personal property
(collectively, the "Collateral"), Lessor, Lessee and Escrow Agent further agree as
follows:
(a) All terms used in this Section 6 which are defined in the
Commercial Code of the state of 3 ("Commercial Code") but
are not otherwise defined herein shall have the meanings assigned to such terms in the
Commercial Code, as in effect on the date of this Agreement.
(b) Escrow Agent will comply with all entitlement orders originated by
Lessor with respect to the Collateral, or any portion of the Collateral, without further
consent by Lessee.
(c) Provided that account investments shall be held in the name of the
Escrow Agent, Escrow Agent hereby represents and warrants (a) that the records of
Escrow Agent show that Lessee is the sole owner of the Collateral, (b) that Escrow
Agent has not been served with any notice of levy or received any notice of any security
interest in or other claim to the Collateral, or any portion of the Collateral, other than
Lessor's claim pursuant to this Agreement, and (c) that Escrow Agent is not presently
3 State where lessee is located.
EXHIBIT B PAGE 6
obligated to accept any entitlement order from any person with respect to the Collateral,
except for entitlement orders that Escrow Agent is obligated to accept from Lessor
under this Agreement and entitlement orders that Escrow Agent, subject to the
provisions of paragraph (e) below, is obligated to accept from Lessee.
(d) Without the prior written consent of Lessor, Escrow Agent will not
enter into any agreement by which Escrow Agent agrees to comply with any entitlement
order of any person other than Lessor or, subject to the provisions of paragraph (e)
below, Lessee, with respect to any portion or all of the Collateral. Escrow Agent shall
promptly notify Lessor if any person requests Escrow Agent to enter into any such
agreement or otherwise asserts or seeks to assert a lien, encumbrance or adverse
claim against any portion or all of the Collateral.
(e) Except as otherwise provided in this paragraph (e) and subject to
Section 1(b) hereof, Lessee may effect sales, trades, transfers and exchanges of
Collateral within the Escrow Account, but will not, without the prior written consent of
Lessor, withdraw any Collateral from the Escrow Account. Escrow Agent acknowledges
that Lessor reserves the right, by delivery of written notice to Escrow Agent, to prohibit
Lessee from effecting any withdrawals (including withdrawals of ordinary cash dividends
and interest income), sales, trades, transfers or exchanges of any Collateral held in the
Escrow Account. Further, Escrow Agent hereby agrees to comply with any and all
written instructions delivered by Lessor to Escrow Agent (once it has had a reasonable
opportunity to comply therewith) and has no obligation to, and will not, investigate the
reason for any action taken by Lessor, the amount of any obligations of Lessee to
Lessor, the validity of any of Lessor's claims against or agreements with Lessee, the
existence of any defaults under such agreements, or any other matter.
(f) Lessee hereby irrevocably authorizes Escrow Agent to comply with
all instructions and entitlement orders delivered by Lessor to Escrow Agent.
(g) Escrow Agent will not attempt to assert control, and does not claim
and will not accept any security or other interest in, any part of the Collateral, and
Escrow Agent will not exercise, enforce or attempt to enforce any right of setoff against
the Collateral, or otherwise charge or deduct from the Collateral any amount
whatsoever.
(h) Escrow Agent and Lessee hereby agree that any property held in
the Escrow Account shall be treated as a financial asset under such section of the
Commercial Code as corresponds with Section 8-102 of the Uniform Commercial Code,
notwithstanding any contrary provision of any other agreement to which Escrow Agent
may be a party.
(i) Escrow Agent is hereby authorized and instructed, and hereby
agrees, to send to Lessor at its address set forth in Section 8 below, concurrently with
the sending thereof to Lessee, duplicate copies of any and all monthly Escrow Account
statements or reports issued or sent to Lessee with respect to the Escrow Account.
EXHIBIT B PAGE 7
7. Information Required Under USA PATRIOT ACT. The parties
acknowledge that in order to help the United States government fight the funding of
terrorism and money laundering activities, pursuant to Federal regulations that became
effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial
institutions are required to obtain, verify, record and update information that identifies
each person establishing a relationship or opening an account. The parties to this
Agreement agree that they will provide to the Escrow Agent such information as it may
request, from time to time, in order for the Escrow Agent to satisfy the requirements of
the USA PATRIOT Act, including but not limited to the name, address, tax identification
number and other information that will allow it to identify the individual or entity who is
establishing the relationship or opening the account and may also ask for formation
documents such as articles of incorporation or other identifying documents to be
provided.
8. Miscellaneous. Capitalized terms not otherwise defined herein shall have
the meanings assigned to them in the Lease. This Agreement may not be amended
except in writing signed by all parties hereto. This Agreement may be executed in one
or more counterparts, each of which shall be deemed to be an original instrument and
each shall have the force and effect of an original and all of which together constitute,
and shall be deemed to constitute, one and the same instrument. Notices hereunder
shall be made in writing and shall be deemed to have been duly given when personally
delivered or when deposited in the mail, first class postage prepaid, or delivered to an
express carrier, charges prepaid, or sent by facsimile with electronic confirmation,
addressed to each party at its address below.
Notices and other communications hereunder may be delivered or furnished by
electronic mail provided that any formal notice be attached to an email message in PDF
format and provided further that any notice or other communication sent to an e-mail
address shall be deemed received upon and only upon the sender's receipt of
affirmative acknowledgement or receipt from the intended recipient. For purposes
hereof no acknowledgement of receipt generated on an automated basis shall be
deemed sufficient for any purpose hereunder or admissible as evidence of receipt.
If to Lessor: Banc of America Public Capital Corp
11333 McCormick Road
Mail Code: MD5-032-07-05
Hunt Valley, MD 21031
Attn: Contract Administration
Fax: (443) 541-3057
If to Lessee: City of Fresno
Finance Department
2600 Fresno Street, Suite 2156
EXHIBIT B PAGE 8
Fresno, CA 93721
Attn: Debt Administration
Fax: (559) 488-4636
If to Escrow Agent
Bank of America, National Association
Global Custody and Agency Services
135 S. LaSalle Street
Mail Code: I1-4-135-18-51
Chicago, Illinois 60603
Attention: Niven Mody
Telephone: (312) 904-1838
Fax: (312) 453-4443
Email: gcas amrs escrow client service@baml.com Field
9. Lessee and Lessor understand and agree that they are required to provide
the Escrow Agent with a properly completed and signed Tax Certification (as defined
below) and that the Escrow Agent may not perform its duties hereunder without having
been provided with such Tax Certification. As used herein "Tax Certification" shall
mean an IRS form W-9 or W-8 as described above. The Escrow Agent will comply with
any U.S. tax withholding or backup withholding and reporting requirements that are
required by law. With respect to earnings allocable to a foreign person, the Escrow
Agent will withhold U.S. tax as required by law and report such earnings and taxes
withheld, if any, for the benefit of such foreign person on IRS Form 1042-S (or any other
required form), unless such earnings and withheld taxes are exempt from reporting
under Treasury Regulation Section 1.1461-1(c)(2)(ii) or under other applicable law.
With respect to earnings allocable to a United States person, the Escrow Agent will
report such income, if required, on IRS Form 1099 or any other form required by law.
The IRS Forms 1099 and/or 1042-S shall show the Escrow Agent as payor and
[Lessee] as payee. Escrow Agent shall recognize [Lessee] as the designated party for
regulatory reporting purposes.
Lessee and Lessor agree that they are not relieved of their respective obligations, if
any, to prepare and file information reports under Code Section 6041, and the Treasury
regulations thereunder, with respect to amounts of imputed interest income, as
determined pursuant to Code Sections 483 or 1272. The Escrow Agent shall not be
responsible for determining or reporting such imputed interest.
10. This Agreement shall be governed by and construed in accordance with
the laws of the State of [ ] and the parties hereto consent to jurisdiction in
the State of [ ] and venue in any state or Federal court located in the City
of[ ].
11. Any bank or corporation into which the Escrow Agent may be merged or
with which it may be consolidated, or any bank or corporation to whom the Escrow
Agent may transfer a substantial amount of its escrow business, shall be the successor
to the Escrow Agent without the execution or filing of any paper or any further act on the
EXHIBIT B PAGE 9
part of any of the parties, anything herein to the contrary notwithstanding. Any bank or
corporation into which the Lessor may be merged or with which it may be consolidated,
or any bank or corporation to whom the Lessor may transfer a substantial amount of its
business, shall be the successor to the Lessor without the execution or filing of any
paper or any further act on the part of any of the parties, anything herein to the contrary
notwithstanding.
12. This Agreement may be amended, modified, and/or supplemented only by
an instrument in writing executed by all parties hereto.
13. No party hereto shall assign its rights hereunder until its assignee has
submitted to the Escrow Agent (i) Patriot Act disclosure materials and the Escrow Agent
has determined that on the basis of such materials it may accept such assignee as a
customer and (ii) assignee has delivered an IRS Form W-8 or W-9, as appropriate, to
the Escrow Agent which the Escrow Agent has determined to have been properly
signed and completed.
14. Escrow Agent will treat information related to this Agreement as
confidential but, unless prohibited by law, Lessee and Lessor authorize the transfer or
disclosure of any information relating to the Agreement to and between the subsidiaries,
officers, affiliates and other representatives and advisors of Escrow Agent and third
parties selected by any of them, wherever situated, for confidential use in the ordinary
course of business, and further acknowledge that Escrow Agent and any such
subsidiary, officer, affiliate or third party may transfer or disclose any such information
as required by any law, court, regulator or legal process.
Lessor will treat information related to this Agreement as confidential but, unless
prohibited by law, Escrow Agent and Lessee authorize the transfer or disclosure of any
information relating to the Agreement to and between the subsidiaries, officers,
affiliates, other representatives and advisors of Lessor and debt and equity sources and
third parties selected by any of them, and to their prospective assignees wherever
situated, for confidential use in the ordinary course of business, and further
acknowledge that Lessor and any such subsidiary, officer, affiliate, debt and equity
source or third party or prospective assignee may transfer or disclose any such
information as required by any law, court, regulator or legal process.
Lessee will treat the terms of this Agreement as confidential except on a "need to know"
basis to persons within or outside Lessee's organization (including affiliates of such
party), such as attorneys, accountants, bankers, financial advisors, auditors and other
consultants of such party and its affiliates, except as required by any law, court,
regulator or legal process and except pursuant to the express prior written consent of
the other parties, which consent shall not be unreasonably withheld;
EXHIBIT B PAGE 10
In Witness Whereof, the parties have executed this Escrow and Account Control
Agreement as of the date first above written.
Banc of America Public Capital Corp
as Lessor as Lessee
By: By:
Name: Name:
Title: Title:
Bank of America, National Association
As Escrow Agent
By:
Name;
Title:
EXHIBIT B PAGE 11
SCHEDULE 1
to the Escrow and Account Control Agreement
FORM OF DISBURSEMENT REQUEST
Re: Schedule of Property No. dated as of to Master Equipment
Lease/Purchase Agreement dated as of by and
between Banc of America Public Capital Corp, as Lessor and
as Lessee (the "Lease") (Capitalized terms not
otherwise defined herein shall have the meanings assigned to them in the
Lease.)
In accordance with the terms of the Escrow and Account Control Agreement,
dated as of (the "Escrow Account and Account Control
Agreement") by and among Banc of America Public Capital Corp ("Lessor"),
("Lessee") and Bank of America, National Association, (the
"Escrow Agent"), the undersigned hereby requests the Escrow Agent pay the following
persons the following amounts from the Escrow Account created under the Escrow
Account and Account Control Agreement for the following purposes:
Disbursement Amounts:
Payee's Name and Address Invoice Number (Dollar Amount '(Pur ose
<Payee's Name> <invoice list OR < invoice <general description of
<Payee Address 1> "see attached" with amount> equipment; ex "police
<Payee Address 2> a spreadsheet> cruiser">
<Payee Address 3>
I<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
<*Payee Address information is
required. Payee Bank
information only to be included
for wire/EFT.>
<Payee's Name> i<invoice list OR <invoice <general description of
<Payee Address 1> "`see attached" with amount> equipment; ex "police
<Payee Address 2> la spreadsheet> cruiser">
<Payee Address 3>
<Payee Bank Name*>
<Payee Bank ABA/Routing*>
<Payee Bank Account No*>
<Payee Account Name*>
EXHIBIT B PAGE 12
<*Payee Address information is
required. Payee Bank
information only to be included
for wire/EFT.>
Lessee hereby represents, covenants and warrants for the benefit of Lessor on the date
hereof as follows:
(i) (a) Each obligation specified in the table herein titled as "Disbursement
Amounts" has been incurred by Lessee in the stated amount, (b) the same is a proper
charge against the Escrow Account for costs relating to the Equipment identified in the
Lease, and (c) has not been paid (or has been paid by Lessee and Lessee requests
reimbursement thereof).
(ii) Each item of Equipment relating to an obligation specified in the table
herein titled as "Disbursement Amounts" has been delivered, installed and accepted by
Lessee. Attached hereto is the original invoice with respect to such obligation.
(iii) The undersigned, as Authorized Representative, has no notice of any
vendor's, mechanic's or other liens or rights to liens, chattel mortgages, conditional
sales contracts or security interest which should be satisfied or discharged before such
payment is made.
(iv) This requisition contains no item representing payment on account, or any
retained percentages which Lessee is, at the date hereof, entitled to retain (except to
the extent such amounts represent a reimbursement to Lessee).
(v) The Equipment is insured in accordance with the Lease.
(vi) No Event of Default, and no event which with notice or lapse of time, or
both, would become an Event of Default, under the Lease has occurred and is
continuing at the date hereof. No Event of Non-appropriation has occurred or is
threatened with respect to the Lease.
(vii) The disbursement shall occur during the Acquisition Period.
(viii) The representations, warranties and covenants of Lessee set forth in the
Lease are true and correct as of the date hereof.
(ix) No Material Adverse Change has occurred since the date of the execution
and delivery of the Lease.
EXHIBIT B PAGE 13
Dated:
By:
Name:
Title:
Disbursement of funds from the Escrow
Account in accordance with the foregoing
Disbursement Request hereby is authorized
BANC OF AMERICA PUBLIC CAPITAL CORP
as Lessor under the Lease
By:
Name:
Title:
EXHIBIT B PAGE 14
[AN "EXHIBIT A-1" MUST BE COMPLETED AND EXECUTED AT TIME OF
EXECUTION OF THE AGREEMENT]
EXHIBIT B-1
FORM OF INCUMBENCY AND AUTHORIZATION CERTIFICATE
The undersigned, a duly elected or appointed and acting
[Secretary] [City Clerk] [County Clerk] of
("Lessee') certifies as follows:
A. The following listed persons are duly elected or appointed and acting
officials of Lessee (the "Officials') in the capacity set forth opposite their respective
names below and the facsimile 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 Schedule of Property No. dated as of to Master
Equipment Lease/Purchase Agreement dated as of by and
between Lessee and Banc of America Public Capital Corp ("Lesso►"), the Escrow and
Account Control Agreement dated as of by and among Lessor,
Lessee and Bank of America, National Association, as Escrow Agent, all documents
related thereto and delivered in connection therewith, and any future modification(s) or
amendments thereof (collectively, the "Operative Agreements'), and the Operative
Agreements each are the binding and authorized agreements of Lessee, enforceable in
all respects in accordance with their respective terms.
Name of Official Title Signature
Dated: By:
Name:
Title:
(The signer of this Certificate cannot be listed above as authorized to execute the
Agreements.)
EXHIBIT B PAGE 15
[AN "EXHIBIT A-2" MUST BE COMPLETED AND EXECUTED AT TIME OF
EXECUTION OF THE AGREEMENT]
EXHIBIT B-2
Escrow and Account Control Agreement dated as of by and
among Banc of America Public Capital Corp, Lessor, ,
as Lessee and Bank of America, National Association, Escrow Agent
Certificate of Authorized Representatives — [Lessor]
Name: Terri Preston Name: Nancy Nusenko
Title: Authorized Agent Title: Authorized Agent
Phone: 443-541-3642 Phone: 443-541-3646
Facsimile: 443-541-3057 _ Facsimile: 443-541-3057 _
E-mail: Terri.Preston@baml.com E-mail: Nancy.a.nusenkoabaml.corn Field
Signature: Signature:
Fund Transfer/ Disbursement Authority Level: Fund Transfer / Disbursement Authority
Level:
❑ Initiate ❑ Initiate
❑ Verify transactions initiated by others ❑ Verify transactions initiated
by others
Name: Nancy K. Hepner Name: Arlene Sobieck
Title: Authorized Agent Title: Authorized Agent
Phone: 443-541-3645 Phone: 443-541-3643
Facsimile: 804-553-2407 Facsimile: 443-541-3057
E-mail: Nancy.k.hepner@baml.com E-mail: &Iene.sobieckAbaml.com Field
Signature: Signature:
Fund Transfer/ Disbursement Authority Level: Fund Transfer / Disbursement
AuthorityLevel:
❑ Initiate ❑ Initiate
❑ Verify transactions initiated by others ❑ Verify transactions initiated
by others
The Escrow Agent is authorized to comply with and rely upon any notices, instructions
or other communications believed by it to have been sent or given by the person or
persons identified above including without limitation, to initiate and verify funds transfers
as indicated.
Banc of America Public Capital Corp
By:
Name:
Title:
Date:
EXHIBIT B PAGE 1
EXHIBIT C
DISCLOSURE OF CONFLICT OF INTEREST
MASTER EQUIPMENT LEASE PURCHASE AGREEMENT
YES* NO
1 Are you currently in litigation with the City of Fresno or any of ❑ I❑
its agents? _
2 Do you represent any firm, organization, or person who is in ❑ E❑
litigation with the City of Fresno?
3 Do you currently represent or perform work for any clients ❑ El
who do business with the City of Fresno?
4 Are you or any of your principals, managers or professionals,
owners or investors in a business which does business with ❑
the City of Fresno, or in a business which is in litigation with
the City of Fresno?
5 Are you or any of your principals, managers, or professionals,
related by blood or marriage to any City of Fresno employee ❑
who has any significant role in the subject matter of this
service?
6 Do you or any of your subcontractors have, or expect to have,
any interest, direct or indirect, in any other contract in ❑
connection with this Project?
* If the answer to any question is yes, please explain in full below.
Explanation:
Signature `
ii fri
/
(name)
cr,n� p �
(company) j�(
CQ
(address)
❑ Additional page(s) attached. �aV\ �c4_11( f O�
(city state zi )
EXHIBIT C PAGE 1