2008/02/13 Council Agenda Packet

17. FINANCE LEASE STATUS. Lessee agrees that if Article 2A-Leases of the Uniform Commercial Code applies to this Lease,this Lease will be considered a"finance lease" as that term is defined in Article 2A. By signing this Lease, Lessee agrees that either(a)Lessee has reviewed, approved, and received, a copy of the Supply Contract or(b)that Lessor has informed Lessee of the identity of the Supplier,that Lessee may have rights under the Supply Contract,and that Lessee may contact the Supplier for a description of those rights. TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A. 18. ASSIGNMENT. LESSEE MAY NOT ASSIGN, SELL, TRANSFER OR SUBLEASE THE EQUIPMENT OR LESSEES INTEREST iN THIS LEASE. Lessor may,without notifying Lessee, sell, assign, or transfer this Lease or its rights in the Equipment. Lessee agrees that new owner will have the same rights and benefits that Lessor has now under this Lease but not Lessor's obligations. The rights of the new owner will not be subject to any claim, defense or set-off that Lessee may have against Lessor. 19. INDEMNITY. Lessee assumes the risk of liability arising from possession, operation, or use of the Equipment Lessee shall indemnify, defend and hold harmless the Lessor from any and all claims, costs, taxes, expenses, damages, and liabilities arising from or pertaining to the use, possession,or operation of the Equipment. The foregoing indemnity shall survive the expiration or earlier termination of the Lease. 20. CREDIT INFORMATION. Lessee authorizes Lessor and its agents to obtain credit bureau reports, make other credit Inquiries that Lessor determines necessary. Upon Lessee's written request, Lessor will inform Lessee whether Lessor has requested a consumer credit report and the name and address of any consumer credit reporting agency that furnished a report Lessee acknowledges that without further notice Lessor may use or request additional credit bureau reports to update Lessor information so long as Lessee's obligations to Lessor are outstanding. 21. FURTHER ASSURANCES. Lessee agrees, at the request of Lessor, to execute and deliver to Lessor any reasonable financing statements, fixture filings or other instruments necessary for expedient filing, recording or perfecting the interest and title of Lessor in this Lease and the Equipment, agrees that a copy of this Lease and any Schedule may be so filed, and agrees that all costs incurred in connection therewith(including,without limitation,filing fees and taxes)shall be paid by Lessee, and agrees to promptly, at Lessee's expense, deliver such other reasonable documents and assurances, and take such further action as Lessor may request, in order to effectively carry out the intent and purpose of this Lease and Schedules. Additionally, Lessee agrees that where permitted by law, a copy of the financing statement may be filed in lieu of the original. Lessee shall, as soon as practicable, deliver to Lessor, Lessee's future quarterly and annual reports of financial condition, prepared in accordance with generally accepted accounting principles, in a manner consistently applied; which reports Lessee represents and warrants shall be prepared in accordance with Generally Accepted Accounting Principles. Lessee's covenants, representations, warranties and indemnities contained in Sections 7, 10, and 18, hereof are made for the benefit of Lessor and shall survive, remain in full force and effect and be enforceable after the expiration or termination of this Lease for any reason. 22. REPRESENTATIONS AND WARRANTIES. Lessee represents and warrants to Lessor that: (i)the making of this Lease and any Schedule thereto executed by Lessee are duly authorized on the part of Lessee and upon execution thereof by Lessee and Lessor they shall constitute valid obligations binding upon, and enforceable against, Lessee;(ii) neither the making of this Lease or such Schedule, nor the due performance thereof by Lessee, including the commitment and payment of the Rent, shall result in any breach of, or constitute.a default under, or violation of, Lessee's certificate of incorporation, by-laws, or any agreement to which Lessee is a party or by which Lessee is bound; (iii) Lessee is in good standing in its state of incorporation and in any jurisdiction where the Equipment is located, and is entitled to own properties and to carry on business therein; and(iv)no approval,consent or withholding of objection is required from any governmental authority or entity with respect to the entering into, or performance of this Lease or such Schedules by Lessee. If requested, Lessee shall provide Lessor a Certified Copy of it's Corporate Resolutions and or a Certificate of Incumbency in the form provided by Lessor or such other form that Lessor deems acceptable. 23. COUNTERPARTS. Each Schedule may be executed in one or more counterparts, each of which shall be deemed an original as between the parties thereto, but there shall be a single executed original of each Schedule which shall be marked"Counterpart,No. 1'';all other counterparts shall be marked with other counterpart numbers. To the extent, if any,that a Lease constitutes chattel paper(as such term is defined in the Uniform Commercial Code)no- security interest in the Schedule may be created through the transfer or possession of any counterpart other than Counterpart No. 1. The Master Lease Agreement is incorporated by reference in each of the Schedules and shall not be chattel paper by itself. 24. GOVERNING LAW. This Lease and any Schedules thereto are entered into, under and shall be construed in accordance with, and governed by,the laws of the State of Ohio without giving effect to its conflicts of laws principles. The State of Ohio shall have exclusive jurisdiction over any action or proceeding brought to enforce or interpret this Lease or otherwise in connection therewith. LESSEE AND LESSOR EXPRESSLY WAIVE ANY RIGHT TO TRIAL BY JURY. 1 Page5of6