Common use of Representations and Covenants of Lessee Clause in Contracts

Appears in 1 contract

Samples: Taxable Ncreb Equipment Lease/Purchase Agreement

Representations and Covenants of Lessee. Lessee hereby represents, covenants and warrants for the benefit of Lessor on the date hereof ~~as follows~~that: (a) Lessee is ~~[the State] [~~a ~~political subdivision of the State within the meaning of Section 103(c) of the Code,~~ charter city duly organized and existing under the ~~constitution~~ Constitution and laws of the State], with full power and authority to enter into ~~this~~ the Agreement and the Acquisition Fund Agreement and the transactions contemplated hereby and thereby and to perform all of its obligations ~~hereunder~~hereunder and thereunder. (b) Lessee has duly authorized the execution and delivery of this Agreement and the ~~Escrow~~ Acquisition Fund Agreement by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the ~~Escrow~~ Acquisition Fund Agreement. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. (d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a ~~body corporate and politic~~charter city. (e) Lessee ~~has complied~~ expects to comply with such public bidding requirements as may be applicable to this Agreement and the acquisition and installation by Lessee of the ~~Equipment~~Energy Conservation Equipment under this Agreement. (f) During the Lease Term, the Energy Conservation Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority~~. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently ~~applied~~applied as such principles are required to be applied to government agencies by government accounting standards applicable to Lessee, and shall deliver to Lessor (i) ~~annual~~ its unaudited Governmental Funds Balance Sheet and its unaudited Statement of Revenues, Expenditures and Changes in Fund Balances for its Fiscal Year ended June 30, 2010 as soon as available; (ii) its unaudited Comprehensive Annual Financial Report for its Fiscal Year ended June 30, 2010 in draft form as soon as soon as available but in no event later than August 31, 2011; (iii) its audited Comprehensive Annual Financial Report for its Fiscal Year ended June 30, 2010 as soon as available but in no event later than September 30, 2011; (iv) its audited Comprehensive Annual Financial Report for each of its Fiscal Years ending on and after June 30, 2011 not later than 285 days after the end of each such Fiscal Year; (v) such other financial statements and information as Lessor may reasonably request (including with respect to its unaudited financial information provided pursuant to clauses (i) and (ii) of this subsection (g)) and as are routinely prepared or may be prepared by Lessee without unreasonable expense or in excess of a reasonable time, and (vi) its proposed budget for the following Fiscal Year when released and the annual budget not later than 30 days after the adoption of the ordinance for the annual budget. The financial statements described in this subsection (g), other than as described in clauses (i) and (ii), shall be accompanied by the report of the independent auditor who conducted the audit of the financial statements of Lessee. Non-public credit information relating to Lessee may only be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (Note: Lessor is aware of the Fiscal Year 2010 Financial Close Schedule as outlined in the Chief Financial Officer Memorandum to the Lessee’s City Council dated March 1, 2011. To the extent that any further requests for extension of financial statement due dates are made by the Lessee, those will be considered by Lessor in its sole discretion.) (h) Once installed, Lessee has an immediate need for the Energy Conservation Equipment and expects to make immediate use of the Energy Conservation Equipment. Lessee’s need for the Energy Conservation Equipment is not temporary and Lessee does not expect the need for any item of the Energy Conservation Equipment to diminish during the Lease Term. (i) There is no pending litigation, tax claim, proceeding or dispute that Lessee reasonably expects would materially and adversely affect Lessee’s financial condition or impairs its ability to perform its obligations under this Agreement or the Acquisition Fund Agreement. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor’s first priority security interest in the Energy Conservation Equipment, the Acquisition Fund and the Delivery Costs Fund, and Lessor’s rights and benefits under this Agreement and the Acquisition Fund Agreement. (j) The Energy Conservation Equipment is and will be located on improvements within a ~~balance sheet,~~right-of-way that is dedicated to public use for a period that is longer than the Lease Term. Lessee has good and marketable title to such improvements on which Energy Conservation Equipment is or will be located, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such improvements. (k) No lease-purchase agreement, installment payment agreement, conditional sale agreement or similar finance contract to which Lessee has been a party during the past ten (10) Fiscal Years and that is subject to annual non-renewal or termination upon the decision of the governing body of Lessee not to appropriate funds sufficient to make payments thereunder has not been renewed or been terminated by the governing body of Lessee as a result of insufficient or no funds being appropriated in any such Fiscal Year. No principal or interest payment delinquency has occurred during the past ten (10) Fiscal Years under any debt, revenue bond or other obligation that has required Lessee to file a material events notice in accordance with a continuing disclosure undertaking or agreement that Lessee has entered into for purposes of Rule 15c2-12 promulgated under the Securities Exchange Act of 1934, as amended. No event of default by Lessee as a result of the failure to pay principal or interest has occurred under any debt, revenue bond or other obligation that Lessee has issued during the past five (5) Fiscal Years and that is exempt from the requirements of such Rule 15c2-12 based on subsection (d)(1)(i) thereof.

Appears in 1 contract

Samples: Equipment Lease Agreement

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof as follows: (a) Lessee is ~~[the State] [~~city and a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby and to perform all of its obligations ~~hereunder~~hereunder and thereunder. (b) Lessee has duly authorized the execution and delivery of this Agreement and the Escrow Agreement by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to this Agreement. (d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a city and a body corporate and ~~politic~~politic of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to this Agreement and the acquisition and installation by Lessee of the Equipment. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently ~~applied~~applied by governmental entities, and shall deliver to Lessor (i) if not otherwise available to Lessor on the website of Lessee or available to Lessor through the MRSB’s EMMA portal, annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request (if not otherwise available to Lessor on the website of Lessee or available to Lessor through the MRSB’s EMMA portal) its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (g)(1) shall be accompanied by an unqualified opinion of Xxxxxx’s independent auditor. In the event such financial statements are not accompanied by an unqualified opinion of Xxxxxx’s independent auditor, Lessee shall provide Lessor with an explanation for such failure and if Lessor receives such explanation within 3 business days of such breach, Lessor shall assess or take into consideration such explanation prior to exercising remedies in connection with a breach of the covenant in the immediately preceding sentence; provided that nothing herein shall preclude Lessor from exercising any remedies under Section 12.02 hereof upon the occurrence of an Event of Default. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment and expects to make immediate use of the Equipment. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Lease Term. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of this Agreement or any underlying arrangement) directly or indirectly

Appears in 1 contract

Samples: Tax Exempt Equipment Lease/Purchase Agreement

Representations and Covenants of Lessee. The Lessee ~~represents,~~ makes the following representations and covenants ~~and warrants~~ as the basis for the ~~benefit of Lessor~~ undertakings on ~~the date hereof as follows~~its part herein contained: (a) The Lessee is ~~[the State] [~~a ~~political subdivision of the State within the meaning of Section 103(c) of the Code,~~ limited liability limited partnership duly organized and validly existing under the ~~constitution~~ laws of, and ~~laws of~~ in good standing in, the State], ~~with full~~ has power ~~and authority~~ to enter into this ~~Agreement~~ Agreement, and by proper action has duly authorized the ~~transactions contemplated hereby~~ execution and ~~to perform all~~ delivery of ~~its obligations hereunder~~this Agreement. (b) The Lessee by proper action has duly authorized the execution and delivery of this Agreement and ~~the Escrow Agreement by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum~~ each of the ~~members thereof, or by~~ other ~~appropriate official approval, and all requirements have been met and procedures have occurred in order~~ Financing Documents to ~~ensure the validity and enforceability of this Agreement and the Escrow Agreement~~which it is a party. (c) ~~No event or condition that constitutes~~The Lessee has executed and delivered this Agreement and each of the other Financing Documents to which it is a party to the Issuer and, or when validly executed and delivered by the other parties thereto, such documents, together with the ~~giving~~ Indenture to the extent applicable to it, will constitute its legal, valid and binding agreements, enforceable against it in accordance with their respective terms, except as the enforceability thereof may be subject to (i) the exercise of ~~notice~~ judicial discretion in accordance with general equitable principles, and (ii) applicable bankruptcy, insolvency, reorganization, moratorium and other laws for the relief of debtors heretofore or hereafter enacted to the ~~lapse~~ extent that the same may be constitutionally applied, and except that enforceability of ~~time~~ indemnification and contribution provisions may be limited, in whole or ~~both would constitute~~in part, ~~an Event of Default exists at the date hereof~~by applicable security laws or public policy. (d) Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby nor the compliance with the terms and conditions of this Agreement violates the terms of Lessee’s Partnership Agreement, or conflicts with or results in a breach of any of the terms, conditions or provisions of any restriction or any agreement or instrument to which the Lessee is now a party or by which it is bound, or constitutes a default under any of the foregoing, or, to the best of the knowledge of the Lessee, results in the creation or imposition of any prohibited lien, charge or encumbrance of any nature whatsoever upon any of the property or assets of the Lessee under the terms of any instrument or agreement. (e) Any certificate signed by an Authorized Lessee Representative and delivered pursuant to the Indenture, this Agreement or any of the other Financing Documents shall be deemed a representation and warranty by the Lessee as to the statements made therein. (f) The Lessee intends to operate or to cause the Project to be operated to the expiration or sooner termination of the Lease Term as provided herein as a multifamily housing complex for rental to persons of low and moderate income and a “housing project” as defined in the Act. (g) The Land is zoned [ ]. All ordinances necessary to affect such zoning have been duly and validly adopted by the City of Albuquerque, New Mexico in accordance with the laws of the State. All such ordinances are in full force and effect and have not been repealed, rescinded or revoked. (h) No part of the Project is being condemned or under threat of condemnation by any public agency. (i) Upon completion, to the best of the knowledge of the Lessee, the Project will comply with all applicable zoning and planning ordinances, building codes, flood regulations, environmental laws and regulations, restrictive covenants, deed restrictions, and all other applicable laws, ordinances, statutes, rules and regulations relating to the Project. (j) The Lessee has obtained (or will timely obtain as required) such licenses, permits and approvals necessary for the construction of the Project and the ownership or conduct of its business, including the transactions contemplated by the Indenture, this Agreement and each of the other Financing Documents. (k) The Lessee shall notify the Trustee and the Issuer immediately in writing of an Event of Default by it in the performance or observance of any covenant, agreement, representation, warranty or obligation of the Lessee set forth in this Agreement and any of the other Financing Documents to which it is a party. (l) There are no pending or, to the best of the knowledge of the Lessee, threatened legal or administrative proceedings against the Lessee or affecting the Project which, if determined adversely, would have a material adverse effect on the Lessee or the Project. (m) No information, statement or report furnished in writing to the Issuer or the Trustee or its agents, counsel or independent contractors, by it or by its agents in connection with this Agreement and the other Financing Documents and the consummation of the transactions contemplated hereby and thereby (including, without limitation, any information furnished by or on behalf of it in connection with the preparation of any official statement, limited offering memorandum or other offering memorandum) contains any material misstatement of fact or to the best of its knowledge after reasonable investigation omits to state a material fact necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading and the representations and warranties of it and the statements, information and descriptions contained in its closing certificates, as of the date of delivery of the Bonds, will be true, correct and complete in all material respects, will not contain any untrue statement of a material fact, and will not, to the best of its knowledge after reasonable investigation, omit to state a material fact necessary to make the certifications, representations, warranties, statements, information and descriptions contained therein, in light of the circumstances under which they were made, not misleading, and the estimates and the assumptions contained in its closing certificates, as of the date of delivery of the Bonds, will be reasonable and based on the best information available to it. (n) To the best of the knowledge of the Lessee, all utilities, including water and sewer, necessary for construction and operation of the Project are available. To the best of the knowledge of the Lessee all necessary steps have been taken by the Lessee to insure the complete construction and installation of such utilities. (o) To the best of the knowledge of the Lessee all roads or alleyways necessary for the full utilization of the Project upon completion for its intended purposes are available or have been completed, or the necessary rights-of-way therefor have been acquired. (p) The Lessee further represents, warrants and agrees that, other than entering into its obligations hereunder and under the other Financing Documents, it will not acquire property or engage in any other activity that would cause it to lose its status as a “single- purpose entity” and shall not: (i) Engage, directly or indirectly, in any business other than that arising out of or entering into this Agreement and the other Financing Documents to which it is a party and the ownership, management, leasing, construction, development, operation and maintenance of the Project; (ii) acquire any real or personal property other than the respective property encumbered by the mortgage to which it is a party; (iii) Commingle its assets with the assets of any other entity or otherwise maintain its assets in a way difficult to aggregate and identify; (iv) Except in connection with a disposition of one or more of the multifamily housing facilities comprising the Project (to the extent permitted under the terms of this Agreement, the Mortgage Loan Documents and the Financing Documents), partition the Project; or (v) Except in connection with a disposition of one or more of the multifamily housing facilities comprising the Project (to the extent permitted under the terms of this Agreement, the Mortgage Loan Documents and the Financing Documents), dissolve, liquidate, consolidate, merge or sell substantially all of its assets; or engage in any business other than the ownership and operation of the Project. (q) The Lessee further covenants that it: (i) Will do or cause to be done all things necessary to preserve and keep its existence in full force and ~~effect~~ effect; (ii) Will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation, merger or asset sale, and will maintain adequate capitalization (taking into account, among other things, the market value of its ~~existence~~ assets) for its business purposes; (iii) Will pay all expenses of the Project from its assets; (iv) Will maintain separate books and records and bank accounts and will maintain a separate business office (which may be a management office at the Project); (v) Will at all times hold itself out to the public as a ~~body corporate~~ separate and ~~politic~~distinct legal entity (including in its leasing activities, in entering into any contract and in preparing its financial statements) and will observe organizational formalities in conducting its business; and (vi) Will file its own tax returns and other financial statements or, if part of a consolidated group, will join in the consolidated tax return of such group as a separate member thereof; and will cause its management to meet regularly to carry on its business. (er) The Lessee ~~has complied with such public bidding requirements as may be applicable~~ will not fail to ~~this Agreement and the acquisition by~~ correct any known misunderstanding regarding its separate identity. The Lessee will not acquire obligations or securities of its partners or shareholders or members of its partners. Correspondence on behalf of the ~~Equipment~~Lessee shall be sent on its own letterhead (if any) or on the letterhead of a project manager. (fs) ~~During~~ The Lessee acknowledges, accepts and agrees to its obligations (and all obligations assigned to it or described as its responsibility) under the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunderIndenture. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,

Appears in 1 contract

Samples: Lease Agreement

Representations and Covenants of Lessee. Lessee represents, ~~covenants~~ warrants and ~~warrants~~ covenants, for the benefit of Lessor ~~on the date hereof~~ as follows: (a) Lessee is ~~[the State] [~~a ~~political subdivision of the State within the meaning of Section 103(c) of the Code,~~ charter municipality with home-rule powers duly organized and existing under the constitution and laws of the State]. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a charter municipality. So long as the Agreement continues in effect, Lessee shall use its best efforts to comply with ~~full~~ its enabling legislation and other laws to which it is subject. Lessee has a substantially each of the following sovereign powers: (i) the power to tax, (ii) the power of eminent domain, and ~~authority~~ (iii) police power. (b) Xxxxxx is authorized under the constitution and laws of the State to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) ~~Lessee~~ Xxxxxx has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at ~~a meeting~~ meetings duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Closing Date. (df) Lessee ~~will do or cause~~ has, in accordance with the requirements of law, pledged to ~~be done all things necessary~~ and granted to ~~preserve~~ Lessor a security interest in the Pledged Energy Cost Savings Revenues for the payment of amounts due under this Agreement, subject to the uses thereof permitted by and ~~keep~~ the priorities set forth in ~~full force~~ the Ordinance. The Agreement constitutes an irrevocable and ~~effect its existence as a body corporate and politic~~first lien on the Pledged Energy Cost Savings Revenues. (eg) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by ~~Lessee~~ Xxxxxx of the ~~Equipment~~Equipment hereunder. (fh) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition or properties of Lessee. (i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Xxxxxx of this Agreement or in connection with the carrying out by Xxxxxx of its obligations hereunder have been obtained. (j) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (k) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Xxxxxx’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of ~~Lessee~~Xxxxxx’s authority. (l) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). ~~Lessee does not intend to sell or otherwise dispose~~ No portion of the Equipment will be used directly or indirectly in any ~~interest therein prior to~~ trade or business carried on by any non-exempt person (within the ~~last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~meaning of Section 103 of the Code). (gm) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (n) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become “arbitrage bonds” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (o) Xxxxxx has never failed to pay payments coming due under any bond issue, lease purchase agreement or other indebtedness obligation of Lessee. (p) The useful life of the Equipment will not be less than the Lease Term. (q) The application, statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, and Xxxxxx has experienced no material change in its financial condition since the date(s) of such information. (r) Xxxxxx’s fiscal year begins on July 1 and ends on the following June 30. Xxxxxx has provided Lessor with audited financial statements through June 30, 2018. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under the Agreement since June 30, 2018. (s) Lessee will pay the excess (if any) of the actual costs of acquiring the Equipment under the Agreement over the amount deposited by Lessor in the escrow fund, if any, established under any related escrow agreement and interest earnings thereon. Xxxxxx agrees with Lessor that no moneys shall be disbursed from the escrow fund established under the related escrow agreement for costs of the Equipment until Lessee has provided to Lessor evidence of Lessee’s payment of not less than $1,355,592 for costs of the Equipment from other available funds. (t) Lessee has ~~kept~~established or will have established as of the Closing Date, ~~and throughout~~ the ~~Lease Term shall keep, its books and records~~ Rental Payment Fund in accordance with ~~generally accepted accounting principles~~ the Act for the purpose of paying the Rental Payments. (u) The Equipment is not a replacement, repair, substitution or proceeds of any equipment or personal property subject to a prior lien or security interest of a third party. (v) Except as provided in subsection (w) of this Section 2, Lessee is the fee owner of the real estate where the Equipment is and ~~practices consistently applied~~will be located and has good and marketable title thereto, and ~~shall deliver~~ there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to ~~Lessor~~ such real estate. (w) As set forth in Section 18(b) and18(c) hereof, Lessee will transfer its title to Equipment installed in the Improved Xxxxxxx Facilities to the Xxxxxxx Direct Diversion Board at the time that title to such Equipment vests in the Lessee, subject to (i) ~~annual audited financial statements~~ the Lessor’s security interest in the Equipment granted in Section 19 hereof, and (~~including (1~~ii) ~~a balance sheet,~~all Lessor’s rights and remedies as provided in this Agreement.

Appears in 1 contract

Appears in 1 contract

Samples: Personal Property Lease Purchase Agreement

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of Lessor ~~on the date hereof~~ as ~~follows~~follows with respect to each separate Lease and related Schedule: (a) Lessee is ~~[the State] [~~a political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State]. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, ~~with full~~ (ii) the power of eminent domain, and ~~authority~~ (iii) police power. (b) Lessee is authorized under the constitution and laws of the State to enter into the Schedule and this ~~Agreement~~ Master Agreement, which is incorporated therein, and the ~~transactions~~ transaction contemplated thereby and hereby and to perform all of its obligations thereunder and hereunder. (bc) Lessee has been duly authorized to execute and deliver the ~~execution~~ Schedule and ~~delivery of~~ this ~~Agreement and the Escrow Agreement~~ Master Agreement, which is incorporated therein, by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) No Each Lease constitutes a legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) As of the Commencement Date, no event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at under the ~~date hereof~~Lease or any other Lease previously entered into pursuant to this Master Agreement. (df) Lessee ~~will do or cause~~ has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to ~~be done all things necessary~~ make the Rental Payments scheduled to ~~preserve~~ come due during the Original Term and ~~keep in full force~~ to meet its other obligations under the Lease for the Original Term, and ~~effect its existence as a body corporate and politic~~such funds have not been expended for other purposes. (eg) Lessee has complied with such public bidding requirements as may be applicable to ~~this Agreement~~ the Lease and the acquisition by Lessee of the ~~Equipment~~Equipment thereunder. (fh) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by the Lease ~~Term~~or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by the Lease or this Master Agreement or materially adversely affect the financial condition or properties of Lessee. (i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Xxxxxx of the Lease or in connection with the carrying out by Lessee of its obligations thereunder have been obtained. (j) The entering into and performance of the Lease or any other document or agreement contemplated thereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as therein provided. (k) The Equipment described in the Lease is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use, substantially all of the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Xxxxxx’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of ~~Lessee~~Xxxxxx’s authority. (l) Neither the payment of the Rental Payments under the Lease nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). ~~Lessee does not intend to sell or otherwise dispose~~ No portion of the Equipment will be used directly or indirectly in any ~~interest therein prior to~~ trade or business carried on by any non-exempt person (within the ~~last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~meaning of Section 103 of the Code). (gm) Lessee ~~has kept~~will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and ~~throughout~~ the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (n) Lessee will use the proceeds of the Lease as soon as practicable and with all reasonable dispatch for the purpose for which the Lease has been entered into. No part of the proceeds of the Lease will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of the execution and delivery of such Lease, would have caused any portion of the Lease to be or become an “arbitrage bond” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (o) Xxxxxx has never failed to pay payments coming due under any bond issue, lease purchase agreement or other indebtedness obligation of Lessee. (p) The useful life of the Equipment under the Lease, excluding any Street Lights, will not be less than the Maximum Lease Term ~~shall keep~~for that Lease. (q) The application, ~~its books~~ statements and ~~records in accordance with generally accepted accounting principles~~ credit or financial information submitted by Lessee to Lessor are true and ~~practices consistently applied~~correct and made to induce Lessor to enter into the Lease and the related escrow agreement, and ~~shall deliver~~ Xxxxxx has experienced no material change in its financial condition since the date(s) of such information. (r) Lessee will pay the excess (if any) of the actual costs of acquiring the Equipment under the Lease over the amount deposited by Lessor in the escrow fund, if any, established under any related escrow agreement and interest earnings thereon. (s) The Equipment to ~~Lessor~~ be acquired under the Lease is not a replacement, repair, substitution or proceeds of any equipment or personal property subject to a prior lien or security interest of a third party. (it) ~~annual audited financial statements (including (1) a balance sheet,~~Lessee is the fee owner of the real estate or the owner of easement or right of way interests in the real estate, where the Equipment to be acquired under the Lease is and will be located and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such real estate.

Appears in 1 contract

Samples: Master Equipment Lease Purchase Agreement

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each Lease as follows: (a) Lessee is ~~[the State] [~~a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into ~~this Agreement~~ the Related Documents and the transactions contemplated ~~hereby~~ thereby and to perform all of its obligations ~~hereunder~~thereunder. (b) Lessee has duly authorized the execution and delivery of ~~this Agreement and~~ the ~~Escrow Agreement~~ Related Documents by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of ~~this Agreement and~~ the ~~Escrow Agreement~~Related Documents. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to any Lease. (d) 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~~politic of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to ~~this Agreement~~ the Related Documents and the acquisition and installation by Lessee of the ~~Equipment~~Equipment as provided in each Lease. (f) During the Lease ~~Term~~Term under each Lease, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid ~~hereunder~~under the related Lease. (g) Lessee has kept, and throughout the Lease Term of each Lease shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (g)(i) shall be accompanied by an unqualified opinion of Lessee’s independent auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment listed on each Schedule and expects to make immediate use of the Equipment listed on each Schedule. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the related Lease Term. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of any Lease or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount relating to any Lease will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee’s financial condition or impairs its ability to perform its obligations under the Related Documents. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under each Lease and related Escrow Agreement. (k) Lessee is the fee owner of the real estate where the Equipment under each Lease is and will be located (the “Real Property”) and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such Real Property. (l) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (m) In connection with the Lessee’s compliance with any continuing disclosure undertakings (each, a “Continuing Disclosure Agreement”) entered into by the Lessee pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act of 1934, as amended (the “Rule”), the Lessee may be required to file with the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access system, or its successor (“EMMA”), notice of its incurrence of its obligations under the Related Documents and notice of any accommodation, waiver, amendment, modification of terms or other similar events reflecting financial difficulties in connection with the Related Documents, in each case including posting a full copy thereof or a description of the material terms thereof (each such posting, an “EMMA Posting”). Except to the extent required by applicable law, including the Rule, the Lessee shall not file or submit or permit the filing or submission of any EMMA Posting that includes the following unredacted confidential information about the Lessor or its affiliates and any Escrow Agent in any portion of such EMMA Posting: address and account information of the Lessor or its affiliates and any Escrow Agent; e-mail addresses telephone numbers, fax numbers, names and signatures of officers, employees and signatories of the Lessor or its affiliates and any Escrow Agent; and the form of Disbursement Request that is attached to the Escrow Agreement. The Lessee acknowledges and agrees that the Lessor and its affiliates are not responsible for the Lessee’s or any other entity’s (including, but not limited to, any broker- dealer’s) compliance or noncompliance (or any claims, losses or liabilities arising therefrom) with the Rule, any Continuing Disclosure Agreement or any applicable securities or other laws, including but not limited to those relating to the Rule.

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of ~~Lessor on the date hereof~~ Xxxxxx as follows: (a) Lessee is ~~[the State] [~~a body corporate and politic and political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State and constitutes a “governmental agency” under the Act. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, (ii) the power of eminent domain, and (iii) police power. (b) Lessee is authorized under the constitution and laws of the State], ~~with full power and authority~~ including the Act, to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) ~~Lessee~~ Xxxxxx has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (~~d) 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. (e~~f) Lessee has complied with such public bidding requirements and laws and regulations, including the Act, as may be applicable to this Agreement and the acquisition by ~~Lessee~~ Xxxxxx of the ~~Equipment~~Personal Property hereunder. (fg) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the ~~Equipment~~ transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition, operations or properties of Lessee. (h) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Xxxxxx of this Agreement or in connection with the carrying out by Xxxxxx of its obligations hereunder have been obtained. (i) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Personal Property pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (j) The Personal Property described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Personal Property, which need is not temporary or expected to diminish in the foreseeable future. The Personal Property will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Xxxxxx’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of ~~Lessee~~Xxxxxx’s authority~~. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~. (gk) ~~Lessee has kept, and throughout~~ Neither the ~~Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor~~ payment of the Rental Payments hereunder nor any portion thereof is (i) ~~annual~~ secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). No portion of the Personal Property will be used directly or indirectly in any trade or business carried on by any non-exempt person (within the meaning of Section 103 of the Code). (l) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (m) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of the execution and delivery of this Agreement, would have caused any portion of this Agreement to be or become an “arbitrage bond” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (n) Xxxxxx has never failed to pay payments coming due under any bond issue, contract, lease purchase agreement or other indebtedness obligation of Lessee, whether secured by Xxxxxx’s ad valorem taxes or otherwise. (o) The useful life of the Personal Property will not be less than the Lease Term. (p) The application, statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, and Xxxxxx has experienced no material change in its financial condition since the date(s) of such information. (q) Lessee’s fiscal year is from October 1 to September 30. Xxxxxx has provided Lessor with audited financial statements through September 30, 2022. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under this Agreement since September 30, 2022. (~~including~~ r) Lessee shall pay the excess (1if any) of the actual costs of acquiring the Personal Property under this Agreement over the amount deposited by Lessor in the acquisition fund established under the related escrow agreement and interest earnings thereon. (s) Other than with respect to the portion of the Personal Property consisting of water meters, Lessee is the fee owner of the real estate where the Personal Property is and will be located and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such real estate. The Personal Property is not a ~~balance sheet,~~replacement, repair, substitution or proceeds of any equipment or personal property subject to a prior lien or security interest of a third party. (t) Lessee hereby confirms that this Agreement is a written contract stating the essential terms of an agreement for providing goods or services to Lessee under Section 271.151(2) of the Texas Local Government Code, and this Agreement is a waiver of Lessee’s governmental immunity from suit under this Agreement, but only to the extent permitted under Section 271.153, Texas Government Code.

Appears in 1 contract

Samples: Lease Purchase Agreement

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of ~~Lessor on the date hereof as follows~~Lessor: (a) Lessee is [a city of the ~~State] [a~~ first class and political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State]. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a body corporate and politic. Lessee is a public body corporate and politic, ~~with full~~ 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 ~~authority~~ (c) police power. (b) Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) Lessee has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (df) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to make the Rental Payments scheduled to come due during the Original Term and to meet its other obligations for the Original Term, and such funds have not been expended for other purposes. (g) 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. (eh) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the ~~Equipment~~Equipment hereunder. (fi) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement. (j) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations hereunder have been obtained. (k) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest of other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (l) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Lessee’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of Lessee’s authority. (m) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). ~~Lessee does not intend to sell or otherwise dispose~~ No portion of the Equipment will be used directly or indirectly in any ~~interest therein prior to~~ trade or business carried on by any non-exempt person (within the ~~last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~meaning of Section 103 of the Code). (gn) Lessee ~~has kept~~will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and ~~throughout~~ the ~~Lease Term shall keep~~applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (o) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, ~~its books~~ obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become “arbitrage bonds” within the meaning of Section 103(b)(2) or Section 148 of the Code and ~~records~~ the applicable regulations of the Treasury Department. (p) Lessee represents and warrants that it is a governmental unit under the laws of the State with general taxing powers; this Agreement is not a private activity bond as defined in ~~accordance with generally accepted accounting principles and practices consistently applied~~Section 141 of the Code, and ~~shall deliver~~ 95% or more of the net proceeds of this Agreement will be used for local governmental activities of Lessee. (q) The capital cost that would be required to ~~Lessor~~ purchase the Equipment if paid for by cash would be $238,559. (ir) The annual ~~audited financial statements~~ average effective interest cost of this Agreement is 1.53% per annum. (~~including~~ s) No amount is included in Rental Payments (1assuming continuation of this Agreement through the Maximum Lease Term) ~~a balance sheet,~~for service, maintenance, insurance and other charges exclusive of capital cost and interest cost.

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof as follows: (a) Lessee is ~~[the State] [~~a county and a body corporate and politic and a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into this Agreement and the Escrow Agreement and the transactions contemplated hereby and thereby and to perform all of its obligations ~~hereunder~~hereunder and thereunder. (b) Lessee has duly authorized the execution and delivery of this Agreement and the Escrow Agreement by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to this Agreement. (d) Lessee will do or cause to be done all things necessary to preserve and keep in full force and effect its existence as a county and a body corporate and ~~politic~~politic and a political subdivision of the State of California of the State. (e) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition and installation by Lessee of the Equipment. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year (and Xxxxxx’s obligation to so deliver such annual audited financial statements to Lessor may be met by filing the same on EMMA), (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (g)(i) shall be accompanied by an unqualified opinion of Xxxxxx’s independent auditor unless such requirement that said opinion be unqualified is otherwise waived in writing by the Lessor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment and expects to make immediate use of the Equipment. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Scheduled Term. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of this Agreement or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim, proceeding or dispute that may (i) materially adversely affect Lessee’s financial condition or (ii) impair its ability to perform its obligations under this Agreement or the Escrow Agreement. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Xxxxxx’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under this Agreement and the Escrow Agreement. (k) Except for the real property described in the Waiver of Interests, Lessee is the fee owner of the real estate where the Equipment is and will be located and has good and marketable title thereto, and there exists no mortgage, pledge, Lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such real estate other than Permitted Encumbrances. In the event any lien, encumbrance, restriction, asserted encumbrance, claim, dispute or other issue exists or arises with respect to the Lessee’s legal title to or valid and marketable, beneficial use and enjoyment of the Real Property or impairs or adversely impacts Lessor’s right, title or interest in the Equipment or any of Lessor’s rights or remedies under this Agreement with respect to the Equipment (each of the foregoing referred to as a “Real Property Issue”), Lessee will take all steps necessary to promptly quiet, resolve and/or eliminate such Real Property Issue to the satisfaction of Lessor and ensure that Lessee and Lessor have adequate access to and use of (including beneficial use and enjoyment of) the Real Property for all purposes of the Equipment contemplated herein and Lessee shall ensure that its fee interest in the Real Property and Lessor’s right, title or interest in the Equipment and rights or remedies under this Agreement with respect to the Equipment remain free and clear of Real Property Issues. (l) To the best knowledge of the Lessee following due inquiry, no lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (m) Xxxxxx represents to Lessor that that it has adopted a debt policy in compliance with SB 1029 and Section 8855 of the Government Code of California et seq. and covenants that it shall comply with Section 8855 of the Government Code of California et seq. throughout the Lease Term. (n) As of the date of execution and delivery of this Agreement, Xxxxxx has not granted any Lien on the Collateral that would be senior in priority to, or pari passu with, the first priority Lien on the Collateral granted to Lessor under Section 6.02 of this Agreement. (o) The street addresses and legal descriptions affixed to the UCC‑1 financing statements and fixture filings filed and recorded pursuant to Section 3.04(vi), Section 6.01 and/or Section 6.02 hereof are true, accurate and complete street addresses and legal descriptions of all the properties on which the Equipment is located or to be installed. In the event any street address, legal description, other information, UCC-1 financing statement or fixture filing (or continuations or amendments thereof) filed or recorded with respect to the Lessor’s interests in the Equipment or any of the real property on which the Equipment is located or to be installed reflects any incorrect or incomplete real property legal description, equipment description or other information, Lessee shall take all steps necessary (with the Lessor’s prior written approval) to promptly correct any errors or deficiencies with respect to such legal descriptions, street address, other information, UCC-1 financing statements and/or fixture filings and to protect Xxxxxx’s interests in the Equipment. (p) Lessee shall deliver to the Lessor such information as the Lessor shall request regarding the ENGIE Contract, including any information provided by ENGIE to the Lessee thereunder. Lessee shall comply with the terms of the ENGIE Contract [and the Memorandum of Understanding] and shall not, without the prior written consent of the Lessor, terminate M&V Services under the ENGIE Contract or fail to timely pay the Annual M&V Fee required under the ENGIE Contract. (q) Lessee reasonably expects that (i) the total [EC Savings] (as defined in the ENGIE Contract) realized from the acquisition, installation and implementation of the [“Work”] as defined in the ENGIE Contract will be greater in each [Measurement Period] (as defined in the ENGIE Contract) than the aggregate of Rental Payments due under this Agreement for such [Measurement Period] and (ii) the net [Guarantee Payments] (as defined in the ENGIE Contract) relating to [“Work”] as defined in the ENGIE Contract for each [Measurement Period] will at least equal the amounts set forth in [Attachment (r) All financial statements and other information delivered to Lessor by the Lessee is correct as of the date thereof. Since June 30, 2017, no material adverse change has occurred in the Lessee’s financial condition that would adversely affect the Lessee’s ability to perform its obligations hereunder. (s) Lessee will pay all Equipment Costs in excess of the Acquisition Amount available therefor out of its own funds. Lessor shall not have any responsibility to pay amounts for any Equipment Costs with respect to this Agreement or the Equipment that individually or collectively exceed the Acquisition Amount. (t) Lessee has complied with California Government Code Section 4217.10

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of Lessor on and the ~~date hereof~~ Insurer as follows: (a) Lessee is ~~[the State] [~~a political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State and constitutes a “governmental agency” under the Act. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, (ii) the power of eminent domain, and (iii) police power. (b) Lessee is authorized under the constitution and laws of the State], ~~with full power and authority~~ including the Act, to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) Lessee has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (~~d) 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. (e~~f) Lessee has complied with such public bidding requirements and laws and regulations, including the Act, as may be applicable to this Agreement and the acquisition by Lessee of the ~~Equipment~~Personal Property hereunder. (fg) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the ~~Equipment~~ transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition, operations or properties of Lessee. (h) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations hereunder have been obtained. (i) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Personal Property pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (j) The Personal Property described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Personal Property, which need is not temporary or expected to diminish in the foreseeable future. The Personal Property will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Lessee’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of Lessee’s authority~~. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~. (gk) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). No portion of the Personal Property will be used directly or indirectly in any trade or business carried on by any non-exempt person (within the meaning of Section 103 of the Code). (l) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (m) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become an “arbitrage bond” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (n) Lessee has ~~kept~~never failed to pay payments coming due under any bond issue, contract, lease purchase agreement or other indebtedness obligation of Lessee, whether secured by the City’s ad valorem taxes or otherwise. (o) The useful life of the Personal Property will not be less than the Lease Term. (p) The application, statements and credit or financial information submitted by Lessee to Lessor and the Insurer are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, if any, and ~~throughout~~ to induce the ~~Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied~~Insurer to issue the Insurance Policy, and ~~shall deliver to~~ Lessee has experienced no material change in its financial condition since the date(s) of such information. (q) Lessee has provided Lessor ~~(i) annual~~ with audited financial statements through September 30, 2019. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under this Agreement since September 30, 2019. (~~including~~ r) Lessee shall pay the excess (1if any) of the actual costs of acquiring the Personal Property under this Agreement over the amount deposited by Lessor in the acquisition fund, if any, established under any related escrow agreement and interest earnings thereon. (s) Lessee is the fee owner of the real estate where the Equipment is and will be located and has good and marketable title thereto, and there exists no mortgage, pledge, lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such real estate. The Equipment is not a ~~balance sheet,~~replacement, repair, substitution or proceeds of any equipment or personal property subject to a prior lien or security interest of a third party. (t) Lessee hereby confirms that this Agreement is a written contract stating the essential terms of an agreement for providing goods or services to Lessee under Section 271.151(2) of the Texas Local Government Code, and this Agreement is a waiver of Lessee’s governmental immunity from suit under this Agreement, but only to the extent permitted under Section 271.153, Texas Government Code.

Appears in 1 contract

Samples: Lease Purchase Agreement

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof as follows: (a) Lessee is ~~[the State] [~~a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into ~~this Agreement~~ the Related Documents and the transactions contemplated ~~hereby~~ thereby and to perform all of its obligations ~~hereunder~~thereunder. (b) ~~Lessee~~ Xxxxxx has duly authorized the execution and delivery of ~~this Agreement and~~ the ~~Escrow Agreement~~ Related Documents by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of ~~this Agreement and~~ the ~~Escrow Agreement~~Related Documents. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to this Agreement. (d) 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~~city of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to ~~this Agreement~~ the Related Documents and the acquisition and installation by Lessee of the Equipment. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (g)(i) shall be accompanied by an unqualified opinion of Xxxxxx’s independent auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment and expects to make immediate use of the Equipment. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Scheduled Term. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of this Agreement or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee’s financial condition or impairs its ability to perform its obligations under the Related Documents. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Xxxxxx’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under the Related Documents. (k) Lessee is the fee owner of the real estate where the Equipment is and will be located (the “Real Property”) and has good and marketable title thereto, or has delivered to Lessor a waiver of interest in the Equipment acceptable to Lessor or its assigns in their respective discretion from any party taking an interest in any such Real Property prior to such interest taking effect and there exists no mortgage, pledge, Lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such Real Property except for Permitted Encumbrances (as hereinafter defined). In the event any lien, encumbrance, restriction, asserted encumbrance, claim, dispute or other issue exists or arises with respect to the Lessee’s legal title to or valid and marketable, beneficial use and enjoyment of the Real Property or impairs or adversely impacts Lessor’s right, title or interest in the Equipment or any of Lessor’s rights or remedies under this Agreement with respect to the Equipment (each of the foregoing referred to as a “Real Property Issue”), Lessee will take all steps necessary to promptly quiet, resolve and/or eliminate such Real Property Issue to the satisfaction of Lessor and ensure that Lessee and Lessor have adequate access to and use of (including beneficial use and enjoyment of) the Real Property for all purposes of the Equipment contemplated herein and Lessee shall ensure that its fee interest or property rights in the Real Property and Lessor’s right, title or interest in the Equipment and rights or remedies under this Agreement with respect to the Equipment remain free and clear of Real Property Issues. (l) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (m) Xxxxxx represents to Lessor that it has adopted a debt policy in compliance with SB 1029 and Section 8855 of the Government Code of California et seq. and covenants that it shall comply with Section 8855 of the Government Code of California et seq. as amended (the “CDIAC Act”) throughout the Lease Term, including (i) preparing, submitting and filing the report of the proposed debt issuance relating to this Agreement by the method required by the California Debt and Investment Advisory Commission (“CDIAC”), (ii) preparing, submitting and filing the report of final sale (and accompanying documents) relating to this Agreement by the method required by CDIAC, (iii) submitting an annual report relating to the report of final sale for this Agreement by the method required by CDIAC, and (iv) paying all fees charged by CDIAC or the CDIAC Act relating to this Agreement, including, but not limited to the fee in an amount equal to one-fortieth of one percent of the Acquisition Amount or as otherwise prescribed by the CDIAC Act. (n) As of the date of execution and delivery of this Agreement, Xxxxxx has not granted any Lien on the Collateral that would be senior in priority to, or pari passu with, the first priority Lien on the Collateral granted to Lessor under Section 6.02 of this Agreement. (o) The street addresses and legal descriptions affixed to the UCC-1 financing statements and fixture filings filed and recorded pursuant to Section 3.04(vi), Section 6.01 and/or Section 6.02 hereof are true, accurate and complete street addresses and legal descriptions of all the properties on which the Equipment is located or to be installed. In the event any street address, legal description, other information, UCC-1 financing statement or fixture filing (or continuations or amendments thereof) filed or recorded with respect to the Lessor’s interests in the Equipment or any of the real property on which the Equipment is located or to be installed reflects any incorrect or incomplete real property legal description, equipment description or other information, Lessee shall take all steps necessary (with the Lessor’s prior written approval) to promptly correct any errors or deficiencies with respect to such legal descriptions, street address, other information, UCC-1 financing statements and/or fixture filings and to protect Xxxxxx’s interests in the Equipment. (p) Lessee will pay all Equipment Costs and costs of issuance in excess of the Acquisition Amount available therefor out of its own funds. Lessor shall not have any responsibility to pay amounts for any Equipment Costs or costs of issuance with respect to the Related Documents or the Equipment that individually or collectively exceed the Acquisition Amount. (q) Lessee has complied with California Government Code Section 4217.10

Appears in 1 contract

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of Lessor ~~on the date hereof~~ as follows: (a) Lessee is ~~[the State] [~~a political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State]. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, ~~with full~~ (ii) the power of eminent domain, and ~~authority~~ (iii) police power. (b) Lessee is authorized under the constitution and laws of the State to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) Lessee has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (df) Lessee ~~will do or cause~~ has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to ~~be done all things necessary~~ make the Rental Payments scheduled to ~~preserve~~ come due during the Original Term and ~~keep in full force~~ to meet its other obligations for the Original Term, and ~~effect its existence as a body corporate and politic~~such funds have not been expended for other purposes. (eg) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the ~~Equipment~~Equipment hereunder. (fh) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition or properties of Lessee. (i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations hereunder have been obtained. (j) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (k) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Lessee’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of Lessee’s authority. (l) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). ~~Lessee does not intend to sell or otherwise dispose~~ No portion of the Equipment will be used directly or indirectly in any ~~interest therein prior to~~ trade or business carried on by any non-exempt person (within the ~~last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~meaning of Section 103 of the Code). (gm) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (n) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become “arbitrage bonds” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (o) Lessee has ~~kept~~never failed to pay payments coming due under any bond issue, lease purchase agreement or other indebtedness obligation of Lessee. (p) The useful life of the Equipment described on Exhibit A as the 7-Year Equipment, the 10-Year Equipment and the 15-Year Equipment will not be less than 7, 10 and 15 years, respectively. (q) The application, written statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, and ~~throughout~~ Lessee has experienced no material change in its financial condition since the ~~Lease Term shall keep, its books and records in accordance~~ date(s) of such information. (r) Lessee has provided Lessor with ~~generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual~~ audited financial statements through June 30, 2018. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under the Agreement since June 30, 2018. (s) Lessee will pay the excess (if any) of the actual costs of acquiring the Equipment under the Agreement over the amount deposited by Lessor in the escrow fund, if any, established under any related escrow agreement and interest earnings thereon. (t) Lessee hereby designates this Agreement as a “qualified tax-exempt obligation” as defined in Section 265(b)(3)(B) of the Code. The aggregate face amount of all tax-exempt obligations (excluding private activity bonds other than qualified 501(c)(3) bonds) issued or to be issued by Lessee and all subordinate entities thereof during the current calendar year is not reasonably expected to exceed $10,000,000. Lessee and all subordinate entities thereof will not issue or enter into in excess of $10,000,000 of tax-exempt obligations (including (1this Agreement, but excluding private activity bonds other than qualified 501(c)(3) bonds) during the current calendar year, without first obtaining an opinion of nationally recognized counsel in the area of tax-exempt municipal obligations acceptable to Lessor that the designation of this Agreement as a ~~balance sheet,~~“qualified tax-exempt obligation” will not be adversely affected.

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each Lease as follows: (a) Lessee is ~~[the State] [~~a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into ~~this Agreement~~ the Related Documents and the transactions contemplated ~~hereby~~ thereby and to perform all of its obligations ~~hereunder~~thereunder. (b) Lessee has duly authorized the execution and delivery of ~~this Agreement and~~ the ~~Escrow Agreement~~ Related Documents by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of ~~this Agreement and~~ the ~~Escrow Agreement~~Related Documents. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to any Lease. (d) 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~~ board of cooperative educational services and ~~politic~~political subdivision of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to ~~this Agreement~~ the Related Documents and the acquisition and installation by Lessee of the ~~Equipment~~Equipment as provided in each Lease. (f) During the Lease ~~Term~~Term under each Lease, the Equipment will be used by Lessee or a component school district of Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee or such component school district, consistent with the permissible scope of Lessee’s or such component school district’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid ~~hereunder~~under the related Lease. (g) During the Lease Term under each Lease, Lessee will not take, or allow any component school district of Lessee to take, any action which would cause a Lease to be a “private activity bond” within the meaning of Section 141 of the Code. Lessee will not permit any person other than Lessee and a component school district of Lessee to use, through sale, lease, management contract, output contract or similar agreement, any portion of the Equipment. (h) Lessee has kept, and throughout the Lease Term of each Lease shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved but not later than thirty (30) days prior to the end of its current fiscal year. The financial statements described in this subsection (h)(i) shall be accompanied by an unqualified opinion of Lessee’s independent auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (i) Lessee has an immediate need for the Equipment listed on each Schedule and expects to make immediate use of the Equipment listed on each Schedule. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the related Lease Term. (j) The payment of the Rental Payments or any portion thereof is not (under the terms of any Lease or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount relating to any Lease will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (k) There is no pending litigation, tax claim, proceeding or dispute that may adversely affect Lessee’s financial condition or impairs its ability to perform its obligations under the Related Documents. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Lessor’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under each Lease and related Escrow Agreement. (l) Lessee or a component school district of Lessee is the fee owner of the real estate where the Equipment under each Lease is and will be located (the “Real Property”) and Lessee or a component school district of Lessee, as applicable, has good and marketable title thereto, and on or with respect to such Real Property, there exists no mortgage, pledge, lien, security interest, charge or other encumbrance on the Real Property which would impair the use of the Equipment as contemplated under each Lease. (m) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (n) In connection with the Lessee’s compliance with any continuing disclosure undertakings (each, a “Continuing Disclosure Agreement”) entered into by the Lessee pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act of 1934, as amended (the “Rule”), the Lessee may be required to file with the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access system, or its successor (“EMMA”), notice of its incurrence of its obligations under the Related Documents and notice of any accommodation, waiver, amendment, modification of terms or other similar events reflecting financial difficulties in connection with the Related Documents, in each case including posting a full copy thereof or a description of the material terms thereof (each such posting, an “EMMA Posting”). Except to the extent required by applicable law, including the Rule, the Lessee shall not file or submit or permit the filing or submission of any EMMA Posting that includes the following unredacted confidential information about the Lessor or its affiliates and any Escrow Agent in any portion of such EMMA Posting: address and account information of the Lessor or its affiliates and any Escrow Agent; e-mail addresses telephone numbers, fax numbers, names and signatures of officers, employees and signatories of the Lessor or its affiliates and any Escrow Agent; and the form of Disbursement Request that is attached to the Escrow Agreement. (o) The stated full Lease Term of the Lease does not exceed the “period of probable usefulness” prescribed by Section 11.00 of the Local Finance Law of the State of New York for the equipment, machinery or apparatus financed under the Lease. (p) The authorization for the issuance of obligations to finance the Equipment to be leased, acquired and financed under the Lease is not required by law to be subject to (i) a permissive or mandatory referendum, (ii) a supermajority vote of Lessee’s governing board or (iii) a referendum only if the obligations have a maturity not less than a specified minimum period. (q) The amount of unpaid periodic payments (excluding interest) proposed to be made under the Lease, all other Leases executed and delivered pursuant to the Master Lease and those other installment purchase contracts entered into by Lessee pursuant to Section 109-b of the General Municipal Law of the State of New York, together with the amount of outstanding indebtedness, do not exceed 115% of the limit prescribed by Section 104.00 of the Local Finance Law of the State of New York and the total amount of such payments (excluding interest) under the Lease, all such other Leases and such other installment purchase contracts do not exceed 40% of such limit. The Lessee acknowledges and agrees that the Lessor and its affiliates are not responsible for the Lessee’s or any other entity’s (including, but not limited to, any broker- dealer’s) compliance or noncompliance (or any claims, losses or liabilities arising therefrom) with the Rule, any Continuing Disclosure Agreement or any applicable securities or other laws, including but not limited to those relating to the Rule.

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof as follows: (a) Lessee is ~~[the State] [~~a political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and existing under the constitution and laws of the State], with full power and authority to enter into ~~this Agreement~~ the Related Documents and the transactions contemplated ~~hereby~~ thereby and to perform all of its obligations ~~hereunder~~thereunder. (b) ~~Lessee~~ Xxxxxx has duly authorized the execution and delivery of ~~this Agreement and~~ the ~~Escrow Agreement~~ Related Documents by proper action of its governing body at a meeting duly called, regularly convened and attended throughout by the requisite quorum of the members thereof, or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of ~~this Agreement and~~ the ~~Escrow Agreement~~Related Documents. (c) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. No Event of Non-appropriation has occurred or is threatened with respect to this Agreement. (d) 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~~city of the State. (e) Lessee has complied with such procurement and public bidding requirements as may be applicable to ~~this Agreement~~ the Related Documents and the acquisition and installation by Lessee of the Equipment. (f) During the Lease Term, the Equipment will be used by Lessee only for the purpose of performing essential governmental or proprietary functions of Lessee consistent with the permissible scope of Lessee’s authority. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder. (g) Lessee has kept, and throughout the Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual audited financial statements (including (1) a balance sheet,, (2) statement of revenues, expenses and changes in fund balances for budget and actual, (3) statement of cash flows, and (4) footnotes, schedules and attachments to the financial statements) within two hundred seventy (270) days after the end of its fiscal year, (ii) such other financial statements and information as Lessor may reasonably request, and (iii) upon Lessor’s request, its annual budget for any prior or current fiscal year or for the following fiscal year when approved. The financial statements described in this subsection (g)(i) shall be accompanied by an unqualified opinion of Xxxxxx’s independent auditor. Credit information relating to Lessee may be disseminated among Lessor and any of its affiliates and any of their respective successors and assigns. (h) Lessee has an immediate need for the Equipment and expects to make immediate use of the Equipment. Lessee’s need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish during the Scheduled Term. (i) The payment of the Rental Payments or any portion thereof is not (under the terms of this Agreement or any underlying arrangement) directly or indirectly (x) secured by any interest in property used or to be used in any activity carried on by any person other than a state or local governmental unit or payments in respect of such property; or (y) on a present value basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed money, used or to be used in any activity carried on by any person other than a state or local governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried on by any person other than a state or local governmental unit. No portion of the Acquisition Amount will be used, directly or indirectly, to make or finance loans to any person other than Lessee. Lessee has not entered into any management or other service contract with respect to the use and operation of the Equipment. (j) There is no pending litigation, tax claim, proceeding or dispute that may impair its ability to perform its obligations under the Related Documents or materially adversely affect Lessee’s financial condition. Lessee will, at its expense, maintain its legal existence and do any further act and execute, acknowledge, deliver, file, register and record any further documents Lessor may reasonably request in order to protect Xxxxxx’s first priority security interest in the Equipment and the Escrow Account and Lessor’s rights and benefits under the Related Documents. (k) Lessee is the fee owner of the real estate where the Equipment is and will be located (the “Real Property”) and has good and marketable title thereto, and there exists no mortgage, pledge, Lien, security interest, charge or other encumbrance of any nature whatsoever on or with respect to such Real Property other than Permitted Encumbrances. In the event any lien, encumbrance, restriction, asserted encumbrance, claim, dispute or other issue exists or arises with respect to the Lessee’s legal title to or valid and marketable, beneficial use and enjoyment of the Real Property or impairs or adversely impacts Lessor’s right, title or interest in the Equipment or any of Lessor’s rights or remedies under this Agreement with respect to the Equipment (each of the foregoing referred to as a “Real Property Issue”), Lessee will take all steps necessary to promptly quiet, resolve and/or eliminate such Real Property Issue to the satisfaction of Lessor and ensure that Lessee and Lessor have adequate access to and use of (including beneficial use and enjoyment of) the Real Property for all purposes of the Equipment contemplated herein and Lessee shall ensure that its fee interest in the Real Property and Lessor’s right, title or interest in the Equipment and rights or remedies under this Agreement with respect to the Equipment remain free and clear of Real Property Issues. (l) To the best knowledge of the Lessee following due inquiry, no lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to which Lessee has been a party at any time has been terminated by Lessee as a result of insufficient funds being appropriated in any fiscal year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation which Lessee has issued during the past ten (10) years. (m) Xxxxxx represents to Lessor that it has adopted a debt policy in compliance with SB 1029 and Section 8855 of the Government Code of California et seq. and covenants that it shall comply with Section 8855 of the Government Code of California et seq. as amended (the “CDIAC Act”) throughout the Lease Term, including (i) preparing, submitting and filing the report of the proposed debt issuance relating to this Agreement by the method required by the California Debt and Investment Advisory Commission (“CDIAC”), (ii) preparing, submitting and filing the report of final sale (and accompanying documents) relating to this Agreement by the method required by CDIAC, (iii) submitting an annual report relating to the report of final sale for this Agreement by the method required by CDIAC, and (iv) paying all fees charged by CDIAC or the CDIAC Act relating to this Agreement, including, but not limited to the fee in an amount equal to one-fortieth of one percent of the Acquisition Amount or as otherwise prescribed by the CDIAC Act. (n) As of the date of execution and delivery of this Agreement, Xxxxxx has not granted any Lien on the Collateral that would be senior in priority to, or pari passu with, the first priority Lien on the Collateral granted to Lessor under Section 6.02 of this Agreement. (o) The street addresses and legal descriptions affixed to the UCC-1 financing statements and fixture filings filed and recorded pursuant to Section 3.04(vi), Section 6.01 and/or Section 6.02 hereof are true, accurate and complete street addresses and legal descriptions of all the properties on which the Equipment is located or to be installed. In the event any street address, legal description, other information, UCC-1 financing statement or fixture filing (or continuations or amendments thereof) filed or recorded with respect to the Lessor’s interests in the Equipment or any of the real property on which the Equipment is located or to be installed reflects any incorrect or incomplete street address, real property legal description, equipment description or other information, Lessee shall take all steps necessary at its expense (with the Lessor’s prior written approval) to promptly correct any errors or deficiencies with respect to such legal descriptions, street address, equipment description, other information, UCC-1 financing statements and/or fixture filings and to protect Xxxxxx’s interests in the Equipment. (p) Lessee will pay all Equipment Costs and costs of issuance in excess of the Acquisition Amount available therefor out of its own funds. Lessor shall not have any responsibility to pay amounts for any Equipment Costs or costs of issuance with respect to the Related Documents or the Equipment that individually or collectively exceed the Acquisition Amount. (q) Lessee has complied with California Government Code Section 4217.10

Appears in 1 contract

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of ~~Lessor on the date hereof~~ Xxxxxx as follows: (a) Lessee is ~~[the State] [~~a ~~political subdivision of the State within the meaning of Section 103(c) of the Code,~~ municipal corporation duly organized and existing under the constitution and laws of the State]. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision under the Code. Lessee has a substantial amount of one or more of the following sovereign powers: (a) the power to tax, ~~with full~~ (b) the power of eminent domain, and ~~authority~~ (c) police power. (b) Xxxxxx is authorized under the constitution and laws of the State to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) ~~Lessee~~ Xxxxxx has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding special obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (~~d) 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. (e~~f) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by ~~Lessee~~ Xxxxxx of the ~~Equipment~~Equipment hereunder. (fg) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition or properties of Lessee. (h) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Xxxxxx of this Agreement or in connection with the carrying out by Xxxxxx of its obligations hereunder have been obtained. (i) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (j) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Xxxxxx’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of ~~Lessee~~Xxxxxx’s authority. (k) Neither the payment of the Rental Payments hereunder nor any portion thereof is (i) secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). ~~Lessee does not intend to sell or otherwise dispose~~ No portion of the Equipment will be used directly or indirectly in any ~~interest therein prior to~~ trade or business carried on by any non-exempt person (within the ~~last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~meaning of Section 103 of the Code). (gl) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (m) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of issuance of this Agreement, would have caused any portion of this Agreement to be or become “arbitrage bonds” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (n) Xxxxxx has never failed to pay payments coming due under any bond issue, lease purchase agreement or other indebtedness obligation of Lessee. (o) The useful life of the Equipment will not be less than the Lease Term. (p) The application, statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the escrow agreement, if any, and Xxxxxx has experienced no material change in its financial condition since the date(s) of such information. (q) Lessee has ~~kept, and throughout the Lease Term shall keep, its books and records in accordance~~ provided Lessor with ~~generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor (i) annual~~ audited financial statements through September 30, 2011. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under the Agreement since September 30, 2011. (~~including~~ r) Lessee shall pay the excess (1if any) ~~a balance sheet,~~of the actual costs of acquiring the Equipment under the Agreement over the amount deposited by Lessor in the escrow fund, if any, established under any related escrow agreement and interest earnings thereon.

Appears in 1 contract

Representations and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor ~~on the date hereof~~ and any Registered Owners (as hereinafter defined) as follows: (a) Lessee is ~~[the State] [~~a ~~political subdivision of the State within the meaning of Section 103(c) of the Code,~~ municipal corporation duly organized and existing under the constitution and laws of the ~~State],~~ State with full power and authority to enter into this Agreement and the transactions contemplated hereby and to perform all of its obligations hereunder. (b) Lessee has duly authorized the execution and delivery of this Agreement ~~and the Escrow Agreement~~ by proper action of by its governing body at a meeting duly called, regularly convened and attended throughout by the requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this ~~Agreement and the Escrow~~ Agreement. (c) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally. (d) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the date hereof. (de) Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to make the Rental Payments scheduled to come due during the current fiscal year and to meet its other obligations under this Agreement for the current fiscal year, and such funds have not been expended for other purposes. (f) 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~~municipal corporation under the laws of the State. (eg) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by Lessee of the ~~Equipment~~Equipment listed on the Schedules that currently exist. (fh) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement. (i) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Lessee of this Agreement or in connection with the carrying out by Lessee of its obligations hereunder have been obtained. (j) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Equipment pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (k) The Equipment described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for the Equipment listed on the Schedules that currently exist and expects to make immediate use of the Equipment listed on the Schedules that currently exist. Lessee's need for the Equipment is not temporary and Lessee does not expect the need for any item of the Equipment to diminish in the foreseeable future including the Maximum Lease ~~Term, the~~ Term applicable to such item. The Equipment will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Lessee's governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of Lessee’s 's authority~~. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~. (gl) In connection with the Lessee’s compliance with any continuing disclosure undertakings (each, a “Continuing Disclosure Agreement”) entered into by the Lessee ~~has kept~~pursuant to SEC Rule 15c2-12 promulgated pursuant to the Securities and Exchange Act of 1934, as amended (the “Rule”), the Lessee may be required to file with the Municipal Securities Rulemaking Board’s Electronic Municipal Market Access system, or its successor (“EMMA”), notice of its incurrence of its obligations under this Agreement, Leases thereunder and ~~throughout~~ notice of any accommodation, waiver, amendment, modification of terms or other similar events reflecting financial difficulties in connection with this Agreement and Leases thereunder, in each case including posting a full copy thereof or a description of the ~~Lease Term~~ material terms thereof (each such posting, an “EMMA Posting”). Except to the extent required by applicable law, including the Rule, the Lessee shall ~~keep~~not file or submit or permit the filing or submission of any EMMA Posting that includes the following unredacted confidential information about the Lessor or its affiliates in any portion of such EMMA Posting: address and account information of the Lessor or its affiliates; and e-mail addresses telephone numbers, fax numbers, names and signatures of officers, employees and signatories of the Lessor or its ~~books~~ affiliates. The Lessee acknowledges and ~~records in accordance~~ agrees that the Lessor and its affiliates are not responsible for the Lessee’s or any other entity’s (including, but not limited to, any broker- dealer’s) compliance or noncompliance (or any claims, losses or liabilities arising therefrom) with ~~generally accepted accounting principles and practices consistently applied~~the Rule, ~~and shall deliver~~ any Continuing Disclosure Agreement or any applicable securities or other laws, including but not limited to ~~Lessor (i) annual audited financial statements (including (1) a balance sheet,~~those relating to the Rule.

Appears in 1 contract

Samples: Master Equipment Lease Purchase Agreement

Representations and Covenants of Lessee. Lessee represents, warrants and covenants ~~and warrants~~ for the benefit of ~~Lessor on the date hereof~~ Xxxxxx as follows: (a) Lessee is ~~[the State] [~~a body corporate and politic and political subdivision ~~of the State within the meaning of Section 103(c) of the Code,~~ duly organized and existing under the constitution and laws of the State and constitutes a “governmental agency” under the Act. Lessee will do or cause to be done all things to preserve and keep in full force and effect its existence as a political subdivision. Lessee has a substantial amount of one or more of the following sovereign powers: (i) the power to tax, (ii) the power of eminent domain, and (iii) police power. (b) Lessee is authorized under the constitution and laws of the State], ~~with full power and authority~~ including the Act, to enter into this Agreement and the ~~transactions~~ transaction contemplated hereby and to perform all of its obligations hereunder. (bc) ~~Lessee~~ Xxxxxx has been duly authorized ~~the execution~~ to execute and ~~delivery of~~ deliver this ~~Agreement and the Escrow~~ Agreement by proper action and approval of its governing body at a meeting duly called, regularly convened and attended throughout by ~~the~~ a requisite ~~quorum~~ majority of the members ~~thereof,~~ thereof or by other appropriate official approval~~, and all requirements have been met and procedures have occurred in order to ensure the validity and enforceability of this Agreement and the Escrow Agreement~~. (cd) This Agreement constitutes the legal, valid and binding obligation of Lessee enforceable in accordance with its terms, except to the extent limited by applicable bankruptcy, insolvency, reorganization or other laws affecting creditors’ rights generally. (e) No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default exists at the ~~date hereof~~Commencement Date. (~~d) 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. (e~~f) Lessee has complied with such public bidding requirements and laws and regulations, including the Act, as may be applicable to this Agreement and the acquisition by ~~Lessee~~ Xxxxxx of the ~~Equipment~~Personal Property hereunder. (fg) ~~During~~ There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, public board or body, pending or threatened against or affecting Lessee, nor to the ~~Lease Term~~best knowledge of Lessee is there any basis therefor, wherein an unfavorable decision, ruling or finding would materially adversely affect the ~~Equipment~~ transactions contemplated by this Agreement or any other document, agreement or certificate which is used or contemplated for use in the consummation of the transactions contemplated by this Agreement or materially adversely affect the financial condition, operations or properties of Lessee. (h) All authorizations, consents and approvals of governmental bodies or agencies required in connection with the execution and delivery by Xxxxxx of this Agreement or in connection with the carrying out by Xxxxxx of its obligations hereunder have been obtained. (i) The entering into and performance of this Agreement or any other document or agreement contemplated hereby to which Lessee is or is to be a party will not violate any judgment, order, law or regulation applicable to Lessee or result in any breach of, or constitute a default under, or result in the creation of any lien, charge, security interest or other encumbrance on any assets of Lessee or the Personal Property pursuant to any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument to which Lessee is a party or by which it or its assets may be bound, except as herein provided. (j) The Personal Property described in this Agreement is essential to the function of Lessee or to the service Lessee provides to its citizens. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Personal Property, which need is not temporary or expected to diminish in the foreseeable future. The Personal Property will be used by Lessee only for the purpose of performing ~~essential~~ one or more of Xxxxxx’s governmental or proprietary functions ~~of Lessee~~ consistent with the permissible scope of ~~Lessee~~Xxxxxx’s authority~~. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid hereunder~~. (gk) ~~Lessee has kept, and throughout~~ Neither the ~~Lease Term shall keep, its books and records in accordance with generally accepted accounting principles and practices consistently applied, and shall deliver to Lessor~~ payment of the Rental Payments hereunder nor any portion thereof is (i) ~~annual~~ secured by any interest in property used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code) or in payments in respect of such property or (ii) derived from payments in respect of property, or borrowed money, used or to be used in a trade or business of a non-exempt person (within the meaning of Section 103 of the Code). No portion of the Personal Property will be used directly or indirectly in any trade or business carried on by any non-exempt person (within the meaning of Section 103 of the Code). (l) Lessee will comply with all applicable provisions of the Code, including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation. (m) Lessee will use the proceeds of this Agreement as soon as practicable and with all reasonable dispatch for the purpose for which this Agreement has been entered into. No part of the proceeds of this Agreement will be invested in any securities, obligations or other investments or used, at any time, directly or indirectly, in a manner which, if such use had been reasonably anticipated on the date of the execution and delivery of this Agreement, would have caused any portion of this Agreement to be or become an “arbitrage bond” within the meaning of Section 103(b)(2) or Section 148 of the Code and the applicable regulations of the Treasury Department. (n) Xxxxxx has never failed to pay payments coming due under any bond issue, contract, lease purchase agreement or other indebtedness obligation of Lessee, whether secured by Xxxxxx’s ad valorem taxes or otherwise. (o) The useful life of the Personal Property will not be less than the Lease Term. (p) The application, statements and credit or financial information submitted by Lessee to Lessor are true and correct and made to induce Lessor to enter into this Agreement and the related escrow agreement, and Lessee has experienced no material change in its financial condition since the date(s) of such information. (q) Lessee’s fiscal year is from October 1 to September 30. Lessee has provided Lessor with audited financial statements through September 30, 2021. Lessee has experienced no material change in its financial condition or in the revenues expected to be utilized to meet Rental Payments due under this Agreement since September 30, 2021. (~~including~~ r) Lessee shall pay the excess (1if any) of the actual costs of acquiring the Personal Property under this Agreement over the amount deposited by Lessor in the acquisition fund established under the related escrow agreement and interest earnings thereon. (s) The Personal Property is not a ~~balance sheet,~~replacement, repair, substitution or proceeds of any equipment or personal property subject to a prior lien or security interest of a third party. (t) Lessee hereby confirms that this Agreement is a written contract stating the essential terms of an agreement for providing goods or services to Lessee under Section 271.151(2) of the Texas Local Government Code, and this Agreement is a waiver of Lessee’s governmental immunity from suit under this Agreement, but only to the extent permitted under Section 271.153, Texas Government Code.

Appears in 1 contract

Samples: Public Property Finance Act Lease Purchase Agreement

Appears in 1 contract