HomeMy WebLinkAboutCity of Tamarac Resolution R-2001-363Temp. Reso. #9630
December 3, 2001
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2001-363
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, AUTHORIZING THE
APPROPRIATE CITY OFFICIALS TO EXECUTE AND
DELIVER CERTAIN LEASE DOCUMENTS IN
CONNECTION WITH THE PROPOSED FINANCING OF
FLEET VEHICLES IN AN AMOUNT NOT TO EXCEED
$195,000 UNDER A MASTER LEASE -PURCHASE
AGREEMENT BETWEEN THE CITY OF TAMARAC
AND KISLAK NATIONAL BANK; AMENDING THE
ANNUAL BUDGET OF ESTIMATED REVENUES AND
EXPENDITURES FOR THE PURCHASE; PROVIDING
FOR CONFLICTS; PROVIDING FOR SEVERABILITY;
AND PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, the City has determined a need for loan financing to acquire
Fleet Vehicles ("the Vehicles"); and
WHEREAS, the City Commission is scheduled to authorize the purchase
of the Vehicles for an amount not to exceed $195,000 through Temporary
Resolution No. 9633 to be presented to the Commission on December 12, 2001;
and
WHEREAS, the City Commission of the City of Tamarac approved a
Master Lease Purchase Agreement with Kislak National Bank on April 12, 2000
by Resolution R-2000-95 attached hereto as Exhibit "A"; and
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Temp. Reso. #9630
December 3, 2001
Page 2
WHEREAS, the terms of the Lease -Purchase Financing Agreement for
the purchase of the Vehicles utilizing the Master Lease Purchase Agreement, are
outlined in Exhibit "B", attached hereto; and
WHEREAS, the lease documents and various closing documents related
to the Lease -Purchase Financing Agreement of the Vehicles will be finalized and
filed with the City Clerk; and
WHEREAS, the Director of Finance and Finance and Policy Officer of the
City of Tamarac, Florida recommend the execution of the Lease -Purchase
Financing Agreement with Kislak National Bank, and amending the Fiscal Year
2002 budget to properly account for all budgetary actions related to this
Agreement; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it
to be in the best interest of the citizens and residents of the City of Tamarac to
authorize the appropriate City Officials to execute and deliver certain lease
documents in connection with the proposed financing of the Vehicles under a
Master Lease -Purchase Agreement between the City of Tamarac and Kislak
National Bank, and to amend the Fiscal Year 2002 budget to address the actions
needed to implement the lease -purchase of the Vehicles.
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Temp. Reso. #9630
December 3, 2001
Page 3
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF
THE CITY OF TAMARAC, FLORIDA:
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and are hereby made a specific part of this
Resolution.
SECTION 2: The appropriate City Officials are hereby authorized and
directed to execute a Lease -Purchase Financing Agreement, in the principal
amount not to exceed $195,000, interest rate and repayment terms as set forth in
Exhibit "B" with Kislak National Bank.
SECTION 3: The budget of the City of Tamarac is hereby amended, in
accordance with the Lease -Purchase Financing Agreement and all necessary
budgetary transfers of funds are hereby approved.
SECTION 4: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 5: If any clause, section, other part or application of this
Resolution is held by any court of competent jurisdiction to be unconstitutional or
invalid, in part or application, it shall not affect the validity of the remaining
portions or applications of this Resolution.
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Temp. Reso. #9630
December 3, 2001
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SECTION 6: This Resolution shall become effective immediately upon its
passage and adoption.
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PASSED, ADOPTED, AND APPROVED this 12t" day of December, 2001.
ATTEST:
Z-7
MARION ENSON, CMC
CITY CLERK
I HEREBY CERTIFY that I
have approved this
RESOLUTION as to form.
ITCHELC
CITY ATT
JOE SCHREIBER
MAYOR
RECORD OF COMMISSION VOTE:
MAYOR SCHREIBER A-yel
DIST 1: COMM. PORTNER 61 e.
DIST 2: COMM. MISHKIN A er
DIST 3: V/M SULTANOF flyer
DIST 4: COMM. ROBERTS Aye,
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Temp. Reso. #9630
December 3, 2001
Exhibit A
MASTER 1.1+,;151 i'I.rla('1IASI; AGIZI+�I+;M1�'.N'I'
THIS Ib1ASTE'R LFASE-PURCIIASE AGREEMENT) dated as of' April 17, 2000
(lugelhcr wills all srlpplernents, annexes, exhibits and schec.lnles herein hcreinafler rcferreel to its the
"I..easeI, hetween KISI,AK NATIONAI, BANK (I►ereinllftercaIIcd, Together with any successors
and assigns "Lessor") acid CITY 0 TAMAI?AC, FIVRMA Wereinaftercad Ted "Lessee").
WITNitSSit 11If:
Section 1. REPRI-:SENTATIONS AND 'WARRANI'IVS M LESSL,:1-�.
Less cc hereby represents and warrants to Uss(r that on the elate hereof anti at all times
timing file `I"ernr (as defined in Section :3 below) hereof:
(a) I._essee is a political snWhvidon, municipal corporation or public holy
corporate and politic, Of the State of Florida (the "Stale"), duly organized and existing under the
Constitution and laws of the Stale.
M Lessee is authorized under the Constitution and laws of the State to enter into
Ohs l .ease and the transactions contemplated hereby, and to perform all of its obligations hereunder.
(c) LeSSCC has duly authorized and approved the execution and delivery of this
Lease and all other documents related m the transactions contemplated hereby, and this Lease
conSllluleS it legal, valid and binding obligation of the Lessee, enforceable against [Ile Lessee in
accordance with the terms hereof except as limited by applicable bunkruptcy laws or other laws
affecling the enforcement of" creditors rights generally, or by the exercise of judicial discretion in
accordance wilh general principals of ellfy.
(d) Each officer or represerllativc of Lessee execl.lting this Lease has been duly
anthonzed in execute and deliver Ibis I_.ease and related documents tlncic:rthe ler•ms and provisions of
a rc_snllltion of, I..essee's governing body, or by other appropriate official action.
(e) Lessee. has complied with all open meeting laws, all puhllc Mling laws and
all other Slate and Fedend laws applicable to this Lease, and bus OblNuW all approvals necessary for
the execution, delivery and performance of this Lease and the transactions Contemplated hereby.
(I) Neither the execution and delivery hereof, now the fulfillment of, or
coulphance with, the terms anti conditions hereof, nor the c(.onstunlruttion of: tilt: lransaction
contemplated hereby, will cc.►nflict with, constitute a hreach of, ordefatill limier, the Consfilution and
laws of the State, or the rules of pnwechire of the Lessee or any Indellttlre, agreerlIcIll ()r other
instrunlent to which Ihm; Lessee is a party or by which it is hound, ur any constitt.ltion 11 or statutory
proviSii►n, or order, rule regulation, decree or ordinance of any court, government or governmental
hotly to which the Lessee or t.uly of' its other properties are subject.
.,h l (i 1 1 9 6; 1
W There is no action, snit, proceeding, irl(luiry (It- investigation, at law or in
(equity, before or by any courk regulatory agency, public ho,.lyd or body pending or, to the best of the
Lessee's knowledge, threatened against the Lessee, wherein an unfavorable ruling or filing would
adversely affect the validity or enforceability of this Lease or any other instrunlent contcrllplated for
use In CO11Sullllllating the transactIns contemplated hereby, or the exclusion of the portion of (Ile
Rent Paylllents (as defined in Section 3 below) representing interest froln gross income for purposes
of federal income taxation, or would materially and adversely affect any of the transactions
contemplated by this Lease.
00 The Equipment (as defined in Section 2 herco0 at all tinges will he used by the
Lessee for the purpose of performing a public function and the acquisition of the I?quipnlent by the
I.e.ssee shall be necessary, useful or appropriate to ogle or Vlore governmentaI purposes offhe Lessee.
Section 2. LEASING.
(a) Subject to the terms and C011dltlons Set forth below, Lessor agrees to lease to
Lessee, and Lessee agrees to lease fronn Lessor, the L:quiprnent described in the Equipment
Schedides delivered from time to time as described below, including all repairs, replacements,
substitutions and modifications to the same (fl)e "Equipment").
00 The I...essor may from tittle to time, at the request of Lessee, provide funds to
acquire Equipment from the manufacturer or supplier thereof ("Supplier") for lease llereuncler. The
ohligad011 of Lessor to lease EpApment hereunder shall be subject to the representations and
warranties of Lessee contained herein being true and accurate throughout the te'rnl hereof and f llrlher
conditioned on receipt by Lessor of each of the following documents in form and stlhstarlce
satisfactory to Lessor and the lessee:
0) a Description of Ecuipment describing such Equipment executed by
I .essor and Lessee (the "Description of Equipment"):
00 in Amortization Schedule setting forth the Rent payable with respect
to such Equipment if) Hie form attached as Exhibit B here(() (tile "Amortization Schedule,,);
(iii) a Schedule of Terllls setting forth additional terms applicable to the
lease of- such Equipillent executed by Lessor and Lessee (the "Schedule of Terms");
(iv) copies of insuranee policies Or, at fXSSOr's option, such other evide, rue
of insurance which coinplles with the requirements of"Sectlon 1 I;
(v) hills of sale, films or other appropriate evidence of ownciship or
111VOIceS for 111110llllts (111C;
(0) an opinion of counsel for lessee;
f11tI U111N;I
NO a copy Of Internal Revenue Service Form 8038 G or 8038 C;(" (as
applicahle) completed and executed by Lessee;
(viii) Lill Officers' Certificate of Lessee;
(ix) a duly adopted resolution or evidence of other appropriate action of
Lessee appmvhig the acgNsition of silt►] I-_glilpment;
(x) executed and completed Form 2003/2004 of the L)ivision of: Bond
Finance of the State of Florida;
anti
(xi) it Certificate of Acceptance in the form attached as Exhibit C hereto;
AA) such other documents as Lessor may reasonably request.
All references herein to the Description of Equipment, Amortization Schedule or the
Schedule of Ternls for Equipment is it reference to such schedule as it was executed in connection
with file Imme of such item of L quipinCllt.
(c) Lessor hereby appoints Lessee its agent for purchase, inspection and
acceptance of the Equipment from the manufacturer or supplier. SUb)eCt to tilt ahiave stated
conditions, upon execution by Lessee of a Certificate of Acceptance in the Dorm provided by Lessor,
tie f-quiplrierlt. described thereon shall be deemed to have been delivered to, and irrevocably
accepted by, Lessee for lease hereunder.
Section 3. "CI RNI, RENT AND YAY]0IENT.
(a) The rent (,Rent") payable hereurit.ler with respect to all Equiprne.nl set forth on
all Equipment Schelde shall commence on the elate set forth in the corresponding Schedule of
'terms (the "Commencement Dale"). The term ("Terin") of this Lease with respect to such
Equipment shall continence on the Commencement Date and shall terminate upmi the occurrence of
the first of lilt following events:
(1) the exercise by Lessee of its caption to purchase Lessor's intcrest in
suCh LScfliil)lllellt pursuant to Section IS hereof;
(2) the payinvit by Lessee of all Rent and odwr amounts required In he
paid by Ixssee hereunder wills respect to such Equipment;
UAkl0 it 1d;1 3
(3) upon the occurrence of an Event of Non approprimion (as that term is
defined in subsection (c) hereof) with respect to any h quipmem, the last (lay of the Budgetary
Period set firth in the Schedule of Terms for which an appropriation has been mad , subject
to I..essur's election to not terminate this 1-,Gast with respect to Equipment for which un
appropriation has been made;
(4) an Event of Defauk by Lesseeand 1,essor's election to terminate this
LCase pursuant to Section 20 hereof; or
(5) payment of all monies owed pursuant to it Casualty Occurrence with
respect to such Equipment render Section 10 hereof.
(b) Rent shall be paid to Lessor at its address noted in the Schedule of 'terms,
except as otherwise directed by L..essor. Payments of Rent shall he in the amount, payahle at such
intervals and shall be Clue in accordance with [lie provisions of the Amortization Schedule and
Sdwdule of Terms. (Mach payment of Rent is hereinafter referred to as it "Rent Payment") l .essor
may change the location to which the Relit Payments are to he paid by noting such change on any
invoice to I..essee or by scimling Lessee notice in writing of stich change. A portion of eadi Relit
Payment is paid as, a11(l represents, interest as reflected oil [lie Amortization Schedule.
The obligation of the Lessee to pay the amounts required herein shall constitute it current
expense of the I.essee and shall not in any way he construed to he it debt of the l..essee in
contravention of any applicable corlst►tutlonal, statutory or charter limitations or requirements
concerning the creation of indebtedness of the Lessee. THE PAYMEWrS DUE TINDER THIS
I .I::ASE ARI 'I'O BE MADE ONLY FIZOM'I'I-IE I..ESSEES I_l (,A1..1..Y AI'I'IZOI'IZIA'1'PI) I,,l INI)S
ON AN ANNUAL. BASIS, AND NEITHER. TILL LESSEE, 'fell: STATE OF Fl.,ORIDA, NOR
ANY POI..1't1CAl .SUBDIVISION OR AGENCY `1'tiERI--?Oli SI IAI-.1.13E OIII_,IGA'I'LD'1'O PAY
ANY SI_INIS DUE HEREUNDER FROM THE COMPI ILLED LEVY 01 AD VAI_.OREN/l OR
O'1'lllslZ TAXIS EXCEPT FROM rHOSE FUNDS I.EGALI-Y APPROPRIA'-ED BY TI11:;
I .I:`.SSEE' ()N AN ANNUAL BASIS, AND NI ITHER "I Hl', F111,1—FAITIJ AND CREDITNOR'1'I I I?
TAXING POWER OF THE LESSEE, THE STATE OF FLORIDA OR ANY POI.ITICAI,
SIJI.3DIVISION OR AGENCY THEREOF ARE PI,EDGEI) FOR PAYMENT OF SUCH I SUMS
DUE UNDER 'MIS LEASE. This Lease and the. indebtedness evidenced hereby shall not
constitute a lien upon the EquQneo, or any part thereof, or on any other property owned by
or within the jurisdictional limits of Lessee.
(c) I..essee shall have the right to terminate its obligation to snake Rem Payments
with respect. to any Equipment at the end of any Budgetary Period (as that term is defined in ellc
Schedule of `Perms), in the manner and subject to the terms of this subsection (C), if Lessee's
govcn ing body (lots not appropriale money sufficient to pay the Rent Payment~ and ream MP
estimated expenses hereunder coming due for the next Budgetary Period with respect to such
Equipnlcrtt (such termination hereinafter an "I'vent of Nonappropriatiorl"). [_)Doll the oCCurrenCC of
an Mcnt of Nnnappropriation, I.essee shall not be responsible for the payment of any Rent Payli its
With resl)e(.A to such L(Illipment coming Celle dining any subsequent Budgetary Period. I 1pon thy,
L1itIU11j8; 1
It
occurrence of an Event of Nonappropriation as provided in this subsection, this 1-CaSe shall Icrmillate
and Lessee covenants to surrender and delver possession of the Equipment to Lessor in accordance
with the provisions of Section 12. Provided, however, that Lessor may elect to continue to lease
1wreuncier any Equipment bill" which an appropriation has been made.
Section 4. TAXES.
Lessee shall report and pay promptly from legally itvai lable revenues all other taxes, fees and
assessments due, imposed, assessed or levied against the C?yui1,)ll1Cn1 (Or the prll'chaSe, ownership,
delivery, leasing, Possession, use or operation thereof), this .Lease (or any rentals Or receipts
he i,eunder), or Lessor or Lessee in connection with this Lease, by any foreign, federal, state or local
government or taxing authority, including, without limitation, all license and registration fees, and all
sales, use, personal property, excise, gross receipts, franchise, stamp or other taxes, imposts, duties
and charges, together with any penalties, fines or interest thereon (all hereinafter called "Taxes,,).
Lessee shall reinlbilrse Lessor upon I'eCetpt 01 wrlttell r'C(1LICS1 fOl' rClil)btll'SCnlCnt for ally 'faxes
charged to nr assessed against Lessor, and on request of l .essor, submit to Lessor written evidence of
Lessee's payment of Taxes. Lessee shall have no liability for taxes imposed by the United States of
America or any Suite or political SubdlViS1011 thereof which are on or measured by the net inconlc, of
lessor.
Section 5. FINANCIAL INFORMATION; REPORTS.
Lessee will provide L-essor with (i) audited financial statements (includillgr, without
liulitation, it balance sheet, a statement of revenues, expenditures and change in fund balance) within
210 clays after the end of each BildgCt Year, (ii) it copy of its annual budget within 45 (lays after
approval by I_CSSCC, and (iii) such other financial inforrllatinn as requested in writing; by Lessor -
Lessee will also provide Lessor with the. following ►n writing within the dille periods Specified: (a)
notice of tax or other lien which attaches to Equipment. within ten (10) (lays of� Lessee's obtaining;
knowledge of such attachment and such additional information with respect to the tax or fiell
promptly upon request of Lessor'; (b) notice to Lessor of the relocation of the base -location of the
I(luiptllent outside of the jurisdictional limits of Lessee, fell 00) clays prior to any relocation;
(C) copies of the insurance policies or other evidence of insurance required by the Perms hereof,
promptly upon request by Lessor; (d) copies of all information, logs, (locunlents and record:;
regarding or in respect to the E(JUipment and its Ilse, nlaintenance and/or condition, within ten (10)
(lays of such request; (e) a certificate of the authorized officer of Lessee stating; that he has reviewed
the activilies of Lessee and that, to the best of his knowledge, there exists no default (as deSCI'Ibed in
Sc,c.lion 20) or event wllicll willl notice or lapse of tinge (or both) would become Slicil a default;
(f) C0 lies of ally manufacturer's warranties, 1)1-onlptly upon request; (g;) evidence of L.essc;e's
Comp) ialice with nlaintCnunce provisions of' Section 8 hereof upon request of Lessor; (11) notice; nl:
any 111111cipat(d occurrence of an Event of NoilappropriLit ioil, if practical, thirty (30) (lays prior to
Such occurrCnce; (i) notice Of all OCCul'rellce of all EVCnt ofNonappropi iation within five (5) (lays of
sucll occurr(:11Ce; (j) proof of appropriation for the ensuing Budgetary Period in a form 4lcc.epfablc; In
1.cssor upon request; and (k) any other documents or reports required by any addel)da hereto or
rCtlsouably rcdrlested by Lessor.
(A,iufl9u;I S
Section 6. TITLE AND QUIET EN,)O'YNI NT.
(a) Ingal tills to the, Equipment shall, Rv the convenience of both parties, be titled
in the I-essee. 1_,essee covenants to promptly return the E(luipnlent to Lessor as provide(1 in Section
12 upon the occurrence of an Event of Nonappropriadon, or Upon the Occurrence of all Event of
DeNuh and Ussor's election to telvinate this Lease purs►lant to Secdon 21 hereof. 'I"ills to tee:
Equiprllent shall vest absolutely with Lessee upon payment ()fall Rent Payments (.tile hereunder.
(b) So long as Lessee is not in default under this :Lease, lessor covenants and
Trues tat it will not interferer with Lessee's quiet enjoyment of the Equipment suh_jec;t to, and in
4'ICC I -dance with, the provisions hereof.
Section 7. ICI?,Ln m, RImIS'!'inTION, USE AND OPERATION.
(a) The Equipment shall be delivered directly from the Supplier to Lessee:.
(b) Lessee, at its own cost and expense, shall cause title of' (lie I quiprllent to be
placed in the name of Lessee by appropriate documentation.
(c) Tile possession, use and operation of the Equipment shall be at the sole, risk
and expense of Lessee. Lessee agrees that the Eglliprllent will he used and operated in compliance
with any and all statues, laws, ordinances, regulations and standards or directives issued by ally
governmental agency applicable to the use or operation thereof, to compliance with any license or
registration relating to the Equiprllent issued by any agency and in a manner that does not modify or
impair any existing warranties oil the Equipment or any part thereof'. Lessee will operate the.
F(plipillent solely for governmental use.
Section 8. MAIN'f ENANCE-
(a) Ussee agrees (hat the Equipment will he maintained in compliance with any
and all statutes, laws, Ordinances, regulations and standards or directives issued by any govern117ental
agency applicable to the maintenance: thereof, and in a manner that does not modify or impair any
existing warranties on the Equipment or any part therc.nf.
(b) l-essee Shall maintain, inspect, service, repair, overhaul and test the Equipment
in accordance- with 0) all rnidntcllance inanuals initially furnished with the Equipment, including any
subsequent aniendtllellls Or Supplemen s 10 Such Mat1l11lIS issued by the manufacturer ffO117 tulle to
bins,, and (6) all recommended "Service Bulletins" issued, supplied, or available by or through the
Mallnfacturcr and/or the manufacturer Of any part will) respect to the Equipment. Lessee; shall
maintain all records, logs and other materials required by the inaiinNiclurer thereof fir wiNrcenlen!
of ally warranties. All InaICllellAl7Ce pl'OCe(tllles re(lttlrec(herel)y Shall be. L1nClertaliell and cirnpletccl
in accordance with tile; uulmtfac.turer's recommended procedures, and by properly trained, licensed,
and cut Weel maintenance mmnves and maintenance personnel, so as to keep the Equipment in as
f,()od operating condition as when delivered to Lessee hereunder, ordinary wear and tear expected.
(c) Lessee; agrees to notify L.,essolr in writing thirty (30) (lays prior to making any
material change in the coriNguration, appearance and coloring of the Equipment Prom that in effect
at the tinle the Equipment is accepted by Lessee hereunder, and in the event of' such change of
nlodil'ication of Configuration, coloring or appearance, Lessee shall restore, upon request of Lessor,
the Equipment to the configuration, coloring or appearance in effect oil the Commencement Dale or,
at Lessor's option, to pay to Lessor an amount equid to the reasonable cost of such restoration. The
Lessee's addition of its loge or other identifying marks to Equipment shall not be consi(Icred it
f►laterial change in the appearance or coloring of the Equipment.
(d) Lessee shall be entitled hum lime to time during the Terns of this (..ease to
acquire and install on the E(]uipnlerlt at Lessee's expense, any additional accessory, device or
equilmlent as lessee may desire (each such accessory, device or equipment, in "Addition"), but only
so long as such Addition does not alter or impair the originally intended hnletion or use of the
lbluipinent, and can be readily removed by Lessee prior to the retl.rrrl of the Equipment. lessee shall
repair all damage to the Equipment resulting from the installation of removal of ally Addition so ,,.Is
in restore the Equipment to its condition prior to installation, ordinary wear and tear excepted.
(e) Any alteration or modification (each an "Alteration") with respect to the
Equipment that may at any time during the term (.lf' this Least: be require(] to comply with any
applicable law orally govern►niental rule or regulation shall be made at the expense of Lessee. Any
repair made by Lessee of or upon the Equipment orreplacement parts installed thereon in the coarse
of repairing or inaintAniug the Equipment, or any Alteration require(( by law or any governmental
We or regulation, shall be deemed an accession and shall become it part of the Equipment.
(f) Except as permitted under this Section S, Lessee will not modify the
L?gnipnlent or affix of- remove any accessory to the I: qu4mrient leased hereunder without LCSS(ll'S
Consent.
:section 9. LIENS, SUBLEASE AND ASSIGNMENT.
(a) Lessee shall not sell, transfer, assign or encumber the Equipment or Lessor's
rights uncles this Lease and shall not sublet of- part with possession of the Equipment or any part
thereof. Lessee shall keep the Equipment and any part thereof free and clear of� all liens and
mclllilbrallces Other than those which result from 0) the respective rights of Lessor ant] Lessee as
hCreill provide(:]; (ii) liens arising f'rolm the acts of lessor; OH) liens for taxes not yet doe; noel (Iv)
inchoate; Inaterialrllen's, mechanics', wrlrkfile it's, repairillen's, employees' orother like liens arising ill
i 11c ordinary course of business of l essee for sums not yet delinquent or being contested in good faith
(and for the payinenl of which adequate assurances in l..essclr'sj ulgment have been provide(] I.l uml.
(b) All of- Lessor's right, title anWor hHerest in and to this Lease, the., Rent
lbyulents and other amounts due hereunder and the Equipment may be assigned and reassigned in
whole of. ill part to one or Illore assignees or subasaignces at any time, without the Consent
No sill;h assignmell shall be of I Ove as against Lessee miless and until the Lessor or assigllelr, as
LmIOil 9l1;1
the case may be, shall have filed with Lessee it copy or written notice thereof' identifying the
assignee. All Rent Payments clue hereunder shall be paid to Lessor at the address set forth herein or
at the direction of Lessor or assignee designated in the most recent notice of assignment filed with
Lessee, such other address as Lessor or assignee directs. Upon such assignment, 1-_essee shall
provide notice thereof tea all insurers and shall cause the instnance policies as required by Section I 1
hereof to be modified to protect the assignees.
(c) This Lease shall inure to the benefit of and shall be binding upon the Lessor
and the Lessee and their respective successors and permitted assigns.
Section 10. VOSS, DAMAGIB AW STIPULATIM L()SS VALUI{.
Ixssce hereby assumes and shall bear the entire risk of any loss, theft, confiscation,
expropriatioil, requisition, damage to, or destruction of, the Equipment, or any part thereof From any
cause whatsoever. 1.,CSsee shall promptly and fully notify Ltmor in writing if Equipment sllall be or
bcconne worn out, lost, stolen, confiscated, expropriated, requisitioned, destroyed, irreparably
damaged or permanently rendered unfit Kruse Hurt any cause whatsoever (such occurrences being
hereinafter called "Casualty OCCnrrences"). In the event that, in the opinion of Lessor, it Casualty
Occurrence has occurred which affects only a portion of an item of the Equipment, then Lessee, at its
own cost and expense, shall replace such portion with a replacement part acceptable to Ixsscw In the
event that, in the nphdon of Lessor, a Casualty Occurrence has occurred in respect to an item of
Equipment in its entirety, oil the Rent Payment (late next succeeding a Casualty Occurrence (the
"Payment Date"), Lessee shall pay I..essor the sum of (i) in amount equal to the portion of the
Prepayment Price applicable to the affected Equipment for the time period of the. Casualty
Occurrence; and (A) all Rent Payments and other amounts which are dire or accrued hereunder as of
the Payment Date. Upon payment of all stubs clue hereunder, the `Perm of this Lease tau) the item of
1?quil tlnent shall terminate, and Ussee shall he entitled to retail] possession of such Equipment.
Section 11. INSURANCE.
Lessee agrees to keep the Equipment Insured, at its own expense, with such companies and
on such terms acceptable to Iwssar, in such amounts and forsuch risks as is customary forequipnnent
of the nature and type of the Equipment and as may be reasonably requested by the Lessor. The
I rlSlriance shall (i) name Ixssor as additinnal insured and shall have a loss payable clause in favor of
Lessor, as its interest may appear, irrespective of any breach of warranty or other act or wrission of
Lessee; (ii) shall not be subject to any CWhISUranCe Clause; and (iii) shall provide that it May not be
altered or cancelled by the insurer until after thirty (30) (.lays written notice to Lessor. Any expense:
of lessor in adjusting or collecting insurance shall be horne by Lessee. Lessee shall not make
adjustments with insurers except (a) %Will respect to claims from clainage to an item of Equipment
where file repair coats & not exceed ten percent (10%) of such itcnn's fair market value, or (b) with
Lessor's written consent. Lessor may, at its option, apply proceeds of insurance, in whole or in part,
to repair or replace the damaged or lost item of Equipment or ,Illy portion thereof, or to satisfy any
obligu(iiln of f..essee tie Lessor heretincler. 1n addilinn to property tend liability insurance refercnceul
above, if rcgtlired by State law, lessee shall carry %Mmen's Compensation insurance covul-ing all
km 10319b; 1 8
rnhployees on, in, near or about the I philment, and upon request shall furnish to Lessorcertificates
evidencing slick coverage. Loon prior written consent of Lessor, Lessee tray sell' insure fclrsonlc or
A of the abnve-referenced public liability, property, and casualty danlage risks.
If Lessee is covered uncler a pl'Ogl'21111 of self insurance. Lessee shall prnvicle lessor with a
Idler f-oril its insuring authority certifying to the existence of a continuing; self-insurance progralll
which meets the requirements of applicable law. In such event, Lessee shall provide it rllirllillulll Ot
ten (10) days written notice to lessor of any material cimnge or cancellation of said self insurance
progranh. in the event that such self-instl►ance program is unavailable or ter l-linated, Lessee agrees to
procure and lnahltain with a carrier authorized to do bus►ness in Florida and acceptable to Lessor,
which acceptance shall not be unreasonably withheld, all insurance required hereby, including fire,
theft, and extended coverage insurance on the Equipment, insuring the full insurable value against
risk of loss or damage and providing for a rllirlin1u111 of ten (10) days written notice of material
change or cancellation to Lesson Lessee shall provide: Lessor with copies of cerlificates of lie
instance carrier of camel's evidencing such iilsurailce coverage,
Section 12. RETURN OF EQUIPMENT.
(a) Upon terniinalioil of this I..ease due to an Event of Nonappropriation, or due to
an Event of Default and Lessor's election to terminate this Lease (subjec,t to LeSSoi's election to
continue this Lease with respect to Equipment for which no C-vent of Nonappropriation has
occurred), Lessee covenants to promptly return all Equipment leased hereunder to Lessor together
with all logs, manuals and data, including without linlitation, inspection, modification all(] overhaul
records required to be rllaintairled with respect hereto under this Lease or tinder the manufacturer's
reconurended maintenance program. Loon return of the Equipmeni, Lessee shall, upon request,
assign to Lessor its rights under any manufacturer's maintenance service contract or extended
warranty for the returned Ecluipnlenl Orally part thereof. /01 expenses for return of such I?iI nipnlenl
and delivery of the aforementioned logs, manuals and data shall be borne by Lessee. The Equipment
shall he returned in the condition in which the 13quipnlent is required to be maintained pursuant to
Section 8 hereof, but with all lobos or other identifying marks of Lessee removed.
(b) Upon return of the Equipment, Lessor shall arrange for the inspection of same
within Ihirty (:30) days of return to determine if such Equipment has been nit MAW and returned in
accordance Willi the provisions hereof. Lessee shall he responsible for the reasonable cost of such
inspection and shall pay Lessor such amount as additional Bent within ten (10) clays of demand for
same. III ale even[ that tie results of such inspection indicate that such Equipilient, or any part
thereof, has not been nlainlairled or returned in accordance With the provisions herenf, Lessee shall
hay In I.essul' witlill tell (10) days of denumd, as liquidated damages, the estimated cost C stimated
Cost servicing or repairing Shell ]- ydpment, or pan. 'The 13sti11lated Cast shall be dGlc'1'illi11Cd by
I.cssor by obtaining two quotes for such service or repair work and taking the average of saulc.
Lessee shall bear the cost, if any, incurind by Lessor in obtaining such duotes.
(c) In the event of return i)f l duipnlent to I_.essor pthrsuanl to (a) above, I..essor
shall use its hest Ci7orts Ic) sell all or part of the liquipnlent upon such te.rnhs is Lessor ill its
reasonable judgment de -erns prudent. Lessor shall apply the net proceeds of such sale in the
following manner: 0) firstly, to reirribume L.essol" forall costs associated Willi tile removing, holding,
repairing and selling of' I rluipment; (ii) secondly, to reimburse Lessor for Lessee's remaining
obligathms under the Lease including, hilt not linlited to, the applicable Prepayment Price; and (iii)
My, any amounts remaining thereafter shall he remitted to Lessee.
NO All of L.essor's rights contained in (Ills Section shall survive tile explratiC111111-
other (ellllillatioll of this I...ease.
Section 13. IN'1'1�IZ S'I' IZA'1'E SLI13.19-!,C'I `I'O AI),1LJS`I'Nit�N,r.
In setting the interest rate Used in calculating the Interest COnlpwinit of lie Rental Payments
set forth in the Amortization Schedule, the I.-esw has lateen into consideration: (a) the Current
Maxilllunl Corporate Income 'Tax Rate, including Sub Chapter S corporations, as established in
Section I I of the Internal Revenue ('ode of 198C, as amended (tile "Code"), (b) the trealment of this
Lease as it "qualified tax-exempt obligation" under Section 265 of lie Code, and (c) other Mors
which affect tax yield to the Lessor. Should there be future changes in the Code or related
regulations which affect the after-tax yield to Lessor. Should there be future changes in the Me or
refitted regulations which afR*l the alter -lax yield Of Lessor, the Lessor may adltlSt the interest Me in
order to maintain the same after-tax yield as in effect oil the dale hereof.
As utilised in this Section, the term "Determination of Taxability" shall mean any
determination, decision or decree by the Commissioner of Internal Revenue or any District Director
of Intemal Revenue, as such officers are identified by the Code, or any court of conipelent
jurisdiction, or an opillion of counsel experienced in tax nla A's that tile: Interest component payable
under this Lease is includable in the gross income (as defined in Section (TI of the (Code:) of the
Lessor as a result of the occurrence of it Taxable Event (herein defincel). A Detenthnatiun of'
Taxahility shall be deemed to have occurred on the first to occur of the following:
(a) on (flat (late when the Lessee files any statement, supplemental staten-iellt or
other tax schedule, return or Clocument which discloses that a Taxable Event (hereinafter deltlled)
Shall have occulted;
(h) on that date when the lessee or the Lessor shall be advised by said
('unlmissioner of Internal Revenue or any such District Director of Internal Revenue that, bascd
upon (i) filings of the lessee, (ii) any review nr audit of the Lessee, or (iii) upon any ground
whatsoever, a "Taxable I -'vent shall have occrnred; nr
(c) on that time 0) whcn the Izsser, shall receive nulice from the lossor that the
hiternal Revenue Service has assessed as includable in the gross income (as defined in Section 61 of
the ('ride) of the Lessor the interest coinpclnenl due to the occurrence of it 'Taxable Event; of
(ii 1 when the Lessee shall be advised by said Commissioncror any such District Director of Internal
Revenue that the: interest component is incluclablc in the gross income of the Lessor duc to the
uccnrrcnce, Of a Mixable Mcia; or (iii) When the Lusse.e shall receive an npinil.ln of w inscl
experienced in tax matters that the interest compc.ment is includ'ahle in gross income due In file
Occurrence of a Taxable Event.
As utilized in this Section, the term "Taxable Event" shall mean that event which shall cause
the interest component of the Rent paid or payable under this ixase to hecorlle includable fear federal
income lax purposes in the gross income of the Lessor as a eollscxluence of any ar.t, omission trr
event whalsc ever, other than an act, omission Or event caused by the Lessor, and regardless of
whether the same was within or beyond the control of the Lessee. A Taxable Event shall he deemed
lO have occurred as Of the earliest date on which it is alleged that interest became so includable.
If a Determination of Taxability should occur, the interest portion of the Rent Payments shall
he increased to the interest rate necessary to maintain the same after -lax yield its In effect oil the dale
hereof (the "Taxable Rate"), and such increased rate of interest shall he payable from and alter the
(late of the Event of Taxability ("Date of' Taxabilily" ). Provided, however, that if the I-.essee shall
elect to contest such allegation and such contest results in it final Order or judgment of it court Or
administrative body of corllpetent juris(liction to the effect that a Taxable Event has not occurred and
the time for any appeal of such order or judgmelll has expired, then no Taxable Event shall he
deemed to have occurred and interest rate adjlist rllents theretofore paid shall be refunded by the
Lessor.
Section 14. PERSONAI, PROPER'IT.
The Egllipnlent shall at all fillies be and relllaill, personal property notwithstanding that the
Equipment or any part thereof may'low be, Or hereafter be.conle, in any manner affixed or attached
to, or embedded in, Or permanently resting upon, real property orally building thereon, or attached in
any manner to what is permanent as by means of cement, plaster, nails, bolts, screws, or otherwise.
It', notwithstanding the intention of the parties and the provisions of this Section 14, any person
acquires or claims to have acquired any rights in the Equipment or any portion thereof by I-easun of
such Equipment's being affixed to real property and such person seeks in illy manner to Interfere
With the continued quiet enjoyment of the Equipment by Lessee as contemplated by this Lease,
Lessee shall immediately notify l.-,essor in writing of such fact and shall seek diligentlyto remove the
hasis fnr any such interference. Unless the basis for such interference is waived or removed to the
silllsfac'tlon of Lessor within thirty (30) days from the date it is asserted, Lessee, upon' written request
I'ront Lessor, shall within ten (10) days after such request pay to Lessor all a111Ount equal to the stint
of ll) an arlloullt equal to the Prepayment Price applicable to the time period of the interference; and
(ii) Lill Rent Payments and other amounts which lll-C CI IC Or acCrlleC1 herellnCler. Upon srlCll pllylnCllt
the I .easy: of such Etluipnlent shall lernlirlate all(] all of l-essor's title to and rights in such ECluipinent
shall hecume the property of Lessee.
0141032a8i i 1 I
Section, 15. NET LEASE; NO SET-OFF, viv.
This lease is a net lease. Subject to the provisions of Section 3 subsection (c) hereof,
Lessee's obligation to hay Rent and other amounts clue hereunder shall he absolute and
unconditional. Lessee shall not be entitled to any ahatement or reduction of, or ser(gf against, said
Rent orother amounts, including, without limitation, those arising or allegedly arising out ofclainis
or disputus (present or future, alleged or actual, and including clainns arising out of strict ton or
negligence of Lessor) of I..essee against or With the inanufacturer or vendor of the BlApment, any
supplier of labor or mawrials in connection WWI, or any other person. Nor shall this Iwase
lerrninate or the obligations of lessee he affected by reason of any defect in or damage to, or loss of
possession, use or destruction of, the Equipment, from whatsoever cause or breach of warranties of
the rinanuAwlin-er or seller of the EgWpment. Subject to the provisions of Section 3 subsection (c), it
is the intention of the parties that Rent I'ayments and other amo►inls due hereunder shall continue to
he payable in all events in the manner and at the times set AS herein, unless the obligation to do so
shall have been terminated pursuant to the express terrns hereof.
Section 16. INI)EN'1NIFICATION.
(a) Lessee hcrehy agrees to the extent hertntitted by law to indemnify, save and
keep harmless Lessor, its agents, employees, successors and assigns from and against any and all
losses, damages, penalties, injuries, claims, actions and suits, of whatsoever kind and nature, in
contract or tort, whether caused by the active or passive negligence of Lessor or otherwise, and
including, but not limited to, Lessor's strict liability in tort, arising out of (i) the selection,
nnanufitcture, pllrcllaSe, acceptance ori-ciectiotn of l_quipinent, dicowneIsNpof Equipment by L..essee
during the Tern, of this Lease, and the delivery, lease, possession, nudillenance, use, condition, return
oroperation of the Equipment (including, without litlnitation, latent and otherdefects, whetherornot
discovendAe by Lessor or Ussec and ally claim forpalent, trademark orcopyright infringement), or
(ii) the condition of the Equipment sold or disposed of after use by Lessee, any sublessee or
employees of l..essee. Lessee shall, upon request, defend any actions based oil, or arising out of, any
of the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in this Section
ralion or other termination of this Lease and the rights, privileges and
shall Slnvive the expi
hWennnities contained heroin are expressly nTnade for the benefit of, and shall be enforceable by
Lessor, its successors and assigns.
i itIuJI�-H;1
I )
Section 17. DISCLAIMER.
LESSE[: ACKNOWI..EI)GES "l-1 IAT I'I' SI IAL,L SLI..EC-1" I'f-lE EQU113MI:N'I' Wfl'l I(-.)(1'I'
ANY ASSISTANCE FROM I..ESSOR, ITS AGENTS OR EMPLOYEES AND THAT LESSEE
LHAS1ES 7 1E EQUIPMENTIN AN "AS IS" CONDITION. LESSOR DOES NOT MAKE, IIAS
NOT MADE, NOR SIIAI.L BE DEEMED TO MAKE OR HAVE MADH:,, ANY WARRANTY OlZ
REPRESENI'A"I,ION, EI711 IER EXPRESS OR IMPLIED, WRIT`J'EN OR ORAL, WITH Rl,SPEC"I'
`I') 'l' r EQUIPMENT I -EASED HEREUNDER OR ANY COMPONENT "1 H IZEOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO CONDITION, DESIGN,
COMPLIANCE W1'I'I l SPECIFICATIONS, QUAL ITY OIF MATERIALS OR WORKMANSI ill',
IVIERCHANC'A1311-ITY, FITN13SS FOR ANY PURPOSE, USE OR OPERATION, SAFETY,
PA'1'1�N,r, 'IRAI:)EMARK Olt COPYRIGHT INFRING MENI', OR TFFLI . All SHCh risks, as
he(ween Lessor and Lessee, are to he home by Lessee. Without limiting the foregoing, Lessor shall
have no responsibility or liability to I essee or any other person with respect to any oI, the fallowing
(except al such tunes as lessor is in possession of the Equipment), regardless of any negligence of:
Lessor 0) any liability, loss or damage cat.rsed or al% ed to be caused directly or indirectly by the
Equipment, any inadequacy thereof, any deficiency or defect. (latent or otherwise) therein, orally
othercircunlstance in connection therewith; (ii) the use, nperalinn or performance of the Equipment
or any risks relating thereto; (iii) any interruption of service, loss of business or anticipated profits or
consequential darnages; or (iv) the delivery, operation, servicing, maintenance, repair, improvement
on -replacement of file Equipment. If, and so long as, no default exists under lllls (.,ease, Ussee shall
he, and hereby is, authorized during the Term to assert and enforce, at 1. essee's sole cost and expense,
hunt hole to Ginn, in the dame of and for the account of Lessor and/or Lessee, as tlleir interest~ nmy
appear, whatever claims and rights Lessor may have against any Supplier of the h;gr.iillnlent.
Section 18. PURCHASE OPTION.
(a) Provided that no Event of Default has occurred and is continuing 1wreunder,
I .essee shall have the option to purchase fill of Lessor's right and/or interest in and to the Equipment
on any Rent Payment Date (the "Purchase Date") for the applicable Prepayment Price as set forth in
the Amortization Schedule. I'he sale of the Lessor's interest in and to the Equipment to I ,essce shall
he on an AS IS, W11ERE IS basis, without any recourse or warranty whatsoever as against Lessor.
(h) Lessee shall gi ve notice to Lessor of ifs intention in exercise its option not less
Man sixty (60) days prior to the Rent Payment Date on which the option 13 to he exercised and shall
remit to Lessor on such date an amount equal to the sum of 6) the Prepayment. Price; and (5) all Rent
Payments and other amounts clue or accrued through and including the lhnvhase Date.
OR1U1198, 1
13
Section 19. MUTUAL (-''OVI?NAN'I' RI�GAIZI)1N(.; TAX-EXL�MI''I',S'I'j1'I'LJS.
The LCSsee and the I...essor lmltllally covenant that neither will take any action nor emit to
take any action with respect to this Lease, the Equipment leased hereunder, or any funds of the
lessee if such action or orllissic.)n (i) would cause the interest component of the Rent to lose its
exclusion front gross income for federal income tax purposes under Section 103 of the Internal
Revenue Code of 1986, as amended (the "Code") and applicable regulations, or (fi) would cause such
interest component of the Rent to lose its exclusion Of any) from alternative minimum taxable
income as defined in Section 55(b)(2) of the Code except to the extent such interest 1s required to be
included in the adjusted net boot: Ncorne and adjusted current earn►ngs adjustments applicable to
corporatic:)ns under Section 56 of the Code in calculating corporate allerrlative nlininunn taxable
income, or TO would suNew the Lessee to any penalties under Section 148 of the Code. Subject to
the Lessee's right to terminate this Lease as provided herein, file foregoing covenant shall remain in
full force and effect, notwithstanding the p,rylllellt in full of' the Rent, until the date on which all
obligations of the Lessee in fulfilling the above covenant have been met.
Section 20. EVENTS OF DEFAUTA'.
The term "Event of Default", wherever used herein, shall mean any of, the following events,
whatever the reason for such Event of Default and whether it shall be V011.11ltary or involuntary, or
come about or be effected by operation of law, or be puma nt to min cornMimwe with Duly judgment,
decree or order of any court or any order, rule or regulation or any administrative or goverllrrlentul
body: (a) Lessee shall fail to make any payment of Rent when the same shall become chic; or
9) Lessee Will fail to keep in full force anti effect insurance required under this Lease; or (c) Lessee
Will or shall attempt to (except as expressly permitted by the provisions of this Lease) remove, set I,
transfer, encu►llber, part with possession of, assign or sublet the Equipment, cm any part thereof, use
the Equipment for an illegal purpose, or permit the same to occur; or (d) Lessee shall breach its
covenant to return the Equipment upon an Event of PA mlppropriation, or upon an Event of Default
and Lessor's election to terminate this Lease; or (e) Lessee shall fail to perform or observe any
covenant, condition or agreerllenl not included within (a), (b), (c) m (d) above which is required to he
performed or observed by it under this Lease or any agreement, clnCulllent or certificate delivered by
Ionce in connection herewith, and such failure shall continue for twenty (20) days ;.liter written
police thereof from Lessor to Lessee (or, if such dC udt cannot be corrected within twenty (`?O) days,
shall have failed to initiate and diligently pursue appropriate corrective action); or (0 any
representation or warranty made by Lessee in this Lease or any agreement, document or certificate
delivered by lessee in connection herewith or pursuant hereto shall prove to have been incorrect in
any material respect whet) any such representation or warranty was made or given (or, i f a continuing
representation or warranty, at any material time); or (g) Lessee shall generally fail to pay its debts as
they become clue or shall file it voluntary petition in hankruptcy; m (h) a petition is filed against
Lessee in it proceeding lender applicable bankruptcy laws or other insolvency laws (other than any
!aw which does not provide for or permit any readjustment or alleml-ion of Lessee's ohhgathms
hereunder in each case), irs flow of hereafter in effect, and is not withdrawn or dish issecl within
ninety (90) clays thereafter, or if, under the; I)I-ovisions of any law (other than any law which does not
provide for or permit any readjusullentt or alteration of Lessee's obligations hereunder in each case)
i,H1U:1798; 1
14
providing for reorganization or liquidation of legal entities which ►slay Apply to Lessee; or (i) any
COLIFl of competent jurisdiction shall assume juliSdictioll, custody or control of Lessee or of' any
substtultial part of its property and such jurisdiction, custody or C011trol shall remain in fol-Ce
1lnrelilJUISIled, ullstayed or unterminated for a period of sixty (60) clays; or (1) Lessee becomes
insolvent.
Section 21. REMEDIES.
Whenever any Event of Defaull referred to ill Section 20 hereof shall have happened and be
continuing with respect to the I?quipmenl, lessor Shall have the right, at its option and without any
flu-ther cicmand or notice, and with or without terminating tills Lease, to declare all Real Payments
due or to become due during the Fiscal Year ill effect when the default occurs to be immediately due
and payable by Lessee, whereupon Such Rental Payments Shall be immediately clue and payable. If
the Event of Default is Lessee's breach of its covenant to return the Equipment, Lessor shall he
entitled to liquidated damages equal to the Rent Payments for the Equipment pro -rated on a daily
hasis for each clay the Fquipment is retained. Any judgment for damages shall be payable solely
from legally available funds of the Lessee, and Lessor shall not have the power to require levies of ad
valorem taxes in the future to pay Dent Payments.
The remedies provided to Lessor herein shall be the sole and exclusive remedies exercisable
by Lessor in Lin Event of a Default by Lessee hereunder. Lessor shall ill no event have the right to
involuntarily dispossess Lessee of the Equipment or title thereto. Lessor told Lessee do not intend to
create a security interest in any h(luiplllent.
No delay or omission to exercise any right or remedy ICCI-Llitlg hereunder shall impair any
such right or remedy or Shall he construed to be a waiver thereof, but. "Illysuch right and remedy may
bc: exercised froill time to time and as often as may be deemed expedient. In order it) entitle Lessor
to exercise any remedy reserved to it in this Lease it shall not be necessary to give any notice, other
than such notice as play be required in this Lease.
Ill the event. any agreement contained in this Lease should be breached by either party hereto,
Mid thereafter such breach should be waived by the other party hereto, such waiver shall be linlitecl to
tile pall"ticillar breach So waived and Shall not be deemed to waive ally other breach herel111der.
In the event that. there is an Event of Default and the nrnldefaulting party should employ
attorneys gild/or incur other expenses for the collection of moneys or the enforcement of perforillallc.e
or observallce of any obligation or agreement on the palm of the nondel'allltillg party 11C['Cill contained,
the defaulting party agrees that it will on demand therefor pay to the nondefalultirlg party the
reasonable fee of such attorneys and/or such reasonable expenses so inclirred by the nonclef aultlllg
pally.
Whenever any Event of Default referred to in Section 20, Clause (a) hereof shall have
oC(,IIrrCd a11d 1)e Contllllllllg with respect to the Eglliplllellt, Lessor Shall have the right at its option
and %vithout Lilly further clenland or notice, to regl.►ire a late payment charge for each thirty (: O)clay
016 n319d; 1 15
period or Dart thereof during which such Event of Default occurs equal to one and one-half percent ( I
112`%o) of the delinquent amount, and Lessee shall he obligated to pay from funds legally available for
such purpose, the same immediately upon receipt of 1._essol's written invoice therefore, provided,
however, that this provision shall not he applicable if or to the extent that the application thereof
would affect the validity of this base.
Section 22. ESCROW AGREEMENT; TRUSTF UND.
To the extent approved by Lessor- and Lessee, sums advanced by Lessor for the acquisition of
F quipnlent may be funded through use of an escrow agent. All aspucts of any such arrangement
shall he subject to the prior approval of Lessor including, but ]lot by way of limitation, Selection of
the escrow agent and the procedures for diSbtll-Se171elllS. Lessee agrees that arty such escrow agent
may be an affiliate of Lessor, provided that only the customary escrow fees are charged by such
affiliate. All costs incurred in connection with any such escrow shall be paid by l..essee,
For the initial funding hereunder as reflected in the Schedule of Terms elated April 17, 2000,
find for future fundings, if approves by Lessor and Lessee, Lessorshall deposit. funds with Lessee to
be applied by Lessee to acquire Equipment. Such funds shall be held by Lessee in it segregated
account at it financial institution or trust company and applied to acquire Equiprrlent upon delivery to
I.,e.ssor of those items required by Sections 2(h)(1), (4), (5), (9), (I 1) and (1 2) hereof. Any balance
remaining in such fund after the slate which is two (2) years after the deposit of funds therein shall be
,rpplied to pay scheduled Rent Payments until fully expenciecl.
Section 23. EXECUTION AND LAWS GOVERNIN(XI VENUE.
This Lease and each of the exhibits hereto shall he binding only when accepted by the I .essor
al its Orlando, I'lorida of fice tin([ shall be construed and governed by the Laws of the Stale ol' Florida.
As part of file consideration for the Lessor's executing this Lease, Lessee agrees that all actions or
proceedings arising directly or indirectly from this Lease shall be litigated only in courts having its
sills within Orange County, Florida, an(] .Lessee hereby consents to the urisdiction of that courl and
waives any rights to the selection of venue.
Section 21. MISCELLANEOUS.
(a) Any cancellation or terminalion by Lessor, p irst.lant to the provisions of this
Lease, any exhibit, supplement or amendment hereto, or the release of the Lquiplllerlt hereunder,
shall not release Lessee from any Ihen outstanding Obligations to Lessor hereunder. All exhibits,
certificales, consents and other attendant documents referenced herein are incorporated herein by
reference.
(b) 'Tillie is of the essence. Lessor's failure at ally time to require strict
performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor's right
lhcrc.atlur to derrwnd strict colrllpliarlc:e therewith.
ukIu3198j 16
(c) All notices, cel'tillcitesol-otlle►-coiilillt.illlcatlolls hereuridershalI Ile In writing
and deeilled given when delivered or mailed by Certified or registered mail, postage prepaid, to the
respective addresses set forth in the Schedule of Terms. The I....essee and the I...essor may designate by
written notice any further or different addresses to which subsequent notices, certificates or ether
Communication shall be sent.
((I) If the dale for making any payment ill- the last day for performance Of any act
or the exercising of any right, as provided in this Lease, shall he a legal holiday, or a day on which
hanking I11slltn0011S Ill the city in which the principal office of the 1..,essor or the assignee of the
Lessor is located are authorized by law to remain closed, such payrllellt may he nla(1e or act
performed, or right exercised on the next succeeding day not a legal holiday or a day on which Such
harking institutions are authorized by law to remain closed, wifh the same force and effect as if done
on the date otherwise specified herein.
(e) In the event that any provision of the Lease (Other thall the re(llllre117e11t Of
(1) the Lessee to make Rent. Payments; (ii) the Lessor to provide quiet ell _joyMent of the, 13quipinent;
and (iii) the Lessee to convey the Equiprllellt to the Lessor under the conditions set forth herelll) shall
be held invalid or unenforceable by any Court of competent Jurisdiction, such holding shall not
invalidate; Or ren(ler unenforceable any other provision hereof. Any provisions in this Lease which
are in ccnlflict will] ally statute, law or applicable rule shall be deemed omifted, modified or altered to
c,onfornl therein.
(f) This Lease may be executed simultaneously in several Counterparts, each of
which shall be an (.original and all of which shall constitute but one and the same instrument.
(g) The substantive law, but not the choice of law rules, Of the State of Florida,
and rifles and regulations issued pursuant thereto, shall he applied ill the inlerllretation and
enforcement hereof.
(11) The captions and headings herein are for Convenience only an(i in no way
define, limit or describe the scope or intent of any provisions or sections of' this Lease.
(i) The signatories affirm that to their knowledge, no employee of the: Lessee has
any personal or beneficial interest whatsoever in the acquisition of the Fquipment.
(j) This Lease constitutes the entire agreement of the parties with respect to the
suhject matter hereof. NO VARIATION OR MODIFICATION OF T1.11S LIPASE, Olz ANY
WAIVER OF ANY OF ITS PROVISIONS OF CONDITIONS, SI:iALL. BE VALID t_1NI.ESS IN
WRITING AND SIGNET) I3Y AN AIITHORI`LED REPRESENTATIVE OF EACH OF THE
I'AIZI'I1�S HERETO. Any such waiver, Consent, modification or change shall be effective only in
the specific, instance and fur the specific: purpose given. There are no understandings, agreelllents,
representations or warranties, express or implied, not stated hereunder. No variation or n-lodifiCalion
ue]oI198;1 17
of this Lease, or waiver of any of its hroviAons or conditions shall be; valid after assignn)cnt by either
Parly unless approved by assignee.
IN WITNESS WttEREOIq Lessee and Lessor have caused this Lease to he execitted by
their duly auithodzed representatives as of the dale first above written.
m I'I:SrI'L a
i
Marion Swenson, City C, er,
(SI AL)
LESSOR:
KISLAK NATIONAL BANK
MUMMY A. HIME
Its: i§i4Ki�'i �S�l%I4K Executive Vice President:
LESSEE:
CITY OF `I'AMAIZAC, FLORIDA
By: —_ _ _ r= Lam`, �c� x• n�
Joe Schreiber
Its: Mayor
12/03/2001 17:46 4072079193 DENISE BEAUCHAMP PAGE 02
< I&KISLAK
NATIONAL BANK
December 3, 2001
Ms. Leanne Williams
Finance and Policy Officer
City of Tamarac
7525 NW 380' Avenue
Tamarac, FL 33321-2401
VIA FACSIMILE: 954-724-1321
Dear Ms. Williams:
Temp. Reso. #9630
December 3, 2001
Exhibit B
The following is the Kislak National Bank proposal for financing for the capital', equipment which the City of Tamarac
anticipates acquiring.
LESSOR,; Kislak stational Bank, Miami Lakes, Florida
LESSEE: City of Tamarac, Florida
EQKiJYMENT: Vehicles — 5 year Term
AMOUNT TO .BE FINANCED; $ 195,000
ESTIMATED CLOSING DATE: December 14, 2001
E UIPMENT FINANCINQ V lE: It is proposed that the parties utilize the existing Master Lease -Purchase,
Agreement. Under such an arrangement, the Lessee Would be able to obtain additional leased equipment under the same
basic terms and conditions as originally agreed to without having to negotiate wind execute anew contract. Und6 t ' .
structure there would be no covenant o b d et and agpirol2riate and no revejmue D10ge. The lease -purchase -would
not be considered long term debt,
LEASE TERM: Vehicles -Five (5) years
LEASE. COMMENCEMENT „DATE: The Lease Term will commence upon the funding of the Lease (payment to
vendor) or the funding of the lease into a trust account.
TRUST ACCOUNT: TRUST ACCOUNT: The entire lease proceeds would be deposited by the Bank into a City owned
Trust Account prior to the delivery of the Equipment. The Trust Account, to be held by the City, would be established at,
the City's discretion. The Lease Term would commence on the,date that the Trust Account is funded, with .lease
amortization eotntriencing at that point. This alternative would allow the City to lack in an interest rate up front. when the
Trust Account is funded. The account will be designated in the Lease to be used solely for payment of the Equipment.
Upon presentation of an invoice and a certificate of acceptance from the City, the Bank'will authorize payment to be made
to the vendor(s) from the Trust Account_ The Trust Account may also be used to reimburse the City for equipment
previously purchased. The bank only requires that invoices be submitted substantiating the expense. There are no bank fees
for the Trust Account, The Trust Account may be established at any institution the City selects. This is an informal
arrangement between the Bank and the City.
TERMS OF LEASE: The Lessee will make periodic lease payments sufficient to pay the debt service on the obligation
during each year the Lease is in et#ect and not terminated. by an event of non -appropriation. The obligation to make lease
payments during any fiscal year will be limited to legally available revenues appropriated for such purpose by the Lessee.
.After the last scheduled payment, the City will own the asset free and clear.
713 Pinar Drive, Orlando, FL 32825 - Tel: 407.207,9192 , Fax: 4p7.207,9193 • Toll Free 877.759.5253
12/03/2001 17:46 4072079193 DENISE BEAUCHAMP PAGE 03
Ms. Leanne Williams
City of Tamarac, FL
December 3, 2001
Page 2
UAL'IFIED INTEREST RATE:
Five 5 Year Term 4.00%
ADJUSTMENT TO INTEREST RATE: The Interest Rates will be Fixed three (3) days prior to closing. The Interest Rate
Will be adjusted to the Federal Home Loan Bank of Atlanta (FHLB) 5 year PRC (PRC5) just prior to closing. The above
interest rates will be adjusted by taking by 61.4% of the change in the index, which can be obtained at www.Ilbatl.com.
Once the rate has been fixed, it will then remain fixed for the term of the financing. The FHLB rates used for the above
interest rate calculation dated December 3, 2001 is 4,28% for the PRC5.
After execution of the lease, the Interest Rate may be adjusted in the event of a change in income tax rates or other laws or
regulations affecting the after-tax yield to the Bank.
PERIODIC RENTS: Periodic Rents are to be made monthly, quarterly or annually in advance or in arrears. An
amortization schedule for annual payments in arrears is included.
TAX-EXEMPT, STATEMENT: The parties anticipate that the Agreement will qualify as a "qualified tax-exempt
obligation" within the meaning of Section 265(b)(3) of the Code.
PREP YMENT SCHEDULE: Prepayments maybe made in whole or in part without penalty per the amortization
schedule to be included in the documentation package.
SALES AND USE '1 AX: Lessee will pay all fees, assessments, sales, use, property, and other taxes imposed upon Lessor,
resulting from the lease of the equipment.
ONCE: Prior to Lease Commencement Date, Lessee, at its sole cost and expense, will provide risk, physical
damage and liability insurance with the lessor named, as "Loss Payee" and "additionally insured", in accordance with its
normal standards, which may include self-insurance,
TITLE TOE UIPMEN Title shall at all times remain in the name of the Lessee.
FINANCIAL STATEMENTS: Lessee will furnish financial statements on an annual basis, as well as unaudited financial
information and other supplementary information, which the Bank may request. Additionally, the Lessee will submit a
copy of its annual budget within 45 days after the budget has been adopted.
DOCUMENTATION: To be provided by the Bank. As is customary, the Lessee's local counsel will be required to
provide an opinion letter.
TRANSACTION EX : Lessee shall be responsible for fees and expenses incurred by it. No other batik fees or
expenses will apply.
MATERIAL ADVERSE C.liANGE: At any time prior to completion of funding, Lessor reserves the right to withdraw
any approval in the event that Lessor determines that there has been a material adverse change in the financial condition of
the Lessee or in its ability or willingness to meet its obligations under this Proposal.
EXPIRATION OF PRO • This proposal expires unless accepted on or prior to January 31, 2002
12/03/2001 17:46
4072079193
DENISE BEAUCHAMP
PAGE 04
Ms. Leanne Williams
City of Tamarac, FL
December 3, 2001
Page 3
APPROVAL! This proposal does not constitute a commitment to lend. Bank credit approval has not been obtained.
The contents of this proposal represent the Bank's indication of the terms and conditions that it deems appropriate based
upon the information available as of the date hereof;. If the terms of this proposal are acceptable to you, please execute
below and return the original to me.
Thank you again for the opportunity to be of service and to present this proposal for your consideration. Should you have
any questions, please feel free to contact me at (407) 207-9192 or toll free at (877) 759-5253
Best Regards,
Denise Beauchamp
Senior Vice President
Proposal accepted this `� day of `( , 200
TAMARAC, FL
&\�C�lJ1\��(�W
12/03/2001 17:46 4072079193 DENISE BEAUCHAMP PAGE 05
12/03/2001 Pagel
........
Tamarac ... _.. .... _.. __.... _._.
Compound Period -----..: Annual
Nominal Annual Rate ...: 4.000
Periodic Rate ..... . . .. . ....: 4.0000 %
Daily Rate ------ 0,01096 %
CASH FLOW DATA
Event
Start Date
Amount
Number Period
End Date
1
Loan
12/14/2001
195,000.00
1
2
Payment
12/14/2002
43,802.29
5 Annual
12/14/2006
AMORTIZATION SCHEDULE
- Normal Amortization
Date
Payment
Interest
Principal
Balance
Loan
12/14/2001
195,000.00
2001
Totals
0.00
0.00
0,00
1 12/14/2002
2002 Totals
2 12/14/2003
2003 Totals
3 12/14/2004
2004 Totals
4 12/14/2005
2005 Totals
5 12/14/2006
2006 Totals
43,802.29
43,802.29
43,802.29
43, 802.29
43,802.29
43, 802.29
43,802.29
43,802.29
43,802,29
43,802.29
7,800.00
7,800.00
6,359.91
6,359.91
4,862.21
4,862.21
3,304.61
3,304.61
1,684.72
1,684.72
Grand Totals 219,011.45 24,011,45
36,002.29
36,002.29
37,442.38
37,442.38
38,940.08
38,940.08
40,497,68
40,497.68
42,117.57
42,117.57
195,000.00
158,997.71
121,555.33
82,615,25
42,117.57