TC Res. No. 2011-13 Authorizing the execution and delivery of a master equipment lease purchase agreement and separate lease scheduleTOWN OF AVON, COLORADO
RESOLUTION 11 -13
SERIES OF 2011
A RESOLUTION OF THE TOWN COUNCIL OF TOWN OF AVON,
AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER
EQUIPMENT LEASE - PURCHASE AGREEMENT AND SEPARATE
LEASE SCHEDULE WITH RESPECT TO THE ACQUISITION,
PURCHASE, FINANCING AND LEASING OF CERTAIN EQUIPMENT
FOR THE PUBLIC BENEFIT; AUTHORIZING THE EXECUTION AND
DELIVERY OF DOCUMENTS REQUIRED IN CONNECTION
THEREWITH; AND AUTHORIZING THE TAKING OF ALL OTHER
—�'— --" - - - ACTIONS— NECESSARY —TO--THE— CONSUKNtATION -- OF - "THE
TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION.
WHEREAS, Town of Avon (the "Lessee"), a body politic and corporate duly organized
and existing as a home rule authority municipal corporation and body politic organized under the
laws of the State of Colorado, is authorized by the laws of the State of Colorado to purchase,
acquire and lease personal property for the benefit of the Lessee and its inhabitants and to enter
into contracts with respect thereto; and
WHEREAS, the Lessee desires to purchase, acquire and lease certain equipment
constituting personal property necessary for the Lessee to perform essential governmental
functions; and
WHEREAS, in order to acquire such equipment, the Lessee proposes to enter into that
certain Master Tax- Exempt Lease/Purchase Agreement (the "Agreement") and separate Lease
Schedules and Escrow Agreements from time to time as provided in the Agreement with U.S
BANCORP EQUIPMENT FINANCE, INC. (the "Lessor "), the forms of which have been
presented to the governing body of the Lessee at this meeting; and
WHEREAS, the governing body of the Lessee deems it for the benefit of the Lessee and
for the efficient and effective administration thereof to enter into the Agreement and the separate
Lease Schedules and Escrow Agreements as provided in the Agreement for the purchase,
acquisition and leasing of the equipment therein described on the terns and conditions therein
provided.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section LAPProval of Documents. The form, terms and provisions of the Agreement and the
separate Lease Schedules and Escrow Agreement as provided in the Agreement are hereby
approved in substantially the form presented at this meeting, with such insertions, omissions and
changes as shall be approved by the Mayor of the Lessee or other members of the governing
Resolution I l- Master Equipment Lease- Purchase Agreement US Bank
MVH 8.15.11
Page 1 of 3
body of the Lessee executing the same, the execution of such documents being conclusive
evidence of such approval; and the Mayor of the Lessee is hereby authorized and directed to
execute, and the Town Clerk of the Lessee is hereby authorized and directed to attest and
countersign, the Agreement and each Lease Schedule and Escrow Agreement and any related
Exhibits attached thereto and to deliver the Agreement and each Lease Schedule and Escrow
Agreement (including such Exhibits) to the respective parties thereto, and the Town Clerk of the
Lessee is hereby authorized to affix the seal of the Lessee to such documents.
Section 2.Other Actions Authorized. The officers and employees of the Lessee shall take all
action necessary or reasonably required by the parties to the Agreement and each Lease Schedule
and Escrow Agreement to cant' out, give effect to and consummate the transactions
contemplated thereby (including the execution and delivery of the Acceptance Certificate
contemplated in tile 2VI—reement -an -any t Cate -an agreement, —eac spect -to - --
separate Lease Schedules, as provided in the Agreement) and to take all action necessary in
conformity therewith, including, without limitation, the execution and delivery of any closing
and other documents required to be delivered in connection with the Agreement and each Lease
Schedule.
Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, any
Lease Schedule, nor any other instrument shall be construed with respect to the Lessee as
incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing
power, nor shall the breach of any agreement contained in this Resolution, the Agreement, any
Lease Schedule, or any other instrument or document executed in connection therewith impose
any pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing
power, except to the extent that the Rental Payments payable under each Lease are special
limited obligations of the Lessee as provided in such Lease.
Section 4. Appointment of Authorized Lessee Representatives. The Town Manager and
Assistant Town Manager of the Lessee are each hereby designated to act as authorized
representatives of the Lessee for purposes of the Agreement and each Lease Schedule until such
time as the governing body of the Lessee shall designate any other or different authorized
representative for purposes of the Agreement and each Lease Schedule.
Section 5. Section 265(b)(3) Designation. Lessee hereby designates the Agreement as a
"qualified tax- exempt obligation" for the purposes and within the meaning of Section 265(b)(3)
of the Internal Revenue Code of 1986, as amended.
Section 6. Severability. If any section, paragraph, clause or provision of this Resolution shall
for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution.
Section 8. Effective Date. This Resolution shall be effective immediately upon its approval and
adoption.
Resolution 11- Master Equipment Lease - Purchase Agreement US Bank
MVH 8.15.11
Page 2 of 3
ACCEPTED, APPROVED AND ADOPTED August; A 2011.
AVON TOWN COUNCIL
-,OWN 0,S
By:
S Rich Carroll, Mayor
[Seal] 4 T .
Attest: ado,
- Pa,ti; tM Kenny; To
Resolution 11- Master Equipment Lease- Purchase Agreement US Bank
MVH 8.15.11
Page 3 of 3
W
DOCUMENT CHECKLIST
PLEASE PROVIDE TWO (2) EXECUTED ORIGINALS OF THE MASTER TAX - EXEMPT
LEASE PURCHASE AGREEMENT AND THREE (3) EXECUTED ORIGINALS OF THE
ESCROW AGREEMENT
➢ Master Tax - Exempt Lease Purchase Agreement – This document must be executed in the presence of
a witness /attestor. The attesting witness does not have to be a notary, just present at the time of
execution.
➢ Addendum to Master Tax - Exempt Lease Purchase Agreement –This document must be executed in
the presence of a witness /attestor. The attesting witness does not have to be a notary, just present at the
time of execution.
➢ Property Schedule No. 01 - This document must be executed in the presence of a witness /attestor. The
attegtt -wt ae ve-to-bea net�ry; just present'at-tfiCime of execution. " –�- -W-
➢ Property Description and Payment Schedule – Exhibit 1– This document must be executed.
➢ Lessee's Counsel's Opinion – Exhibit 2. This exhibit will need to be executed by your attorney, dated
and placed on their letterhead. Your attorney will likely want to review the agreement prior to executing
this opinion.
➢ Lessee's Certificate – Exhibit 3. 1) Please fill in the person's title who will be executing the certificate
in the first paragraph (note: the person who signs this exhibit can not be the same person as the
executing official(s) for all other documents); 2) Please fill in the date that the governing body met in
Line l; 3) In the middle set of boxes, please print the name of the executing official(s) in the far left box,
print their title(s) in the middle box and have the executing official(s) sign the line in the far right hand
box; 4) Include in your return package a copy of the board minutes or resolution for our files; and 5) The
exhibit should be executed by someone other than the executing official(s) named in the center box.
5- Payment of Proceeds Instructions – Exhibit 4. This is for the vendor payment information. if more
than one vendor is being paid please make copies of this exhibit and fill out as many as are needed. You
will not need to fill this out until you have a Disbursement Request from the Escrow Account.
➢ Acceptance Certificate – Exhibit 5. The date that all equipment is delivered, installed and accepted is
the date that should be placed on the "DATE" line. If moneys are being deposited into escrow this
exhibit should be held and returned with the final disbursement from the escrow account.
➢ Bank Qualification and Arbitrage Rebate – Exhibit 6 – This document will need to be executed.
➢ Insurance Authorization and Verification – To be filled out by the Lessee and sent to your insurance
carrier. A valid insurance certificate, or self - insurance letter if the Lessee self insures, is required prior to
funding.
➢ Vehicle Titling Memo - This document will need to be executed and the original titles should show
USBEF as I" lien holder. The originals will have to be sent to USBEF to hold until lease is paid in full.
Form 8038 -G or GC – Blank form and instructions provided to Lessee. Please consult your local
legal/bond counsel to fill out.
➢ Escrow Agreement – This document must be executed on the following pages:
• Page 5 – Signature Page
• Exhibit 1– Investment Direction Letter
• The remaining pages are left un- executed until a disbursement from the escrow account is
requested
Master Tax - Exempt Lease/Purchase Agreement
Between: U.S. Bancorp Equipment Finance. Inc. (the "Lessor ")
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
And: Town of Avon (the "Lessee ")
PO Box 975
Avon, CO 81620
Attention: Scott Wright
Telephone: 970 - 748 -4055
Dated: Aut7ust 26, 2011
- -- -- — -- - - -- -- - — — - --- -- -- -- -ARTICLE
DEFINITIONS
The following terms will have the meanings indicated below unless the context clearly requires otherwise:
"Agreement" means this Master Tax - Exempt Lease/Purchase Agreement, including all exhibits and schedules attached hereto.
"Code" is defined in Section 3.01(f).
"Commencement Date" is the date when the tern of a Property Schedule and Lessee's obligation to pay rent thereunder commences, which date shall be set forth in such Property Schedule.
"Event of Default" is defined in Section 13.01.
"Lease Payments" means the Lease Payments payable by Lessee under Article VI of this Agreement and each Property Schedule, as set forth in each Property Schedule. Lease Payment
Dates" means the Lease Payment dates for the Lease Payments as set forth in each Property Schedule.
"Lease Term" means, with respect to a Property Schedule, the Original Term and all Renewal Terms. The Lease Term for each Property Schedule executed hereunder shall be set forth in
such Property Schedule, as provided in Section 4.02.
"Lessee" means the entity identified as such in the first paragraph hereof, and its permitted successors and assigns.
"Lessor" means the entity identified as such in the first paragraph hereof, and its successors and assigns.
"Nonappropriation Event" is defined in Section 6.06.
"Original Term" means, with respect to a Property Schedule, the period from the Commencement Date until the end ofthe budget year of Lessee in effect at the Commencement Date.
"Property" means, collectively, the property lease/purchased pursuant to this Agreement, and with respect to each Property Schedule, the property described in such Property Schedule, and
all replacements, repairs, restorations, modifications and improvements thereofor thereto made pursuant to Section 8.01 or Article 1X.
"Property Schedule" means a Property Schedule in the form attached hereto for Property Schedule I. Subsequent Property Schedules pursuant to this Agreement shall be numbered
consecutively, beginning with Property Schedule 2.
"Purchase Price" means the amount that Lessee tray, in its discretion, pay to Lessor to purchase the Property under a Property Schedule, as provided in Section 11.01 and as set forth in the
Property Schedule.
"Renewal Terms" means the renewal terms of a Property Schedule, each having a duration of one year and a term coextensive with Lessee's budget year,
"State" means the state where Lessee is located.
"Vendor" means the manufacturer or contractor of the Property as well as the agents or dealers of the manufacturer or contractor from whom Lessor or Lessee purchased or is purchasing all
or any portion of the Property.
ARTICLE 11
2.01 Property Schedules Separate Financings. Each Property Schedule executed and delivered under this Agreement shall be a separate financing, distinct fiotn other Property
Schedules. Without limiting the foregoing, upon the occurrence of an Event of Default or a Nonappropriation Event with respect to a Property Schedule, Lessor shall have the rights and
remedies specified herein with respect to the Property financed and the Lease Payments payable under such Property Schedule, and except as expressly provided in Section 12.02 below,
Lessor shall have no rights or remedies with respect to Property financed or Lease Payments payable under any other Property Schedules unless an Event of Defoult or Nonappropriation
Event has also occurred under such other Property Schedules.
ARTICLE III
3.01 Covenants of Lessee As of the Commencement Date for each Property Schedule executed and delivered hereunder, Lessee shall be deemed to represent, covenant and warrant
for the benefit of Lessor as follows:
(a) Lessee is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority to enter into this
Agreement and the Property Schedule and the transactions contemplated thereby and to perform all of its obligations thereunder.
(b) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. To the extent Lessee
should merge with another entity under the laws of the State, Lessee agrees that as a condition to such merger it will require that the remaining or resulting entity shall be
assigned Lessee's rights and shall assume Lessee's obligations hereunder.
(c) Lessee has been duly authorized to execute and deliver this Agreement and the Property Schedule by proper action by its governing body, or by other appropriate official
approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Property Schedule,
and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the Property Schedule and the acquisition by Lessee of tho
Property thereunder, On or before the Commencement Date for the Property Schedule, Lessee shall cause to be delivered an opinion of counsel in substantially the form
attached to the form of the Property Schedule as Exhibit 2.
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(d) During the Lease Tenn for the Property Schedule, the Property thereunder will perform and will be used by Lessee only for the purpose of performing essential
governmental uses and public functions within the permissible scope of Lessee's authority.
(e) Lessee will provide Lessor with current financial statements, budgets and proof of appropriation for the ensuing budget year and other financial information relating to the
ability of Lessee to continue this Agreement and the Property Schedule in such form and containing such information as may be requested by Lessor.
(f) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code "), including Sections 103 and 148 thereof, and the regula.
tions of the Treasury Department thereunder, from time to time proposed or in effect, in order to maintain the excludability from gross income for federal income tax
purposes of the interest component of Lease Payments under the Property Schedule and will not use or permit the use of the Property in such a manner as to cause a
Property Schedule to be a "private activity bond" under Section 141(a) of the Code. Lessee covenants and agrees that it will use the proceeds of the Property Schedule as
soon as practicable and with all reasonable dispatch for the purpose for which the Property Schedule has been entered into, and that no part of the proceeds of the Property
Schedule shall be invested in any securities, obligations or other investments except for the temporary period pending such use nor used, at any time, directly or indirectly,
in a manner which, if such use had been reasonably anticipated on the date of issuance of the Agreement, would have caused any portion of the Property Schedule to be or
become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in
effect at the time of such use and applicable to obligations issued on the date of issuance of the Property Schedule.
(g) The execution, delivery and performance of this Agreement and the Property Schedule and compliance with the provisions hereof and thereof by Lessee does not conflict
with or result in a violation or breach or constitute a default under, any resolution, bond, agreement, indenture, mortgage, note, lease or other instrument to which Lessee is
a party or by which it is bound by any law or any rule, regulation, order or decree of any court, governmental agency or body having jurisdiction over Lessee or any of its
activities or properties resulting in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any property or
assets of Lessee or to which it is subject.
(h) Lessee's exact legal name is asset forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior notice
to Lessor.
- -- !R tTl— CLElV
4.01 lease of Property. On the Commencement Date of each Property Schedule executed hereunder, Lessor will be deemed to demise, lease and let to Lessee, and Lessee will be
deemed to rent, lease and hire from Lessor, the Property described in such Property Schedule, in accordance with this Agreement and such Property Schedule, for the Lease Term set forth in
such Property Schedule.
4.01 Lease Term. The term of each Property Schedule shall commence on the Commencement Date set forth therein and shall terminate upon payment of the final Lease Payment set
forth in such Property Schedule and the exercise of the Purchase Option described in Section 11.0 1, unless terminated sooner pursuant to this Agreement or the Property Schedule.
4.03 Delivery, Installation and Acceptance of Property. Lessee shall order the Property, shall cause the Property to be delivered and installed at the locations specified in the
applicable Property Schedule and shall pay all taxes, delivery costs and installation costs, if any, in connection therewith. To the extent funds are deposited under an escrow agreement or trust
agreement for the acquisition of the Property, such funds shall be disbursed as provided therein. When the Property described in such Property Schedule is delivered, installed and accepted as
to Lessee's specifications, Lessee shall immediately accept the Property and evidence said acceptance by executing and delivering to Lessor the Acceptance Certificate substantially in the
form attached to the Property Schedule.
ARTICLE V
5.01 Eniovment of Property. Lessee shall during the Lease Tenn peaceably and quietly have, hold and enjoy the Property, without suit, trouble or hindrance from Lessor, except as
expressly set forth in this Agreement. Lessor shall not interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in default under the subject Property
Schedule.
5.02 Location: Inspection The Property will be initially located or based at the location specified in the applicable Property Schedule. Lessor shall have the right at all reasonable
times during business hours to enter into and upon the property of Lessee for the purpose of inspecting the Property.
ARTICLE VI
6.01 Lease Payments to Constitute a Current Expense of Lessee Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder shall
constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional, statutory or charter limitation or
requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the faith and credit or taxing power of Lessee. Upon the
appropriation of Lease Payments for a fiscal year, the Lease Payments for said fiscal year, and only the Lease Payments for said current fiscal year, shall be a binding obligation of Lessee;
provided that such obligation shall not include a pledge of the taxing power of Lessee.
6.02 Payment of Lease Payments Lessee shall promptly pay Lease Payments under each Property Schedule, exclusively from legally available funds, in lawful money ofthe United
States of America, to Lessor in such amounts and on such dates as described in the applicable Property Schedule, at Lessors address set forth on the first page of this Agreement, unless
Lessor instructs Lessee otherwise. Lessee shall pay Lessor a charge on any delinquent Lease Payments under a Property Schedule in an amount sufficient to cover all additional costs and
expenses incurred by Lessor from such delinquent Lease Payment. In addition, Lessee shall pay a late charge of five cents per dollar or the highest amount permitted by applicable law,
whichever is lower, on all delinquent Lease Payments and interest on said delinquent amounts from the date such amounts were due until paid at the rate of 12% per annum or the maximum
amount permitted by law, whichever is less..
6.03 Interest Component A portion of each Lease Payment due under each Property Schedule is paid as, and represents payment of, interest, and each Property Schedule hereunder
shall set forth the interest component (or method of computation thereof) of each Lease Payment thereunder during the Lease Term.
6.04 Lease Payments to be Unconditional SUBJECT TO SECTION 6.06, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY
SCHEDULES AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL BE ABSOLUTE AND UNCONDITIONAL IN
ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS,
MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION
SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR AS PROVIDED IN SECTION 10.02.
6.05 Continuation of Lease by Lessee. Lessee intends to continue all Property Schedules entered into pursuant to this Agreement and to pay the Lease Payments thereunder. Lessee
reasonably believes that legally available funds in an amount sufficient to make all Lease Payments during the term of all Property Schedules can be obtained. Lessee agrees that its staff will
provide during the budgeting process for each budget year to the governing body of Lessee notification of any Lease Payments due under the Property Schedules during the following budget
year. Notwithstanding this covenant, if Lessee fails to appropriate the Lease Payments for a Property Schedule pursuant to Section 6.06, such Property Schedule shall terminate at the end of
the then current Original Term or Renewal Term. Although Lessee has made this covenant, in the event that it fails to provide such notice, no remedy is provided and Lessee shall not be
liable for any damages for its failure to so comply.
6.06 Nonappropriation. If during the then current Original Tenn or Renewal Term, sufficient funds are not appropriated to make Lease Payments required under a Property Schedule
for the following fiscal year, Lessee shall be deemed to not have renewed such Property Schedule for the following fiscal year and the Property Schedule shall terminate at the end of the then
current Original Term or Renewal Term and Lessee shall not be obligated to make Lease Payments under said Property Schedule beyond the then current fiscal year for which funds have been
appropriated. Upon the occurrence of such nonappropriation (a "Nonapproptiation Event ") Lessee shall, no later than the end of the fiscal year for which Lease Payments have been
appropriated, deliver possession of the Property under said Property Schedule to Lessor. If Lessee fails to deliver possession of the Property to Lessor upon termination of said Property
Schedule by reason of a Nonappropriation Event, the termination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion
of Lease Payments thereafter coming due that is attributable to the number of days after the termination during which the Lessee fails to deliver possession and for any other loss suffered by
Lessor as a result of Lessee's failure to deliver possession as required. In addition, Lessor may, by written instructions to any escrow agent who is holding proceeds of the Property Schedule,
instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to Lessee's obligations under the Property Schedule and this Agreement.
Lessee shall notify Lessor in writing within seven (7) days after the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such
notice shall not operate to extend the Lease Term or result in any liability to Lessee.
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6.07 Defeasance of Lease Payments Lessee may at any time irrevocably deposit in escrow with a defcasance escrow agent for the purpose of paying all of the principal component
and interest component accruing under a Property Schedule, a sum of cash and non - callable securities consisting of direct obligations of, or obligations the principal of an interest on which
are unconditionally guaranteed by, the United States of America or any agency or instrumentality thereof, in such aggregate amount, bearing interest at such rates and maturing on such dates
as shall be required to provide funds sufficient for this purpose. Upon such defeasance, all right, title and interest of Lessor in the Property under said Property Schedule shall terminate.
Lessee shall cause such investment to comply with the requirements of federal tax law so that the exclusion from gross income of the interest component of Lease Payments on said Property
Schedule is not adversely affected.
ARTICLE VII
7.01 Title to the Property. Upon acceptance of the Property by Lessee and unless otherwise required by the laws of the State, title to the Property shall vest in Lessee, subject to
Lessor's interests under the applicable Property Schedule and this Agreement.
7.02 Personal Property, The Property is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwith-
standing that the Property or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee
will, at Lessee's expense, furnish a waiver of any interest in the Property from any party having an interest in any such real estate or building.
7.03 Security Interest To the extent permitted by law and to secure the performance of all of Lessee's obligations under this Agreement with respect to a Property Schedule,
including without limitation all Property Schedules now existing are hereafter executed, Lessee grants to Lessor, for the benefit of Lessor and its successors and assigns, a security interest
constituting a first lien on Lessee's interest in all of the Property under the Property Schedule, whether now owned or hereafter acquired, all additions, attachments, alterations and accessions
to the Property, all substitutions and replacements for the Property, and on any proceeds of any of the foregoing, including insurance proceeds. Lessee shall execute any additional documents,
including financing statements, affidavits, notices and similar instruments, in form and substance satisfactory to Lessor, which Lessor deems necessary or appropriate to establish, maintain
and perfect a security interest in the Property in favor of Lessor and its successors and assigns. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary
or appropriate to establish, maintain and perfect such security interest.
ARTICLE VIII
8.01 Maintenance of Property by Lessee Lessee shall keep and maintain the Property in good condition and working order and in compliance with the manufacturer's specifications,
shall use, operate and maintain the Property in conformity with all laws and regulations concerning the Property's ownership, possession, use and maintenance, and shall keep the Property free
and clear of all liens and claims, other than those created by this Agreement. Lessee shall have sole responsibility to maintain and repair the Property. Should Lessee fnil to maintain, preserve
and keep the Property in good repair and working order and in accordance with manufacturer's specifications, and if requested by Lessor, Lessee will enter into maintenance contracts for the
Property in form approved by Lessor and with approved providers.
8.02 Liens. Taxes, Other Governmental Charles and Utility Charees. Lessee shall keep the Property free of all levies, liens and encumbrances, except for the interest of Lessor
under this Agreement. The parties to this Agreement contemplate that the Property will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Property will be
exempt from all property taxes. The Lease Payments payable by Lessee under this Agreement and the Property Schedules hereunder have been established to reflect the savings resulting from
this exemption from taxation. Lessee will take such actions necessary under applicable law to obtain said exemption. Nevertheless, if the use, possession or acquisition of the Property is
determined to be subject to taxation or later becomes subject to such taxes, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to
the Property. Lessee shall pay all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Property. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period
of years, Lessee shall be obligated to pay only such installments as accrue during the then current fiscal year of the Lease Term for such Property.
8.03 Insuranc . At its own expense, Lessee shall maintain (a) casualty insurance insuring the Property against loss or damage by fire and all other risks covered by the standard
extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount equal to at least the outstanding principal component of Lease
Payments, and (b) liability insurance that protects Lessor from liability in all events in an amount reasonably acceptable to Lessor, and (c) workers compensation insurance covering all
employees working on, in, near or about the Property; provided that Lessee may self -insure against all such risks. All insurance proceeds from casualty losses shall be payable as hereinafter
provided in this Agreement. All such insurance shall be with insurers that are authorized to issue such insurance in the State All such liability insurance shall name Lessor as an additional
insured. All such casualty insurance shall contain a provision making any losses payable to Lessor and Lessee as their respective interests may appear. All such insurance shall contain a
provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such
cancellation or modification. Such changes shall not become effective without Lesso's prior written consent. Lessee shall furnish to Lessor, on or before the Commencement Date for each
Property Schedule, and thereafter at Lessor's request, certificates evidencing such coverage, or, if Lessee self- insures, a written description of its self - insurance program together with a
certification from Lessee's risk manager or insurance agent or consultant to the effect that Lessee's self - insurance program provides adequate coverage against the risks listed above.
8.04 Advanc es In the event Lessee shall fail to either maintain the insurance required by this Agreement or keep the Property in good repair and working order, Lessor may, but shall
be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof or maintain and repair the Property and pay the cost thereof. All amounts so advanced by
Lessor shall constitute additional rent for the Lease Term for the applicable Property Schedule and shall be due and payable on the next Lease Payment Date and Lessee covenants and agrees
to pay such amounts so advanced by Lessor with interest thereon from the date such amounts are advanced until paid at the rate of 12% per annum or the maximum amount permitted by low,
whichever is less.
9.01 Damate or Destruction. If (a) the Property under a Property Schedule or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty, or (b) title
to, or the temporary use of, the Property under a Property Schedule or any part thereof shall be taken under the exercise or threat of the power of eminent domain by any governmental body or
by any person, firm or corporation acting pursuant to governmental authority, Lessor and Lessee will cause the Net Proceeds (as hereinafter defined) of arty insurance claim, condemnation
award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Property, unless Lessee shall have exercised its
right to defense the Property Schedule as provided herein, or unless Lessee shall have exercised its option to purchase Lessors interest in the Property if the Property Schedule so provides.
Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article IX, the term "Net Proceeds" shall mean
the amount remaining from the gross proceeds of any insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees,
incurred in the collection thereof.
9.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01,
Lessee shall (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds and, if Lessee shall make
any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under
Section 6.02, or (b) defense the Property Schedule pursuant to Section 6.07, or (c) exercise its option to purchase Lessors interest in the Property pursuant to the optional purchase provisions
of the Property Schedule, if any. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after such defeasance or
purchase may be retained by Lessee.
DWT 8732378v4 0085238 - 000001
ARTICLE X
10.01 Disclaimer of Warranties. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR
WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY
COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; IT
BEING UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY, WHICHEVER 1S LATER,
AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. Lessee acknowledges that it has made (or will make) the selection of the Property from the Vendor based on its own
judgment and expressly disclaims any reliance upon any statements or representations made by Lessor. Lessee understands and agrees that (a) neither the Vendor nor any sales representative
or other agent of Vendor, is (i) an agent of Lessor, or (ii) authorized to make or alter any term or condition of this Agreement, and (b) no such waiver or alteration shall vary the terms of this
Agreement unless expressly set forth herein. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this
Agreement, the Property Schedules, or the existence, furnishing, functioning or use of any item, product or service provided for in this Agreement or the Property Schedules.
10.02 Vendor's Warranties. Lessor hereby irrevocably assigns to Lessee all rights that Lessor may have to assert from time to time whatever claims and rights (including without
limitation warranties) related to the Property against the Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the
Property, and not against Lessor, nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and
timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such
warranties of the Vendor of the Property.
10.03 Use of the Property. Lessee will not install, use, operate or maintain the Property improperly, carelessly, in violation of any applicable law or in a manner contrary to that
contemplated by this Agreement and the applicable Property Schedule. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Property. In
addition, Lessee agrees to comply in all respects with all laws of the jurisdiction in which its operations involving any item of Property may extend and any legislative, executive,
administrative or judicial body exercising any power or jurisdiction over the items of the Property; provided that Lessee may contest in good faith the validity or application of any such law or
rule in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Property or its interest or rights under this Agreement. Lessee shall
promptly notify Lessor in writing of any pending or threatened investigation, inquiry, claim or action by any governmental authority which could adversely affect this Agreement, any
10.04 Modifications. Subject to the provisions of this Section, Lessee shall have the right, at its own expense, to make alterations, additions, modifirations or improvements to the
Property. All such alterations, additions, modifications and improvements shall thereafter comprise part of the Property and shall be subject to the provisions of this Agreement. Such
alterations, additions, modifications and improvements shall not in any way damage the Property, substantially alter its nature or cause it to be used for purposes other than those authorized
under the provisions of state and federal law; and the Property, on completion of any alterations, additions, modifications or improvements made pursuant to this Section, shall be of a value
which is equal to or greater than the value of the Property immediately prior to the making of such alterations, additions, modifications and improvements. Lessee shall, at its own expense,
make such alterations, additions, modifications and improvements to the Property as may be required from time to time by applicable law or by any governmental authority.
ARTICLE XI
11.01 Option to Purchase Lessee shall have the option to purchase Lessors entire interest in all of the Property subject to a Property Schedule and to terminate any restrictions herein
on the Property under such Property Schedule on the last day of the Lease Term for a Property Schedule, if the Property Schedule is still in effect on such day, upon payment in full of the
Lease Payments due thereunder plus payment of One( I) Dollar to Lessor. Lessee shall give written notice to Lessor of its intent to purchase Lessor's interest in the Property at least sixty (60)
days prior to the last day of the Lease Term for applicable Property Schedule. Upon exercise of the purchase option asset forth in this Section 11.01 and payment of the purchase price under
the applicable Property Schedule, and performance by Lessee of all other terms, conditions and provisions hereof, Lessor shall deliver to Lessee all such documents and instruments as Lessee
may reasonably require to evidence the transfer, without warranty by or recourse to Lessor, of all of Lessor's right, title and interest in and to the Property subject to such Property Schedule to
Lessee.
11.02 Option to Prepay. Lessee shall have the option to prepay in whole the Lease Payments due under a Property Schedule, but only if the Property Schedule so provides, and on the
terms set forth in the Property Schedule.
ARTICLE Xll
12.01 Assignment by Lessor. Lessor's right, title and interest in, to and under each Property Schedule and the Property under such Property Schedule may be assigned and reassigned
in whole or in part to one or more assignees or subassignees by Lessor without the necessity of obtaining the consent of Lessee; provided that any assignment shall not be effective until
Lessee has received written notice, signed by the assignor, of the name, address and tax identification number of the assignee. Lessee shall retain all such notices as a register of al l assignees
and shall make all payments to the assignee or assignees designated in such register. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or
financing statements that may be reasonably requested by Lessor or any assignee to protect its interests in this Agreement and the Property Schedules.
12.02 Property Schedues Separate Financings. Assignees of the Lessors rights in one Property Schedule shall have no rights in any other Property Schedule unless such rights have
been separately assigned..
12.03 Assignment and Subleasing by Lessee. NONE OF LESSEE'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THIS AGREEMENT AND IN THE PROPERTY MAY
BE ASSIGNED, SUBLEASED OR ENCUMBERED BY LESSEE FOR ANY REASON, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
12.04 Release and Indemnification Covenants. To the extent permitted by applicable law, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and
against any and all liability, obligation, loss, claim and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith, including, without limitation, counsel fees
and expenses, penalties and interest (collectively, "Losses") arising out of or resulting from the entering into this Agreement, any Property Schedules hereunder, the ownership of any item of
the Property, the loss of federal tax exemption of the interest on any of the Property Schedules, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or
return of any item of the Property or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Property resulting in damage to property or
injury to or death to any person; provided, however, that Lessee shall not be required to indemnify Lessor for Losses arising out of or resulting from Lessor's own willful or negligent conduct,
or for Losses arising out of or resulting from Lessor preparation of disclosure material relating to certificates of participation in this Agreement and any Property Schedule (other than
disclosure material provided to Lessor by Lessee). The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations
under this Agreement, or the applicable Property Schedule, or the termination of the Lease Term for such Property Schedule for any reason.
ARTICLE X111
13.01 Events of Default Defined. Any of the following shall constitute an "Event of Default" under a Property Schedule:
(a) Failure by Lessee to pay any Lease Payment under the Property Schedule or other payment required to be paid with respect thereto at the time specified therein;
(b) Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed with respect to the Property Schedule, other than as
referred to in subparagraph (a) above, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by
Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within
the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period
and diligently pursued until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to the Property Schedule or its execution, delivery or performance shall prove to have been false,
incorrect, misleading or breached in any material respect on the date when made;
(d) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for
relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an
arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy,
reorganization or insolvency proceeding; or
DWT 8732378v4 0085238 - 000001
(e) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee
or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed
and in effect for any period of 60 consecutive days.
The foregoing provisions of Section 13.01 are subject to the following limitation: if by reason of force maieure Lessee is unable in whole or in part to perform its agreements
under this Agreement and the Property Schedule (other than the obligations on the part of Lessee contained in Article VI hereof) Lessee shall not be in default during the continuance of such
inability. The term "force maieuro" as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any
kind of the government of the United States or of the State or any of their departments, agencies or officials, or any civil or military authority; insurrections, riots, landslides, earthquakes,
fires, storms, droughts, floods, explosions, breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee.
A Nonappropriation Event is not an Event of Default.
13.02 Remedies on Default. Whenever any Event of Default exists with respect to a Property Schedule. Lessor shall have the right, at its sole option without any further demand or
notice, to take one or any combination of the following remedial steps:
(a) Without tenninating the Property Schedule, and by written notice to Lessee, Lessor may declare all Lease Payments and other amounts payable by Lessee thereunder to the
end of the then - current budget year of Lessee to be due, including without limitation delinquent Lease Payments under the Property Schedule from prior budget years, and
such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law, whichever is less;
(b) Lessor may terminate the Property Schedule, may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or
require Lessee, at Lessee's expense, to promptly return any or all of the Property to the possession of Lessor at such place within the United States as Lessor shall specify,
and Lessor may thereafter dispose of the Property in accordance with Article 9 of the Uniform Commercial Code in effect in the State; provided, however, that any
proceeds from the disposition of the property in excess of the sum required to (i) pay off any outstanding principal component of Lease Payments, (ii) pay any other
amounts then due under the Property Schedule, and (iii) pay Lessor's costs and expenses associated with the disposition of the Property (including attorneys fees), shall be
paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee except with respect to
unpaid costs and expenses incurred by Lessor in connection with the disposition of the Property; _ r_
(c) By written notice to any escrow agent who is holding proceeds of the Property Schedule, Lessor may instruct such escrow agent to release all such proceeds and any
earnings thereon to Lessor, such sums to be credited to payment of Lessees obligations under the Property Schedule;
(d) Lessor may take any action, at law or in equity, that is permitted by applicable law and that may appear necessary or desirable to enforce or to protect any of its rights under
the Property Schedule and this Agreement.
Notwithstanding the foregoing, if the proceeds are insufficient to pay items (i) to (iii) in Section 13.02(b) in whole, Lessee shall remain obligated after application of proceeds to
items (i) and (ii), to pay in whole the amounts for item (iii).
13.03 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article.
13.04 Costs and Attorney Fees. Upon the occurrence of an Event of Default by Lessee in the performance of any term of this Agreement, Lessee agrees to pay to Lessor or reimburse
Lessor for, in addition to all other amounts due hereunder, all of Lessor's costs of collection, including reasonable attorney fees, whether or not suitor action is filed thereon. Any such costs
shall be immediately due and payable upon written notice and demand given to Lessee, shall be secured by this Agreement until paid and shall bear interest at the rate of 12 %per annum or the
maximum amount permitted bylaw, whichever is less. In the event suitor action is instituted to enforce any of the terms of this Agreement, the prevailing parry shall be entitled to recover
from the other party such sum as the coun may adjudge reasonable as attorneys' fees at trial or on appeal of such suitor action or in any bankruptcy proceeding, in addition to all other sums
provided by law.
ARTICLE XIV
14.01 Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage
prepaid, to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either parry hereto shall designate in writing to the other for
notices to such parry), to any assignee at its address as it appears on the registration books maintained by Lessee.
14.02 Arbitrate Certificates. Unless a separate Arbitrage Certificate is delivered on the Commencement Date, Lessee shall be deemed to make the following representations and
covenants as of the Commencement Date for each Property Schedule:
(a) The estimated total costs, including taxes, freight, installation, cost of issuance, of the Property under the Property Schedule will not be less than the total principal amount
of the Lease Payments.
(b) The Property under the Property Schedule has been ordered or is expected to be ordered within six months after the Commencement Date and the Property is expected to be
delivered and installed and the Vendor fully paid, within eighteen months from the Commencement Date. Lessee will pursue the completion of the Property and the
expenditure of the net proceeds of the Property Schedule with due diligence.
(c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the
Lease Payments under the Property Schedule, or (ii) that may be used solely to prevent a default in the payment of the Lease Payments under the Property Schedule.
(d) The Property under the Property Schedule has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last
maturity of the Lease Payments under the Property Schedule.
(e) There are no other obligations of Lessee which (i) are being sold within 15 days of the Commencement Date of the Property Schedule; (ii) are being sold pursuant to the
same plan of financing as the Property Schedule; and (iii) are expected to be paid from substantially the same source of funds.
(f) The officer or official who has executed the Property Schedule on Lessee's behalf is familiar with Lessee's expectations regarding the use and expenditure of the proceeds
of the Property Schedule. To the best of Lessee's knowledge, information and belief, the facts and estimates set forth in herein are accurate and the expectations of Lessee
set forth herein are reasonable.
14.03 Further Assurances. Lessee agrees to execute such other and further documents, including, without limitation, confirmatory financing statements, continuation statements,
certificates of title and the like, and to take all such action as may be necessary or appropriate, from time to time, in the reasonable opinion of Lessor, to perfect, confirm, establish, reestablish,
continue, or complete the interests of Lessor in this Agreement and the Property Schedules, to consummate the transactions contemplated hereby and thereby, and to carry out the purposes
and intentions of this Agreement and the Property Schedules.
14.04 Bindint Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns.
14.05 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
14.06 Waiver of Jury Trials. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, ton or
otherwise) arising out of or relating to this Agreement or the actions of Lessor or Lessee in the negotiation, administration, performance or enforcement hereof.
14.07 Amendments. Chances and Modifications. This Agreement may be amended in writing by Lessor and Lessee to the extent the amendment or modification does not apply to
outstanding Property Schedules at the time of such amendment or modification. The consent of all assignees shall be required to any amendment or modification before such amendment or
modification shall be applicable to any outstanding Property Schedule.
14.08 Execution in Counterparts This Agreement and the Property Schedules hereunder may be simultaneously executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
DWT 8732378v4 0085238 - 000001
14.09 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State.
14.10 S,aptions. The captions or headings in this Agreement are for convenience only and in noway define, limit or describe the scope or intent of any provisions or sections of this
Agreement,
written.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above
Lessor: U.S. Bancorp Equipment Finance,
Inc.
Name:
Title:
OF A�O
:S EA L=
DWT 8732378x4 0085238 - 000001
Lessee: Town of Avon
Name:
Cke.ea LC
rTile -
Attest
Name. all C n t o n
Title: aM
ADDENDUM (COLORADO)
Master Tax - Exempt Lease/Purchase Agreement
THIS ADDENDUM, which is entered into as of August 26, 2011 between U.S. Bank Equipment Finance, Inc. ( "Lessor ") and Town
of Avon ( "Lessee "), is intended to modify and supplement the Master Tax - Exempt Lease/Purchase Agreement between Lessor and
Lessee of even date herewith (the "Master Agreement"). Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Master Agreement.
Notwithstanding anything to the contrary set forth in the Master Agreement, title to the Property subject to each Property Schedule
shall remain in Lessor during the Lease Term for such Property Schedule, subject to lessee's rights under the Master Agreement.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Addendum to be executed in their names by their duly authorized
representatives as of the date first above written.
DWT 16556357v1 0085238 - 000005
Property Schedule N O1
Master Tax- Exempt Lease/Purchase Agreement
This Property Schedule No. 01 is entered into as of the Commencement Date set forth below, pursuant to that certain Master Tax- Exempt
Lease/Purchase Agreement (the "Master Agreement"), dated as of August 26. 2011, between I I.S. Bancorp Equipment Finance. Inc,. and Tox +n of
Aeon.
1. Interpretation. The terms and conditions of the Master Agreement are incorporated herein by reference as if fully set forth herein. Reference is
made to the Master Agreement for all representations, covenants and warranties made by Lessee in the execution of this Property Schedule, unless
specifically set forth herein. In the event of a conflict between the provisions of the Master Agreement and the provisions of this Property Schedule,
the provisions of this Property Schedule shall control. All capitalized terms not otherwise defined herein shall have the meanings provided in the
Master Agreement.
2. Commencement Date. The Commencement Date for this Property Schedule is August 26, 2011.
3— �ronertv-DescnoUOn -an ent c - e Pi7operty su ect-to -t rs- c u e-is escrt m x r rt I hem-to-.--tessee---sEH-TF-n—of'-
remove such property from the locations set forth therein without giving prior written notice to Lessor. The Lease Payment Schedule for this
Property Schedule is set forth in Exhibit 1.
4. O inion. The Opinion of Lessee's Counsel is attached as Exhibit 2.
5, Lessee's Certificate. The Lessee's Certificate is attached as Exhibit 3.
6. Proceeds. Lessor shall disburse the proceeds of this Property Schedule in accordance with the instructions attached hereto as Exhibit 4.
7. Acceptance Certificate. The form of Acceptance Certificate is attached as Exhibit 5.
8. Additional Purchase Option Provisions. In addition to the Purchase Option provisions set forth in the Master Agreement, Lease Payments payable
under this Property Schedule shall be subject to prepayment in whole at any time by payment of the applicable Termination Amount set forth in
Exhibit 1 (Payment Schedule) and payment of all accrued and unpaid interest through the date of prepayment.
9. Bank Oualifrcation and Arbitraee Rebate. Attached as Exhibit 6.
10. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule if the fully executed, original Master Agreement
(including this Property Schedule and all ancillary documents) is not received by Lessor at its place of business by September 2. 2011.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to be executed in their names by their duly authorized representatives
as of the Commencement Date above.
DWT 8732378v4 0085238 - 000001
XHIBIT 1
Property Description and Payment Schedul
Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon.
THE PROPERTY 1S AS FOLLOWS: The Property as more fully described in Exhibit A incorporated herein by reference and
attached hereto. It includes all replacements, parts, repairs, additions, accessions and accessories incorporated therein or affixed or
attached thereto and any and all proceeds of the foregoing, including, without limitation, insurance recoveries.
PROPERTY-LOCA-nON PO "B-ox -975; Avon-CO- 81620 —" - - — — - - - - - -- - -
USE: Vehicles - This use is essential to the proper, efficient and economic functioning of Lessee or to the services that Lessee
provides; and Lessee has immediate need for and expects to make immediate use of substantially all of the Property, which need is not
temporary or expected to diminish in the foreseeable future.
Lease Payment Schedule
If the Due Dates are not defined in this Lease Payment Schedule, they shall be defined as the NA day of each NA period of this Lease
Payment Schedule commencing with the Acceptance Date.
Total Principal Amount: $563,811.00
Lessee: Town of Aeon
B:
Name:1Ch
Title: r l
W
DWT 8732378v4 0085238- 000001
Beginning
Prepayment
Pav #
Date
Balance
Payment
Principal
Interest
Balance
1
26- Feb -2012
563,811.00
45,210.00
36,295.55
8,914.45
543,340.91
2
26-Aug -2012
527,515.45
45,210.00
36,869.42
8,340.58
505,365.41
3
26- Feb -2013
490,646.03
45,210.00
37,452.37
7,757.63
466,789.47
4
26-Aug -2013
453,193.66
45,210.00
38,044.53
7,165.47
427,603.60
5
26- Feb -2014
415,149.13
45,210.00
38,646.05
6,563.95
387,798.17
6
26- Aug -2014
376,503.08
45,210.00
39,257.09
5,952.91
347,363.37
7
26- Feb -2015
337,245.99
45,210.00
39,877.78
5,332.22
306,289.25
8
26- Aug -2015
297,368.21
45,210.00
40,508.29
4,701.71
264,565.71
9
26- Feb -2016
256,859.91
45,210.00
41,148.77
4,061.23
222,182.47
10
26- Aug -2016
215,711.14
45,210.00
41,799.38
3,410.62
179,129.11
11
26- Feb -2017
173,911.76
45,210.00
42,460.27
2,749.73
135,395.03
12
26-Aug -2017
131,451.49
45,210.00
43,131.61
2,078.39
90,969.47
13
26- Feb -2018
88,319.88
45,210.00
43,813.57
1,396.43
45,841.50
14
26- Aug - 2018
44,506.31
45,210.00
44,506.31
703.69
0.00
Lessee: Town of Aeon
B:
Name:1Ch
Title: r l
W
DWT 8732378v4 0085238- 000001
XMBIT 2
essee's Counsel's O inio
[To be provided on letterhead of Lessee's counsel.]
[Address to Lessor and Lessee]
R. Property c e u e o. Olio Master 'lax- xempfl:ease/Purchase greement etween U.SBancorp Equipment Finance, Inc.
and Town of Avon.
Ladies and Gentlemen:
We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the Master Tax- Exempt Lease/Purchase
Agreement, dated as of August 26, 2011 (the "Master Agreement "), between Town of Avon, as lessee, and U.S. Bancorp Equipment
Finance, Inc. as lessor ( "Lessor"), and the execution of Property Schedule No. 01 (the "Property Schedule ") pursuant to the Master
Agreement. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion.
All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement and Property
Schedule.
As to questions of fact material to our opinion, we have relied upon the representations of Lessee in the Master Agreement and
the Property Schedule and in the certified proceedings and other certifications of public officials furnished to us without undertaking to
verify the same by independent investigation.
Based upon the foregoing, we are of the opinion that, under existing law:
1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a
substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) the
police power.
2. Lessee has all requisite power and authority to enter into the Master Agreement and the Property Schedule and to
perform its obligations thereunder.
3. The execution, delivery and performance of the Master Agreement and the Property Schedule by Lessee has been duly
authorized by all necessary action on the part of Lessee.
4. All proceedings of Lessee and its governing body relating to the authorization and approval of the Master Agreement
and the Property Schedule, the execution thereof and the transactions contemplated thereby have been conducted in accordance with all
applicable open meeting laws and all other applicable state and federal laws.
5. Lessee has acquired or has arranged for the acquisition of the Property subject to the Property Schedule, and has
entered into the Master Agreement and the Property Schedule, in compliance with all applicable public bidding laws.
6. Lessee has obtained all consents and approvals of other governmental authorities or agencies which may be required for
the execution, delivery and performance by Lessee of the Master Agreement and the Property Schedule.
7. The Master Agreement and the Property Schedule have been duly executed and delivered by Lessee and constitute
legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the
enforcement thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable
principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting remedies or
creditors' rights generally, and to the exercise of judicial discretion in appropriate cases.
DWT 8732378v4 0085238 -000001
8. As of the date hereof, based on such inquiry and investigation as we have deemed sufficient, no litigation is pending,
(or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the
Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master
Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or
interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the
execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the
Master Agreement and the Property Schedule.
This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an opinion with
respect to the Property Schedule.
Very truly yours,
By:
Dated:
DWT 8732378v4 0085238- 000001
XHIBIT 3
essee's Certificat
Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon.
The undersigned, being the duly elected, qualified and actingXQUW n C, le rr� pf, the Town of Avon ( "Lessee ") do
hereby certify, as of August 26, 2011, as follows:
1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or
ordinance duly enacted, in accordance with all requirements of law, approve and authorize t e exdbution and delivery of the above -
ref —r—i Prnnerty CchP�lulP lthe ';?wpert) CchPrinl _ ;) aaw t6 _ e,(EU�h -Agree. . qqt ( ', a Qas�je-
- -- ---- _r_- -rte -.--�- _... -- -- - - -- .._ - - --- -- ------
Agreement") by the following named representative of Lessee, to wit:
NAME
OF EXECUTING OFFICIAL
TITLE
OF EXECUTING OFFICIAL
SIGNATURE
OF EXECUT OFF L
And/ Or
2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time
the office set forth above.
3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were
approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the
members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution
thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of
Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the
public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted
in accordance with the charter of the Lessee, if any, and the laws of the State.
4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an
Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with
respect to this Property Schedule or any other Property Schedules under the Master Agreement.
5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body
of Lessee.
6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the
current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule
and to meet its other obligations for the current budget year and such funds have not been expended for other purposes.
7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a)
seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the
Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity
of the Master Agreement or the Property Schedule, or the payment of principal of or i the Property Schedule; (c)
questioning the constitutionality of any statute, or the validity of any proceedings, authori ' 0fe of the Master Agreement
and the Property Schedule; or (d) affecting the provisions made for the payment of o e Ry rcret er Agreement and the
Property Schedule.
I-own n - von
By. r emu
-
Title:
LORADO
SIGNER T NOT BET IF AS THE EXECUTING O FICIA S SHOWN ABOVE,
DWT 8732378v4 0085238- 000001
i is
Oank Qualification And Arbitrage Rebat
U.S. Bancorp Equipment Finance. Inc.
13010 SW 68th Parkway. Suite 100
Portland, OR 97223
Re: Property Schedule No. 01 to Master Tax- Exempt LeaselPurchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon
Bank Oualified Tax - Exempt Obligation under Section 265
Lessee hereby designates this Property Schedule as a "qualified tax- exempt obligation" as defined in Section 265(b)(3)(B) of the
Code. Lessee reasonably anticipates issuing tax- exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds
and including all tax- exempt obligations of subordinate entities of the Lessee) during the calendar year in which the Commencement Date
of this Property Schedule falls, in an amount not exceeding $10,000,000.
Arbitrage Rebate
Eighteen Month Exception:
Pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of this Property Schedule will be expended for the
governmental purposes for which this Property Schedule was entered into, as follows: at least 15% within six months after the
Commencement Date, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the
Commencement Date. If Lessee is unable to comply with Section 1.148 -7(d) of the Treasury Regulations, Lessee shall compute rebatable
arbitrage on this Agreement and pay rebatable arbitrage to the United States at least once every five years, and within 60 days after
payment of the final Lease Payment due under this Agreement.
Lessee: Town of Avon
OF AVON
.•Pp� Name: lC
co
Title: t laq
DWT 8732378x4 0085238- 000001
Language for UCC Financing Statements
Schedule l
SECURED PARTY: l'.S. Bancorp Equipment Finance. Inc.
DEBTOR: Town of Avon
This financing statement covers all of Debtor's right, title and interest, whether now owned or hereafter acquired, in and to the
equipment leased to Debtor under Property Schedule No. 01 dated August 26, 2011 to that certain Master Tax- Exempt Lease
Purchase Agreement dated as of August 26, 2011, in each case between Debtor, as Lessee, and Secured Party, as Lessor, together
with all accessions, substitutions and replacements thereto and therefore, and proceeds (cash and non - cash), including, without
limitation, insurance proceeds, thereof, including without limiting, all equipment described on Exhibit A attached hereto and made a
part hereof.
Debtor has no right to dispose of the equipment.
DWT 8732378x4 0085238 - 000001
INSURANCE AUTHORIZATION AND VERIFICATION
Date: �_ ( Property Schedule No: 01
To: Town of Avon (the "Lessee ") From: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ")
PO Box 975 13010 SW 68th Parkway, Suite 100
Avon, CO 81620 Portland, OR 97223
Attn: Regina Eckendorf
TO THE LESSEE: In connection with the above - referenced Property Schedule, Lessor requires proof in the form of this document, executed
by both Lessee* and Lessee's agent, that Lessee's insurable interest in the financed property (the "Property ") meets Lessor's requirements as
follows, with coverage including, but not limited to, fire, extended coverage, vandalism, and theft:
Lessor, AND ITS SUCCESSORS AND ASSIGNS, shall be covered as both ADDITIONAL INSURED and LENDER'S LOSS
PAYEE with regard to all equipment financed or leased by policy holder through or from Lessor. All such insurance shall contain
a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor
and Lessee at least thirty (30) days in advance of such cancellation or modification.
Lessee must t airy GENEWAZ LTABILTI Y'(and %or, for vehiles, urC— om bile Liibility) in the amount'of no ess than $'1;OD -0 -,6 .00
(one million dollars).
Lessee must carry PROPERTY Insurance (or, for vehicles, Physical Damage Insurance) in an amount no less than the
'Insurable Value' $563,811.00, with deductibles no more than $10,000.00.
*Lessee: Please execute this form and return with your document package. Lessor will fax this form to your insurance agency for endorsement. In
lieu of agent endorsement, Lessee's agency may submit insurance certificates demonstrating compliance with all requirements. If fully executed
form
(or Lessee- executed form plus certificates) is not provided within 15 days, we have the right to purchase such insurance at your expense. Should you
have any questions, please contact Regina Eckendorf at (303) 585 -4025.
By signing, Lessee authorizes the Agent named below: 1) to complete and return this form as indicated; and 2) to endorse the policy and
subsequent renewals to reflect the required coverage as outlined above.
Agency /Agent:
Address:
Phone/Fax:
E -Mail
Tow
By:
Nan
Tith
TO THE AGENT: In lieu of providing a certificate, please execute this form in the space below and promptly fax it to Lessor at
Thisfully endorsed form shall serve as proof that Lessee's insurance meets the above requirements.
Agent hereby verifies that the above requirements have been met in regard to the Property listed below.
Print Name Of Agency: X
By: X
(Agent's Signature)
Print Name: X
Insurable Value: $ [amount offinancing/
Date: X
ATTACHED: PROPERTY DESCRIPTION FOR PROPERTY SCHEDULE NO.: 01
DWT 8732378v4 0085238 -000001
TITLING ADDENDUM
Addendum to the Master Tax - Exempt Lease/Purchase Agreement dated August 26, 2011, between the
Town of Avon as Lessee and U.S.Bancorp Equipment Finance Inc as Lessor.
1. Lessor and Lessee hereby agree to amend the above referenced Agreement to add additional terms
and conditions as set forth below:
Lessee agrees that it will provide to Lessor the original title
documentation to the Equipment. Lessee shall provide such title
documentation to Lessor within 15 days of Lessee's receipt of such title
documentation from the appropriate titling authority. Lessee's failure to
provide Lessor with title documentation to the Equipment in a timely
fashion shall be deemed a condition of Default as defined in the default
paragraph herein ciihiect t remQdiec avai�ie_tp- LeSgp(�i[sliant to the
remedies paragraph. You further agree to pay a month to month
unobtained titling fee if we have not received the correct transferred title
in our office.
2. Location: Lessor agrees that in regard to the location of the equipment, Lessee must be responsible for
maintaining records showing the location of each piece of Leased equipment. Lessee will report this
location to Lessor upon written request by Lessor. Failure to do so shall constitute a breach of the
Agreement, which default shall be governed by the terms and conditions specified in the default and/or
remedies paragraph of the Agreement.
3. Lessee will complete the physical titling of the vehicle as required by the state of Lessee's residence
and guarantee US Bancorp Equipment Finance Inc. that US Bancorp Equipment Finance Inc. will receive
the original title to the leased vehicle in a timely manner. Lessee agrees to indemnify US Bancorp
Equipment Finance Inc. from any damage or loss it incurs, including legal fees, due to its failure to
complete its agreement herein.
THE APPLICATION FOR TITLE MUST INCLUDE US BANCORP EQUIPMENT
FINANCE INC., 13010 SW 68`h Parkway, Suite 100, Portland, OR 97223 AS 1ST
LIEN - HOLDER.
By signing this Addendum, Lessee acknowledges the above changes to the Agreement and authorizes
Lessor to make such changes. In all other respects the terms and conditions of the Agreement remain in
full force and effect.
U.S. Bancorp Equipment Finance. Inc.
Town of Avon
Lessor
Lessee
X
Signature
Signature
223tial?,
Title
Title _..._ —
1; i t
Date
Date
0313
Foy 8038�� Information Return for Tax - Exempt Governmental Obligations
► Under Internal Revenue Code section 149(e) OMB No. 1545 -0720
(Rev. May 2010) ► See separate instructions.
Department of the Treasury Caution: If the issue price is under $100,000, use Form 8038 -GC.
Internal Revenue Senrloe
LEM Reporting Autihordy I
If Amended Return, check here ► LJ
1 Issuer's name 2
2 I
Issuer's employer Identification number (ON)
Town of Avon, Colorado 8
84 0771088
3 Number and street (or P.O. box if mail is not delivered to street address) R
Room/suite 4
4 R
Report number (For IRS Use Only)
PO Box 975 1
13
5 City, town, or post office, state, and ZIP code 6
6 D
Date of Issue
Avon, CO 81620 0
08/23/2011
7 Name of issue 8
8 C
CUSIP number
Master Tax-Exempt Lease /Purchase Agreement N
None
9 Name and tide of officer of the issuer or other person whom the IRS may call for more information 1
10 T
Telephone number of officer or other persor
Scott Wright (
( 970 ) 748.4055
UITIM Tvee of Issue tenter the issue price) See instructions and attach schedule
Education--:--T - - ----- -- - . - .
12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . 12
13 Transportation . . . . . . . . . . . . . . . . . . . . . . . . . 13
14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
15 Environment (including sewage bonds) . . . . . . . . . . . . . . . . . . 15
16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
17 Utilities . . . . . . . . . . 17
18 Other. Describe Do- m
Mun14ai Equlpent (Snowplow, Transit Bus) 18 563,8�1-00
19 If obligations are TANS or RANs, check only box 19a . . . . . . . . . . . . ► ❑
If obligations are BANS, check only box 19b . . . . . . . . . . . . . . . ► ❑
20 If obligations are in the form of a lease or installment sale, check box . . . . . . . ► m
I
Descri tion of Obligations. Complete for the entire issue for which this form is bein q filed.
(a) Final maturity date (b) Issue price (c) Stated redemption (d) Weighted (e) Yleld
price at maturity average maturity
21 08/26/2018 $ 563,811.00 1 $ NA 7 years 3.16 %
Uses of Proceeds of Bond Issue fincludina underwriters' discount]
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . 22
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . 23
24 Proceeds used for bond issuance costs (including underwriters' discount) . 24
25 Proceeds used for credit enhancement . . . . . . . . . . . 25
26 Proceeds allocated to reasonably required reserve or replacement fund . . 26
27 Proceeds used to currently refund prior issues . . . . . . . . . 27
28 Proceeds used to advance refund prior issues . . . . . . . . . 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . 29
30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30
Descri tion of Refunded Bonds (Complete this part on for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ►
34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY)
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . . 22
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . 23
24 Proceeds used for bond issuance costs (including underwriters' discount) . 24
25 Proceeds used for credit enhancement . . . . . . . . . . . 25
26 Proceeds allocated to reasonably required reserve or replacement fund . . 26
27 Proceeds used to currently refund prior issues . . . . . . . . . 27
28 Proceeds used to advance refund prior issues . . . . . . . . . 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . 29
30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30
Descri tion of Refunded Bonds (Complete this part on for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ►
34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY)
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010)
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► yew
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ►
34 Enter the date(s) the refunded bonds were issued ► (MM/DD/YYYY)
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 537733 Form 8038 -G (Rev. 5 -2010)
Form 8038 -G (Rev. 5 -2010)
Page 2
Miscellaneous
35
Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . .
35
36a
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . .
36a
b
Enter the final maturity date of the GIC ►
37
Pooled financings: a Proceeds of this issue that are to be used to make loans to other
governmental units . . . . . . . . . . . . . . . . . . . . . . . . .
37a
b
If this issue is a loan made from the proceeds of another tax- exempt issue, check box ► ❑ and enter the
name of the
issuer ► and the date of the issue ►
38
If the issuer has designated the issue under section 265(b)(3)(B)(i)(111) (small issuer exception), check box . .
. . ► ❑
39
If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . .
. . . .
. . ► ❑
40
If the issuer has identified a hedge, check box . . . . . . . . . . . . . . . . . .
. . . .
. . ► ❑
Under pen tties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
Signature and , th are true, correct, and complete. rther declare that I consent to the IRS's disclosure of the issuer's return information, as necessary
to cess thi return, to the person that A hay@ a onzed above.
—
Consent ' Y aZ �O ' Scott Wright, Asst. Town Manager
Signature of issuer's authorized rep r tative Date I Type or print name and title
Paid Preparer's Date Check If Preparer's SSN or "N
Preparer's signature Firm's name (or self -emplo ed ❑
Use Only yours If sett- employed),' EIN
address. and ZIP code Phone no. ( )
Form 8038-6 (Rev. 5 -2010)
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ( "Escrow Agreement") is made as of August 26, 2011 by and
among U.S. Bancorp Equipment Finance, Inc. ("Lessor"), Town of Avon ( "Lessee ") and U.S.
BANK NATIONAL ASSOCIATION, as escrow agent ( "Escrow Agent ").
Lessor and Lessee have heretofore entered into that certain Master Tax - Exempt Lease
Purchase Agreement dated as of August 26, 2011 (the "Master Agreement') and a Schedule No.
01 thereto dated August 26, 2011 (the "Schedule " and, together with the terms and conditions
of the Agreement incorporated therein, the "Agreement "). The Schedule contemplates that
certain personal property described therein (the "Equipment") is to be acquired from the
Lessee, the Equipment is to be financed by Lessor to Lessee pursuant to the terms of the
Agreement.
The Master Agreement further contemplates that Lessor will deposit an amount equal to
the anticipated aggregate acquisition cost of the Equipment (the "Purchase Price"), being
$563,811.00, with Escrow Agent to be held in escrow and applied on the express terms set forth
herein. Such deposit, together with all interest and other additions received with respect thereto
(hereinafter the "Escrow Fund") is to be applied to pay the Vendor its invoice cost (a portion of
which may, if required, be paid prior to final acceptance of the Equipment by Lessee); and, if
applicable, to reimburse Lessee for progress payments already made by it to the Vendor of the
Equipment.
The parties desire to set forth the terms on which the Escrow Fund is to be created and to
establish the rights and responsibilities of the parties hereto.
Now, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) in hand paid, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. (a) Escrow Agent hereby agrees to serve as escrow agent upon the terms
and conditions set forth herein. (b) The moneys and investments held in the Escrow Fund are
irrevocably held in trust for the benefit of Lessee and Lessor, and such moneys, together with
any income or interest earned thereon, shall be expended only as provided in this Escrow
Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any
creditor of either Lessee or Lessor. Lessor, Lessee and Escrow Agent intend that the Escrow
Fund constitute an escrow account in which Lessee has no legal or equitable right, title or
interest until satisfaction in full of all conditions contained herein for the disbursement of funds
by the Escrow Agent therefrom. However, if the parties' intention that Lessee shall have no
legal or equitable right, title or interest until all conditions for disbursement are satisfied in full is
not respected in any legal proceeding, the parties hereto intend that Lessor have a security
interest in the Escrow Fund, and such security interest is hereby granted by Lessee to secure
payment of all sums due to Lessor under the Master Agreement. For such purpose, Escrow
Agent hereby agrees to act as agent for Lessor in connection with the perfection of such security
DWT 17415530vl0085238- 000005
interest and agrees to note, or cause to be noted, on all books and records relating to the Escrow
Fund, the Lessor's interest therein.
2. On such day as is determined to the mutual satisfaction of the parties (the "Closing
Date"), Lessor shall deposit with Escrow Agent cash in the amount of the Purchase Price, to be
held in escrow by Escrow Agent on the express terms and conditions set forth herein.
On the Closing Date, Escrow Agent agrees to accept the deposit of the Purchase Price by
Lessor, and further agrees to hold the amount so deposited together with all interest and other
additions received with respect thereto, as the Escrow Fund hereunder, in escrow on the express
terms and conditions set forth herein.
3. Escrow Agent shall at all times segregate the Escrow Fund into an account
maintained for that express purpose, which shall be clearly identified on the books and records of
Escrow Agent as being held in its capacity as Escrow Agent. Securities and other negotiable
instruments comprising the Escrow Fund from time to time shall be held or registered in the
name of Escrow Agent (or its nominee). The Escrow Fund shall not, to the extent permitted by
applicable law, be subject to levy or attachment or lien by or for the benefit of any creditor of
any of the parties hereto (except with respect to the security interest therein held by Lessor).
4. The cash comprising the Escrow Fund from time to time shall be invested and
reinvested by Escrow Agent in one or more investments as directed by Lessee in Exhibit 1.
Lessee represents and warrants to Escrow Agent and Lessor that the investments selected by
Lessee for investment of the Escrow Fund are permitted investments for Lessee under all
applicable laws. Escrow Agent will use due diligence to collect amounts payable under a check
or other instrument for the payment of money comprising the Escrow Fund and shall promptly
notify Lessee and Lessor in the event of dishonor of payment under any such check or other
instruments. Interest or other amounts earned and received by Escrow Agent with respect to the
Escrow Fund shall be deposited in and comprise a part of the Escrow Fund. Escrow Agent shall
maintain accounting records sufficient to permit calculation of the income on investments and
interest earned on deposit of amounts held in the Escrow Fund.
5. Upon request by Lessee and Lessor, Escrow Agent shall send monthly statements of
account to Lessee and Lessor, which statements shall set forth all withdrawals from and interest
earnings on the Escrow Fund as well as the. investments in which the Escrow Fund is invested.
6. Escrow Agent shall take the following actions with respect to the Escrow Fund:
(a) Upon Escrow Agent's acceptance of the deposit of the Purchase Price, an
amount equal to Escrow Agent's set -up fee, as set forth on Exhibit 2 hereto, shall be
disbursed from the Escrow Fund to Escrow Agent in payment of such fee.
(b) From time to time, Escrow Agent shall pay costs of the Equipment upon
receipt of duly executed Requisition Request form attached as Exhibit 3 hereto (each, a
"Requisition"), subject to Lessor's prior written approval of each such Requisition. The
-2-
DWT 17415530vl 0085238- 000005
final Requisition shall be accompanied by a duly executed Certificate of Acceptance form
attached as Exhibit 4 hereto.
(c) Upon receipt by Escrow Agent of written notice from Lessor that an Event
of Default or an Event of Nonappropriation (if provided for under the Master Agreement)
has occurred under the Agreement, all funds then on deposit in the Escrow Fund shall be
paid to Lessor for application in accordance with the Master Agreement, and this Escrow
Agreement shall terminate.
(d) Upon receipt by Escrow Agent of written notice from Lessor that the
purchase price of the Equipment has been paid in full, Escrow Agent shall pay the funds
then no dennsit in the Fsrrnw Fund to T.essor to he applied first to the next T Pace
Payment due under the Master Agreement, and second, to prepayment of the principal
component of Lease Payments in inverse order of maturity without premium. To the
extent the Agreement is not subject to prepayment, Lessor consents to such prepayment
to the extent of such prepayment amount from the Escrow Fund. Upon disbursement of
all amounts in the Escrow Fund, this Escrow Agreement shall terminate.
(e) This Escrow Agreement shall terminate eighteen (18) months from the
date of this Escrow Agreement. It may, however, be extended by mutual consent of
Lessee and Lessor in writing to Escrow Agent. All funds on deposit in the Escrow Fund
at the time of termination under this paragraph shall be transferred to Lessor and shall be
applied first to the next Lease Payment due under the Master Agreement, and second to
prepayment of the principal component of Lease Payments in inverse order of maturity
without premium. To the extent the Master Agreement is not subject to prepayment,
Lessor consents to such prepayment to the extent of such prepayment amount from the
Escrow Fund.
7. The fees and expenses, including any legal fees, of Escrow Agent incurred in
connection herewith shall be the responsibility of Lessee. The basic fees and expenses of
Escrow Agent shall be as set forth on Exhibit 2 and Escrow Agent is hereby authorized to deduct
such fees and expenses from the Escrow Fund as and when the same are incurred without any
further authorization from Lessee or Lessor. Escrow Agent may employ legal counsel and other
experts as it deems necessary for advice in connection with its obligations hereunder. Escrow
Agent waives any claim against Lessor with respect to compensation hereunder.
8. Escrow Agent shall have no liability for acting upon any written instruction
presented by Lessor in connection with this Escrow Agreement, which Escrow Agent in good
faith believes to be genuine. Furthermore, Escrow Agent shall not be liable for any act or
omission in connection with this Escrow Agreement except for its own negligence, willful
misconduct or bad faith. Escrow Agent shall not be liable for any loss or diminution in value of
the Escrow Fund as a result of the investments made by Escrow Agent.
9. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice
to Lessor and Lessee. Lessor may at any time remove Escrow Agent as Escrow Agent under this
-3-
DWT 17415530v1 0085238- 000005
Escrow Agreement upon written notice. Such removal or resignation shall be effective on the
date set forth in the applicable notice. Upon the effective date of resignation or removal, Escrow
Agent will transfer the Escrow Fund to the successor Escrow Agent selected by Lessor.
10. Lessee hereby represents, covenants and warrants that pursuant to Treasury
Regulations Section 1.148 -7(d), the gross proceeds of the Agreement will be expended for the
governmental purposes for which the Agreement was entered into, as follows: at least 15%
within six months after the Commencement Date, such date being the date of deposit of funds
into the Escrow Fund, at least 60% within 12 months after the Commencement Date, and 100%
within 18 months after the Commencement Date. If Lessee is unable to comply with Section
1.148- 1l7(d)of the Treasury Regulations, 'Lessee ,shall, at its sole expense
♦ and
l cost, compute
1rP�7*O ^1P 2r- bitr2gr !g }17P egrgerngnt :and \l TP1+9 *able O� ';t' P to the 11nita l Riatos at
once every five years, and within 60 days after payment of the final rental or Lease Payment due
under the Agreement.
11. In the event of any disagreement between the undersigned or any of them, and/or
any other person, resulting in adverse claims and demands being made in connection with or for
any moneys involved herein or affected hereby, Escrow Agent shall be entitled at its option to
refuse to comply with any such claim or demand, so long as such disagreement shall continue,
and in so refusing Escrow Agent may refrain from making any delivery or other disposition of
any moneys involved herein or affected hereby and in so doing Escrow Agent shall not be or
become liable to the undersigned or any of them or to any person or party for its failure or refusal
to comply with such conflicting or adverse demands, and Escrow Agent shall be entitled to
continue so to refrain and refuse so to act until:
(a) the rights of the adverse claimants have been finally adjudicated in a court
assuming and having jurisdiction of the parties and the moneys involved herein or
affected hereby; or
(b) all differences shall have been adjusted by Master Agreement and Escrow
Agent shall have been notified thereof in writing signed by all of the persons interested.
12. All notices (excluding billings and communications in the ordinary course of
business) hereunder shall be in writing, and shall be sufficiently given and served upon the other
party if delivered (a) personally, (b) by United States registered or certified mail, return receipt
requested, postage prepaid, (c) by an overnight delivery by a service such as Federal Express or
Express Mail from which written confirmation of overnight delivery is available, or (d) by
facsimile with a confirmation copy by regular United States mail, postage prepaid, addressed to
the other party at its respective address stated below the signature of such party or at such other
address as such party shall from time to time designate in writing to the other party, and shall be
effective from the date of mailing.
13. This Escrow Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns. No rights or obligations of Escrow
-4-
DWT 17415530vl 0085238- 000005
Agent under this Escrow Agreement may be assigned without the prior written consent of
Lessor.
14. This Escrow Agreement shall be governed by and construed in accordance with the
laws in the state of the Escrow Agent's location. This Escrow Agreement constitutes the entire
Agreement between the parties hereto with respect to the subject matter hereof, and no waiver,
consent, modification or change of terms hereof shall bind any party unless in writing signed by
all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly
executed as of the day and year first above set forth.
U.S. Bancorp Equipment Finance, Inc.,
as Lessor
By
Name:
Title:
Address: 13010 SW 68th Parkway, Suite 100
Portland OR 97223
Town of Avon
as Le
By
Name:
Title:
v
Address: PO Box 975
Avon, CO 8 A ►S E A L
U.S. BANK NATIONAL ASSOCIA
as Escrow Agent
By
Name:
Title:
Address: U.S. Bank National Association
950 17°i Street, 12" Floor
Denver, CO 80202
-5-
DWT 17415530v10085238- 000005
U.S. Bank National Association
950 17' Street, 12" Floor
Denver, CO 80202
indicated:
EXHIBIT 1
INVESTMENT DIRECTION LETTER
Re: Escrow Agreement dated as of August 26 2011,
U.S. Bancorp Equipment Finance, Inc. as Lessor,
Town of Avon as Lessee, and
U.S. Bank National Association, as Escrow Agent
Pursuant to the above - referenced Escrow Agreement, $563, 11
8.00 will be deposited in escrow with you on or about
August 26, 2011. Such funds shall be invested in one or more of the following qualified investments in the amounts
U.S. Bank Money Market Account
Agent is hereby directed to deposit and invest funds in the U.S. Bank Money Market Savings Account. Depositors acknowledge
that the U. S. Bank Money Market account is a U. S. Bank National Association ( "U.S. Bank ") interest - bearing money market
deposit account designed to meet the needs of U.S. Bank's Corporate Trust Services Escrow Group and other Corporate Trust
customers of U.S. Bank. Selection of this investment includes authorization to place funds on deposit with U.S. Bank. U. S.
Bank uses the daily balance method to calculate interest on this account (actual /365 or 366). This method applies a daily periodic
rate to the principal balance in the account each day. Interest is accrued daily and credited monthly to the account. Interest rates
currently offered on the accounts are determined at U. S. Bank's discretion and may be tiered by customer deposit amount. The
owner of the accounts is U. S. Bank as Agent for its trust customers. U.S. Bank's trust department performs all account deposits
and withdrawals. Each customer's deposit is insured by the Federal Deposit Insurance Corporation as determined under FDIC
Regulations, up to applicable FDIC limits. Any and all interest earned on the Assets after the deposit shall be added to the Assets
and shall become a part thereof. Agent shall thereafter hold, maintain and utilize the Assets pursuant to the terms and conditions
of this Agreement. Depositors shall provide Agent with a W -9 or original W -8 IRS tax form prior to the disbursement of interest
and Agent will file the appropriate 1099 or other required forms pursuant to Federal and Texas laws. A statement of citizenship
will be provided if requested by Agent. Agent shall not be responsible for maximizing the yield on the Assets. Agent shall not
be liable for losses, penalties or charges incurred upon any sale or purchase of any such investment.
Very truly yours,
By: Town
Name
Title:
DWT 17415530vl 0085238- 000005
EXHIBIT 2
ESCROW AGENT FEES AND EXPENSES
SET -UP FEES
$0.00 payable from the Escrow Fund upon acceptance of escrow deposit.
EXPENSES
Any and all out -of- pocket expenses incurred by Escrow Agent will be the responsibility
DWT 17415530v1 0085238- 000005
August 24, 2011
U.S. Bancorp Equipment Finance, Inc.
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
ERIC J. HEIL, ESQ., A.I.C.P., OWNER
MERElMH VAN HORN, ESQ..ASSOCIATE
RE: Property Schedule No.1 to Master Tax - Exempt lease /Purchase Agreement between U.S.
Bancorp Equipment Finance, Inc. and Town of Avon
Ladies and Gentlemen:
We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the
Master Tax - Exempt Lease /Purchase Agreement, dated as of August 23, 2011 (the "Master
Agreement "), between the Town of Avon as lessee, and U.S. Bancorp Equipment Finance, Inc. as
lessor ( "Lessor "), and the execution of Property Schedule No 1 (the "Property Schedule ") pursuant
to the Master Agreement.
We have examined the law and such certified proceedings and other papers as we deem
necessary to render this opinion.
All capitalized terms not otherwise defined herein shall have the meanings provided in the
Master Agreement and Property Schedule.
As to questions of fact material to our opinion, we have relied upon the representations of
Lessee in the Master Agreement and the Property Schedule and in the certified proceedings and
other certifications of public officials furnished to us without undertaking to verify the same by
independent investigation.
Based upon the foregoing, we are of the opinion that, under existing law:
1. Lessee is a public body corporate and politic, duly organized and existing under the laws of
the State, and has a substantial amount of one or more of the following — sovereign powers:
(a) the power to tax, (b) the power of eminent domain, and (c) the police power.
Lessee has all requisite power and authority to enter Into the Master Agreement and the
Property Schedule and to perform its obligations thereunder.
3. The execution, delivery and performance of the Master Agreement and the Property
Schedule by Lessee has been duly authorized by all necessary action on the part of Lessee.
HEIL LAW & PLANNING, LLC OFFICE: 303.975.6120
2696 Sound COLORADO BLvD., SUITE SSO FAX: 720.836.3337
DENVER, CO 80222 E -MAIL: ERIC@HEILLAW.COM
U.S. Bancorp Equipment Finance, Inc.
Master Tax - Exempt Lease/Purchase Agreement
August 24, 2011
Pagd 2 of 2 '
4. All proceedings of Lessee and its governing body relating to the authorization and
approval of the Master Agreement and the Property Schedule, the execution thereof and
the transactions contemplated thereby have been conducted in accordance with all
applicable open meeting laws and all other applicable state and federal laws.
5. Lessee has acquired or has arranged for the acquisition of the Property subject to the
Property Schedule, and has entered Into the Master Agreement and the Property
Schedule, in compliance with all applicable public bidding laws.
6. Lessee has o tained all consents an`d- approvais of other goverrimehtal vttles or -�
agencies which may be required for the execution, delivery and performance by Lessee of
the Master Agreement and the Property Schedule.
7. The Master Agreement and the Property Schedule have been duly executed and delivered
by Lessee and constitute legal, valid and binding obligations of lessee, enforceable
against Lessee in accordance with the terms thereof, except insofar as the enforcement
thereof may be limited by any applicable bankruptcy, insolvency, moratorium,
reorganization or other laws of equitable principles of general application, or of
application to municipalities or political subdivisions such as the Lessee, affecting
remedies or creditors' rights generally, and to the exercise of judicial discretion in
appropriate cases.
8. As of the date hereof, based on such inquiry and Investigation as we have deemed
sufficient, no litigation is pending, (or, to our knowledge, threatened) against Lessee in
any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the
Property Schedule or of other agreements similar to the Master Agreement; (b)
questioning the authority of Lessee to execute the Master Agreement or the Property
Schedule, or the validity of the Master Agreement or the Property Schedule, or the
payment of principal of or interest on, the Property Schedule; (c) questioning the
constitutionality of any statute, or the validity of, any proceedings, authorizing• the
execution of the Master Agreement and thePropefty Schedule; or (d) affecting the
provisions made for the payment of or security for the Master Agreement.anci the Property
Schedule.
This opinion may be relied upon by Lessor, its successors and assigns, and any other legal
counsel who provides an opinion with respect to the Property Schedule.
E Si rely,
s
Eric J. il, Esq., A.I.C.P.
Avon Town Attorney
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager Initials
-egal -E c-14ei ,- -own Attorney — - -
From: Scott Wright, Asst. Town Manager — Finance
Date: August 18, 2011
Re: Resolution No. 11 -13 Master Tax- Exempt Lease/Purchase Agreement
Summary:
This resolution adopts a Master Tax- Exempt Lease/Purchase Agreement with U.S. Bancorp
Equipment Finance, Inc.
Discussion:
Capital lease purchases are a capital financing tool that lessen the burden of an initial purchase
of capital equipment and spreads the cost out over the estimated useful life of the asset.
This lease purchase agreement finances the purchase of a replacement Plow Truck and a 30 ft.
Gillig transit bus. These capital items and the lease financing were previously approved in the
2011 budget.
Financial Implications:
The amount of the lease is $563,811 to be amortized over a term of seven (7) years with semi-
annual payments at an interest rate of 3.16 %.
Recommendation:
Staff recommends that the Town Council approve the resolution discussed above as presented.
Town Manager Comments:
Page 1
Attachments:
A — Resolution No. 11 -13
B — Master Tax- Exempt Lease/Purchase Agreement and Exhibits
• Page 2
a
•
•
Memo
To: Honorable Mayor and Town Council
Thru: Larry Brooks, Town Manager
Legal: Eric Heil, Town Attorney
From: Scott Wright, Asst. Town Manager — Finance
Date: August 18, 2011
Initials
Re: Resolution No. 11 -13 Master Tax- Exempt Lease/Purchase Agreement
Summary:
This resolution adopts a Master Tax- Exempt Lease/Purchase Agreement with U.S. Bancorp
Equipment Finance, Inc.
Discussion:
Capital lease purchases are a capital financing tool that lessen the burden of an initial purchase
of capital equipment and spreads the cost out over the estimated useful life of the asset.
This lease purchase agreement finances the purchase of a replacement Plow Truck and a 30 ft.
Gillig transit bus. These capital items and the lease financing were previously approved in the
2011 budget.
Financial Implications:
The amount of the lease is $563,811 to be amortized over a term of seven (7) years with semi-
annual payments at an interest rate of 3.16 %.
Recommendation:
Staff recommends that the Town Council approve the resolution discussed above as presented.
Town Manager Comments:
Page 1
Attachments:
A — Resolution No. 11 -13
B — Master Tax - Exempt Lease /Purchase Agreement and Exhibits
• Page 2
CJ
r2
• TOWN OF AVON, COLORADO
RESOLUTION 11 -13
SERIES OF 2011
A RESOLUTION OF THE TOWN COUNCIL OF TOWN OF AVON,
AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER
EQUIPMENT LEASE- PURCHASE AGREEMENT AND SEPARATE
LEASE SCHEDULE WITH RESPECT TO THE ACQUISITION,
PURCHASE, FINANCING AND LEASING OF CERTAIN EQUIPMENT
FOR THE PUBLIC BENEFIT; AUTHORIZING THE EXECUTION AND
DELIVERY OF DOCUMENTS REQUIRED IN CONNECTION
THEREWITH; AND AUTHORIZING THE TAKING OF ALL OTHER
ACTIONS NECESSARY TO THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED BY THIS RESOLUTION.
WHEREAS, Town of Avon (the "Lessee"), a body politic and corporate duly organized
and existing as a home rule authority municipal corporation and body politic organized under the
laws of the State of Colorado, is authorized by the laws of the State of Colorado to purchase,
acquire and lease personal property for the benefit of the Lessee and its inhabitants and to enter
into contracts with respect thereto; and
WHEREAS, the Lessee desires to purchase, acquire and lease certain equipment
• constituting personal property necessary for the Lessee to perform essential governmental
functions; and
WHEREAS, in order to acquire such equipment, the Lessee proposes to enter into that
certain Master Tax - Exempt Lease /Purchase Agreement (the "Agreement") and separate Lease
Schedules and Escrow Agreements from time to time as provided in the Agreement with U.S
BANCORP EQUIPMENT FINANCE, INC. (the "Lessor"), the forms of which have been
presented to the governing body of the Lessee at this meeting; and
WHEREAS, the governing body of the Lessee deems it for the benefit of the Lessee and
for the efficient and effective administration thereof to enter into the Agreement and the separate
Lease Schedules and Escrow Agreements as provided in the Agreement for the purchase,
acquisition and leasing of the equipment therein described on the terms and conditions therein
provided.
NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN
OF AVON, COLORADO the following:
Section 1.Approval of Documents. The form, terms and provisions of the Agreement and the
separate Lease Schedules and Escrow Agreement as provided in the Agreement are hereby
approved in substantially the form presented at this meeting, with such insertions, omissions and
changes as shall be approved by the Mayor of the Lessee or other members of the governing
• Resolution 11- Master Equipment Lease - Purchase Agreement US Bank
MVH 8.15.11
Page 1 of 3
body of the Lessee executing the same, the execution of such documents being conclusive
evidence of such approval; and the Mayor of the Lessee is hereby authorized and directed to •
execute, and the Town Clerk of the Lessee is hereby authorized and directed to attest and
countersign, the Agreement and each Lease Schedule and Escrow Agreement and any related
Exhibits attached thereto and to deliver the Agreement and each Lease Schedule and Escrow
Agreement (including such Exhibits) to the respective parties thereto, and the Town Clerk of the
Lessee is hereby authorized to affix the seal of the Lessee to such documents.
Section 2.Other Actions Authorized. The officers and employees of the Lessee shall take all
action necessary or reasonably required by the parties to the Agreement and each Lease Schedule
and Escrow Agreement to carry out, give effect to and consummate the transactions
contemplated thereby (including the execution and delivery of the Acceptance Certificate
contemplated in the Agreement and any tax certificate and agreement, each with respect to
separate Lease Schedules, as provided in the Agreement) and to take all action necessary in
conformity therewith, including, without limitation, the execution and delivery of any closing
and other documents required to be delivered in connection with the Agreement and each Lease
Schedule.
Section 3. No General Liability. Nothing contained in this Resolution, the Agreement, any
Lease Schedule, nor any other instrument shall be construed with respect to the Lessee as
incurring a pecuniary liability or charge upon the general credit of the Lessee or against its taxing
power, nor shall the breach of any agreement contained in this Resolution, the Agreement, any
Lease Schedule, or any other instrument or document executed in connection therewith impose •
any pecuniary liability upon the Lessee or any charge upon its general credit or against its taxing
power, except to the extent that the Rental Payments payable under each Lease are special
limited obligations of the Lessee as provided in such Lease.
Section 4. Appointment of Authorized Lessee Representatives. The Town Manager and
Assistant Town Manager of the Lessee are each hereby designated to act as authorized
representatives of the Lessee for purposes of the Agreement and each Lease Schedule until such
time as the governing body of the Lessee shall designate any other or different authorized
representative for purposes of the Agreement and each Lease Schedule.
Section 5. Section 265(b)(3) Designation. Lessee hereby designates the Agreement as a
"qualified tax - exempt obligation" for the purposes and within the meaning of Section 265(b)(3)
of the Internal Revenue Code of 1986, as amended.
Section 6. Severability. If any section, paragraph, clause or provision of this Resolution shall
for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such
section, paragraph, clause or provision shall not affect any of the remaining provisions of this
Resolution.
Section 8. Effective Date. This Resolution shall be effective immediately upon its approval and
adoption.
•
Resolution 11- Master Equipment Lease - Purchase Agreement US Bank
MVH 8.15.11
Page 2 of 3
• ACCEPTED, APPROVED AND ADOPTED August _, 2011.
AVON TOWN COUNCIL
[Seal]
Attest:
r�
Patty McKenny, Town Clerk
IIn
Rich Carroll, Mayor
• Resolution 11- Master Equipment Lease - Purchase Agreement US Bank
g
MVH 8.15.11
Page 3 of 3
4
Master Tax - Exempt Lease /Purchase Agreement
Between: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ") •
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
And: Town of Avon (the "Lessee ")
PO Box 975
Avon, CO 81620
Attention: Scott Wright
Telephone: 970 - 748 -4055
Dated: August 26, 2011
ARTICLE 1
DEFINITIONS
The following terns will have the meanings indicated below unless the context clearly requires otherwise:
"Agreement" means this Master Tax - Exempt Lease /Purchase Agreement, including all exhibits and schedules attached hereto.
"Code" is defined in Section 3.01(f).
"Commencement Date" is the date when the term of a Property Schedule and Lessee's obligation to pay rent thereunder commences, which date shall be set forth in such Property Schedule.
"Event of Default" is defined in Section 13.01.
"Lease Payments" means the Lease Payments payable by Lessee under Article VI of this Agreement and each Property Schedule, as set forth in each Property Schedule. Lease Payment
Dates" means the Lease Payment dates for the Lease Payments as set forth in each Property Schedule.
"Lease Term" means, with respect to a Property Schedule, the Original Tenn and all Renewal Terns. The Lease Tenn for each Property Schedule executed hereunder shall be set forth in
such Property Schedule, as provided in Section 4.02.
"Lessee" means the entity identified as such in the first paragraph hereof, and its permitted successors and assigns. •
"Lessor" means the entity identified as such in the first paragraph hereof, and its successors and assigns.
"Nona 1) propriation Event" is defined in Section 6.06.
"Original Term" means, with respect to a Property Schedule, the period from the Commencement Date until the end of the budget year of Lessee in effect at the Commencement Date.
"Property" means, collectively, the property lease /purchased pursuant to this Agreement, and with respect to each Property Schedule, the property described in such Property Schedule, and
all replacements, repairs, restorations, modifications and improvements thereof or thereto made pursuant to Section 8.01 or Article IX.
"Property Schedule" means a Property Schedule in the form attached hereto for Property Schedule I. Subsequent Property Schedules pursuant to this Agreement shall be numbered
consecutively, beginning with Property Schedule 2.
"Purchase Price" means the amount that Lessee may, in its discretion, pay to Lessor to purchase the Property under a Property Schedule, as provided in Section 11.01 and as set forth in the
Property Schedule.
"Renewal Terms" means the renewal terns o£a Property Schedule, each having a duration of one year and a tern coextensive with Lessee's budget year.
"State" means the state where Lessee is located.
"Vendor" means the manufacturer or contractor of the Property as well as the agents or dealers of the manufacturer or contractor from whom Lessor or Lessee purchased or is purchasing all
or any portion of the Property.
ARTICLE 11
2.01 Property Schedules Separate Financines. Each Property Schedule executed and delivered under this Agreement shall be a separate financing, distinct from other Property
Schedules. Without limiting the foregoing, upon the occurrence of an Event of Default or a Nonappropriation Event with respect to a Property Schedule, Lessor shall have the rights and
remedies specified herein with respect to the Property financed and the Lease Payments payable under such Property Schedule, and except as expressly provided in Section 12.02 below,
Lessor shall have no rights or remedies with respect to Property financed or Lease Payments payable under any other Property Schedules unless an Event of Default or Nonappropriation
Event has also occurred under such other Property Schedules.
ARTICLE 111
3.01 Covenants of Lessee. As of the Commencement Date for each Property Schedule executed and delivered hereunder, Lessee shall be deemed to represent, covenant and warrant
for the benefit of Lessor as follows:
(a) Lessee is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority to enter into this
Agreement and the Property Schedule and the transactions contemplated thereby and to perform all of its obligations thereunder.
(b) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a body corporate and politic. To the extent Lessee
should merge with another entity under the laws of the State, Lessee agrees that as a condition to such merger it will require that the remaining or resulting entity shall be
assigned Lessee's rights and shall assume Lessee's obligations hereunder.
(c) Lessee has been duly authorized to execute and deliver this Agreement and the Property Schedule by proper action by its governing body, or by other appropriate official
approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Property Schedule,
and Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the Property Schedule and the acquisition by Lessee of the
Property thereunder. On or before the Commencement Date for the Property Schedule, Lessee shall cause to be delivered an opinion of counsel in substantially the fonn
attached to the fonn of the Property Schedule as Exhibit 2.
DWT 8732378v4 0085238- 000001 /
b
(d) During the Lease Tenn for the Property Schedule, the Property thereunder will perform and will be used by Lessee only for the purpose of performing essential
governmental uses and public functions within the permissible scope of Lessee's authority.
(e) Lessee will provide Lessor with current financial statements, budgets and proof of appropriation for the ensuing budget year and other financial information relating to the
• ability of Lessee to continue this Agreement and the Property Schedule in such form and containing such information as may be requested by Lessor.
(f) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended (the "Code "), including Sections 103 and 148 thereof, and the regula-
tions of the Treasury Department thereunder, from time to time proposed or in effect, in order to maintain the excludability from gross income for federal income tax
purposes of the interest component of Lease Payments under the Property Schedule and will not use or permit the use of the Property in such a manner its to cause a
Property Schedule to be a "private activity bond" under Section 141(a) of the Code. Lessee covenants and agrees that it will use the proceeds of the Property Schedule as
soon as practicable and with all reasonable dispatch for the purpose for which the Property Schedule has been entered into, and that no part of the proceeds of the Property
Schedule shall be invested in any securities, obligations or other investments except for the temporary period pending such use nor used, at any time, directly or indirectly,
in a manner which, if such use had been reasonably anticipated on the date of issuance of the Agreement, would have caused any portion of the Property Schedule to be or
become "arbitrage bonds" within the meaning of Section 103(b)(2) or Section 148 of the Code and the regulations of the Treasury Department thereunder proposed or in
effect at the time of such use and applicable to obligations issued on the date of issuance of the Property Schedule.
(g) The execution, delivery and performance of this Agreement and the Property Schedule and compliance with the provisions hereof and thereof by Lessee does not conflict
with or result in a violation or breach or constitute a default under, any resolution, bond, agreement, indenture, mortgage, note, lease or other instrument to which Lessee is
a party or by which it is bound by any law or any rule, regulation, order or decree of any court, governmental agency or body having jurisdiction over Lessee or any of its
activities or properties resulting in the creation or imposition of any lien, charge or other security interest or encumbrance of any nature whatsoever upon any property or
assets of Lessee or to which it is subject.
(h) Lessee's exact legal name is as set forth on the first page of this Agreement. Lessee will not change its legal name in any respect without giving thirty (30) days prior notice
to Lessor.
ARTICLE IV
4.01 Lease of Property. On the Commencement Date of each Property Schedule executed hereunder, Lessor will be deemed to demise, lease and let to Lessee, and Lessee will be
deemed to rent, lease and hire from Lessor, the Property described in such Property Schedule, in accordance with this Agreement and such Property Schedule, for the Lease Tent set forth in
such Property Schedule.
4.02 Lease Term. The tern of each Property Schedule shall commence on the Commencement Date set forth therein and shall terminate upon payment of the final Lease Payment set
forth in such Property Schedule and the exercise of the Purchase Option described in Section 11.01, unless terminated sooner pursuant to this Agreement or the Property Schedule.
4.03 Delivery, Installation and Acceptance of Pronerry. Lessee shall order the Property, shall cause the Property to be delivered and installed at the locations specified in the
applicable Property Schedule and shall pay all taxes, delivery costs and installation costs, if any, in connection therewith. To the extent funds are deposited under an escrow ngreentent or trust
agreement for the acquisition of the Property, such funds shall be disbursed as provided therein. When the Property described in such Property Schedule is delivered, installed and accepted as
to Lessee's specifications, Lessee shall immediately accept the Property and evidence said acceptance by executing and delivering to Lessor the Acceptance Certificate substantinlly in the
form attached to the Property Schedule.
ARTICLE V
5.01 Eniovment of Property. Lessee shall during the Lease Tenn peaceably and quietly have, hold and enjoy the Property, without suit, trouble or hindrance from Lessor, except as
expressly set forth in this Agreement. Lessor shall not interfere with such quiet use and enjoyment during the Lease Tenn so long as Lessee is not in default under the subject Property
•Schedule.
5.02 Location; Inspection. The Property will be initially located or based at the location specified in the applicable Property Schedule. Lessor shall have the right at all rensonnble
times during business hours to enter into and upon the property of Lessee for the purpose of inspecting the Property.
ARTICLE VI
6.01 Lease Payments to Constitute a Current Expense of Lessee. Lessor and Lessee understand and intend that the obligation of Lessee to pay Lease Payments hereunder shall
constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional, statutory or charter linlitntion of-
requirement concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the faith and credit or taxing power of Lessee. Upon the
appropriation of Lease Payments for a fiscal year, the Lease Payments for said fiscal year, and only the Lease Payments for said current fiscal year, shall be a binding obligation of Lessee;
provided that such obligation shall not include a pledge of the taxing power of Lessee.
6.02 Payment of Lease Payments. Lessee shall promptly pay Lease Payments under each Property Schedule, exclusively from legally available finds, in lawful money of the United
States of America, to Lessor in such amounts and on such dates as described in the applicable Property Schedule, at Lessor's address set forth on the first page of this Agreement, unless
Lessor instructs Lessee otherwise. Lessee shall pay Lessor a charge on any delinquent Lease Payments under a Property Schedule in an amount sufficient to coverall additional costs and
expenses incurred by Lessor from such delinquent Lease Payment. In addition, Lessee shall pay a late charge of five cents per dollar or the highest amount pennited by applicable law,
whichever is lower, on all delinquent Lease Payments and interest on said delinquent amounts from the date such amounts were due until paid at the rate of 12 %per annum or the maximum
amount permitted by law, whichever is less..
6.03 Interest Component. A portion of each Lease Payment due under each Property Schedule is paid as, and represents payment of, interest, and each Property Schedule hereunder
shall set forth the interest component (or method of computation thereof) o£each Lease Payment thereunder during the Lease Tenn.
6.04 Lease Payments to be Unconditional. SUBJECT TO SECTION 6.06, THE OBLIGATIONS OF LESSEE TO PAY THE LEASE PAYMENTS DUE UNDER THE PROPERTY
SCHEDULES AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL BE ABSOLUTE AND UNCONDITIONAL IN
ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET -OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION, ANY DEFECTS,
MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE PROPERTY OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. THIS PROVISION
SHALL NOT LIMIT LESSEE'S RIGHTS OR ACTIONS AGAINST ANY VENDOR AS PROVIDED IN SECTION 10.02.
6.05 Continuation of Lease by Lessee. Lessee intends to continue all Property Schedules entered into pursuant to this Agreement and to pay the Lease Payments thereunder. Lessee
reasonably believes that legally available funds in an amount sufficient to make all Lease Payments during the tern of all Property Schedules can be obtained. Lessee agrees that its staff will
provide during the budgeting process for each budget year to the governing body of Lessee notification of any Lease Payments due under the Property Schedules during the following budget
year. Notwithstanding this covenant, if Lessee fails to appropriate the Lease Payments for a Property Schedule pursuant to Section 6.06, such Property Schedule shall tenninate at the end of
the then current Original Tenn or Renewal Tenn. Although Lessee has made this covenant, in the event that it fails to provide such notice, no remedy is provided and Lessee shall not be
liable for any damages for its failure to so comply.
6.06 Nonappropriation. If during the then current Original Tenn or Renewal Tenn, sufficient funds are not appropriated to make Lease Payments required under a Property Schedule
for the following fiscal year, Lessee shall be deemed to not have renewed such Property Schedule for the following fiscal year and the Property Schedule shall terminate at the end of the then
current Original Tenn or Renewal Tenn and Lessee shall not be obligated to make Lease Payments under said Property Schedule beyond the then current fiscal year for which funds have been
appropriated. Upon the occurrence of such nonappropriation (a "Nonappropriation Event ") Lessee shall, no later than the end of the fiscal year for which Lease Payments hnve been
appropriated, deliver possession of the Property under said Property Schedule to Lessor. If Lessee fails to deliver possession of the Property to Lessor upon tennination of said Property
Schedule by reason of a Nonappropriation Event, the tennination shall nevertheless be effective but Lessee shall be responsible for the payment of damages in an amount equal to the portion
•of Lease Payments thereafler coming due that is attributable to the number of days after the tennination during which the Lessee fails to deliver possession and for any other loss suffered by
Lessor as a result of Lessee's failure to deliver possession as required. In addition, Lessor may, by written instructions to any escrow agent who is holding proceeds of the Property Schedule,
instruct such escrow agent to release all such proceeds and any earnings thereon to Lessor, such sums to be credited to Lessee's obligations under the Property Schedule and this Agreement.
Lessee shall notify Lessor in writing within seven (7) days afler the failure of the Lessee to appropriate funds sufficient for the payment of the Lease Payments, but failure to provide such
notice shall not operate to extend the Lease Tenn or result in any liability to Lessee.
DWT 8732378v4 0085238- 000001 7
f
6.07 Defeasance of Lease Payments. Lessee may at any time irrevocably deposit in escrow with a defeasance escrow agent for the purpose of paying all of the principal component
and interest component accruing under a Property Schedule, a sum of cash and non- callable securities consisting of direct obligations of, or obligations the principal of an interest on which
are unconditionally guaranteed by, the United States of America or any agency or instrumentality thereof, in such aggregate amount, bearing interest at such rates and maturing on such dates
as shall be required to provide funds sufficient for this purpose. Upon such defeasance, all right, title and interest of Lessor in the Property under said Property Schedule shall terminate.•
Lessee shall cause such investment to comply with the requirements of federal tax law so that the exclusion from gross income of the interest component of Lease Payments on said Property
Schedule is not adversely affected.
ARTICLE VII
7.01 Title to the Property. Upon acceptance of the Property by Lessee and unless otherwise required by the laws of the State, title to the Property shall vest in Lessee, subject to
Lessor's interests under the applicable Property Schedule and this Agreement.
7.02 Personal Property. The Property is and will remain personal property and will not be deemed to be affixed to or a part of the real estate on which it may be situated, notwith-
standing that the Property or any part thereof may be or hereafter become in any manner physically affixed or attached to real estate or any building thereon. If requested by Lessor, Lessee
will, at Lessee's expense, furnish a waiver of any interest in the Property from any patty having an interest in any such real estate or building.
7.03 Securitv Interest. To the extent permitted by law and to secure the performance of all of Lessee's obligations under this Agreement with respect to a Property Schedule,
including without limitation all Property Schedules now existing are hereafter executed, Lessee grants to Lessor, for the benefit of Lessor and its successors and assigns, a security interest
constituting a first lien on Lessee's interest in all of the Property under the Property Schedule, whether now owned or hereafter acquired, all additions, attachments, alterations and accessions
to the Property, all substitutions and replacements for the Property, and on any proceeds of any of the foregoing, including insurance proceeds. Lessee shall execute any additional documents,
including financing statements, affidavits, notices and similar instruments, in form and substance satisfactory to Lessor, which Lessor deems necessary or appropriate to establish, maintain
and perfect a security interest in the Property in favor of Lessor and its successors and assigns. Lessee hereby authorizes Lessor to file all financing statements which Lessor deems necessary
or appropriate to establish, maintain and perfect such security interest.
ARTICLE VIII
8.01 Maintenance of Property by Lessee. Lessee shall keep and maintain the Property in good condition and working order and in compliance with the manufacturers specifications,
shall use, operate and maintain the Property in conformity with all laws and regulations concerning the Property's ownership, possession, use and maintenance, and shall keep the Property free
and clear of all liens and claims, other than those created by this Agreement. Lessee shall have sole responsibility to maintain and repair the Property. Should Lessee fail to maintain, preserve
and keep the Property in good repair and working order and in accordance with manufacturer's specifications, and if requested by Lessor, Lessee will enter into maintenance contracts for the
Property in form approved by Lessor and with approved providers.
8.02 Liens, Taxes, Other Governmental Charees and Utility Charges. Lessee shall keep the Property free of all levies, liens and encumbrances, except for the interest of Lessor
under this Agreement. The parties to this Agreement contemplate that the Property will be used for a governmental or proprietary purpose of Lessee and, therefore, that the Property will be
exempt from all property taxes. The Lease Payments payable by Lessee under this Agreement and the Property Schedules hereunder have been established to reflect the savings resulting from
this exemption from taxation. Lessee will take such actions necessary under applicable law to obtain said exemption. Nevertheless, if the use, possession or acquisition of the Property is
determined to be subject to taxation or later becomes subject to such taxes, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to
the Property. Lessee shall pay all gas, water, steam, electricity, heat, power, telephone, utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of the
Property. Lessee shall pay such taxes or charges as the same may become due; provided that, with respect to any such taxes or charges that may lawfully be paid in installments over a period
of years, Lessee shall be obligated to pay only such installments as accrue during the then current fiscal year of the Lease Tenn for such Property.
8.03 Insurance. At its own expense, Lessee shall maintain (a) casualty insurance insuring the Property against loss or damage by fire and all other risks covered by the standard
extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor in an amount equal to at least the outstanding principal component of Lease
Payments, and (b) liability insurance that protects Lessor from liability in all events in an amount reasonably acceptable to Lessor, and (c) worker's compensation insurance covering all
employees working on, in, near or about the Property; provided that Lessee may self - insure against all such risks. All insurance proceeds from casualty losses shall be payable as hereinafter •
provided in this Agreement. All such insurance shall be with insurers that are authorized to issue such insurance in the State. All such liability insurance shall name Lessor as an additional
insured. All such casualty insurance shall contain a provision snaking any losses payable to Lessor and Lessee as their respective interests may appear. All such insurance shall contain a
provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor and Lessee at least thirty (30) days in advance of such
cancellation or modification. Such changes shall not become effective without Lessors prior written consent. Lessee shall furnish to Lessor, on or before the Commencement Date for each
Property Schedule, and thereafter at Lessors request, certificates evidencing such coverage, or, if Lessee self - insures, a written description of its self - insurance program together with a
certification from Lessee's risk manager or insurance agent or consultant to the effect that Lessee's self - insurance program provides adequate coverage against the risks listed above.
8.04 Advances. In the event Lessee shall fail to either maintain the insurance required by this Agreement or keep the Property in good repair and working order, Lessor spay, but shall
be under no obligation to, purchase the required insurance and pay the cost of the premiums thereof or maintain and repair the Property and pay the cost thereof. All amounts so advanced by
Lessor shall constitute additional rent for the Lease Tenn for the applicable Property Schedule and shall be due and payable on the next Lease Payment Date and Lessee covenants and agrees
to pay such amounts so advanced by Lessor with interest thereon from the date such amounts are advanced until paid at the rate of 12% per annum or the maximum amount permitted by law,
whichever is less.
ARTICLE IX
9.01 Damage or Destruction. If (a) the Property under a Property Schedule or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other casualty, or (b) title
to, or the temporary use of, the Property under a Property Schedule or any part thereof shall betaken under the exercise or threat of the power of eminent domain by any governmental body or
by any person, firm or corporation acting pursuant to governmental authority, Lessor and Lessee will cause the Net Proceeds (as hereinafter defined) of any insurance claim, condemnation
award or sale under threat of condemnation to be applied to the prompt replacement, repair, restoration, modification or improvement of the Property, unless Lessee shall have exercised its
right to defease the Property Schedule as provided herein, or unless Lessee shall have exercised its option to purchase Lessor's interest in the Property if the Property Schedule so provides.
Any balance of the Net Proceeds remaining after such work has been completed shall be paid to Lessee. For purposes of Section 8.03 and this Article IX, the tern "Net Proceeds" shall mean
the amount remaining from the gross proceeds of any insurance claim, condemnation award or sale under threat of condemnation after deducting all expenses, including attorneys' fees,
incurred in the collection thereof.
9.02 Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in full the cost of any repair, restoration, modification or improvement referred to in Section 9.01,
Lessee shall (a) complete such replacement, repair, restoration, modification or improvement and pay any costs thereof in excess of the amount of the Net Proceeds and, if Lessee shall snake
any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable tinder
Section 6.02, or (b) defease the Property Schedule pursuant to Section 6.07, or (c) exercise its option to purchase Lessor's interest in the Property pursuant to the optional purchase provisions
of the Property Schedule, if any. The amount of the Net Proceeds, if any, remaining after completing such repair, restoration, modification or improvement or after such defeasance or
purchase may be retained by Lessee.
•
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V
ARTICLE X
10.01 Disclaimer of Warranties. LESSOR MAKES NO (AND SHALL NOT BE DEEMED TO HAVE MADE ANY) WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY
•MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, OPERATION OR CONDITION OF, OR THE QUALITY OF THE MATERIAL, EQUIPMENT OR
WORKMANSHIP IN, THE PROPERTY, ITS MERCHANTABILITY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE STATE OF TITLE THERETO OR ANY
COMPONENT THEREOF, THE ABSENCE OF LATENT OR OTHER DEFECTS (WHETHER OR NOT DISCOVERABLE), AND LESSOR HEREBY DISCLAIMS THE SAME; 11'
BEING UNDERSTOOD THAT THE PROPERTY IS LEASED TO LESSEE "AS IS" ON THE DATE OF THIS AGREEMENT OR THE DATE OF DELIVERY, WHICHEVER IS LATER,
AND ALL SUCH RISKS, IF ANY, ARE TO BE BORNE BY LESSEE. Lessee acknowledges that it has made (or will snake) the selection of the Property from the Vendor based on its own
judgment and expressly disclaims any reliance upon any statements or representations made by Lessor. Lessee understands and agrees that (a) neither the Vendor nor any sales representative
or other agent of Vendor, is (i) an agent of Lessor, or (ii) authorized to make or alter any tern or condition of this Agreement, and (b) no such waiver or alteration shall vary the terns of this
Agreement unless expressly set forth herein. In no event shall Lessor be liable for any incidental, indirect, special or consequential damage in connection with or arising out of this
Agreement, the Property Schedules, or the existence, fumishing, functioning or use of any item, product or service provided for in this Agreement or the Property Schedules.
10.02 Vendor's Warranties. Lessor hereby irrevocably assigns to Lessee all rights that Lessor may have to assert from time to time whatever claims and rights (including without
limitation warranties) related to the Property against the Vendor. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against the Vendor of the
Property, and not against Lessor, nor shall such matter have any effect whatsoever on the rights and obligations of Lessor with respect to this Agreement, including the right to receive full and
timely payments hereunder. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to the existence or the availability of such
warranties of the Vendor of the Property.
10.03 Use of the Property. Lessee will not install, use, operate or maintain the Property improperly, carelessly, in violation of any applicable law or in a manner contrary to that
contemplated by this Agreement and the applicable Property Schedule. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Property. In
addition, Lessee agrees to comply in all respects with all laws of the jurisdiction in which its operations involving any item of Property may extend and any legislative, executive,
administrative or judicial body exercising any power orjurisdiction over the items of the Property; provided that Lessee may contest in good faith the validity or application of arty such law or
rule in any reasonable manner that does not, in the opinion of Lessor, adversely affect the interest of Lessor in and to the Property or its interest or rights under this Agreement. Lessee shnll
promptly notify Lessor in writing of any pending or threatened investigation, inquiry, claim or action by any governmental authority which could adversely affect this Agreement, tiny
Property Schedule or the Property thereunder.
10.04 Modifications. Subject to the provisions of this Section, Lessee shall have the right, at its own expense, to make alterations, additions, modifications or improvements to the
Property. All such alterations, additions, modifications and improvements shall thereafter comprise part of the Property and shall be subject to the provisions of this Agreement. Such
alterations, additions, modifications and improvements shall not in any way damage the Property, substantially alter its nature or cause it to be used for purposes other than those authorized
under the provisions of state and federal law; and the Property, on completion of any alterations, additions, modifications or improvements made pursuant to this Section, shall be of a value
which is equal to or greater than the value of the Property immediately prior to the making of such alterations, additions, modifications and improvements. Lessee shall, at its own expense,
make such alterations, additions, modifications and improvements to the Property as may be required from time to time by applicable law or by any governmental authority.
ARTICLE XI
11.01 Ontion to Purchase. Lessee shall have the option to purchase Lessor's entire interest in all of the Property subject to a Property Schedule and to terminate any restrictions herein
on the Property under such Property Schedule on the last day of the Lease Tenn for a Property Schedule, if the Property Schedule is still in effect on such day, upon payment in full of the
Lease Payments due thereunder plus payment of One ( I ) Dollar to Lessor. Lessee shall give written notice to Lessor of its intent to purchase Lessor's interest in the Property at least sixty (60)
days prior to the last day of the Lease Tenn for applicable Property Schedule. Upon exercise of the purchase option as set forth in this Section 1 1.01 and payment of the purchase price under
the applicable Property Schedule, and performance by Lessee of all other terns, conditions and provisions hereof, Lessor shall deliver to Lessee all such documents and instruments as Lessee
may reasonably require to evidence the transfer, without warranty by or recourse to Lessor, of all of Lessor's right, title and interest in and to the Property subject to such Property Schedule to
Lessee.
in11.02 Ontion to Prepay. Lessee shall have the option to prepay in whole the Lease Payments due tinder a Property Schedule, but only if the Property Schedule so provides, and on the
terns set forth in the Property Schedule.
ARTICLE X11
12.01 Assignment by Lessor. Lessor's right, title and interest in, to and under each Property Schedule and the Property under such Property Schedule may be assigned and reassigned
in whole or in part to one or more assignees or subassignees by Lessor without the necessity of obtaining the consent of Lessee; provided that any assignment shall not be effective until
Lessee has received written notice, signed by the assignor, of the name, address and tax identification number of the assignee. Lessee shall retain all such notices as a register of all assignees
and shall make all payments to the assignee or assignees designated in such register. Lessee agrees to execute all documents, including notices of assignment and chattel mortgages or
financing statements that may be reasonably requested by Lessor or any assignee to protect its interests in this Agreement and the Property Schedules.
12.02 Property Schedules Separate Financings. Assignees of the Lessors rights in one Property Schedule shall have no rights in any other Property Schedule unless such rights have
been separately assigned..
12.03 Assienment and Subleasing by Lessee. NONE OF LESSEE'S RIGHT, TITLE AND INTEREST IN, TO AND UNDER THIS AGREEMENT AND IN THE PROPERTY MAY
BE ASSIGNED, SUBLEASED OR ENCUMBERED BY LESSEE FOR ANY REASON, WITHOUT THE PRIOR WRITTEN CONSENT OF LESSOR.
12.04 Release and Indemnification Covenants. To the extent permitted by applicable law, Lessee shall indemnify, protect, hold harmless, save and keep harmless Lessor from and
against any and all liability, obligation, loss, claim and damage whatsoever, regardless of cause thereof, and all expenses in connection therewith, including, without limitation, counsel fees
and expenses, penalties and interest (collectively, "Losses ") arising out of or resulting from the entering into this Agreement, any Property Schedules hereunder, the ownership of any item of
the Property, the loss of federal tax exemption of the interest on any of the Property Schedules, the ordering, acquisition, use, operation, condition, purchase, delivery, rejection, storage or
return of any item of the Property or any accident in connection with the operation, use, condition, possession, storage or return of any item of the Property resulting in damage to property or
injury to or death to any person; provided, however, that Lessee shall not be required to indemnify Lessor for Losses arising out of or resulting from Lessors own willful or negligent conduct,
or for Losses arising out of or resulting from Lessor preparation of disclosure material relating to certificates of participation in this Agreement and any Property Schedule (other than
disclosure material provided to Lessor by Lessee). The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations
under this Agreement, or the applicable Property Schedule, or the termination of the Lease Tenn for such Property Schedule for any reason.
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ARTICLE XIII
13.01 Events of Default Defined. Any of the following shall constitute an "Event of Default" under a Property Schedule:
(a)
Failure by Lessee to pay any Lease Payment under the Property Schedule or other payment required to be paid with respect thereto at the time specified therein;
(b)
Failure by Lessee to observe and perform any covenant, condition or agreement on its part to be observed or performed with respect to the Property Schedule, other than as
referred to in subparagraph (a) above, for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied is given to Lessee by
Lessor, unless Lessor shall agree in writing to an extension of such time prior to its expiration; provided that, if the failure stated in the notice cannot be corrected within
the applicable period, Lessor will not unreasonably withhold its consent to an extension of such time if corrective action is instituted by Lessee within the applicable period
and diligently pursued until the default is corrected;
(c)
Any statement, representation or warranty made by Lessee in or pursuant to the Property Schedule or its execution, delivery or performance shall prove to have been false,
incorrect, misleading or breached in any material respect on the date when made;
(d)
Lessee shall (i) apply for or consent to the appointment of a receiver, trustee, custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
•
unable, fail or admit in writing its inability generally to pay its debts as they become due, (iii) make a general assignment for the benefit of creditors, (iv) have an order for
relief entered against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an
arrangement with creditors or taking advantage of any insolvency law or any answer admitting the material allegations of a petition filed against Lessee in any bankruptcy,
reorganization or insolvency proceeding; or
DWT 8732378v4 0085238- 000001
(e) An order, judgment or decree shall be entered by any court of competent jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator of Lessee
or of all or a substantial part of the assets of Lessee, in each case without its application, approval or consent, and such order, judgment or decree shall continue unstayed
and in effect for any period of 60 consecutive days.
The foregoing provisions of Section 13.01 are subject to the following limitation: if by reason of force maieure Lessee is unable in whole or in part to perform its agreements
under this Agreement and the Property Schedule (other than the obligations on the part of Lessee contained in Article VI hereof) Lessee shall not be in default during the continuance of such
inability. The tern "force maieure„ as used herein shall mean the following: acts of God; strikes, lockouts or other industrial disturbances; acts of public enemies; orders or restraints of any
kind of the govertunent of the United States or of the State or any of their departments, agencies or officials, or any civil or military authority; insurrections, riots, landslides, earthquakes,
fires, storms, droughts, floods, explosions, breakage or accident to machinery, transmission pipes or canals; or any other cause or event not reasonably within the control of Lessee.
A Nonappropriation Event is not an Event of Default.
13.02 Remedies on Default. Whenever any Event of Default exists with respect to a Property Schedule, Lessor shall have the right, at its sole option without any further demand or
notice, to take one or any combination of the following remedial steps:
(a) Without tenninating the Property Schedule, and by written notice to Lessee, Lessor may declare all Lease Payments and other amounts payable by Lessee thereunder to the
end of the then - current budget year of Lessee to be due, including without limitation delinquent Lease Payments under the Property Schedule from prior budget years, and
such amounts shall thereafter bear interest at the rate of 12% per annum or the maximum rate permitted by applicable law, whichever is less;
(b) Lessor may terminate the Property Schedule, may enter the premises where the Property subject to the Property Schedule is located and retake possession of the Property, or
require Lessee, at Lessee's expense, to promptly return any or all of the Property to the possession of Lessor at such place within the United States as Lessor shall specify,
and Lessor may thereafter dispose of the Property in accordance with Article 9 of the Uniform Commercial Code in effect in the State; provided, however, that any
proceeds from the disposition of the property in excess of the sum required to (i) pay off any outstanding principal component of Lease Payments, (ii) pay any other
amounts then due under the Property Schedule, and (iii) pay Lessors costs and expenses associated with the disposition of the Property (including attorneys fees), shall be
paid to Lessee or such other creditor of Lessee as may be entitled thereto, and further provided that no deficiency shall be allowed against Lessee except with respect to
unpaid costs and expenses incurred by Lessor in connection with the disposition of the Property;
(c) By written notice to any escrow agent who is holding proceeds of the Property Schedule, Lessor may instruct such escrow agent to release all such proceeds and any
earnings thereon to Lessor, such sums to be credited to payment of Lessee's obligations under the Property Schedule;
(d) Lessor may take any action, at law or in equity, that is permitted by applicable law and that may appear necessary or desirable to enforce or to protect any of its rights under
the Property Schedule and this Agreement.
Notwithstanding the foregoing, if the proceeds are insufficient to pay items (i) to (iii) in Section 13.02(6) in whole, Lessee shall remain obligated after application of proceeds to
items (i) and (ii), to pay in whole the amounts for item (iii).
13.03 No Remedy Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any notice, other than such notice as may be required in this Article.
13.04 Costs and Attorney Fees. Upon the occurrence of an Event of Default by Lessee in the performance of any tern of this Agreement, Lessee agrees to pay to Lessor or reimburse
Lessor for, in addition to all other amounts due hereunder, all of Lessors costs of collection, including reasonable attorney fees, whether or not suit or action is filed thereon. Any such costs
shall be immediately due and payable upon written notice and demand given to Lessee, shall be secured by this Agreement until paid and shall bear interest at the rate of 12% per annum or the
maximum amount permitted by law, whichever is less. In the event suit or action is instituted to enforce any of the terns of this Agreement, the prevailing parry shall be entitled to recover
from the other party such Burn as the court may adjudge reasonable as attorneys' fees at trial or on appeal of such suit or action or in any bankruptcy proceeding, in addition to all other sums
provided by law. •
ARTICLE XIV
14.01 Notices. All notices, certificates or other cormnunications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail, postage
prepaid, to the parties hereto at the addresses immediately after the signatures to this Agreement (or at such other address as either party hereto shall designate in writing to the other for
notices to such party), to any assignee at its address as it appears on the registration books maintained by Lessee.
14.02 Arbitrage Certificates. Unless a separate Arbitrage Certificate is delivered on the Commencement Date, Lessee shall be deemed to make the following representations and
covenants as of the Commencement Date for each Property Schedule:
(a) The estimated total costs, including taxes, freight, installation, cost of issuance, of the Property under the Property Schedule will not be less than the total principal amount
of the Lease Payments.
(b) The Property under the Property Schedule has been ordered or is expected to be ordered within six months after the Commencement Date and the Property is expected to be
delivered and installed, and the Vendor fully paid, within eighteen months from the Commencement Date. Lessee will pursue the completion of the Property and the
expenditure of the net proceeds of the Property Schedule with due diligence.
(c) Lessee has not created or established, and does not expect to create or establish, any sinking fund or other similar fund (i) that is reasonably expected to be used to pay the
Lease Payments under the Property Schedule, or (ii) that may be used solely to prevent a default in the payment of the Lease Payments under the Property Schedule.
(d) The Property under the Property Schedule has not been and is not expected to be sold or otherwise disposed of by Lessee, either in whole or in major part, prior to the last
maturity of the Lease Payments under the Property Schedule.
(e) There are no other obligations of Lessee which (i) are being sold within 15 days of the Commencement Date of the Property Schedule; (ii) are being sold pursuant to the
same plan of financing as the Property Schedule; and (iii) are expected to be paid from substantially the same source of funds.
(f) The officer or official who has executed the Property Schedule on Lessee's behalf is familiar with Lessee's expectations regarding the use and expenditure of the proceeds
of the Property Schedule. To the best of Lessee's knowledge, information and belief, the facts and estimates set forth in herein are accurate and the expectations of Lessee
set forth herein are reasonable.
14.03 Further Assurances. Lessee agrees to execute such other and further documents, including, without limitation, confirmatory financing statements, continuation statements,
certificates of title and the like, and to take all such action as may be necessary or appropriate, from time to time, in the reasonable opinion of Lessor, to perfect, confirm, establish, reestablish,
continue, or complete the interests of Lessor in this Agreement and the Property Schedules, to consummate the transactions contemplated hereby and thereby, and to carry out the purposes
and intentions of this Agreement and the Property Schedules.
14.04 Binding Effect. This Agreement shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns.
14.05 Severability. In the event any provision of this Agreement shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof.
14.06 Waiver of Jury Trials. Lessee and Lessor hereby irrevocably waive all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or
otherwise) arising out of or relating to this Agreement or the actions of Lessor or Lessee in the negotiation, administration, performance or enforcement hereof.
14.07 Amendments, Changes and Modifications. This Agreement may be amended in writing by Lessor and Lessee to the extent the amendment or modification does not apply to •
outstanding Property Schedules at the time of such amendment or modification. The consent of all assignees shall be required to any amendment or modification before such amendment or
modification shall be applicable to any outstanding Property Schedule.
14.08 Execution in Counterparts. This Agreement and the Property Schedules hereunder may be simultaneously executed in several counterparts, each of which shall be an original
and all of which shall constitute but one and the same instrument.
DWT 8732378v4 0085238- 000001
I�
14.09 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State.
14.10 Cantions. The captions or headings in this Agreement are for convenience only and in no way define, limit or describe the scope or intent of any provisions or sections of this
• Agreement.
•
•
written.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above
Lessor: U.S. Bancorp Equipment Finance,
Inc.
B:
Name:
Title:
DWT 8732378v4 0085238- 000001
Lessee: Town of Avon
Name:
Title:
Attest:
By:
Name:
Title:
ADDENDUM (COLORADO)
Master Tax - Exempt Lease/Purchase Agreement
THIS ADDENDUM, which is entered into as of August 26, 2011 between U.S. Bank Equipment Finance, Inc. ( "Lessor ") and Town
of Avon ( "Lessee "), is intended to modify and supplement the Master Tax- Exempt Lease /Purchase Agreement between Lessor and
Lessee of even date herewith (the "Master Agreement "). Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Master Agreement.
Notwithstanding anything to the contrary set forth in the Master Agreement, title to the Property subject to each Property Schedule
shall remain in Lessor during the Lease Term for such Property Schedule, subject to lessee's rights under the Master Agreement.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Addendum to be executed in their names by their duly authorized
representatives as of the date first above written.
Lessor: U.S. Bank Equipment Finance, Inc.
Name:
Title:
DWT 16556357vl 0085238- 000005
Lessee: Town of Avon
Name:
Title:
Attest:
By
Name:
Title:
•
U
•
Oroperty Schedule No. O1
• Master Tax - Exempt Lease /Purchase Agreement
This Property Schedule No. 01 is entered into as of the Commencement Date set forth below, pursuant to that certain Master Tax - Exempt
Lease /Purchase Agreement (the "Master Agreement "), dated as of August 26, 2011, between U.S. Bancorp Equipment Finance, Inc.. and Town of
Avon.
1. Interpretation. The terms and conditions of the Master Agreement are incorporated herein by reference as if fully set forth herein. Reference is
made to the Master Agreement for all representations, covenants and warranties made by Lessee in the execution of this Property Schedule, unless
specifically set forth herein. In the event of a conflict between the provisions of the Master Agreement and the provisions of this Property Schedule,
the provisions of this Property Schedule shall control. All capitalized terms not otherwise defined herein shall have the meanings provided in the
Master Agreement.
2. Commencement Date. The Commencement Date for this Property Schedule is August 26, 2011.
3. Property Description and Payment Schedule. The Property subject to this Property Schedule is described in Exhibit I hereto. Lessee shall not
remove such property from the locations set forth therein without giving prior written notice to Lessor. The Lease Payment Schedule for this
Property Schedule is set forth in Exhibit 1.
4. Opinion. The Opinion of Lessee's Counsel is attached as Exhibit 2.
5. Lessee's Certificate. The Lessee's Certificate is attached as Exhibit 3.
6. Proceeds. Lessor shall disburse the proceeds of this Property Schedule in accordance with the instructions attached hereto as Exhibit 4.
7. Acceptance Certificate. The form of Acceptance Certificate is attached as Exhibit 5.
8. Additional Purchase Option Provisions. In addition to the Purchase Option provisions set forth in the Master Agreement, Lease Payments payable
under this Property Schedule shall be subject to prepayment in whole at any time by payment of the applicable Termination Amount set forth in
Exhibit I (Payment Schedule) and payment of all accrued and unpaid interest through the date of prepayment.
• 9. Bank Qualification and Arbitrage Rebate. Attached as Exhibit 6.
10. Expiration. Lessor, at its sole determination, may choose not to accept this Property Schedule if the fully executed, original Master Agreement
(including this Property Schedule and all ancillary documents) is not received by Lessor at its place of business by September 2. 2011.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Property Schedule to be executed in their names by their duly authorized representatives
as of the Commencement Date above.
Lessor: U.S. Bancorp Equipment Finance, Inc.
Name:
Title:
Lessee: Town of Avon
B:
Name:
Title:
Attest:
B
Name:
Title:
DWT 8732378v4 0085238- 000001
I3
XHIBIT 1
Property Description and Payment Schedule
•
Re: Property Schedule No. 01 to Master Tax - Exempt Lease/Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon.
THE PROPERTY IS AS FOLLOWS: The Property as more fully described in Exhibit A incorporated herein by reference and
attached hereto. It includes all replacements, parts, repairs, additions, accessions and accessories incorporated therein or affixed or
attached thereto and any and all proceeds of the foregoing, including, without limitation, insurance recoveries.
PROPERTY LOCATION: PO Box 975; Avon, CO 81620
USE: Vehicles - This use is essential to the proper, efficient and economic functioning of Lessee or to the services that Lessee
provides; and Lessee has immediate need for and expects to make immediate use of substantially all of the Property, which need is not
temporary or expected to diminish in the foreseeable future.
Lease Payment Schedule
If the Due Dates are not defined in this Lease Payment Schedule, they shall be defined as the NA day of each NA period of this Lease
Payment Schedule commencing with the Acceptance Date.
Total Principal Amount: $563,811.00
Lessee: Town of Avon
Name:
Title:
DWT 8732378v4 0085238- 000001
•
14
Beginning
Prepayment
Pay #
Date
Balance
Payment
Principal
Interest
Balance
•
1
26- Feb -2012
563,811.00
45,210.00
36,295.55
8,914.45
543,340.91
2
26- Aug -2012
527,515.45
45,210.00
36,869.42
8,340.58
505,365.41
3
26- Feb -2013
490,646.03
45,210.00
37,452.37
7,757.63
466,789.47
4
26- Aug -2013
453,193.66
45,210.00
38,044.53
7,165.47
427,603.60
5
26- Feb -2014
415,149.13
45,210.00
38,646.05
6,563.95
387,798.17
6
26- Aug -2014
376,503.08
45,210.00
39,257.09
5,952.91
347,363.37
7
26- Feb -2015
337,245.99
45,210.00
39,877.78
5,332.22
306,289.25
8
26- Aug -2015
297,368.21
45,210.00
40,508.29
4,701.71
264,565.71
9
26- Feb -2016
256,859.91
45,210.00
41,148.77
4,061.23
222,182.47
10
26- Aug -2016
215,711.14
45,210.00
41,799.38
3,410.62
179,129.11
11
26- Feb -2017
173,911.76
45,210.00
42,460.27
2,749.73
135,395.03
12
26- Aug -2017
131,451.49
45,210.00
43,131.61
2,078.39
90,969.47
13
26- Feb -2018
88,319.88
45,210.00
43,813.57
1,396.43
45,841.50
14
26- Aug -2018
44, 506.31
45, 210.00
44, 506.31
703.69
0.00
Lessee: Town of Avon
Name:
Title:
DWT 8732378v4 0085238- 000001
•
14
XMBIT 2
Lessees Counsel's O info
[To be provided on letterhead of Lessee's counsel.]
[Address to Lessor and Lessee]
RE: Property Schedule No. 01 to Master Tax- Exempt Lease /Purchase Agreement between U.S. Bancorp Equipment Finance, Inc.
and Town of Avon.
Ladies and Gentlemen:
We have acted as special counsel to the Town of Avon ( "Lessee "), in connection with the Master Tax - Exempt Lease /Purchase
Agreement, dated as of August 26, 2011 (the "Master Agreement "), between Town of Avon, as lessee, and U.S. Bancorp Equipment
Finance, Inc. as lessor ( "Lessor "), and the execution of Property Schedule No. 01 (the "Property Schedule ") pursuant to the Master
Agreement. We have examined the law and such certified proceedings and other papers as we deem necessary to render this opinion.
All capitalized terms not otherwise defined herein shall have the meanings provided in the Master Agreement and Property
Schedule.
As to questions of fact material to our opinion, we have relied upon the representations of Lessee in the Master Agreement and
the Property Schedule and in the certified proceedings and other certifications of public officials furnished to us without undertaking to
verify the same by independent investigation.
Based upon the foregoing, we are of the opinion that, under existing law:
1. Lessee is a public body corporate and politic, duly organized and existing under the laws of the State, and has a
substantial amount of one or more of the following sovereign powers: (a) the power to tax, (b) the power of eminent domain, and (c) the
police power.
2. Lessee has all requisite power and authority to enter into the Master Agreement and the Property Schedule and to
perform its obligations thereunder.
3. The execution, delivery and performance of the Master Agreement and the Property Schedule by Lessee has been duly
authorized by all necessary action on the part of Lessee.
4. All proceedings of Lessee and its governing body relating to the authorization and approval of the Master Agreement
and the Property Schedule, the execution thereof and the transactions contemplated thereby have been conducted in accordance with all
applicable open meeting laws and all other applicable state and federal laws.
5. Lessee has acquired or has arranged for the acquisition of the Property subject to the Property Schedule, and has
entered into the Master Agreement and the Property Schedule, in compliance with all applicable public bidding laws.
6. Lessee has obtained all consents and approvals of other governmental authorities or agencies which may be required for
the execution, delivery and performance by Lessee of the Master Agreement and the Property Schedule.
7. The Master Agreement and the Property Schedule have been duly executed and delivered by Lessee and constitute
legal, valid and binding obligations of Lessee, enforceable against Lessee in accordance with the terms thereof, except insofar as the
enforcement thereof may be limited by any applicable bankruptcy, insolvency, moratorium, reorganization or other laws of equitable
principles of general application, or of application to municipalities or political subdivisions such as the Lessee, affecting remedies or
creditors' rights generally, and to the exercise of judicial discretion in appropriate cases.
DWT 8732378v4 0085238- 000001
1 C5�
8. As of the date hereof, based on such inquiry and investigation as we have deemed sufficient, no litigation is pending,
(or, to our knowledge, threatened) against Lessee in any court (a) seeking to restrain or enjoin the delivery of the Master Agreement or the
Property Schedule or of other agreements similar to the Master Agreement; (b) questioning the authority of Lessee to execute the Master
•
Agreement or the Property Schedule, or the validity of the Master Agreement or the Property Schedule, or the payment of principal of or
interest on, the Property Schedule; (c) questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the
execution of the Master Agreement and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the
Master Agreement and the Property Schedule.
This opinion may be relied upon by Lessor, its successors and assigns, and any other legal counsel who provides an opinion with
respect to the Property Schedule.
Very truly yours,
as
Dated:
•
•
DWT 8732378v4 0085238- 000001
•
XMBIT 3
cssee s Certificate
Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon.
The undersigned, being the duly elected, qualified and acting
hereby certify, as of August 26, 2011, as follows:
the Town of Avon ( "Lessee ") do
1. Lessee did, at a meeting of the governing body of the Lessee held (date) by resolution or
ordinance duly enacted, in accordance with all requirements of law, approve and authorize the execution and delivery of the above -
referenced Property Schedule (the "Property Schedule ") and the Master Tax - Exempt Lease /Purchase Agreement (the "Master
Agreement') by the following named representative of Lessee, to wit:
NAME
OF EXECUTING OFFICIAL
TITLE
OF EXECUTING OFFICIAL
SIGNATURE
OF EXECUTING OFFICIAL
And/ Or
2. The above -named representative of the Lessee held at the time of such authorization and holds at the present time
the office set forth above.
3. The meeting(s) of the governing body of the Lessee at which the Master Agreement and the Property Schedule were
approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite quorum of the
members thereof, and the enactment approving the Master Agreement and the Property Schedule and authorizing the execution
thereof has not been altered or rescinded. All meetings of the governing body of Lessee relating to the authorization and delivery of
Master Agreement and the Property Schedule have been: (a) held within the geographic boundaries of the Lessee; (b) open to the
public, allowing all people to attend; (c) conducted in accordance with internal procedures of the governing body; and (d) conducted
in accordance with the charter of the Lessee, if any, and the laws of the State.
4. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an
Event of Default or a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof with
respect to this Property Schedule or any other Property Schedules under the Master Agreement.
5. The acquisition of all of the Property under the Property Schedule has been duly authorized by the governing body
of Lessee.
6. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the
current budget year to make the Lease Payments scheduled to come due during the current budget year under the Property Schedule
and to meet its other obligations for the current budget year and such funds have not been expended for other purposes.
7. As of the date hereof, no litigation is pending, (or, to my knowledge, threatened) against Lessee in any court (a)
seeking to restrain or enjoy in the delivery of the Master Agreement or the Property Schedule or of other agreements similar to the
Master Agreement; (b) questioning the authority of Lessee to execute the Master Agreement or the Property Schedule, or the validity
of the Master Agreement or the Property Schedule, or the payment of principal of or interest on, the Property Schedule; (c)
questioning the constitutionality of any statute, or the validity of any proceedings, authorizing the execution of the Master Agreement
and the Property Schedule; or (d) affecting the provisions made for the payment of or security for the Master Agreement and the
Property Schedule.
DWT 8732378x4 0085238- 000001
Town of Avon
By:
Title:
SIGNER MUST NOT BE THE SAME AS THE EXECUTING OFFICIALS SHOWN ABOVE.
11
XHIBIT 4
Payment of Proceeds Instructions
•
U.S. Bancorp Equipment Finance, Inc.
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
Re: Property Schedule No. 01 (the "Property Schedule ") to Master Tax - Exempt Lease /Purchase Agreement between
U.S. Bancorp Equipment Finance, Inc. ( "Lessor ") and Town of Avon ( "Lessee ").
Ladies and Gentlemen:
The undersigned, an Authorized Representative of the Lessee hereby requests and authorizes Lessor to disburse the net proceeds of
the Property Schedule as follows:
Name of Payee:
By check By wire transfer
If by check, Payee's address:
If by wire transfer, instructions as follows: •
Pay to Bank Name:
Bank Address:
Bank Phone #:
For Account of:
Account No.:
ABA No.:
Town of Avon
By: _
Name:
Title:
DWT 8732378v4 0085238- 000001
XHIBIT 5
[Acceptance i
CCrt f CAtC
U.S. Bancorp Equipment Finance, Inc.
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement between U.S. Bancorp Equipment Finance,
Inc. and Town of Avon
Ladies and Gentlemen:
In accordance with the above - referenced Master Tax - Exempt Lease /Purchase Agreement (the "Master Agreement "), the undersigned
( "Lessee ") hereby certifies and represents to, and agrees with, U.S. Bancorp Equipment Finance, Inc. ( "Lessor "), as follows:
(1) The Property, as such terms are defined in the above - referenced Property Schedule, has been acquired, made,
delivered, installed and accepted on the date indicated below.
(2) Lessee has conducted such inspection and /or testing of the Property as it deems necessary and appropriate and hereby
acknowledges that it accepts the Property for all purposes.
(3) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of Default or
• a Nonappropriation Event (as such terms are defined in the Master Agreement) exists at the date hereof.
•
Date
Town of Avon
as Lessee
By: _
Name:
Title:
DWT 8732378v4 0085238- 000001
/9
ATTACHED EXHIBIT A -- PROPERTY DESCRIPTION
Peterbilt Plow Truck Model 355 Wt Related EquigMent
GiAg Madel G29El9jN2 30ft Low ElMr Traaggu s •
U
DWT 8732378v4 0085238- 000001
�O
XHIBIT 6
• ank Qualification And Arbitrage Rebate
U.S. Bancorp Equipment Finance, Inc.
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
Re: Property Schedule No. 01 to Master Tax - Exempt Lease /Purchase Agreement U.S. Bancorp Equipment Finance, Inc. and
Town of Avon
Bank Oualified Tax - Exempt Obligation under Section 265
Lessee hereby designates this Property Schedule as a "qualified tax- exempt obligation" as defined in Section 265(b)(3)(B) of the
Code. Lessee reasonably anticipates issuing tax - exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds
and including all tax- exempt obligations of subordinate entities of the Lessee) during the calendar year in which the Commencement Date
of this Property Schedule falls, in an amount not exceeding $10,000,000.
Arbitrajje Rebate
Eighteen Month Exception:
Pursuant to Treasury Regulations Section 1.148 -7(d), the gross proceeds of this Property Schedule will be expended for the
•governmental purposes for which this Property Schedule was entered into, as follows: at least 15% within six months after the
Commencement Date, at least 60% within 12 months after the Commencement Date, and 100% within 18 months after the
Commencement Date. If Lessee is unable to comply with Section 1.148 -7(d) of the Treasury Regulations, Lessee shall compute rebatable
arbitrage on this Agreement and pay rebatable arbitrage to the United States at least once every five years, and within 60 days after
payment of the final Lease Payment due under this Agreement.
•
DWT 8732378v4 0085238- 000001
Lessee: Town of Avon
B:
Name:
Title:
"
Lanmu for UCC Financing Statements
Schedule 1
SECURED PARTY: U.S. Bancorp Equipment Finance, Inc.
DEBTOR: Town of Avon
This financing statement covers all of Debtor's right, title and interest, whether now owned or hereafter acquired, in and to the
equipment leased to Debtor under Property Schedule No. 01 dated August 26, 2011 to that certain Master Tax - Exempt Lease
Purchase Agreement dated as of August 26, 2011, in each case between Debtor, as Lessee, and Secured Party, as Lessor, together
with all accessions, substitutions and replacements thereto and therefore, and proceeds (cash and non - cash), including, without
limitation, insurance proceeds, thereof, including without limiting, all equipment described on Exhibit A attached hereto and made a
part hereof.
Debtor has no right to dispose of the equipment.
DWT 8732378v4 0085238- 000001
C7
U
•
2 Z_
INSURANCE AUTHORIZATION AND VERIFICATION
Date: Property Schedule No: 01
isTo: Town of Avon (the "Lessee ") From: U.S. Bancorp Equipment Finance, Inc. (the "Lessor ")
PO Box 975 13010 SW 68th Parkway, Suite 100
Avon, CO 81620 Portland, OR 97223
Attn: Regina Eckendorf
TO THE LESSEE: In connection with the above - referenced Property Schedule, Lessor requires proof in the form of this document, executed
by both Lessee* and Lessee's agent, that Lessee's insurable interest in the financed property (the "Property") meets Lessor's requirements as
follows, with coverage including, but not limited to, fire, extended coverage, vandalism, and theft:
Lessor, AND ITS SUCCESSORS AND ASSIGNS, shall be covered as both ADDITIONAL INSURED and LENDER'S LOSS
PAYEE with regard to all equipment financed or leased by policy holder through or from Lessor. All such insurance shall contain
a provision to the effect that such insurance shall not be canceled or modified without first giving written notice thereof to Lessor
and Lessee at least thirty (30) days in advance of such cancellation or modification.
Lessee must carry GENERAL LIABILITY (and /or, for vehicles, Automobile Liability) in the amount of no less than $1,000,000.00
(one million dollars).
Lessee must carry PROPERTY Insurance (or, for vehicles, Physical Damage Insurance) in an amount no less than the
'Insurable Value' $563,811.00, with deductibles no more than $10,000.00.
*Lessee: Please execute this form and return with your document package. Lessor will fax this form to your insurance agency for endorsement. In
lieu of agent endorsement, Lessee's agency may submit insurance certificates demonstrating compliance with all requirements. If fully executed
form
(or Lessee - executed form plus certificates) is not provided within 15 days, we have the right to purchase such insurance at your expense. Should you
have any questions, please contact Regina Eckendorf at (303) 585 -4025.
By signing, Lessee authorizes the Agent named below: 1) to complete and return this form as indicated; and 2) to endorse the policy and
subsequent renewals to reflect the required coverage as outlined above.
•Agency /Agent:
Address:
•
Phone /Fax:
E -Mail
Town of Avon
By:
Name:
Title:
TO TH E AGENT: In lieu of providing a certificate, please execute this form in the space below and promptly fax it to Lessor at
. This fully endorsed form shall serve as proof that Lessee's insurance meets the above requirements.
Agent hereby verifies that the above requirements have been met in regard to the Property listed below.
Print Name Of Agency: X
By: X
(Agent's Signature)
Print Name: X Date:
Insurable Value: $ [amountoffrnancing]
ATTACHED: PROPERTY DESCRIPTION FOR PROPERTY SCHEDULE NO.: 01
DWT 8732378v4 0085238- 000001
(--
TITLING ADDENDUM
Addendum to the Master Tax - Exempt Lease /Purchase Agreement dated August 26, 2011, between the
Town of Avon as Lessee and U.S.Bancorp Equipment Finance Inc as Lessor.
1. Lessor and Lessee hereby agree to amend the above referenced Agreement to add additional terms
and conditions as set forth below:
Lessee agrees that it will provide to Lessor the original title
documentation to the Equipment. Lessee shall provide such title
documentation to Lessor within 15 days of Lessee's receipt of such title
documentation from the appropriate titling authority. Lessee's failure to
provide Lessor with title documentation to the Equipment in a timely
fashion shall be deemed a condition of Default as defined in the default
paragraph herein subject to remedies available to Lessor pursuant to the
remedies paragraph. You further agree to pay a month to month
unobtained titling fee if we have not received the correct transferred title
in our office.
2. Location: Lessor agrees that in regard to the location of the equipment, Lessee must be responsible for
maintaining records showing the location of each piece of Leased equipment. Lessee will report this
location to Lessor upon written request by Lessor. Failure to do so shall constitute a breach of the
Agreement, which default shall be governed by the terms and conditions specified in the default and /or
remedies paragraph of the Agreement.
3. Lessee will complete the physical titling of the vehicle as required by the state of Lessee's residence
and guarantee US Bancorp Equipment Finance Inc. that US Bancorp Equipment Finance Inc. will receive
the original title to the leased vehicle in a timely manner. Lessee agrees to indemnify US Bancorp
Equipment Finance Inc. from any damage or loss it incurs, including legal fees, due to its failure to •
complete its agreement herein.
THE APPLICATION FOR TITLE MUST INCLUDE US BANCORP EQUIPMENT
FINANCE INC., 13010 SW 681" Parkway, Suite 100, Portland, OR 97223 AS 1ST
LIEN - HOLDER.
By signing this Addendum, Lessee acknowledges the above changes to the Agreement and authorizes
Lessor to make such changes. In all other respects the terms and conditions of the Agreement remain in
full force and effect.
U.S. Bancorp Equipment Finance, Inc. Town of Avon
Lessor Lessee
Signature
Title
Date
0313
X
Signature
Title
Date
•
•
•
•
8038�� Information Return for Tax - Exempt Governmental Obligations
Form ► Under Internal Revenue Code section 149(e) OMB No. 1545 -0720
(Rev. May 2010) ► See separate instructions.
Department of the Treasury Caution: If the issue rice is under $100,000, use Form 8038 -GC.
Internal Revenue Service p
JjWM Keporting Autnority
If Amended Return, check here ► ❑
1 Issuer's name
2
Issuer's employer identification number (EIN)
Town of Avon
$
84 0771088
3 Number and street (or P.O. box if mail is not delivered to street address)
Room /suite
4
Report number (For IRS Use Only)
PO Box 975
15
13F
5 City, town, or post office, state, and ZIP code
6
Date of issue
Avon, CO 81620
17
7 Name of issue
8
CUSIP number
Master Tax - Exempt Lease /Purchase Agreement
9 Name and title of officer of the issuer or other person whom the IRS may call for more information
10
Telephone number of officer or other person
( )
jigM Iy a OT Issue (enter the issue price) see instructions and attach schedule
11 Education . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12 Health and hospital . . . . . . . . . . . . . . . . . . . . . . . . . .
13 Transportation . . . . . . . . . . . . . . . . . . . . . . . . .
14 Public safety . . . . . . . . . . . . . . . . . . . . . . . . .
15 Environment (including sewage bonds) . . . . . . . . . . . . . . . . .
16 Housing . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . .
18 Other. Describe ►
19 If obligations are TANS or RANs, check only box 19a . . . . . ► ❑
If obligations are BANS, check only box 19b . . . . . . . . . . . . . . . ► ❑
20 If obligations are in the form of a lease or installment sale, check box . . . . . . . ► ❑
11
(d) Weighted
average maturity
(e) Yield
12
$
$
13
%
14
15
16
17
18
90T'M Descrintion of Obligations_ Cmmnlptp fnr the pntirp icclip fnr which this fnrm ie hainn filari
(a) Final maturity date
(b) Issue price
(c) Stated redemption
price at maturity
(d) Weighted
average maturity
(e) Yield
21
$
$
years
%
uses OT Irroceeas OT tsona issue incivaing underwriters' discount
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . 22
23 Issue price of entire issue (enter amount from line 21, column (b)) . . . . . . 23
24 Proceeds used for bond issuance costs (including underwriters' discount) . 24
25 Proceeds used for credit enhancement . . . . . . . . . . . 25
26 Proceeds allocated to reasonably required reserve or replacement fund . 26
27 Proceeds used to currently refund prior issues . . . . . . . . 27
28 Proceeds used to advance refund prior issues . . . . . . . . 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . 29
30 Nonrefunding proceeds of the issue subtract line 29 from line 23 and enter amount here 30
MON—Description of Refunded Bonds (Complete this part only for refunding bonds.
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ► years
32 Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ► years
33 Enter the last date on which the refunded bonds will be called (MM /DD/YYYY) . . . . . ►
34 Enter the date(s) the refunded bonds were issued ► (MM /DD/YYYY)
For Privacy Act and Paperwork Reduction Act Notice, see separate instructions. Cat. No. 63773S Form 8038 -G (Rev. 5 -2010)
In
Form 8038 -G (Rev. 5 -2010) Page 2
Miscellaneous
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . 35 •
36a Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract
(GIC) (see instructions) . . . . . . . . . . . . . . . . . . . . . . . . . 36a
b Enter the final maturity date of the GIC IN-
37 Pooled financings: a Proceeds of this issue that are to be used to make loans to other
governmental units . . . . . . . . . . . . . . . . . . . . . . . . . 37a
b If this issue is a loan made from the proceeds of another tax - exempt issue, check box ► ❑ and enter the name of the
issuer ► and the date of the issue ►
38 If the issuer has designated the issue under section 265(b)(3)(13)(i)(III) (small issuer exception), check box . . . . ► ❑
39 If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . . . ► ❑
40 If the issuer has identified a hedge, check box , , , , , , , , , , , , , , , , , , , , , , , , ► ❑
Signature
and
Consent
Paid
Use Only
Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
and belief, they are true, correct, and complete. I further declare that I consent to the IRS's disclosure of the issuer's return information, as necessary
to process this return, to the person that I have authorized above.
' Signature of issuer's authorized representative Date
Preparers' Date
signature
Firm's name (or ,
yours if self - employed),
' Type or print name and title
Preparer's SSN or PTIN
Check if
self- emploved ❑
Form 8038-G (Rev. 5 -2010)
•
•
C��
•
•
Instructions for Form Department of the Treasury
8038 -G Ira Internal Revenue Service
(Rev. May 2010)
Information Return for Tax - Exempt Governmental Obligations
Section references are to the Internal
Revenue Code unless otherwise noted.
General Instructions
Purpose of Form
Form 8038 -G is used by issuers of
tax - exempt governmental obligations to
provide the IRS with the information
required by section 149(e) and to monitor
the requirements of sections 141 through
150.
Who Must File
IF the issue price THEN, for tax - exempt
(line 21, column (b)) governmental
is... obligations issued
after December 31,
1986, issuers must
file...
$100,000 or more A separate Form
8038 -G for each issue
Less than $100,000 Form 8038 -GC,
Information Return for
Small Tax - Exempt
Governmental Bond
Issues, Leases, and
Installment Sales
When To File
File Form 8038 -G on or before the 15th
day of the 2nd calendar month after the
close of the calendar quarter in which the
bond is issued. Form 8038 -G may not be
filed before the issue date and must be
completed based on the facts as of the
issue date.
Late filing. An issuer may be granted an
extension of time to file Form 8038 -G
under Section 3 of Rev. Proc. 2002 -48,
2002 -37 I.R.B. 531, if it is determined that
the failure to file on time is not due to
willful neglect. Enter at the top of the form
"Request for Relief under Section 3 of
Rev. Proc. 2002 -48" and attach a letter
explaining why Form 8038 -G was not
submitted to the IRS on time. Also
indicate whether the bond issue in
question is under examination by the IRS.
Do not submit copies of the trust
indenture or other bond documents. See
Where To File below.
Where To File
File Form 8038 -G, and any attachments,
with the Department of the Treasury,
Internal Revenue Service Center, Ogden,
UT 84201.
Private delivery services. You can use
certain private delivery services
designated by the IRS to meet the "timely
mailing as timely filing /paying" rule for tax
returns and payments. These private
delivery services include only the
following:
• DHL Express (DHL): DHL Same Day
Service.
• Federal Express (FedEx): FedEx
Priority Overnight, FedEx Standard
Overnight, FedEx 2Day, FedEx
International Priority, and FedEx
International First.
• United Parcel Service (UPS): UPS Next
Day Air, UPS Next Day Air Saver, UPS
2nd Day Air, UPS 2nd Day Air A.M., UPS
Worldwide Express Plus, and UPS
Worldwide Express.
The private delivery service can tell
you how to get written proof of the mailing
date.
Other Forms That May Be
Required
For rebating arbitrage (or paying a
penalty in lieu of arbitrage rebate) to the
Federal government, use Form 8038 -T,
Arbitrage Rebate, Yield Reduction and
Penalty in Lieu of Arbitrage Rebate.
For private activity bonds, use Form
8038, Information Return for Tax - Exempt
Private Activity Bond Issues.
For build America bonds (Direct Pay),
build America bonds (Tax Credit) and
recovery zone economic development
bonds, complete Form 8038 -B,
Information Return for Build America
Bonds and Recovery Zone Economic
Development Bonds.
For qualified forestry conservation
bonds, new clean renewable energy
bonds, qualified energy conservation
bonds, qualified zone academy bonds,
qualified school construction bonds, clean
renewable energy bonds, Midwestern tax
credit bonds, and all other qualified tax
credit bonds (except build America
bonds), file Form 8038 -TC, Information
Return for Tax Credit Bonds and
Specified Tax Credit Bonds.
Rounding to Whole Dollars
You may show amounts on this return as
whole dollars. To do so, drop amounts
less than 50 cents and increase amounts
from 50 cents through 99 cents to the
next higher dollar.
Questions on Filing Form
8038 -G
For specific questions on how to file Form
8038 -G send an email to the IRS at
TaxExemptBondQuestions@irs.gov
and put "Form 8038 -G Question" in the
subject line. In the email include a
Cat. No. 63774D
description of your question, a return
email address, the name of a contact
person, and a telephone number.
Definitions
Tax - exempt obligation. This is any
obligation, including a bond, installment
purchase agreement, or financial lease,
on which the interest is excluded from
income under section 103.
Tax - exempt governmental obligation.
A tax - exempt obligation that is not a
private activity bond (see below) is a
tax - exempt governmental obligation. This
includes a bond issued by a qualified
volunteer fire department under section
150(e).
Private activity bond. This includes an
obligation issued as part of an issue in
which:
• More than 10% of the proceeds are to
be used for any private activity business
use, and
• More than 10% of the payment of
principal or interest of the issue is either
(a) secured by an interest in property to
be used for a private business use (or
payments for such property) or (b) to be
derived from payments for property (or
borrowed money) used for a private
business use.
It also includes a bond, the proceeds
of which (a) are to be used to make or
finance loans (other than loans described
in section 141(c)(2)) to persons other than
governmental units and (b) exceeds the
lesser of 5% of the proceeds or $5
million.
Issue price. The issue price of
obligations is generally determined under
Regulations section 1.148 -1(b). Thus,
when issued for cash, the issue price is
the first price at which a substantial
amount of the obligations are sold to the
public. To determine the issue price of an
obligation issued for property, see
sections 1273 and 1274 and the related
regulations.
Issue. Generally, obligations are treated
as part of the same issue only if they are
issued by the same issuer, on the same
date, and as part of a single transaction,
or a series of related transactions.
However, obligations issued during the
same calendar year (a) under a loan
agreement under which amounts are to
be advanced periodically (a "draw -down
loan ") or (b) with a term not exceeding
270 days, may be treated as part of the
same issue if the obligations are equally
and ratably secured under a single
indenture or loan agreement and are
"1—/
issued under a common financing
arrangement (for example, under the
same official statement periodically
updated to reflect changing factual
circumstances). Also, for obligations
issued under a draw -down loan that
meets the requirements of the preceding
sentence, obligations issued during
different calendar years may be treated
as part of the same issue if all of the
amounts to be advanced under the
draw -down loan are reasonably expected
to be advanced within 3 years of the date
of issue of the first obligation. Likewise,
obligations (other than private activity
bonds) issued under a single agreement
that is in the form of a lease or installment
sale may be treated as part of the same
issue if all of the property covered by that
agreement is reasonably expected to be
delivered within 3 years of the date of
issue of the first obligation.
Arbitrage rebate. Generally, interest on
a state or local bond is not tax - exempt
unless the issuer of the bond rebates to
the United States arbitrage profits earned
from investing proceeds of the bond in
higher yielding nonpurpose investments.
See section 148(f).
Construction issue. This is an issue of
tax - exempt bonds that meets both of the
following conditions:
1. At least 75% of the available
construction proceeds are to be used for
construction expenditures with respect to
property to be owned by a governmental
unit or a 501(c)(3) organization, and
2. All the bonds that are part of the
issue are qualified 501(c)(3) bonds,
bonds that are not private activity bonds,
or private activity bonds issued to finance
property to be owned by a governmental
unit or a 501(c)(3) organization.
In lieu of rebating any arbitrage that
may be owed to the United States, the
issuer of a construction issue may make
an irrevocable election to pay a penalty.
The penalty is equal to 11/2% of the
amount of construction proceeds that do
not meet certain spending requirements.
See section 148(f)(4)(C) and the
Instructions for Form 8038 -T.
Specific Instructions
Part I— Reporting Authority
Amended return. An issuer may file an
amended return to change or add to the
information reported on a previously filed
return for the same date of issue. If you
are filing to correct errors or change a
previously filed return, check the
Amended Return box in the heading of
the form.
The amended return must provide all
the information reported on the original
return, in addition to the new or corrected
information. Attach an explanation of the
reason for the amended return and write
across the top, "Amended Return
Explanation."
Line 1. The issuer's name is the name of
the entity issuing the obligations, not the
name of the entity receiving the benefit of
the financing. For a lease or installment
sale, the issuer is the lessee or the
purchaser.
Line 2. An issuer that does not have an
employer identification number (EIN)
should apply for one on Form SS -4,
Application for Employer Identification
Number. This form may be obtained at
Social Security Administration offices or
by calling 1- 800 - TAX -FORM
(1- 800 - 829 - 3676). You can also get this
form on the IRS website at www.irs.gov.
You may receive an EIN by telephone by
following the instructions for Form SS -4.
Line 4. This line is for IRS use only. Do
not make any entries in this box.
Line 6. The date of issue is generally the
date on which the issuer physically
exchanges the bonds that are part of the
issue for the underwriter's (or other
purchaser's) funds. For a lease or
installment sale, enter the date interest
starts to accrue.
Line 7. If there is no name of the issue,
please provide other identification of the
issue.
Line 8. Enter the CUSIP (Committee of
Uniform Securities Identification
Procedure) number of the bond with the
latest maturity. If the issue does not have
a CUSIP number, write "None."
Lines 9 and 10. Enter the name, title,
and telephone number of the officer of the
issuer whom the IRS may call for more
information. If the issuer wishes to
designate a person other than an officer
of the issuer (including a legal
representative or paid preparer) whom
the IRS may call for more information with
respect to this return, enter the name,
title, and telephone number of such
person here.
Note. By authorizing a person other than
an authorized officer of the issuer to
communicate with the IRS and whom the
IRS may call for more information with
respect to this return, the issuer
authorizes the IRS to communicate
directly with the individual listed in line 9
and consents to the disclosure of the
issuer's return information to that
individual, as necessary, in order to
process this return.
Part II —Type of Issue
®Elections referred to in Part 11 are
made on the original bond
documents, not on this form.
Identify the type of obligations issued
by entering the corresponding issue price
(see Issue price under Definitions on
page 1). Attach a schedule listing names
and EINs of organizations that are to use
proceeds of these obligations if different
from those of the issuer, include a brief
summary of the use and indicate whether
or not such user is a governmental or
nongovernmental entity.
-2-
Line 18. Check the box on this line only
if lines 11 through 17 do not apply. Enter
a description of the issue in the space
provided.
Line 19. If the obligations are short-term
tax anticipation notes or warrants (TANs)
or short-term revenue anticipation notes
or warrants (RANs), check box 19a. If the
obligations are short-term bond
anticipation notes (BANs), issued with the
expectation that they will be refunded with
the proceeds of long -term bonds at some
future date, check box 19b. Do not check
both boxes.
Line 20. Check this box if property other
than cash is exchanged for the obligation,
for example, acquiring a police car, a fire
truck, or telephone equipment through a
series of monthly payments. (This type of
obligation is sometimes referred to as a
,'municipal lease. ") Also check this box if
real property is directly acquired in
exchange for an obligation to make
periodic payments of interest and
principal. Do not check this box if the
proceeds of the obligation are received in
the form of cash, even if the term "lease"
is used in the title of the issue.
Part III — Description of
Obligations
Line 21. For column (a), the final
maturity date is the last date the issuer
must redeem the entire issue.
For column (b), see Issue price under
Definitions on page 1.
For column (c), the stated redemption
price at maturity of the entire issue is the
sum of the stated redemption prices at
maturity of each bond issued as part of
the issue. For a lease or installment sale,
write "N /A" in column (c).
For column (d), the weighted average
maturity is the sum of the products of the
issue price of each maturity and the
number of years to maturity (determined
separately for each maturity and by taking
into account mandatory redemptions),
divided by the issue price of the entire
issue (from line 21, column (b)). For a
lease or installment sale, enter instead
the total number of years the lease or
installment sale will be outstanding.
For column (e), the yield, as defined in
section 148(h), is the discount rate that,
when used to compute the present value
of all payments of principal and interest to
be paid on the obligation, produces an
amount equal to the purchase price,
including accrued interest. See
Regulations section 1.148 -4 for specific
rules to compute the yield on an issue. If
the issue is a variable rate issue, write
"VR" as the yield of the issue. For other
than variable rate issues, carry the yield
out to four decimal places (for example,
5.3125 %). If the issue is a lease or
installment sale, enter the effective rate of
interest being paid.
.7
•
•
•
•
Part IV —Uses of Proceeds of
Bond Issue
For a lease or installment sale, write "N /A"
in the space to the right of the title for Part
IV.
Line 22. Enter the amount of proceeds
that will be used to pay interest from the
date the bonds are dated to the date of
issue.
Line 24. Enter the amount of the
proceeds that will be used to pay bond
issuance costs, including fees for trustees
and bond counsel. If no bond proceeds
will be used to pay bond issuance costs,
enter zero. Do not leave this line blank.
Line 25. Enter the amount of the
proceeds that will be used to pay fees for
credit enhancement that are taken into
account in determining the yield on the
issue for purposes of section 148(h) (for
example, bond insurance premiums and
certain fees for letters of credit).
Line 26. Enter the amount of proceeds
that will be allocated to such a fund.
Line 27. Enter the amount of the
proceeds that will be used to pay
principal, interest, or call premium on any
other issue of bonds within 90 days of the
date of issue.
Line 28. Enter the amount of the
proceeds that will be used to pay
principal, interest, or call premium on any
other issue of bonds after 90 days of the
date of issue, including proceeds that will
be used to fund an escrow account for
this purpose.
Part V— Description of
Refunded Bonds
Complete this part only if the bonds are to
be used to refund a prior issue of
tax - exempt bonds. For a lease or
installment sale, write "N /A" in the space
to the right of the title for Part V.
Lines 31 and 32. The remaining
weighted average maturity is determined
without regard to the refunding. The
weighted average maturity is determined
in the same manner as on line 21, column
(d).
Line 34. If more than a single issue of
bonds will be refunded, enter the date of
issue of each issue. Enter the date in an
MM /DD/YYYY format.
Part VI— Miscellaneous
Line 35. An allocation of volume cap is
required if the nonqualified amount with
respect to the issue exceeds $15 million
but does not exceed the amount which
would cause the issue to be private
activity bonds.
Line 36. If any portion of the gross
proceeds of the issue are or will be
invested in a guaranteed investment
contract (GIC), as defined in Regulations
section 1.148 -1(b), enter the amount of
the gross proceeds so invested, as well
as the final maturity date of the GIC.
Line 37a. Enter the amount of this issue
used to fund a loan to another
governmental unit, the interest of which is
tax - exempt.
Line 39. Check this box if the issue is a
construction issue and an irrevocable
election to pay a penalty in lieu of
arbitrage rebate has been made on or
before the date the bonds were issued.
The penalty is payable with a Form
8038 -T for each 6 -month period after the
date the bonds are issued. Do not make
any payment of penalty in lieu of arbitrage
rebate with this form. See Rev. Proc.
92 -22, 1992 -1 C.B. 736 for rules
regarding the "election document."
Line 40. Check this box if the issuer
identified a hedge on its books and
records in accordance with Regulations
sections 1.148- 4(h)(2)(viii) and
1.148- 4(h)(5). These regulations permit
an issuer of tax - exempt bonds to identify
a hedge for it to be included in yield
calculations for computing arbitrage.
Signature and Consent
An authorized officer of the issuer must
sign Form 8038 -G and any applicable
certification. Also print the name and title
of the person signing Form 8038 -G. The
authorized representative of the issuer
signing this form must have the authority
to consent to the disclosure of the issuer's
return information, as necessary to
process this return, to the person(s) that
have been designated in Form 8038 -G.
Note. If authority is granted in line 9 for
the IRS to communicate with a person
other than an officer of the issuer, by
signing this form, the issuer's authorized
representative consents to the disclosure
of the issuer's return information, as
necessary to process this return, to such
person.
Paid Preparer
If an authorized officer of the issuer filled
in this return, the paid preparer's space
should remain blank. Anyone who
prepares the return but does not charge
-3-
the organization should not sign the
return. Certain others who prepare the
return should not sign. For example, a
regular, full -time employee of the issuer,
such as a clerk, secretary, etc., should
not sign.
Generally, anyone who is paid to
prepare a return must sign it and fill in the
other blanks in the Paid Preparer's Use
Only area of the return.
The paid preparer must:
• Sign the return in the space provided
for the preparer's signature,
• Enter the preparer information, and
• Give a copy of the return to the issuer.
Privacy Act and Paperwork Reduction
Act Notice. We ask for the information
on this form to carry out the Internal
Revenue laws of the United States. You
are required to give us the information.
We need it to ensure that you are
complying with these laws. Section 6109
requires paid preparers to provide their
identifying number.
You are not required to provide the
information requested on a form that is
subject to the Paperwork Reduction Act
unless the form displays a valid OMB
control number. Books or records relating
to a form or its instructions must be
retained as long as their contents may
become material in the administration of
any Internal Revenue law. Generally, tax
returns and return information are
confidential, as required by section 6103.
The time needed to complete and file
this form varies depending on individual
circumstances. The estimated average
time is:
Learning about the law or 2 hr., 41 min.
the form .............
Preparing, copying, 3 hr., 3 min.
assembling, and sending
the form to the IRS ......
If you have comments concerning the
accuracy of these time estimates or
suggestions for making this form simpler,
we would be happy to hear from you. You
can write to the Internal Revenue Service,
Tax Products Coordinating Committee,
SE:W:CAR:M:P:T:T:SP, 1111
Constitution Ave. NW, IR -6526,
Washington, DC 20224. Do not send the
form to this office. Instead, see Where To
File on page 1.
�i�
ESCROW AGREEMENT •
THIS ESCROW AGREEMENT ( "Escrow Agreement") is made as of August 26, 2011 by and
among U.S. Bancorp Equipment Finance, Inc. ("Lessor"), Town of Avon ("Lessee") and U.S.
BANK NATIONAL ASSOCIATION, as escrow agent ( "Escrow Agent").
Lessor and Lessee have heretofore entered into that certain Master Tax - Exempt Lease
Purchase Agreement dated as of August 26, 2011 (the "Master Agreement ") and a Schedule No.
01 thereto dated August 26, 2011 (the "Schedule" and, together with the terms and conditions
of the Agreement incorporated therein, the "Agreement "). The Schedule contemplates that
certain personal property described therein (the "Equipment ") is to be acquired from the
vendor(s) or manufacturer(s) thereof (the "Vendor "). After acceptance of the Equipment by
Lessee, the Equipment is to be financed by Lessor to Lessee pursuant to the terms of the
Agreement.
The Master Agreement further contemplates that Lessor will deposit an amount equal to
the anticipated aggregate acquisition cost of the Equipment (the "Purchase Price"), being
$563,811.00, with Escrow Agent to be held in escrow and applied on the express terms set forth
herein. Such deposit, together with all interest and other additions received with respect thereto
(hereinafter the "Escrow Fund") is to be applied to pay the Vendor its invoice cost (a portion of
which may, if required, be paid prior to final acceptance of the Equipment by Lessee); and, if
applicable, to reimburse Lessee for progress payments already made by it to the Vendor of the
Equipment. •
The parties desire to set forth the terms on which the Escrow Fund is to be created and to
establish the rights and responsibilities of the parties hereto.
Now, THEREFORE, in consideration of the sum of Ten Dollars ($10.00) in hand paid, and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. (a) Escrow Agent hereby agrees to serve as escrow agent upon the terms
and conditions set forth herein. (b) The moneys and investments held in the Escrow Fund are
irrevocably held in trust for the benefit of Lessee and Lessor, and such moneys, together with
any income or interest earned thereon, shall be expended only as provided in this Escrow
Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any
creditor of either Lessee or Lessor. Lessor, Lessee and Escrow Agent intend that the Escrow
Fund constitute an escrow account in which Lessee has no legal or equitable right, title or
interest until satisfaction in full of all conditions contained herein for the disbursement of funds
by the Escrow Agent therefrom. However, if the parties' intention that Lessee shall have no
legal or equitable right, title or interest until all conditions for disbursement are satisfied in full is
not respected in any legal proceeding, the parties hereto intend that Lessor have a security
interest in the Escrow Fund, and such security interest is hereby granted by Lessee to secure
payment of all sums due to Lessor under the Master Agreement. For such purpose, Escrow
Agent hereby agrees to act as agent for Lessor in connection with the perfection of such security
DWT 17415530v1 0085238- 000005
•
30
• interest and agrees to note, or cause to be noted, on all books and records relating to the Escrow
Fund, the Lessor's interest therein.
2. On such day as is determined to the mutual satisfaction of the parties (the "Closing
Date"), Lessor shall deposit with Escrow Agent cash in the amount of the Purchase Price, to be
held in escrow by Escrow Agent on the express terms and conditions set forth herein.
On the Closing Date, Escrow Agent agrees to accept the deposit of the Purchase Price by
Lessor, and further agrees to hold the amount so deposited together with all interest and other
additions received with respect thereto, as the Escrow Fund hereunder, in escrow on the express
terms and conditions set forth herein.
3. Escrow Agent shall at all times segregate the Escrow Fund into an account
maintained for that express purpose, which shall be clearly identified on the books and records of
Escrow Agent as being held in its capacity as Escrow Agent. Securities and other negotiable
instruments comprising the Escrow Fund from time to time shall be held or registered in the
name of Escrow Agent (or its nominee). The Escrow Fund shall not, to the extent permitted by
applicable law, be subject to levy or attachment or lien by or for the benefit of any creditor of
any of the parties hereto (except with respect to the security interest therein held by Lessor).
4. The cash comprising the Escrow Fund from time to time shall be invested and
reinvested by Escrow Agent in one or more investments as directed by Lessee in Exhibit 1.
Lessee represents and warrants to Escrow Agent and Lessor that the investments selected by
• Lessee for investment of the Escrow Fund are permitted investments for Lessee under all
applicable laws. Escrow Agent will use due diligence to collect amounts payable under a check
or other instrument for the payment of money comprising the Escrow Fund and shall promptly
notify Lessee and Lessor in the event of dishonor of payment under any such check or other
instruments. Interest or other amounts earned and received by Escrow Agent with respect to the
Escrow Fund shall be deposited in and comprise a part of the Escrow Fund. Escrow Agent shall
maintain accounting records sufficient to permit calculation of the income on investments and
interest earned on deposit of amounts held in the Escrow Fund.
C,
5. Upon request by Lessee and Lessor, Escrow Agent shall send monthly statements of
account to Lessee and Lessor, which statements shall set forth all withdrawals from and interest
earnings on the Escrow Fund as well as the investments in which the Escrow Fund is invested.
6. Escrow Agent shall take the following actions with respect to the Escrow Fund:
(a) Upon Escrow Agent's acceptance of the deposit of the Purchase Price, an
amount equal to Escrow Agent's set -up fee, as set forth on Exhibit 2 hereto, shall be
disbursed from the Escrow Fund to Escrow Agent in payment of such fee.
(b) From time to time, Escrow Agent shall pay costs of the Equipment upon
receipt of duly executed Requisition Request form attached as Exhibit 3 hereto (each, a
"Requisition"), subject to Lessor's prior written approval of each such Requisition. The
DWT 17415530v1 0085238- 000005
-2-
31
final Requisition shall be accompanied by a duly executed Certificate of Acceptance form •
attached as Exhibit 4 hereto.
(c) Upon receipt by Escrow Agent of written notice from Lessor that an Event
of Default or an Event of Nonappropriation (if provided for under the Master Agreement)
has occurred under the Agreement, all funds then on deposit in the Escrow Fund shall be
paid to Lessor for application in accordance with the Master Agreement, and this Escrow
Agreement shall terminate.
(d) Upon receipt by Escrow Agent of written notice from Lessor that the
purchase price of the Equipment has been paid in full, Escrow Agent shall pay the funds
then on deposit in the Escrow Fund to Lessor to be applied first to the next Lease
Payment due under the Master Agreement, and second, to prepayment of the principal
component of Lease Payments in inverse order of maturity without premium. To the
extent the Agreement is not subject to prepayment, Lessor consents to such prepayment
to the extent of such prepayment amount from the Escrow Fund. Upon disbursement of
all amounts in the Escrow Fund, this Escrow Agreement shall terminate.
(e) This Escrow Agreement shall terminate eighteen (18) months from the
date of this Escrow Agreement. It may, however, be extended by mutual consent of
Lessee and Lessor in writing to Escrow Agent. All funds on deposit in the Escrow Fund
at the time of termination under this paragraph shall be transferred to Lessor and shall be
applied first to the next Lease Payment due under the Master Agreement, and second to
prepayment of the principal component of Lease Payments in inverse order of maturity •
without premium. To the extent the Master Agreement is not subject to prepayment,
Lessor consents to such prepayment to the extent of such prepayment amount from the
Escrow Fund.
7. The fees and expenses, including any legal fees, of Escrow Agent incurred in
connection herewith shall be the responsibility of Lessee. The basic fees and expenses of
Escrow Agent shall be as set forth on Exhibit 2 and Escrow Agent is hereby authorized to deduct
such fees and expenses from the Escrow Fund as and when the same are incurred without any
further authorization from Lessee or Lessor. Escrow Agent may employ legal counsel and other
experts as it deems necessary for advice in connection with its obligations hereunder. Escrow
Agent waives any claim against Lessor with respect to compensation hereunder.
8. Escrow Agent shall have no liability for acting upon any written instruction
presented by Lessor in connection with this Escrow Agreement, which Escrow Agent in good
faith believes to be genuine. Furthermore, Escrow Agent shall not be liable for any act or
omission in connection with this Escrow Agreement except for its own negligence, willful
misconduct or bad faith. Escrow Agent shall not be liable for any loss or diminution in value of
the Escrow Fund as a result of the investments made by Escrow Agent.
9. Escrow Agent may resign at any time by giving thirty (30) days' prior written notice
to Lessor and Lessee. Lessor may at any time remove Escrow Agent as Escrow Agent under this
-3-
DWT 17415530vl0085238- 000005
•
.R2
• Escrow Agreement upon written notice. Such removal or resignation shall be effective on the
date set forth in the applicable notice. Upon the effective date of resignation or removal, Escrow
Agent will transfer the Escrow Fund to the successor Escrow Agent selected by Lessor.
10. Lessee hereby represents, covenants and warrants that pursuant to Treasury
Regulations Section 1.148 -7(d), the gross proceeds of the Agreement will be expended for the
governmental purposes for which the Agreement was entered into, as follows: at least 15%
within six months after the Commencement Date, such date being the date of deposit of funds
into the Escrow Fund, at least 60% within 12 months after the Commencement Date, and 100%
within 18 months after the Commencement Date. If Lessee is unable to comply with Section
1.148 -7(d) of the Treasury Regulations, Lessee shall, at its sole expense and cost, compute
rebatable arbitrage on the Agreement and pay rebatable arbitrage to the United States at least
once every five years, and within 60 days after payment of the final rental or Lease Payment due
under the Agreement.
11. In the event of any disagreement between the undersigned or any of them, and /or
any other person, resulting in adverse claims and demands being made in connection with or for
any moneys involved herein or affected hereby, Escrow Agent shall be entitled at its option to
refuse to comply with any such claim or demand, so long as such disagreement shall continue,
and in so refusing Escrow Agent may refrain from making any delivery or other disposition of
any moneys involved herein or affected hereby and in so doing Escrow Agent shall not be or
become liable to the undersigned or any of them or to any person or party for its failure or refusal
• to comply with such conflicting or adverse demands, and Escrow Agent shall be entitled to
continue so to refrain and refuse so to act until:
•
(a) the rights of the adverse claimants have been finally adjudicated in a court
assuming and having jurisdiction of the parties and the moneys involved herein or
affected hereby; or
(b) all differences shall have been adjusted by Master Agreement and Escrow
Agent shall have been notified thereof in writing signed by all of the persons interested.
12. All notices (excluding billings and communications in the ordinary course of
business) hereunder shall be in writing, and shall be sufficiently given and served upon the other
party if delivered (a) personally, (b) by United States registered or certified mail, return receipt
requested, postage prepaid, (c) by an overnight delivery by a service such as Federal Express or
Express Mail from which written confirmation of overnight delivery is available, or (d) by
facsimile with a confirmation copy by regular United States mail, postage prepaid, addressed to
the other party at its respective address stated below the signature of such party or at such other
address as such party shall from time to time designate in writing to the other party, and shall be
effective from the date of mailing.
13. This Escrow Agreement shall inure to the benefit of and shall be binding upon the
parties hereto and their respective successors and assigns. No rights or obligations of Escrow
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Agent under this Escrow Agreement may be assigned without the prior written consent of •
Lessor.
14. This Escrow Agreement shall be governed by and construed in accordance with the
laws in the state of the Escrow Agent's location. This Escrow Agreement constitutes the entire
Agreement between the parties hereto with respect to the subject matter hereof, and no waiver,
consent, modification or change of terms hereof shall bind any party unless in writing signed by
all parties.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be duly
executed as of the day and year first above set forth.
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U.S. Bancorp Equipment Finance, Inc.,
as Lessor
By
Name:
Title:
Address: 13010 SW 68` Parkway, Suite 100
Portland OR 97223
Town of Avon
as Lessee •
By
Name:
Title:
Address: PO Box 975
Avon, CO 81620
U.S. BANK NATIONAL ASSOCIATION,
as Escrow Agent
By
Name:
Title:
Address: U.S. Bank National Association
950 17`h Street, 12`h Floor
Denver, CO 80202
_5_ •
• EXHIBIT 1
INVESTMENT DIRECTION LETTER
U.S. Bank National Association
950 17`h Street, 12`h Floor
Denver, CO 80202
Re: Escrow Agreement dated as of August 26, 2011,
U.S. Bancorp Equipment Finance, Inc. as Lessor,
Town of Avon as Lessee, and
U.S. Bank National Association, as Escrow Agent
Ladies and Gentlemen:
Pursuant to the above - referenced Escrow Agreement, $563.11
8.00 will be deposited in escrow with you on or about
August 26, 2011. Such funds shall be invested in one or more of the following qualified investments in the amounts
indicated:
U.S. Bank Money Market Account
Agent is hereby directed to deposit and invest funds in the U.S. Bank Money Market Savings Account. Depositors acknowledge
that the U. S. Bank Money Market account is a U. S. Bank National Association ( "U.S. Bank ") interest - bearing money market
deposit account designed to meet the needs of U.S. Bank's Corporate Trust Services Escrow Group and other Corporate Trust
customers of U.S. Bank. Selection of this investment includes authorization to place funds on deposit with U.S. Bank. U. S.
Bank uses the daily balance method to calculate interest on this account (actual /365 or 366). This method applies a daily periodic
• rate to the principal balance in the account each day. Interest is accrued daily and credited monthly to the account. Interest rates
currently offered on the accounts are determined at U. S. Bank's discretion and may be tiered by customer deposit amount. The
owner of the accounts is U. S. Bank as Agent for its trust customers. U.S. Bank's trust department performs all account deposits
and withdrawals. Each customer's deposit is insured by the Federal Deposit Insurance Corporation as determined under FDIC
Regulations, up to applicable FDIC limits. Any and all interest earned on the Assets after the deposit shall be added to the Assets
and shall become a part thereof. Agent shall thereafter hold, maintain and utilize the Assets pursuant to the terms and conditions
of this Agreement. Depositors shall provide Agent with a W -9 or original W -8 IRS tax form prior to the disbursement of interest
and Agent will file the appropriate 1099 or other required forms pursuant to Federal and Texas laws. A statement of citizenship
will be provided if requested by Agent. Agent shall not be responsible for maximizing the yield on the Assets. Agent shall not
be liable for losses, penalties or charges incurred upon any sale or purchase of any such investment.
DWT 17415530v10085238- 000005
Very truly yours,
By: Town of Avon
Name:
Title:
3 S
EXHIBIT 2
ESCROW AGENT FEES AND EXPENSES
SET -UP FEES
$0.00 payable from the Escrow Fund upon acceptance of escrow deposit.
EXPENSES
Any and all out -of- pocket expenses incurred by Escrow Agent will be the responsibility
of Lessee and paid from the Escrow Fund.
DWT 17415530v10085238- 000005
•
•
•
EXHIBIT 3
• REQUISITION REQUEST
The Escrow Agent is hereby requested to pay from the Escrow Fund established and maintained
under that certain Escrow Agreement dated as of August 26, 2011 (the "Escrow Agreement") by and
among U.S. Bancorp Equipment Finance, Inc. (the "Lessor"), Town of Avon (the "Lessee"), and U.S.
Bank National Association (the "Escrow Agent "), the amount set forth below to the named payee(s).
The amount shown is due and payable under a purchase order or contract (or has been paid by and not
previously reimbursed to Lessee) with respect to equipment being financed under that certain Master
Tax - Exempt Lease Purchase Agreement dated as of August 26, 2011 (the "Master Agreement") and
Schedule 01 thereto dated August 26, 2011 (the "Schedule" and, together with the terms and conditions
of the Master Agreement incorporated therein, the "Master Agreement "), by and between the Lessor
and the Lessee, and has not formed the basis of any prior requisition request.
PAYEE
AMOUNT
Total requisition amount $
• The undersigned, as Lessee under the Master Agreement, hereby certifies:
1. The items of the Equipment being acquired with the proceeds of this disbursement have
been delivered and installed at the location(s) contemplated by the Master Agreement. The Lessee has
conducted such inspection and /or testing of the Equipment being acquired with the proceeds of this
disbursement as it deems necessary and appropriate, and such Equipment has been accepted by Lessee.
2. The costs of the Equipment to be paid from the proceeds of this disbursement have been
properly incurred, are a proper charge against the Escrow Fund and have not been the basis of any
previous disbursement.
3. No part of the disbursement requested hereby will be used to pay for materials not yet
incorporated into the Equipment or for services not yet performed in connection therewith.
4. The Equipment is covered by insurance in the types and amounts required by the
Agreement.
5. No Event of Default or Event of Nonappropriation (if applicable), as each such term is
defined in the Master Agreement, and no event which with the giving of notice or lapse of time, or both,
would become such an Event of Default or Event of Nonappropriation has occurred and is continuing on
the date hereof.
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6. If Lessee paid an invoice prior to the commencement date of the Master Agreement, and
is requesting reimbursement for such payment, Lessee has satisfied the requirements for reimbursement •
set forth in Treas. Reg. § 1.150 -2.
Request Date:
Town of Avon
as Lessee
By
Name: _
Title:
Date:
U.S. Bancorp Equipment Finance, Inc.
as Lessor
Title:
Date:
WE
DWT 17415530vl 0085238- 000005
•
•
• U.S. Bank Equipment Finance, Inc.
13010 SW 68th Parkway, Suite 100
Portland, OR 97223
•
Exhibit 4
Re: Property Schedule No. 01 to Master Tax- Exempt Lease Purchase Agreement between U.S. Bank Equipment
Finance, Inc. and Town of Avon
Ladies and Gentlemen:
In accordance with the above - referenced Master Tax - Exempt Lease Purchase Agreement (the "Master Agreement "), the
undersigned ( "Lessee ") hereby certifies and represents to, and agrees with, U.S. Bank Equipment Finance, Inc. ( "Lessor "), as
follows:
(1) The Property, as such terms are defined in the above - referenced Property Schedule, has been acquired, made,
delivered, installed and accepted on the date indicated below.
(2) Lessee has conducted such inspection and /or testing of the Property as it deems necessary and appropriate and
hereby acknowledges that it accepts the Property for all purposes.
(3) No event or condition that constitutes, or with notice or lapse of time, or both, would constitute, an Event of
Default or an Event of Nonappropriation (as such term is defined in the Agreement) exists at the date hereof.
Date:
Town of Avon
as Lessee
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