|
5.3 Lessor shall have no obligation to pay any Purchase Price unless all reasonable conditions established by Lessor
<br />( "Funding Conditions ") have been satisfied, including, without limitation, the following: (a) Lessee has signed and delivered the
<br />Schedule and its Payment Schedule; (b) no Event of Default shall have occurred and be continuing; (c) no material adverse change
<br />shall have occurred in the Internal Revenue Code of 1986, as amended, and the related regulations and rulings thereunder
<br />(collectively, the "Code "); (d) no material adverse change shall have occurred in the financial condition of Lessee or any Supplier; (e)
<br />the Equipment is reasonably satisfactory to Lessor and is free and clear of any Liens (except Lessor's Liens); (f) all representations of
<br />Lessee in the Lease remain true, accurate and complete; and (g) Lessor has received all of the following documents, which shall be
<br />reasonably satisfactory, in form and substance, to Lessor: (1) evidence of insurance coverage required by the Lease; (2) an opinion of
<br />Lessee's counsel; (3) reasonably detailed invoices for the Equipment; (4) Uniform Commercial Code (UCC) financing statements; (5)
<br />copies of resolutions by Lessee's governing body authorizing the Lease and incumbency certificates for the person(s) who will sign the
<br />Lease; (6) such documents and certificates relating to the tax - exempt interest payable under the Lease (including, without limitation,
<br />IRS Form 8038G or 803 8G as Lessor may request; and (7) such other documents and information previously identified by Lessor or
<br />otherwise reasonably requested by Lessor.
<br />6. TERMINATION FOR GOVERNMENTAL NON - APPROPRIATIONS.
<br />6.1 For each Lease, Lessee represents and warrants: that it has appropriated and budgeted the necessary funds to make all
<br />Rent Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; and that it
<br />currently intends to make Rent Payments for the full Lease Term as scheduled in the applicable Payment Schedule if funds are
<br />appropriated for the Rent Payments in each succeeding fiscal year by its governing body. Without contractually committing itself to
<br />do so, Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can and will lawfully be
<br />appropriated therefor. Lessee directs the person in charge of its budget requests to include the Rent Payments payable during each
<br />fiscal year in the budget request presented to Lessee's governing body for such fiscal year; provided, that Lessee's governing body
<br />retains authority to approve or reject any such budget request. All Rent Payments shall be payable out of the general funds of Lessee
<br />or out of other funds legally appropriated therefor. Lessor agrees that no Lease will be a general obligation of Lessee and no Lease
<br />shall constitute a pledge of either the full faith and credit of Lessee or the taxing power of Lessee.
<br />6.2 If Lessee's governing body fails to appropriate sufficient funds in any fiscal year for Rent Payments or other payments
<br />due under a Lease and if other funds are not legally appropriated for such payments, then a "Non-Appropriation Event" shall be
<br />deemed to have occurred. If a Non - Appropriation Event occurs, then: (a) Lessee shall give Lessor immediate notice of such Non -
<br />Appropriation Event and provide written evidence of such failure by Lessee's governing body; (b) on the Return Date, Lessee shall
<br />return to Lessor all, but not less than all, of the Equipment covered by the affected Lease, at Lessee's sole expense, in accordance with
<br />Section 21 hereof; and (c) the affected Lease shall terminate on the Return Date without penalty to Lessee, provided, that Lessee shall
<br />pay all Rent Payments and other amounts payable under the affected Lease for which funds shall have been appropriated, provided
<br />further, that Lessee shall pay month -to -month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee
<br />fails to return the Equipment under this Section 6.2. "Return Date" means the last day of the fiscal year for which appropriations were
<br />made for the Rent Payments due under a Lease.
<br />7. LIMITATION ON WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR
<br />IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO THE
<br />MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY OF THE EQUIPMENT OR AS TO
<br />THE VALUE, DESIGN, CONDITION, USE, CAPACITY OR DURABILITY OF ANY OF THE EQUIPMENT. For and
<br />during the Lease Term, Lessor hereby assigns to Lessee any manufacturer's or Supplier's product warranties, express or implied,
<br />applicable to any Equipment and Lessor authorizes Lessee to obtain the customary services fiunished in connection with such
<br />warranties at Lessee's sole expense. Lessee agrees that (a) all Equipment will have been purchased by Lessor in accordance with
<br />Lessee's specifications from Suppliers selected by Lessee, (b) Lessor is not a manufacturer or dealer of any Equipment and has no
<br />liability for the delivery or installation of any Equipment, (c) Lessor assumes no obligation with respect to any manufacturer's or
<br />Supplier's product warranties or guaranties, (d) no manufacturer or Supplier or any representative of said parties is an agent of Lessor,
<br />and (e) any warranty, representation, guaranty or agreement made by any manufacturer or Supplier or any representative of said
<br />parties shall not be binding upon Lessor.
<br />8. TITLE; SECURITY INTEREST.
<br />8.1 Upon Lessee's acceptance of any Equipment under a Lease, title to the Equipment shall vest in Lessee, subject to Lessor's
<br />security interest therein and all of Lessor's other rights under such Lease including, without limitation, Sections 6, 20 and 21 hereof.
<br />8.2 As collateral security for the Secured Obligations, Lessee hereby grants to Lessor a first priority security interest in any
<br />and all of the Equipment (now existing or hereafter acquired) and any and all proceeds thereof. Lessee agrees to execute and deliver to
<br />Lessor all necessary documents to evidence and perfect such security interest, including, without limitation, UCC financing statements
<br />and any amendments thereto.
<br />Page 2 of 6
<br />
|