HomeMy WebLinkAboutCity of Tamarac Resolution R-99-318Page I
Temp. Reso. # 8821
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. 99- 3/9
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA APPROVING THE
EXECUTION AND DELIVERY OF A MASTER LEASE -
PURCHASE AGREEMENT BETWEEN THE CITY AND
SUNTRUST BANK, SOUTH FLORIDA, NATIONAL
ASSOCIATION; APPROVING THE EXECUTION AND
DELIVERY OF CERTAIN LEASE DOCUMENTS IN
CONNECTION WITH A PROPOSED LEASE OF A
STREET SWEEPER MACHINE UNDER THE MASTER
LEASE -PURCHASE AGREEMENT; AUTHORIZING
FURTHER ACTIONS TO CARRY OUT THE PURPOSES
OF THIS RESOLUTION; DESIGNATING THE CITY'S
LEASE OBLIGATION FOR THE EQUIPMENT AS A
QUALIFIED TAX-EXEMPT OBLIGATION UNDER
265(b)(3) OF THE INTERNAL REVENUE CODE;
PROVIDING FOR SUCCESSION BY OFFICERS;
PROVIDING FOR NO THIRD PARTY BENEFICIARIES;
PROVIDING FOR THE LIMITED NATURE OF THE
EQUIPMENT LEASE OBLIGATION; PROVIDING FOR
THE REPEAL OF CONFLICTING RESOLUTIONS;
PROVIDING FOR SEVERABILITY AND PROVIDING AN
EFFECTIVE DATE.
WHEREAS, by Resolution previously adopted by the City Commission this date, the City
has approved the acquisition of a street sweeper machine (the "Equipment"); and
WHEREAS, the City has determined that it is in the best interests of the City and its
citizenry to acquire the Equipment pursuant to a lease -purchase financing arrangement with SunTrust
Bank, South Florida, National Association (the "Lessor"); and
WHEREAS, the proposed lease -purchase financing of the Equipment shall be pursuant to
a Master Lease -Purchase Agreement (the "Master Lease") between the City and the Lessor, and from
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time to time hereafter, the City may determine to enter into additional lease -purchase arrangements
with the Lessor, which arrangements may also be financed pursuant to the Master Lease; and
WHEREAS, the lease documents and various closing documents related to the lease -
purchase financing of the Equipment have been finalized and substantially final forms of such
documents are on file with the City Clerk; and
WHEREAS, state law requires that certain "negotiated sale" findings be made by the City
Commission in connection with this lease transaction;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA:
SECTION 1. Incorporation of Recitals. The foregoing "Whereas" clauses are hereby
ratified and confirmed as being true and correct and are made hereby incorporated by reference
herein as a specific part of this Resolution.
SECTION 2. Authority for this Resolution. This Resolution is being adopted by the City
pursuant to the Constitution and laws of the State of Florida, including particularly, Chapter 166,
Part II, Florida Statutes and other applicable provisions of law (hereinafter, collectively, the "Act").
SECTION 3. Approval of Master Lease. The Master Lease, in substantially the form
attached hereto as Exhibit "A" and incorporated herein by reference, with such changes, alterations,
completions and corrections as may be approved by the Mayor or his designees (each, an
"Authorized Officer"), such approval to be presumed by his execution thereof, is hereby approved
by the City. The City hereby authorizes and directs the Authorized Officer to execute deliver and
perform and the City Clerk of the City, or her designee (the "Clerk"), to attest, under seal of the City,
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the Master Lease. The City hereby approves the use of the Master Lease to provide, from time to
time, for the lease purchase financing of additional items of property, subject to the mutual
agreement of the City and the Lessor regarding the terms of such arrangement, and subject further
to the City Commission's approval of appropriate schedules and other lease documentation and
terms in connection with such arrangement. Subsequent resolutions adopted by the City with respect
to lease -purchase arrangements under the Master Lease shall not require the approval of the Master
Lease, provided that such arrangements do not include any amendments or modifications to the
Master Lease.
SECTION 4. Approval of Lease Documents for Equipment. The lease documents with
respect to the Equipment, in substantially the form attached hereto as Exhibit "B" and incorporated
herein by reference (together with the Master Lease, collectively, the "Lease"), with such changes,
alterations, completions and corrections as may be approved by an Authorized Officer, such approval
to be presumed by his execution thereof, are hereby approved by the City. The City hereby
authorizes and directs the Authorized Officer to execute deliver and perform and, if applicable, the
Clerk to attest, under seal of the City, the lease documents with respect to the lease of the Equipment
in accordance with the terms and conditions set forth therein and in the Master Lease.
SECTION S. Further Action. The Authorized Officer and the Clerk of the City are hereby
authorized, empowered and directed to take all such further action and to execute such additional
documents as they deem advisable to carry out the purposes of this Resolution.
SECTION 6. Qualified Small Issuer Designation. The City (including all subordinate
entities which issue debt on behalf of the City, if any) does not reasonably anticipate as of the date
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of this Resolution that it will issue tax-exempt obligations in excess of $10,000,000 during the
current calendar year. The City hereby designates its obligation to lease -purchase finance the
Equipment as a qualified tax exempt obligation pursuant to Section 265(b)(3) of the Internal
Revenue Code of 1986, as amended.
SECTION 7. Negotiated Sale. Pursuant to Florida Statutes, Section 218.385, the City
Commission hereby declares that it is in the best interest of the City and its citizenry that the subject
lease be "negotiated" with SunTrust Bank, South Florida, National Association rather than offered
for public sale by competitive bid because a public sale would not, in all likelihood, result in more
favorable terms due to the size and nature of the lease financing and the fact that the City has
solicited and received competitive financial proposals from various financial institutions.
SECTION 8. Succession of Officer; Performance of Duties. If the office of any
Authorized Officer or of the Clerk mentioned in this Resolution shall become vacant for any reason
or if such officers shall become incapable of performing the duties of their office for any reason, all
powers conferred and all obligations and duties imposed upon such Authorized Officer or Clerk
pursuant to this Resolution shall be performed by the officer succeeding to the powers, duties and
obligations of such office, or upon such officer upon whom such powers, duties and obligations are
imposed by the Act or other applicable law.
SECTION 9. No Third Party Beneficiaries. Except as otherwise provided herein, nothing
in this Resolution, express or implied, is intended to confer upon any person, firm or corporation
other than the City and the Lessor (or their respective successors and assigns) any right, remedy, or
claim, legal or equitable, under or by any reason of this Resolution or any provision thereof, this
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Resolution and all its provisions being intended to be for the sole and exclusive benefit of the City
and the Lessor (or their respective successors and assigns).
SECTION 10. Source of Payment; Limited Obligation. The source of payment of the
obligations of the City under the Lease are to be made solely from funds of the City legally
appropriated on an annual basis or such other sources described in the Lease which are legally
available to the City under the Act or other applicable law for the payment of its obligations under
the Lease. NEITHER THE CITY, NOR THE STATE OF FLORIDA, NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY ANY SUMS
DUE UNDER THE LEASE FROM AD VALOREM TAXES, OR ANY OTHER TAXES OR
OTHER SOURCES OF PAYMENT AVAILABLE TO THE CITY, OTHER THAN FUNDS
LEGALLY APPROPRIATED BY THE CITY ON AN ANNUAL BASIS AND NEITHER
THE FULL FAITH AND CREDIT NOR THE TAXING POWER OF THE CITY, THE
STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF ARE
PLEDGED TO THE PAYMENT OF SUMS DUE AND OWING UNDER THE LEASE. THE
LEASE AND THE INDEBTEDNESS OR OBLIGATIONS OF THE CITY UNDER THE
LEASE SHALL NOT CONSTITUTE A LIEN UPON THE EQUIPMENT OR ANY PART
THEREOF OR ANY OTHER PROPERTY OWNED OR LEASED BY THE CITY.
SECTION 11. Repealing Clause. All resolutions or parts of resolutions in conflict
herewith are hereby repealed to the extent of such conflict.
SECTION 12. Severability. If any provision of this Resolution or the application thereof
to any person or circumstance is held invalid, such invalidity shall not affect other provisions or
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applications of this Resolution that can be given effect without the invalid provision or application,
and to this end the provisions of this Resolution are declared to be severable.
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SECTION 13. Effective Date. This Resolution shall become effective immediately upon
its passage and adoption.
PASSED, ADOPTED AND APPROVED this 24th day of November, 1999.
By:
o Schreiber, Mayor
ATTEST:
By:
Carol Gold, Ci lerk !RECORD OF COMMISSIOI
MAYOR SCHREIBER
I HERE CERTIFY that I have approved DIST 1: COMM. PORTNER
this R O UTION as to form. DIST 2: V/M MISHK1N
^ DIST 3: COMM. SULTANOF
DIST 4: COMM. ROBERTS
y
Mitch ll S. Kraft, ity
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MASTER LEASE -PURCHASE AGREEMENT
THIS MASTER LEASE -PURCHASE AGREEMENT, dated as of November 29, 1999
(together with all supplements, exhibits and schedules hereto hereinafter referred to as the "Lease"), between
SunTrust Sank, South Florida, National Association (hereinafter called, together with any successors,
agents and assigns "Lessor") and the City of Tamarac, Florida, (hereinafter called "Lessee").
WITNESSETH:
Section 1. REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee hereby represents and warrants to Lessor that on the date hereof and at all times during the Term (as
defined in Section 3 below) hereof:
(a) Lessee is a political subdivision, municipal corporation or public body corporate and politic of the
State of Florida (the "State"), duly organized and existing under the Constitution and laws of the
State.
(b) Lessee is authorized under the Constitution and laws of the State to enter into this Lease and the
transactions contemplated hereby, and to perform all of its obligations thereunder.
(c) Lessee has duly authorized and approved the execution and delivery of this Lease and all other
documents related to the transactions contemplated hereby, and this Lease constitutes a legal, valid
and binding obligation of the Lessee, enforceable against the Lessee in accordance with the terms
hereof except as limited by applicable bankruptcy laws or other laws affecting the enforcement of
creditors' rights generally, or by the exercise of judicial discretion in accordance with general
principals of equity.
(d) Each officer or representative of Lessee executing this Lease has been duly authorized to execute
and deliver this Lease and related documents under the terms and provisions of a resolution of
Lessee's governing body, or by other appropriate official action.
(e) Lessee has complied with all open meeting laws, all public bidding laws and all other State and
Federal laws applicable to this Lease and has obtained all approvals necessary for the execution,
delivery and performance of this Lease and the transactions contemplated hereby.
M Neither the execution and delivery hereof, nor the fulfillment of, or compliance with, the terms and
conditions hereof, nor the consummation of the transaction contemplated hereby, will conflict with,
constitute a breach of, or default under, the Constitution and laws of the State, or the rules of
procedure of the Lessee or any indenture, agreement or other instrument to which the Lessee is a
party or by which it is bound, or any constitutional or statutory provision, or order, rule regulation,
decree or ordinance of any court, government or governmental body to which the Lessee or any of
its other properties are subject.
(g) There is no action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any
court, regulatory agency, public board 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
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FORM LETTERS4 (REV.12/11/96)
validity or enforceability of this Lease or any other instrument contemplated for use in
consummating the transactions contemplated hereby, or the exclusion of the portion of the Rent
Payments (as defined in Section 3 below) representing interest from gross income for purposes of
federal income taxation, or would materially and adversely affect any of the transactions
contemplated by this Lease.
(h) The Equipment (as defined in Section 2 hereof) at all times will be used by the Lessee for the
purpose of performing a public function and the acquisition of the Equipment by the Lessee shall
be necessary, useful or appropriate to one or more governmental purposes of the Lessee.
Section 2. LEASING.
(a) Subject to the terms and conditions set forth below, Lessor agrees to lease to Lessee, and Lessee
agrees to lease from Lessor, the Equipment described in the Description of Equipment delivered
from time to time as described below, including all repairs, replacements, substitutions and
modifications to the same (the "Equipment").
(b) The Lessor may from time to time, at the request of Lessee, provide funds to acquire Equipment
from the manufacturer or supplier thereof ("Supplier") for lease hereunder. The obligation of Lessor
to lease Equipment hereunder shall be subject to the representations and warranties of Lessee
contained herein being true and accurate throughout the term hereof and further conditioned on
receipt by Lessor of each of the following documents in form and substance satisfactory to Lessor
and the Lessee:
(i) a Description of Equipment describing such Equipment executed by Lessor and Lessee (the
0 "Description of Equipment");
•
(ii) an Amortization Schedule setting forth the Rent payable with respect to such Equipment
(the "Amortization Schedule");
(iii) a Schedule of Terms setting forth additional terms applicable to the lease of such Equipment
executed by Lessor and Lessee (the "Schedule of Terms");
(iv) copies of insurance policies or, at Lessor's option, such other evidence of insurance which
complies with the requirements of Section 11;
(v) bills of sale, titles or other appropriate evidence of ownership or invoices for amounts due;
(vi) an opinion of counsel for Lessee;
(vii) a copy of Internal Revenue Service Form 8038, 8038-G or 8038-GC (as applicable)
completed and executed by Lessee;
(viii) an Officers' Certificate of Lessee;
(ix) a duly adopted resolution or evidence of other appropriate approving action of Lessee
approving the acquisition of such equipment;
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FORM LETTER54 (REV,12/11/96)
(x) executed and completed Form 2003/2004, as applicable, of the Division of Bond Finance
of the State of Florida;
(xi) a Certificate of Acceptance; and
(xii) such other documents as Lessor may reasonably request.
All references herein to the Description of Equipment, Amortization Schedule or the Schedule of Terms for
Equipment is a reference to such schedule as was executed in connection with the lease of such item of
Equipment.
(c) Lessor hereby appoints Lessee its agent for purchase, inspection and acceptance of the Equipment
from the manufacturer or supplier. Subject to the above -stated conditions, upon execution by Lessee
of a Certificate of Acceptance in the form provided by Lessor, the Equipment described thereon
shall be deemed to have been delivered to, and irrevocably accepted by, Lessee for lease hereunder.
Section 3. TERM, RENT AND PAYMENT.
(a) The rent ("Rent") payable hereunder with respect to all Equipment set forth in a Description of
Equipment shall commence on the date set forth in the corresponding Schedule of Terms (the
"Commencement Date"). The term ("Term") of this Lease with respect to such Equipment shall
commence on the Commencement Date and shall terminate upon the occurrence of the first of the
following events:
1. the exercise by Lessee of its option to purchase Lessor's interest in such Equipment pursuant to
Section 1$ hereof,
2. the payment by Lessee of all Rent and other amounts required to be paid by Lessee hereunder
with respect to such Equipment;
3. upon the occurrence of an Event of Nonappropriation (as that term is defined in subparagraph
(c) hereof) with respect to any Equipment, the last day of the Budgetary Period set forth in the
Schedule of Terms for which an appropriation has been made, subject to Lessor's election to not
terminate this Lease with respect to Equipment for which an appropriation has been made;
4. an Event of Default by Lessee, and Lessor's election to terminate this Lease pursuant to Section
21 hereof; or
5. payment of all monies owed pursuant to a Casualty Occurrence with respect to such Equipment
under Section 10 hereof.
(b) Rent shall be paid to Lessor at its address noted in the Schedule of Terms, except as otherwise
directed by Lessor. Payments of Rent shall be in the amount, payable at such intervals and shall be
due in accordance with the provisions of the Amortization Schedule and Schedule of Terms (Each
payment of Rent is hereinafter referred to as a "Rent Payment"). Lessor may change the location
to which the Rent Payments are to be paid by noting such change on any invoice to Lessee or by
sending Lessee notice in writing of such change. A portion of each Rent Payment is paid as, and
represents, interest as reflected on the Amortization Schedule.
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. The obligation of the Lessee to pay the amounts required herein shall constitute a current expense
of the Lessee and shall not in any way be construed to be a debt of the Lessee in contravention of
any applicable constitutional, statutory or charter limitations or requirements concerning the creation
of indebtedness of the Lessee. THE PAYMENTS DUE UNDER THIS LEASE ARE TO BE MADE
ONLY FROM THE LESSEE'S LEGALLY APPROPRIATED FUNDS ON AN ANNUAL BASIS,
AND NEITHER THE LESSEE, THE STATE OF FLORIDA, NOR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO PAY ANY SUMS DUE
HEREUNDER FROM THE COMPELLED LEVY OF AD VALOREM OR OTHER TAXES
EXCEPT FROM THOSE FUNDS LEGALLY APPROPRIATED BY THE LESSEE ON AN
ANNUAL BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR THE TAXING
POWER OF THE LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL SUBDIVISION
OR AGENCY THEREOF ARE PLEDGED FOR PAYMENT OF SUCH SUMS DUE UNDER THIS
LEASE. This Lease and the indebtedness evidenced hereby shall not constitute a lien upon the
Equipment, or any part thereof, or on any other property owned by or within the
jurisdictional limits of Lessee.
(c) Lessee shall have the right to terminate its obligation to make Rent Payments with respect to any
Equipment at the end of any Budgetary Period (as that term is defined in the Schedule of Terms, in
the manner and subject to the terms of this subsection (c), if Lessee's governing body does not
appropriate money sufficient to pay the Rent Payments and reasonable estimated expenses hereunder
coming due for the next Budgetary Period with respect to such Equipment (such termination
hereinafter an "Event of Nonappropriation"). Upon the occurrence of an Event of Nonappropriation,
Lessee shall not be responsible for the payment of any Rent Payments with respect to such
Equipment coming due during any subsequent Budgetary Period. Upon the occurrence of an Event
of Nonappropriation as provided in this subsection, this Lease shall terminate and Lessee covenants
to surrender and deliver possession of the Equipment to Lessor in accordance with the provisions
of Section 12. Provided, however, that Lessor may elect to continue to lease hereunder any
Equipment for which an appropriation has been made.
Section 4. TAXES.
Lessee shall report and pay promptly from legally available revenues all taxes, fees and assessments due,
imposed, assessed or levied against the Equipment (or the purchase, ownership, delivery, leasing, possession,
use or operation thereof), this Lease (or any rentals or receipts hereunder), 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 reimburse Lessor upon receipt of written request for
reimbursement for any Taxes charged to or assessed against Lessor, and on request of Lessor, 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 State or political subdivision thereof which are on or measured by the
net income of Lessor.
Section 5. FINANCIAL INFORMATION; REPORTS.
Lessee will provide Lessor with (1) audited financial statements (including, without limitation, a balance
sheet, a statement of revenues, expenditures and change in fund balance) within 210 days after the end of
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FORM LETTER54 (REV.12/11/96)
C]
each Budget Year, (ii) a copy of its annual budget within 45 days after approval by Lessee, and (iii) such
other financial information as requested in writing by Lessor. Lessee will also provide Lessor with the
following in writing within the time periods specified: (a) notice of tax or other lien which attaches to
Equipment within ten (10) days of Lessee's obtaining knowledge of such attachment and such additional
information with respect to the tax or lien promptly upon request of Lessor; (b) notice to Lessor of any
change in location of the Equipment outside of the jurisdictional limits of Lessee, ten (10) days prior to any
such relocation; (c) copies of the insurance policies or other evidence of insurance required by the terms
hereof, promptly upon request by Lessor; (d) copies of all information, logs, documents and records
regarding or in respect to Equipment and its use, maintenance and/or condition, within ten (10) days of such
request; (e) a certificate of the authorized officer of Lessee stating that he has reviewed the activities of
Lessee and that, to the best of his knowledge, there exists no default (as described in Section 20) or event
which with notice or lapse of time (or both) would become such a default; (f) copies of any manufacturer's
warranties, promptly upon request; (g) evidence of Lessee's compliance with maintenance provisions of
Section 8 hereof upon request of Lessor; (h) notice of any anticipated occurrence of an Event of
Nonappropriation, if practical, thirty (30) days prior to such occurrence; (i) notice of an occurrence of an
Event of Nonappropriation within five (5) days of such occurrence; 0) proof of appropriation for the ensuing
Budgetary Period in a form acceptable to Lessor upon request; and (k) any other documents or reports
required by any addenda hereto or reasonably requested by Lessor.
Section b. TITLE AND QUIET ENJOYMENT.
(a) Legal title to the Equipment shall, for the convenience of both parties, be titled in the Lessee. Lessee
covenants to promptly return the Equipment to Lessor as provided in Section 12 upon the occurrence
of an Event of Nonappropriation, or upon the occurrence of an Event of Default and Lessor's
election to terminate this Lease pursuant to Section 21 hereof. Title to the Equipment shall vest
absolutely with Lessee upon payment of all Rent due hereunder.
(b) So long as Lessee is not in default under this Lease, Lessor covenants and agrees that it will not
interfere with Lessee's quiet enjoyment of the Equipment subject to, and in accordance with, the
provisions hereof.
Section 7. DELIVERY, REGISTRATION, 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 the Equipment to be placed in the name of
Lessee by appropriate documentation.
(c) The possession, use and operation of the Equipment shall be at the sole risk and expense of Lessee.
Lessee agrees that the Equipment will be used and operated in compliance with any and all statutes,
laws, ordinances, regulations and standards or directives issued by any governmental agency
applicable to the use or operation thereof, in compliance with any license or registration relating to
the Equipment issued by any agency and in a manner that does not modify or impair any existing
warranties on the Equipment or any part thereof. Lessee will operate the Equipment solely for
governmental use.
Section 8. MAINTENANCE.
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(a) Lessee agrees that the Equipment will be maintained in compliance with any and all statutes, laws,
ordinances, regulations and standards or directives issued by any governmental 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 thereof.
(b) Lessee shall maintain, inspect, service, repair, overhaul and test the Equipment in accordance with
(i) all maintenance manuals initially furnished with the Equipment, including any subsequent
amendments or supplements to such manuals issued by the manufacturer from time to time, and (ii)
all recommended "Service Bulletins" issued, supplied, or available by or through the manufacturer
and/or the manufacturer of any part with respect to the Equipment. Lessee shall maintain all
records, logs and other materials required by the manufacturer thereof for enforcement of any
warranties. All maintenance procedures required hereby shall be undertaken and completed in
accordance with the manufacturer's recommended procedures, and by properly trained, licensed, and
certificated maintenance sources and maintenance personnel, so as to keep the Equipment in as good
operating condition as when delivered to Lessee hereunder, ordinary wear and tear excepted.
(c) Lessee agrees to notify Lessor in writing thirty (30) days prior to making any material change in the
configuration, appearance and coloring of the Equipment from that in effect at the time the
Equipment is accepted by Lessee hereunder, and in the event of such change or modification of
configuration, coloring or appearance, Lessee shall restore, upon request of Lessor, the Equipment
to the configuration, coloring or appearance in effect on the Commencement Date or, at Lessor's
option, to pay to Lessor an amount equal to the reasonable cost of such restoration. The Lessee's
addition of its logo or other identifying marks to Equipment shall not be considered a material
change in the appearance or coloring of the Equipment.
(d) Lessee shall be entitled from time to time during the Term of this Lease to acquire and install on the
Equipment at Lessee's expense, any additional accessory, devise or equipment as Lessee may desire
(each such accessory, devise or equipment, an "Addition"), but only so long as such Addition does
not alter or impair the originally intended function or use of the Equipment, and can be readily
removed by Lessee prior to the return of the Equipment. Lessee shall repair all damage to the
Equipment resulting from the installation or removal of any Addition so as to 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 of this Lease be required to comply with any applicable law or any
governmental rule or regulation shall be made at the expense of Lessee. Any repair made by Lessee
of or upon the Equipment or replacement parts installed thereon in the course of repairing or
maintaining the Equipment, or any Alteration required by law or any governmental rule or
regulation, shall be deemed an accession and shall become a part of the Equipment.
(f) Except as permitted under this Section 8, Lessee will not modify the Equipment or affix or remove
any accessory to the Equipment leased hereunder without Lessor's consent.
Section 9. LIENS, SUBLEASE AND ASSIGNMENT.
(a) Lessee shall not sell, transfer, assign or encumber the Equipment or Lessor's rights under this Lease
and shall not sublet or 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 encumbrances other than those
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FORM LETTER54 (REV.12/11/96)
which result from (i) the respective rights of Lessor and Lessee as herein provided; (ii) liens arising
from the acts of Lessor; (iii) liens for taxes not yet due; and (iv) inchoate materialmen's, mechanics',
workmen's, repairmen's, employees' or other like liens arising in the ordinary course of business of
Lessee for sums not yet delinquent or being contested in good faith (and for the payment of which
adequate assurances in Lessor's judgment have been provided Lessor).
(b) All of Lessor's right, title and/or interest in and to this Lease, the Rent Payments and other amounts
due hereunder and the Equipment may be assigned and reassigned in whole or in part to one or more
assignees or subassignees at any time, without the consent of Lessee. No such assignment shall be
effective as against Lessee unless and until the Lessor or assignor, as the case may be, shall have
filed with Lessee a copy or written notice thereof identifying the assignee. All Rent Payments due
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, Lessee shall provide notice thereof to all
insurers and shall cause the insurance policies as required by Section 11 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. LOSS, DAMAGE AND STIPULATED LOSS VALUE.
Lessee hereby assumes and shall bear the entire risk of any loss, tbeft, confiscation, expropriation,
requisition, damage to, or destruction of, the Equipment while in its possession or care, or any part thereof
from any cause whatsoever, except for any of the foregoing which is caused solely by the Lessor. Lessee
shall promptly and fully notify Lessor in writing if Equipment shall be or become worn out, lost, stolen,
confiscated, expropriated, requisitioned, destroyed, irreparably damaged or permanently rendered unfit for
use from any cause whatsoever (such occurrences being hereinafter called "Casualty Occurrences"). In the
event that, in the reasonable opinion of Lessor, a Casualty Occurrence has occurred which affects only a
portion of an item of the Equipment, then Lessee, at its own cost and expense from legally available funds,
shall replace such portion with a replacement part reasonably acceptable to Lessor provided however, that
any replacement parts recommended by the manufacturer of the Equipment shall be deemed acceptable to
the Lessor. In the event that, in the opinion of Lessor, a Casualty Occurrence has occurred in respect to an
item of Equipment in its entirety, on the Rent Payment date next succeeding a Casualty Occurrence (the
"Payment Date"), Lessee shall pay Lessor the sum of (i) an amount equal to the portion of the Prepayment
Price applicable to the affected Equipment for the time period of the Casualty Occurrence; and (ii) all Rent
Payments and other amounts which are due or accrued hereunder as of the Payment Date. Upon payment
of all sums due hereunder, the Term of this Lease as to the item of Equipment shall terminate, and Lessee
shall be entitled to retain 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 Lessor, in the manner and amounts set forth in the Schedule of Terms and as provided herein.
The insurance shall (i) name Lessor as additional insured and have a loss payable clause in favor of Lessor,
as its interest may appear, irrespective of any breach of warranty or other act or omission of Lessee; (ii) not
be subject to any co-insurance clause; and (iii) provide that it may not be altered or canceled by the insurer
• until after thirty (30) days written notice to Lessor. Any expense of Lessor in adjusting or collection of
-7-
FORM LETTERS4 (RFV.12/11/96)
insurance shall be borne by Lessee, unless such expense is caused solely by the Lessor's gross negligence
or willful misconduct. Lessee shall not make adjustments with insurers except (a) with respect to claims
from damage to an item of Equipment where the repair costs do not exceed ten percent (10%) of such unit'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 any portion
thereof, or to satisfy any obligation of Lessee to Lessor hereunder. In addition to property and liability
insurance referenced above, if required by State law, Lessee shall carry workmen's compensation insurance
covering all employees on, in, near or about the Equipment, and upon request shall furnish to Lessor
certificates evidencing such coverage. Upon prior written consent of Lessor, Lessee may self -insure for
some or all of the above -referenced public liability, property, and casualty damage risks.
If Lessee is covered under a program of self-insurance, Lessee shall provide Lessor with a letter from its
insuring authority certifying to the existence of a continuing self-insurance program which meets the
requirements of applicable law. In such event, Lessee shall provide a minimum of ten (10) days written
notice to Lessor of any material change or cancellation of said self-insurance program. In the event that such
self-insurance program is unavailable or terminated, Lessee agrees to procure and maintain with a carrier
authorized to do business 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 minimum of
ten (10) days written notice of material change or cancellation to Lessor. Lessee shall provide Lessor with
copies of certificates of the insurance carrier or carriers evidencing such insurance coverage.
Section 12. RETURN OF EQUIPMENT.
10 (a) Upon termination of this Lease due to an Event of Nonappropriation, or due to an Event of Default
and Lessor's election to terminate this Lease (subject to Lessor's election to continue this Lease with
respect to Equipment for which no Event of Nonappropriation has occurred), Lessee covenants to
promptly return all Equipment leased hereunder to Lessor at a location within the County where the
Lessee is located, together with all logs, manuals and data, including without limitation, inspection,
modification and overhaul records required to be maintained with respect hereto under this Lease
or under the manufacturer's recommended maintenance program. Upon return of the Equipment,
Lessee shall, upon request, assign to Lessor its rights under any manufacturer's maintenance service
contract or extended warranty for the returned Equipment or any or part thereof. All expenses for
return of such Equipment and delivery of the aforementioned logs, manuals and data shall be borne
by Lessee, except to the extent that such expenses are due solely to the gross negligence or willful
misconduct of Lessor. The Equipment shall be returned in the condition in which the Equipment
is required to be maintained pursuant to Section 8 hereof, but with all logos or other identifying
marks of Lessee removed.
•
(b) Upon return of the Equipment, Lessor shall arrange for the inspection of same within thirty (30) days
of return to determine if such Equipment has been maintained and returned in accordance with the
provisions hereof. Lessee shall be responsible for the reasonable cost of such inspection and shall
pay Lessor such amount as additional Rent within ten (10) days of demand for same. In the event
that the results of such inspection indicate that such Equipment, or any part thereof, has not been
maintained or returned in accordance with the provisions hereof, Lessee shall pay to Lessor within
ten (10) days of demand, as liquidated damages, the reasonable estimated cost ("Estimated Cost")
of servicing or repairing such Equipment, or part. The Estimated Cost shall be determined by Lessor
1:3
FORM LETTERS4 (RE V.12/ 11 /96)
by obtaining two quotes for such service or repair work and taking the average of same. Lessee shall
bear the cost, if any, incurred by Lessor in obtaining such quotes.
(c) In the event of return of Equipment to Lessor pursuant to (a) above, Lessor shall use its best efforts
to sell all or part of the Equipment upon such terms as Lessor in its reasonable judgment deems
prudent. Lessor shall apply the net proceeds of such sale in the following manner: (i) firstly, to
reimburse Lessor for all costs associated with the removing, holding, repairing and selling of
Equipment; (ii) secondly, to reimburse Lessor for Lessee's remaining obligations under the Lease
including, any unpaid Rent Payments which have been budgeted and appropriated by the Lessee;
(iii) thirdly, to reimburse the Lessor for the fair market value of the Equipment, which the parties
hereby agree shall be equal to the applicable Prepayment Price, and (iiii) lastly, any amounts
remaining thereafter shall be remitted to Lessee.
(d) All of Lessor's rights contained in this Section shall survive the expiration or other termination of
this Lease.
Section 13. INTEREST RATE SUBJECT TO ADJUSTMENT.
In setting the interest rate used in calculating the interest component of the Rent Payments set forth in the
Amortization Schedule, the Lessor has taken into consideration: (a) the current Maximum Corporate Income
Tax Rate, as established in Section 11 of the Internal Revenue Code of 1986, as amended (the "Code"), (b)
the treatment of this Lease as a "qualified tax-exempt obligation" under Section 265 of the Code, and (c)
other factors which affect tax yield to the Lessor. Should there be future changes in the Code or related
regulations which affect the after-tax yield of Lessor, the Lessor may adjust the interest rate in order to
maintain the same after-tax yield as in effect on the date hereof.
As utilized 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 Internal Revenue, as such
officers are identified by the Code, or any court of competent jurisdiction, or an opinion of counsel
experienced in tax matters that the interest component payable under this Lease is includable in the gross
income (as defined in Section 61 of the Code) of the Lessor as a result of the occurrence of a Taxable Event
(herein defined). A Determination of Taxability shall be deemed to have occurred on the first to occur of
the following:
(a) on that date when the Lessee files any statement, supplemental statement or other tax schedule,
return or document which discloses that a Taxable Event (hereinafter defined) shall have occurred;
(b) on that date when the Lessee or the Lessor shall be advised by said � Commissioner of Internal
Revenue or any such District Director of Internal Revenue that, based upon (i) filings of the Lessee,
(ii) any review or audit of the Lessee, or (iii) upon any ground whatsoever, a Taxable Event shall
have occurred; or
(c) on that date (i) when the Lessee shall receive notice from the Lessor that the Internal Revenue
Service has assessed as includable in the gross income (as defined in Section 61 of the Code) of the
Lessor the interest component due to the occurrence of a Taxable Event; or (ii) when the Lessee
shall be advised by said Commissioner or any such District Director of Internal Revenue that the
interest component is includable in the gross income of the Lessor due to the occurrence of a
Taxable Event; or (iii) when the Lessee shall receive an opinion of counsel experienced in tax
522
FORM LETTER S4 (REV.12/11/96)
matters that the interest component is includable in gross income due to the 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 Lease to become includable for federal income tax
purposes in the gross income of the Lessor as a consequence of any act, omission or event whatsoever, 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 be deemed to 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 be increased
to the interest rate necessary to maintain the same after-tax yield as in effect on the date hereof (the "Taxable
Rate"), and such increased rate of interest shall be payable from and after the date of the Event of Taxability
("Date of Taxability"). Provided, however, that if the Lessee shall elect to contest such allegation and such
contest results in a final order or judgment of a court or administrative body of competent jurisdiction to the
effect that a Taxable Event has not occurred and the time for any appeal of such order or judgment has
expired, then no Taxable Event shall be deemed to have occurred and interest rate adjustments theretofore
paid shall be refunded by the Lessor.
Section 14. PERSONAL PROPERTY.
The Equipment shall at all times be and remain, personal property notwithstanding that the Equipment or
any part thereof may now be, or hereafter become, in any manner affixed or attached to, or embedded in, or
permanently resting upon, real property or any building thereon, or attached in any manner to what is
permanent as by means of cement, plaster, nails, bolts, screws, or otherwise. If, 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 reason of such Equipment's being affixed to real
property and such person seeks in any manner to interfere with the continued quiet enjoyment of the
Equipment by Lessee as contemplated by this Lease, Lessee shall immediately notify Lessor in writing of
such fact and shall seek diligently to remove the basis for any such interference. Unless the basis for such
interference is waived or removed to the satisfaction of Lessor within thirty (30) days from the date it is
asserted, Lessee, upon written request from Lessor, shall within ten (10) days after such request pay to Lessor
from legally available funds an amount equal to the sum of (i) an amount equal to the Prepayment Price
applicable to the time period of the interference; and (ii) all Rent Payments and other amounts which are due
or accrued hereunder. Upon such payment the Lease of such Equipment shall terminate and all of Lessor's
title to and rights in such Equipment shall become the property of Lessee.
Section 15. NET LEASE; NO SET-OFF, ETC.
This Lease is a net lease. Subject to the provisions of Section 3 subsection (c) hereof, Lessee's obligation
to pay Rent and other amounts due hereunder shall be absolute and unconditional. Lessee shall not be
entitled to any abatement or reduction of, or set-off against, said Rent or other amounts, including, without
limitation, those arising or allegedly arising out of claims or disputes (present or future, alleged or actual,
and including claims arising out of strict tort or negligence of Lessor) of Lessee against or with the
manufacturer or vendor of the Equipment, any supplier of labor or materials in connection therewith, or any
other person. Nor shall this Lease terminate or the obligations of Lessee be 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 manufacturer or seller of the Equipment. Subject to the provisions of Section 3
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FORM LETTERS4 (RFV.12/I1/96)
subsection (c), it is the intention of the parties that Rent Payments and other amounts due hereunder shall
continue to be payable in all events in the manner and at the times set forth herein, unless the obligation to
do so shall have been terminated pursuant to the express terms hereof.
Section lb. INDEMNIFICATION.
(a) Lessee hereby agrees to the extent permitted by law and from funds legally available for such
purpose, 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, including
legal expenses, of whatsoever kind and nature, in contract or tort, whether caused by the active or
passive negligence of Lessor but not caused solely by the gross negligence or willful misconduct
of Lessor , and including, but not limited to, Lessor's strict liability in tort, arising out of (i) the
selection, manufacture, purchase, acceptance or rejection of Equipment, the ownership of Equipment
during the Term of this Lease, and the delivery, lease, possession, maintenance, use, condition,
return or operation of the Equipment (including, without limitation, latent and other defects, whether
or not discoverable by Lessor or Lessee and any claim for patent, trademark or copyright
infringement), or (ii) the condition of the Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any actions based on, or
arising out of, any of the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in this Section shall survive the
expiration or other termination of this Lease and the rights, privileges and indemnities contained
herein are expressly made for the benefit of, and shall be enforceable by Lessor, its successors and
assigns.
0 Section 17. DISCLAIMER.
•
LESSEE ACKNOWLEDGES THAT IT SHALL SELECT THE EQUIPMENT WITHOUT ANY
ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES AND THAT LESSOR LEASE THE
EQUIPMENT IN AN "AS IS" CONDITION. LESSOR DOES NOT MAKE, HAS NOT MADE, NOR
SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO THE EQUIPMENT
LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY AS TO CONDITION, DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY
PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT
INFRINGEMENT, OR TITLE. All such risks, as between Lessor and Lessee, are to be borne by Lessee.
Without limiting the foregoing, Lessor shall have no responsibility or liability to Lessee or any other person
with respect to any of the following, regardless of any negligence of Lessor (i) any liability, loss or damage
caused or alleged to be caused directly or indirectly by the Equipment, any inadequacy thereof, any
deficiency or defect (latent or otherwise) therein, or any other circumstance in connection therewith; (ii) the
use, operation or performance of the Equipment or any risks relating thereto; (iii) any interruption of service,
loss of business or anticipated profits or consequential damages; or (iv) the delivery, operation, servicing,
maintenance, repair, improvement or replacement of the Equipment. If, and so long as, no default exists
under this Lease, Lessee shall be, and hereby is, authorized during the Term to assert and enforce, at Lessee's
sole cost and expense, from time to time, in the name of and for the account of Lessor and/or Lessee, as their
interests may appear, whatever claims and rights Lessor may have against any Supplier of the Equipment.
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FORM LETTER54 (REV.12/I1/96)
Section 18. PURCHASE OPTION.
(a) Provided that no Event of Default has occurred and is continuing hereunder, Lessee shall have the
option to purchase all 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. The sale of the Lessor's interest in and to the Equipment to Lessee shall be on a AS IS,
WHERE IS basis, without any recourse or warranty whatsoever as against Lessor.
(b) Lessee shall give notice to Lessor of its intention to exercise its option not less than sixty (60) days
prior to the Rent Payment Date on which the option is to be exercised and shall remit to Lessor on
such date an amount equal to the sum of (i) the Prepayment Price; and (ii) all Rent Payments and
other amounts due or accrued through and including the Purchase Date.
Section 19. MUTUAL COVENANT REGARDING TAX-EXEMPT STATUS.
The Lessee and the Lessor mutually covenant that neither will take any action nor omit to take any action
with respect to this Lease, the Equipment leased hereunder, or any funds of the Lessee if such action or
omission (i) would cause the interest component of the Rent to lose its exclusion from 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 (ii) would cause such interest component of the Rent to lose its
exclusion (if any) from alternative minimum taxable income as defined in Section 55(b)(2) of the Code
except to the extent such interest is required to be included in the adjusted net book income and adjusted
current earnings adjustments applicable to corporations under Section 56 of the Code in calculating corporate
alternative minimum taxable income, or (iii) would subject the Lessee to any penalties under Section 148
of the Code. Subject to the Lessee's right to terminate this Lease as provided herein, the foregoing covenant
shall remain in full force and effect, notwithstanding the payment in full of the Rent, until the date on which
all obligations of the Lessee in fulfilling the above covenant under the Code have been met.
Section 20. EVENTS OF DEFAULT.
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 voluntary or involuntary, or come about or be
effected by operation of law, or be pursuant to or in compliance with any judgment, decree or order of any
court or any order, rule or regulation or any administrative or governmental body: (a) Lessee shall fail to
make any payment of Rent when the same shall become due; or (b) Lessee shall fail to keep in full force and
effect insurance required under this Lease; or (c) Lessee shall or shall attempt to (except as expressly
permitted by the provisions of this Lease) remove, sell, transfer, encumber, part with possession of, assign
or sublet the Equipment, or 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 Nonappropriation,
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 agreement not included within (a), (b), (c) or (d) above which is
required to be performed or observed by it under this Lease or any agreement, document or certificate
delivered by Lessee in connection herewith, and such failure shall continue for twenty (20) days after written
notice thereof from Lessor to Lessee (or, if such default cannot be corrected within twenty (20) days, shall
have failed to initiate and diligently pursue appropriate corrective action); or (f) 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 when any
such representation or warranty was made or given (or, if a continuing representation or warranty, at any
mpa
FORM LETTERS4 (REV.12/11196)
material time); or (g) Lessee shall generally fail to pay its debts as they become due or shall file a voluntary
petition in bankruptcy; or (h) a petition is filed against Lessee in a proceeding under applicable bankruptcy
laws or other insolvency laws (other than any law which does not provide for or permit any readjustment or
alteration of Lessee's obligations hereunder in each case), as now or hereafter in effect, and is not withdrawn
or dismissed within ninety (90) days thereafter, or if, under the provisions of any law (other than any law
which does not provide for or permit any readjustment or alteration of Lessee's obligations hereunder in each
case) providing for reorganization or liquidation of legal entities which may apply to Lessee; or (i) any court
of competent jurisdiction shall assume jurisdiction, custody or control of Lessee or of any substantial part
of its property and such jurisdiction, custody or control shall remain in force unrelinquished, unstayed or
unterminated for a period of sixty (60) days; or 0) Lessee becomes insolvent.
Section 21. REMEDIES.
Whenever any Event of Default referred to in Section 20 hereof shall have occurred and be continuing with
respect to the Equipment, Lessor shall have the right, at its option and without any further demand or notice,
and with or without terminating this Lease, to declare all Rent Payments due or to become due during the
Fiscal Year in effect when the default occurs to be immediately due and payable by Lessee, whereupon such
Rent Payments shall be immediately due and payable. If the Event of Default is Lessee's breach of its
covenant to return the Equipment, Lessor shall be entitled to liquidated damages equal, at its election, to (i)
the Rent Payments for the Equipment pro -rated on a daily basis for each day the Equipment is retained, (ii)
the daily fair market rental for the Equipment, or (ill) compensatory damages for any loss suffered by Lessor
as a result of Lessee's failure to surrender the Equipment. 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 Rent Payments.
The remedies provided to Lessor herein shall be the sole and exclusive remedies exercisable by Lessor in
an Event of a Default by Lessee hereunder. Lessor shall in no event have the right to involuntarily dispossess
Lessee of the Equipment or title thereto. Lessor and Lessee do not intend to create a security interest in any
Equipment.
No delay or omission to exercise any right or remedy accruing hereunder shall impair any such right or
remedy or shall be construed to be a waiver thereof, but any such right and remedy may be exercised from
time to time and as often as may be deemed expedient. In order to entitle Lessor to exercise any remedy
reserved to it in this Lease it shall not be necessary to give any notice, other than such notice as may be
required in this Lease.
In the event any agreement contained in this Lease should be breached by either party hereto, and thereafter
such breach should be waived by the other party hereto, such waiver shall be limited to the particular breach
so waived and shall not be deemed to waive any other breach hereunder.
In the event that there is an Event of Default and the nondefaulting party should employ attorneys and/or
incur expenses for the collection of moneys or the enforcement of performance or observance of any
obligation or agreement on the part of the defaulting party herein contained, the defaulting party agrees that
it will on demand therefor pay to the nondefaulting party the reasonable fee of such attorneys and/or such
expenses so incurred by the nondefaulting party.
Whenever any Event of Default referred to in Section 20, Clause (a) hereof shall have occurred and be
continuing with respect to the Equipment, Lessor shall have the right, at its option and without any further
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FORM LETTERS4 (RFV.12/1 1/96)
demand or notice, to require a late payment charge for each thirty (30) day period or part thereof during
which such Event of Default occurs equal to one and one-half percent (1 %z%) of the delinquent amount, and
Lessee shall be obligated to pay from funds legally available for such purpose, the same immediately upon
receipt of Lessor's written invoice therefor; provided, however, that this provision shall not be applicable if
or to the extent that the application thereof would affect the validity of this Lease.
Section 22. ESCROW AGREEMENT; TRUST FUND.
To the extent approved by Lessor and Lessee, sums advanced by Lessor for the acquisition of Equipment
may be funded through use of an escrow agent. All aspects of any such arrangement shall be subject to the
prior approval of Lessor including, but not by way of limitation, selection of the escrow agent and the
procedures for disbursements. Lessee agrees that any such escrow agent may be an affiliate of Lessor. All
costs incurred in connection with any such escrow shall be paid by Lessee.
For the initial funding hereunder as reflected in the Schedule of Terms dated as of November 29, 1999, and
for future fundings, if approved by Lessor and Lessee, Lessor shall deposit funds with Lessee to be applied
by Lessee to acquire Equipment. Such funds shall be held by Lessee in a segregated account at a financial
institution or trust company and applied to acquire Equipment upon delivery to Lessor of those items
required by Sections 2 (b)(i), (iv), (v), (ix), (xi) and (xii) hereof. Any balance remaining in such fund after
the date which is eighteen (18) months after the deposit of funds therein shall be applied to pay scheduled
Rent until fully expended.
Section 23. EXECUTION AND LAWS GOVERNING VENUE.
This Lease and each of the exhibits hereto shall be binding only when accepted by the Lessor at its Orlando,
Florida office and shall be construed and governed by the Laws of the State of Florida. As part of the
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 suits within Orange County,
Florida, or in the United States District Court for the Middle District of Florida, and Lessee hereby consents
to the jurisdiction of those courts and waives any rights to the selection of venue.
Section 24. MISCELLANEOUS.
(a) Any cancellation or termination by Lessor, pursuant to the provisions of this Lease, any exhibit,
supplement or amendment hereto, or the release of the Equipment hereunder, shall not release
Lessee from any then outstanding obligations to Lessor hereunder. All exhibits, certificates,
consents and other attendant documents referenced herein are incorporated herein by reference.
(b) Time is of the essence. Lessor's failure at any time to require strict performance by Lessee of any
of the provisions hereof shall not waive or diminish Lessor's right thereafter to demand strict
compliance therewith.
(c) All notices, certificates or other communications hereunder shall be in writing and deemed given
when delivered or mailed by certified or registered mail, postage prepaid, to the respective addresses
set forth in the Schedule of Terms. The Lessee and the Lessor may designate by written notice any
further or different addresses to which subsequent notices, certificates or other communication shall
be sent.
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FORM LETTER54 (REV.17/11/96)
•
(d) If the date for making any payment or the last day for performance of any act or the exercising of
any right, as provided in this Lease, shall be a legal holiday, or a day on which banking institutions
in the city in which the principal office of the Lessor or the assignee of the Lessor is located are
authorized by law to remain closed, such payment may be made, or act performed, or right exercised
on the next succeeding day not a legal holiday or a day on which such banking institutions are
authorized by law to remain closed, with 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 than the requirement of (i) the Lessee to make
Rent Payments; (ii) the requirement of the Lessor to provide quiet enjoyment of the Equipment and;
(iii) to convey the Equipment to the Lessee under the conditions set forth herein) shall be held
invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate
or render unenforceable any other provision hereof. Any provisions in this Lease which are in
conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.
(i) 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 rules and regulations
issued pursuant thereto, shall be applied in the interpretation and enforcement hereof.
(h) The captions and headings herein are for convenience only and 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 Equipment.
(j) This Lease constitutes the entire agreement of the parties with respect to the subject matter hereof.
NO VARIATION OR MODIFICATION OF THIS LEASE, OR ANY WAIVER OF ANY OF ITS
PROVISIONS OF CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY
AN AUTHORIZED REPRESENTATIVE OF EACH OF THE PARTIES HERETO. Any such
waiver, consent, modification or change shall be effective only in the specific instance and for the
specific purpose given. There are no understandings, agreements, representations or warranties,
express or implied, not stated hereunder. No variation or modification of this Lease, or waiver of
any of its provisions or conditions shall be valid after assignment by either party unless approved
by assignee.
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FORM LETTERS4 (RFV.12/11/96)
•
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by their duly
authorized representatives as of the date first above written.
LESSOR:
SunTrust Bank, South Florida, National Association
By: --
Penny 1W ill is Wools
Vice President
LESSEE:
City of Tamarac, Florida
(SEAL) j
By:_-
oe Schreiber
Mayor
Attested:
By:
Carol Go
City Cler
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FORM LETTERS4 (REV.12/11196)
•
Is
DESCRIPTION OF EQUIPMENT E
This Description of Equipment E, dated as of November 29, 1999, is executed and delivered pursuant to
Section 2 of the Master Lease -Purchase Agreement dated as of November 29, 1999 (the "Lease") between
SunTrust Bank, South Florida, National Association ("Lessor") and the City of Tamarac, Florida ("Lessee").
The Lessor agrees to lease to Lessee, and Lessee agrees to lease from Lessor, the Equipment described
below, located at 7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401, pursuant to the terms of the Lease,
the terms of which are incorporated herein by reference, and as supplemented by a Schedule of Terms E and
Amortization Schedule E, each dated as of November 29, 1999, and executed by Lessor and Lessee.
One (1) Johnston, Series 605 Vacuum Street Sweeper, the detailed description of which
will be provided subsequent to this funding, at the time the equipment is delivered.
Cost Basis: $152,000.00
Dated this A901 day of November, 1999.
LESSOR:
SunTrust Bank, Central Florida,
Nation iation
By: G
4nny`�Vlillis Wools
Vice President
LESSEE:
City of Tamarac, o rida
By:�
J Schreiber
ayor
S:\CORPBANK\LF.ASING\WORD\%fUMCIPAI',TA�t:1RAC\E%EQLRPLIST.DOC tREV.02M&
SCHEDULE OF TERMS )E
THIS SCHEDULE OF TERMS E, dated as of November 29,1999, is executed and delivered pursuant to that
certain Master Lease -Purchase Agreement (the "Lease") dated as of November 291 1999, between SunTrust
Bank, South Florida, National Association ("Lcssor" ), 200 South Orange Avenue, Orlando, FL 32801,
Attention, Leasing Department, and the City of Tamarac, Florida ("Lessee"), 7525 N.W. 88th Avenue,
Tamarac, Florida 33321-2401, Attention: Finance Director.
Equipment Cost:
Number of Payments:
Frequency of Payments:
Payment Due Date:
Interest Rate:
Rental:
Payment Amount:
$152 000.00
Five (5)
Annually in Arrears
Commencing November 29, 2000; annually thereafter on each and every
November 29 to and including November 29, 2004.
4.97%
Deferred lnterest to Termination Date:
0 Total Rental
:7
Current Maximum Corporate Income Tax Rate:
Budgetary Period:
$ 35,079.06
$ 23,395.30
$ 175,395.30
35%
October 1 through September 30
Late Payments: There will be a charge of the lessor of. 1.5% per month or the highest legal rate allowed on the
amount of any Rcnt Payment which remains unpaid for ten (10) days after the due date_
Insurance: The insurance required pursuant to the Lease shall include, but is not limited to, the following
types and amounts of coverage:
A. PHYSICAL DAMAGE to all vehicles(s) leased under this Schedule;
(1) Scope of Coverage: Comprehensive and collision coverage
(2) Limits of Coverage: not less than the greater of the full, replacement value of the vehicles
or the installments of rcut then remaining unpaid hereunder immediately prior to the
physical damage of each 'Vehicle leased hereunder
(3) Deductible: not more than $1,000.00 per occurrence; Lessee is liable for all deductible
amounts
FORM LETTERS1(REv_02VW
-1-
B. MOTOR VEHICLE LIABILITY:
11
•
(1) Scope of Coverage: Liability coverage including, but not limited to bodily injury, death,
property damage; contractual liability and personal injury
(2) Limits of Coverage: Minimum liability coverage in the following amounts must be
provided; $100,000 per occurrence/$300,000 aggregate per occurrence/$100,000
property damage
C. PERSONAL PROPERTY coverage to all equipment leased under this Schedule:
(1) Scope of Coverage: All risk, including but not limited, to flood damage if the property
is located in a flood plain area as defined by applicable government authority
(2) Limits of Coverage: not less than the greater of the full replacement value of the
Equipment or the installments of rent then remaining unpaid hereunder immediately
prior to the physical damage of each item of Equipment leased hereunder
(3) Deductible: not more than $1,000.00 per occurrence; Lessee is liable for all deductible
amounts
D. COMPREHENSIVE GENERAL LIABILITY:
(1) Scope of Coverage: Comprehensive General Liability coverage: including, but not
limited to bodily injury, death, and property damage, contractual liability and personal
injury;
(2) Limits of Coverage: Minimum liability coverage in the following amounts must be
provided; $250,000 per occurrence/$ 5 00,000 aggregate per occurrence/$100,000
property damage
E. LOSS PAYEE: Lessor must be named as loss payee and additionally insured on physical
damage insurance.
F. SELF-INSURANCE: In the event Lessee is self -insured for the purpose of physical damage
coverage, a Statement of Self -Insurance will be provided.
Y a
Dated this \ day of November, 1999,
LESSOR:
SunTrust Bank, South Florida,
National Association
By:?,'(e
Penny Willig Wools
Vice President
-2-
LESSEE:
City of Tamarac, Florida
By:
oe Schreiber
Mayor
FORM LETTERS2(REV.022798)
AMORTIZATION SCHEDULE E
Payment
Balance After Payment
Payspenr Datt
Amount
Interest
Principal
(Prgxvmeot Price)
Nov-29-99
0.00
0.00
Oslo
152.000.00
0.00
0.00
0.00
Nov-29-00
35,079.06
7,554.40
27.524.66
124.475.34
35,079.06
7.554.40
27,524.66
Nov-29-01
35.079.06
6,186-42
21,892.64
95,522-71
35,079.06
6,196-42
29,997.64
Nov-29-02
35,079.06
4,750.45
30,329.60
65,254,11
35,079.06
4,750.46
30,329.60
Nov-29-03
35,079.06
3,243.13
31.835.93
33,418,18
35,079.06
3,243.13
31,835.93
Nov-29-04
35,079.06
1,660.99
33,418-18
0.00
35,079.06
1,660,99
33,418-18
TOTAL
175,395.30
23,395,30
152,000.00
*Subject to adjustment for any payment(s) not received on the applicable Payment Date.
Page 1
rORM UTTERS6 (RE V.052798)
•
Form 8038-G Information Return for Tax -Exempt Governmental Obligations
■ Under Internal Revenue Code section 149(e) OMB No. 1545•0720
(Rev. May 1999) ■ See separate instructions.
Department of the Treasury Caution: Use Form 8038-GC if the issue price is under $100,000.
Mtternal Revenue service
• Re ortin Authorit If Amended Return, check here ■ ❑
1
issuer's name
2
Issuer's employer identification number
City of Tamarac, Florida
59 : 1039552
3
Number and street (or P,Q. box If mail is not delivered to street address)
Room/suite
4 Report number
7525 N.W. 88th Avenue
G 1999-
5
City, town, or post office, state, and ZIP code
6 Date of issue
Tamarac, FL 33321-2401
November 29, 1999
7
Name of issue
8 CUS1P number
SunTrust Lease
NIA
9
Name and title of officer or legal representative whom the IRS may call for more Informatio
10
Telephone number of officer or legal representative
Tim Hemstreet, Interim Director of Finance
( 954 ) 724-1318
Tvae of Issue (check annlicable box(es) and enter the Issue price) See instructions and attach schedule
11
12
13
14
15
16
17
18
19
20
❑ Education . . . . . . . . . . . . . . . . . . . . . . . .
❑ Health and hospital . . . . . . . . . . . . . . . . . . . . . . .
❑ Transportation . . . . . . . . . . . . . . . . . . . . . . . . .
❑ Public safety. . . . . . . . . . . . . . . . . .
0 Environment (including sewage bonds) . . . . . . . . . . . . . . . .
❑ Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . .
❑ Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . .
❑ Other. Describe ■
If obligations are TANS or RANs, check box► ❑ If obligations are BANS, check box ■ ❑
If obligations are In the form of a lease or Installment sale, check box , ■
11
12
13
14
15
152,0W00
1B
17
18
Description of Obligations. (Complete for the entire issue for which this farm is beinq
filed.
(a) Final maturity date
(b) Issue price
(c) Stated redemption
price at maturity
(d) Weighted
average maturity
(e) Yield
21
November 29, 2004
$ 152 000.00
1 S N/A
Five 5 ears
%
•
TIVJ7 Uses of Proceeds of Bond Issue(including underwriters' discount
22
23
24
25
26
27
28
29
30
Proceeds used for accrued Interest . . . . . . . . . . . . . . . . . . . . .
Issue price of entire issue (enter amount from line 21, column (b)). . . . .
Proceeds used for bond issuance costs (including underwriters' discount) 24 N/A
Proceeds used for credit enhancement. . . . . . . . . . 25 N/A
Proceeds allocated to reasonably required reserve or replacement fund 26 N/A
Proceeds used to currently refund prior Issues . . . . . , , 27 N/A
Proceeds used to advance refund prior Issues . . . . . . . 28 N/A
Total (add lines 24 through 28). . . . . . . . . . . . . . . . . . . . .
Nonrefundin roceeds of the issue subtract line 29 from line 23 and enter amount her
un
22
NIA
23
N/A
29
N/A
30
N/A
Descri tion of Refunded Bonds Com lete this part only for refunding bonds.
31
Enter the remaining weighted average maturity of the bonds to be currently refunded , ■ NIA
years
32
Enter the remaining weighted average maturity of the bonds to be advance refunded . ■ NIA
years
33
Enter the last date on which the refunded bonds will be called. . . . . . . . . . . ■ NIA
34
Enter the dates the refunded bonds were issued■
Miscellaneous
35
Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . 35
36a
Enter the amount of gross proceeds Invested or to be invested in a guaranteed investment contract (see instructions) 36a
b
Enter the final maturity date of the guaranteed investment contract■
37
Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a
b
If this Issue is a loan made from the proceeds of another tax-exempt issue, check bo)► ❑ and enter the name
of the
issuer ■ and the date of the issue ■
38
If the issuer has designated the issue under section 265(b)(3)(B)(1)(III) (small Issuer exception), check box
. ■
39
If the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box . . . . . . . . . . . .
. 11-0
40
If the issuer has identified a Led e, check box
. ■ ❑
Under penalties of per-hry. I declare that I have examined this return and accompanying schedules and statements, and to the be st of my knowledge
and belief, they are true, correct, and complete.
Please
Sign
0 Here ' sig a of issuer's authorized representative oate
Joe Schreiber, Mayor
Type or print name and title
For Paperwork Reduction Act Notice, see page 2 of the Instructions. cat. No. 63773S Form 8038-G (Rev. 5-99)
C.
r1
OFFICERS' CERTIFICATE E
We, the undersigned officers of the City of Tamarac, Florida (the "Lessee"), in connection with the lease -
financing of certain equipment pursuant to the terms of the Master Lease -Purchase Agreement dated as of
November 29, 1999, as supplemented by a Schedule of Terms E, an Amortization Schedule E, a Description of
Equipment E, each dated as of November 29, 1999 (the "Lease"), between the Lessee and SunTrust Bank,
South Florida, National Association (the "Lessor"), DO HEREBY CERTIFY:
(1) Carol Gold is the duly appointed, qualified and acting City Clerk of the Lessee, and Joe Schreiber is the
duly elected, qualified and acting Mayor of the Lessee.
(2) Each of the above persons have duly filed their oaths of office and such of them as are required by law
to file bonds or undertakings have duly filed such bonds or undertakings in the amount and manner required by
law.
(3) The undersigned Mayor and City Clerk hereby certify that they executed and attested, respectively, the
Schedule of Terms E, the Amortization Schedule E, the Description of Equipment E, each dated as of November
29, 1999, and certain other documents relating thereto (the "Lease Documents").
(4) Those Officers who executed the Lease Documents were and are the duly chosen, qualified and acting
officers authorized to execute the Lease Documents. The signatures that appear on this certificate are the
authentic signatures of the City Clerk and the Mayor, each of whom is duly authorized to execute and deliver the
Lease Documents and any and all documents and certificates required in connection therewith or necessary or
appropriate to carry out the intent thereof.
(5) The Lessee has sufficient moneys available to pay all rental payments owing under the Lease with
respect to the equipment set forth in the Lease Documents (the "Rent Payments") coming due during the current
budget year of the Lessee, such moneys having been properly budgeted and appropriated for that purpose in
accordance with the laws of the State of Florida (the State); such moneys will be applied in payment of all Rent
Payments due and payable during such current budget year; the Lessee expects and anticipates adequate funds
to be available, budgeted and appropriated in future years to make all future Rent Payments throughout the
maximum term of the Lease.
(6) The lease of the Equipment (as described in the Description of Equipment) is essential to the
governmental functions of the Lessee, and the Lessee has an immediate need for the Equipment which is not
temporary or expected to diminish during the maximum term of the Lease.
(7) The Equipment will be used by the Lessee for the purpose of performing one or more of the Lessee's
governmental functions consistent with the permissible scope of the Lessee's authority.
(8) The Lessee has obtained, or will obtain as the Equipment is acquired, from a reputable insurance
company qualified to do business in the State, insurance with respect to all risks required to be covered thereby
pursuant to the Lease; or the Lessee has or shall self -insure with the prior written consent from the Bank as
provided in the Lease.
(9) The interest rate establishing the interest portion of the Rent Payments, on the first date such interest
begins to accrue, does not exceed a rate of interest permitted by Section 215.84, Florida Statutes (1998).
FORM LETTER53 (REV.U20299)
Be
(10) This Section 10 sets forth facts and estimates upon which the Lessor and its counsel may rely in reaching
an opinion regarding the exclusion of the interest portion on the Rent Payments from the gross income the Lessor,
and the facts and estimates upon which the Lessee bases its reasonable expectation that the obligation to make
Rent Payments pursuant to the Lease (hereinafter, the "Lease Obligation') does not create an arbitrage bond
under Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and applicable Treasury
Regulations:
(a) The Lessee has not accumulated nor does it expect to accumulate amounts of money in a fund
to pay or to be held as security for the payment of principal of or interest on the Lease Obligation.
(b) No portion of the proceeds of the Lease Obligation will be used as a substitute for other funds
which were otherwise to be used for the same purposes and which funds will be used to acquire directly or
indirectly obligations producing a yield in excess of the yield on the Lease Obligation.
(c) There are no other obligations of the Lessee which (i) are being issued within 15 days prior to
or after the date of the Lease Obligation, (ii) are sold pursuant to a common plan of financing together with
the Lease Obligation, and (iii) will be paid out of substantially the same source of finds (or will have
substantially the same claim to be paid out of substantially the same source of funds) as the Lease
Obligation.
(d) The Lessor has agreed to purchase the Lease Obligation for outstanding principal amount
thereof. No fee will be paid to any person acting as an underwriter for the Lease Obligation.
(e) The Lease does not create a "hedge bond" as defined in Section 149(g) of the Code, in that at
least 85 percent of the proceeds of the Lease Obligation will be expended to carry out the governmental
purpose of the issue within three years from the date of issuance of the Lease, and not more than 50 percent
of the proceeds will be invested in nonpurpose investments (as defined in Section 148(ex6)(A)of the Code)
having a substantially guaranteed yield for four (4) years or more.
(f) The Equipment has not been and is not expected to be sold or otherwise disposed of in whole
or in part prior to the expiration of the maximum lease term.
(g) The proceeds of the Lease Obligation will be deposited into an Equipment Acquisition Fund
created by Lessee. The proceeds of the Lease Obligation, together with the investment earnings thereon, will
be used to pay the cost of the equipment from the vendors thereof (the "Project"). It is reasonably expected
that (i) at least 85% of the proceeds of the Lease Obligation will be allocated to expenditures on the Project
by the end of three years from the date of issuance thereof, (ii) within 6 months of the issuance date of the
Lease Obligation, the Lessee will incur a substantial binding obligation to a third party to expend at least 5%
of the proceeds thereof on the Project, and (iii) completion of the Project and the allocation of the proceeds
to expenditures with respect to the Project will proceed with due diligence. The Lessee expects to comply
with the 18-month expenditure exception to rebate as set forth in Section 148 of the Code and related
Treasury Regulations, in that it expects to expend the gross proceeds of the Lease Obligation in accordance
with the following schedule: (1) at least 15% within 6 months, (2) at least 60 percent within 12 months, and
(3) 100% within 18 months. However, if the Issuer fails to comply with such exceptions, it shall rebate to
the federal government any amounts required by Section 148 of the Code and related Treasury Regulations.
(h) The Lessee expects that (1) less than 10% of the proceeds of the Lease Obligation will be used for
any private business use as defined in Section 141 of the Code, and (ii) less than 5% of the proceeds of the
Lease obligation will be used for the private business use which is not related to a governmental use of the
proceeds, or which is a disproportionate related business use within the meaning of Section 141 of the Code.
It is understood that such limitation will not apply unless more than 10% (with respect to clause (i)) or more
-2-
FQRM IFTTERS3 (REV.020M)
that 5% (with respect to clause (ii)) of the Lease Obligation is directly or indirectly (including under the terms
. of any underlying arrangement) secured by any interest in (1) property used or to be used for a private
business use, or (2) payments in respect of such property, or are to be derived from payments (whether or
not to the Lessee) in respect of such property, or borrowed money, used or to be used for a private business
use, as provided in Section 141 of the Code.
r- 1
LJ
(I I)No approval, consent or authorization of any governmental or public agency not already obtained is
required in connection with the Lessee's participation in the transactions contemplated by the Lease, or the
performance of its obligations thereunder.
(12) The Lessee does hereby designate the Lease Obligation as a "qualified tax-exempt obligation" within
the provisions of Section 265 of the Internal Revenue Code of 1986. The Lessee does not reasonably anticipate
issuing more that $10,000,000 of tax-exempt obligations (including those obligations of any entities controlled
by the Lessee), including the Lease Obligation during the current calendar year.
(13) To the best knowledge and belief of the undersigned officers, there are no other facts, estimates or
circumstances that would materially change the conclusions and representations set forth in the certificate and
the expectations hereinabove set forth are reasonable.
WITNESS our hands and the seal of the Lessee this 14 day of November, 1999.
(SEAL)
ATTES
C�c
Carol Gold
City Clerk
City of Tamarac, Florida
raySchreiber
or
-3-
F4RM LEI-MRS3 (REV.020299)