HomeMy WebLinkAboutCity of Tamarac Resolution R-2000-340Temp. Reso. #9228
December 7, 2000
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2000-3� a
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
AN AS400 COMPUTER SYSTEM IN AN AMOUNT NOT
TO EXCEED $140,500 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
an AS400 Computer System (the "AS400"); and
WHEREAS, the City Commission authorized the purchase of an AS400
Computer System for an amount not to exceed $140,500 through Resolution No.
R-2000-314; 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
WHEREAS, the terms of the Lease -Purchase Financing Agreement,
utilizing the Master Lease Purchase Agreement, are outlined in Exhibit "B",
attached hereto; and
Temp. Reso. #9228
December 7, 2000
Page 2
WHEREAS, the lease documents and various closing documents related
to the Lease -Purchase Financing Agreement of the AS400 will be finalized and
filed with the City Clerk; and
WHEREAS, the Interim Director of Finance and the Investment
Accountant of the City of Tamarac, Florida recommend the execution of the
Lease -Purchase Financing Agreement with Kislak National Bank, and amending
the Fiscal Year 2001 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 an AS400 Computer
System under a Master Lease -Purchase Agreement between the City and Kislak
National Bank for the financing of the AS400, and to amend the Fiscal Year 2001
budget to address the actions needed to implement the lease -purchase of the
AS400; and
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.
Temp. Reso. #9228
December 7, 2000
Page 3
SECTION 2: The appropriate City Officials are hereby authorized and
directed to execute a Lease -Purchase Financing Agreement, in the principal
amount, 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 AS400 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. #9228
December 7, 2000
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SECTION 6: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this 13th day of December, 2000.
ATTEST:
1 tENSON, CMC, CITY CLERK
IH=d1his
CERTIFY that I have
Ate RESOLUTION as to form.
E S HREIBER, MAYOR
RECORD OF COMMISSION
MAYOR SCHREIBER
DIST 1: COMM. PORTNER
DIST 2. COMM. MISHKIN
DIST 3: COMM. SULTANOF 7
DIST 4: VIM ROBERTS - —jj�
Temp Reso #9228
December 7, 2000
EXHIBIT "A"
MASTER LEASE -PURCHASE AGREEN/1111AT
T1115 MASTER LEASE -PURCHASE AGREEMENT, dated as of April 17, 2000
(togelher with all supplements, annexes, exhibits and schedules hereto hereinafter referred to as tie
"Lease"), between KISLAK NATIONAL BANK (hereinaftercal!td, togethCrwith any sucCessors
and assigns "Lessor") and CITY 01P TAMARAC,FLORIDA (hereinafter called "Lessee").
WITNESSET11:
Section 1. REPRESENTATIONS AND WARRANTIES OF LESSEE.
I_.cssee hereby represents and warrants to Lessor that on the date hereof and m all limes
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 F'lorida (the "State"), duly organized and existing, under the
Constitution and laws of the State.
(h) [.cssee is authorized under the Constitution and laws of the State to enter into
ON I xase and the transactions contemplated hereby, and to perform all of its obligations hereunder.
(c:) Ussee bus duly authorized and approved the execution and delivery of this
Lease and all other doCumCnts related to the transactions Contemplated hereby, and this Lease
conslitutes if legal, valid and hinding obligation of the Lessee, enforceahle against the Lessec 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 ol' judicial (list tenon in
accordance with general principals of eoluily.
(d) 1-Lich officer or representative of Lessee executiog this Lease has been duly
authorized to execule and deliver this Lease attd related documents underdw is als and provisions of
it resolution of Lessee's governing body, or by other appropriate official action.
(e) L_essce has complied with all open meeting laws, all public bidding laws and
all other State and ["ecleral laws applicable to this Lease, and has ohtai►►ed all approvals necessary for
Ole execution, delivery and perNinnanc:e of this Lease and the transactions Contemplated hereby-
(1) Neither the execution and delivery hereof, nor the fll OUrrient of, or
compliance %vilh, the ternls and conditions hereof, nor the Cons►►minatron of the transactio l
Contemplated hereby, will conflict with, constitute a breach of, ordCfatllt under, the Constitution and
laws of the Stale, 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 golvernntental
body to which the Lessee or any of its other properties are subject.
(.-I(Io]198;1
(g) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public heard or body (lending or, to the best of the
Lessee's knowledge, threatened against the Lessee, wherein an unfavorable ruling of. filing would
adversely affect the validity orenforceability of this Lease or any other instrument contemplated for
use in consumrtlating the transactions contemplated hereby, or the exclusion Of the portion of the
(tent Payments (as defined in Section 3 helow) representing interest, from gross income for purposes
of federal inconle taxation, or would materially and adversely affect any of the transactions
contemplated by this Lease.
(it) The Equipment (as defined in Section 2 hereof) at all times will he used by the
Lessee for the purpose of performing a public function and the acquisition of the Equipment by the
I.essee shall he necessary, useful or appropriate to one or more governmental purposes of the Lessee.
Section 2. L.EASING.
(a) Subject to the terms urld conditions set forth below, I_eSSOr agrees to lease to
Lessee, and Lessee agrees to lease from I_.essor, the Equipment described in the Equipment
Schedules delivered from time to time as described below, including all repairs, replacements,
Stlbstlttitions and modifications to the same (tile "Egllrpment").
(b) 'nie Lessor may from tithe to time, at the request of Lessee, provide: funds to
acquire Equipment from the manufacturer or supplierehereof ("Supplier") for lease hereunder. The
obligation of lessor to lease f:quipnlent hel'etlnclCl- Shull he subject to the I-eprCSentatiolls and
warranties of Lessee contained herein hCing true grid accurate: throughout the term hereof and ftu-ther
conditioned on receipt by Lessor of each of the following documents in form and substance
salisfaclory to Lessor and the Lessee:
(i) it DCSel'Ipti0 n Of E(Illlp(llent dCSCClbing SUCII E(IIIlpment executed by'
I.Cssor and 1._cssee (the "Description of Equipment"):
(ii) an Amortization Schedule setting forth the Rent payablC with respect
to such I?duipnlent in tilt; Forul attached as Exhibit 13 hereto (tile "Amortization Schedule");
(iii) a Schedule of Ternls setting forth additional terms applicable to the
lease of such Equipment executed by Lessor and Lessee (the "SchCdule of'rerms");
(iv) topics elf insurance policies or, at Lessor's opti011, such other evidence
Of Ill5tlrance which complies with the regtdrements of Sec Lion 1 l;
(v) hills of sale, titles or other appropriate evidence of ownership or
invoices for amounts (Iue;
NO an opinion of' counsel for Lessee;
Oklo)198,1 .)
(vii) it copy of Internal Revenue Service Form 8038 G or 8038 CC (as
applicable) corllpleted and executed by Lessee;
(viii) an Officers' Certificate of Lessee;
(ix) a duly adopted resolution or evidence of other appropriate action of
Lessee approving the acquisition of such Equipment;
(x) executed and completed Form 2003/2004 of the Division of Roncl
Finance of the Stale of Florida;
and
(xi) a Certificate of Acceptance in the form attached as Exhibit C hereto;
(xii) such ether documents as Lessor may reasonably request.
All references herein to the Description of Equipment, Amortization Schedule or the
Schedule of'l'CrI11S for Equip►rlent is a reference to such schedule as it was executed in connection
wilh the lease of such item of Equipment.
(c) Lessor herehy appoints Lessee its agent for purchase, inspection and
acceplmlce of the Equipment I'ronT the tllaTlltfacturer or supplier. Subject to the above -stated
conditions, upon execution by Lessee of a Certificate of Acceptance in the form provided by 1_essor,
the l:quipnlent descrihed thereon shall he deemed to have been delivered to, and irrevocably
accepted by, lessee for lease hereunder.
Section 3. 1'I;Itltil, RENT AND PAYMENT.
(a) Tile rent ("Rent") payable hereunder with respect to all Equipment sct forth on
an Equipment Schedule shall collllllence otl the elate set forth in the; corresponding Schedule of
`I'ernls (the "Commencement Date"). The term ("'fern!") of this Lease with respect to such
E"quipnlent shall commence on the Commencement Date and shall terminate upon the: occurrence of
the first of the following evetlts:
(1) the exercise by Lessee of" its option to purchase Lessor's interest in
such Equipment pursuant to SCClioll 18 hereof;
(2) the payment by Lessee of all !tent and ether ununrtlts required to he
paid by Lessee hereunder with respect to such Equipment;
uklullyH;1 3
(3) upon the occurrence of an Event of Nonappropriatioil (as that term is
clefinecl in SLII)SeCtioll (c) hereof) with respect to any Equipment, the last clay of the Budgetary
Pcricld set forth in the Schedule of Terms for which a►t appropriation has been Made, Subject
to Lessor's election to not terminate this lease with respect to Equipment for which an
appropriation has been oracle;
(4) un Event of' Default by Lessee and I.eSS01"s election to tei'mi Tale this
Lease pursuant to Section 20 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 `Perms,
except as otherwise directed by Lessor. Payments of Rent shall he in the amount, payable at such
intervals and Shall be clue in accordance with the provisions of the Amortization Schedule alit!
Schedule of Terms. (Each payment of Rent is hereinafter referred to as it "Rent Payment".) Lessor
nlay change the location to which tile Relit Payments are to he paid by noting such ch,ulge on any
invoice to Lessee or by sending Lessee notice in writing of such change. A portion ofeach Rent
Payment is paid as, and represents, interest as reflected on the Amortization SChCdtile-
The obligation of the Lessee to pay the anlorints required herein shall constitute it current
expense of, the Lessee and shall not in any way he conStruecl to he a debt of the Lessee in
contravention of any applicable constitutional, statutory or charter limitations or requirements
concealing the creation of indebtedness of the I.CSSee. HIE PAYMENTS DUE UNDI;CZ "I'l llS
1.1'AS L? ARLI TO BI: NIADE ONLY FRONI T1 IE LESSEL'S LEGALLY FUNDS
ON AN ANNUAL BASIS, AND NEITHER TIIE LESSEE, T11E STA'PC. OF FLORIDA, N01:
ANY I'OI.1'1'I(,AI..Sl1131)IVISION OIZ AGENC' " PIIEREOF SlIAL.1.13E0131...IGAThD`PO PAY
ANY SUMS DUE HEREUNDER FROM THE COMPELLED LEVY OF AD VAI..ORL;NI OR
U"I'IILR TAXES EXCEPT FROM THOSE FUNDS LE'GiALLY APPROPRIATED BY `fill:
I.I;SSI E ON AN ANNUAL BASIS, AN!) Nf:PI'EIEIZ THE: FULL FAi 1'I I AND CIZEDI"I' NOR "I'I !l:
TAXING POWER OF TIIE LESSEE, THE STATE OF FLORIDA OR ANY POLITICA1
SUBDIVISION 01-Z AGENCY THEREOF ARE PLEDGED FOR PAYMENT OF Sl. CH SLIMS
Dill: UNDER THIS LEASE;. This Lease and the indebtedness evidenced hereby shall not
constitttle a lien upon the Equipment, or any Dart thereof, or on atiy otlier property owned by
or within the Jurisdictional limits of Lessee.
(c) Lessee shall have the right to terminate its obligation to make Rcnt Payments
With respect to any Equipment at the end of any Budgetary Period (as that term is defined in the
Schedr►Ic of `Perms), in the ma►l►lel' alld subject to tl►e terms of this subsection (c), if" lessee's
governing body (foes not appropriate money sufficient to hay the Rent Payments and reasonahle
estimated expenses hereunder coming due for the next Budgetary Period with respect to such
Equipment (such termination hereinafter an "Event of Nonappropriatinn"). Upon the occu►-rcnce of
an Event ol' Nonappropriation, Lessee shall not be responsible for the payment of any Rent Payments
with respect to such Equipment coining clue during any Subsequent Budgetary Period. Upon the
URIU319U; 1 1
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 a. TAXES.
Lessee shall report and pay promptly from legally available revenues all other 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, lnClUding, 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").
LC5See shall reiiilburse Lessor upon ►'eCeipt of written request for reimbursement for any Taxes
charged to or assessed against L..essor, and on request of' L.essor, subr:ti t to Lessor written evidence of
LeSSCC's payn)ent 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 ol'
Lessor.
Section 5. FINANCIAL INFORMATION; IZEP0RTS.
Lessee will provide Lessor with (i)audited financial statements (incltrcling, without
limitation, a balance sheet, it statement of revenues, expenditures and change: in fund hillanCe) within
21()days altCr rite end of each E3udget Year, (ill) a copy of its annual hudoet within 45 clays after
approval by Lessee, and (id) 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 the relocation of' the base -location of the
Equipn►Cnt Outside of tite jurisdictional limits of Lessee, ten (10) clays prior to any relocation;
(c) copies ol' the insurance policies or other evidence of insurance reduired by the terms hereof,
promptly upon request by Lessor; (d) copies of all information, logs, doCLIMCI S anti records
regarding or in respect to the Equipment and its use, maintenance and/orconditiort, within ten (IO)
days of such request; (e) a certificate of the authorized ol'l'icer of Lessee stating that he has reviewed
the activities of I_essc c and that, to the best of his knowledge, there exists no default (as lle3Cribed 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" Lessce's
ComplianCe with maintenance provisions of Section 8 hereof upon request of Lessor; (h) notice of
arty anticipated occurrence of an L=vent Of Nonappropriation, if practical, thirty (3O) clays prior to
such OCCurrCnCe; (i) notice of an OCCurrc:nCe of an Event ol-"Nonappropriation within five (5) days of'
such occurrence; (j) proof of appropriation for the ensuing Budgetary Period in it form acceptable to
Lessor upon request; and (k) any other dnct►nu:nts Or reports required by any addenda hereto or
rrCasunably requested by Lessor.
6141uiIlib; 1 5
Section 6. TITLE'AND QUILTEN.IOYIVII NT.
(a) Legal title to the Egtlipment shall, forthe convenience of both parties, he 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 Nonappropriati oil, or upon the occurrence of an Event of
Default :old L.e5s01'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 Payments due hereunder.
(b) So a 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 I quipment subject to, and in
accordance with, the provisions hereof.
Section 7. DELIVERY, REGISTRATION, USE AND OPERATION.
(a) The Equipment shall be delivered directly front the Supplier to Lessee.
(h) Lessee, at its own cost and expense, shall cause title of the Equipment to be
placed in the flame of Lessee by appropriate documentation.
(c) The possession, use and operation of the Equipment shall be at the sole risk
and expense of l-essee. Lessee agrees that the Equipment will be used and operated in compliance
With any and all statues, laws, ordinances, regulations and standards or directives issued by any
governmental agency applicable to the use or operation thereof, ill compliance with any license of'
registration relating to the Equipment issued by any agency and in it nlanrler that does nut moth fy or
impair any existing warranties on the Equipment or any part thereof. Lessee will operate the
Equipment solely for govern nl;:ntill use.
Section K. h1AINTE'NANCE:.
(a) Lessee agrees Ihat the I:quipnlCnt will be maintained in compliance with any
and all statutes, laws, ordinances, regulations and standards of -directives issued byanygovernrllental
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 least the EquiPrtlent
in accordance with (i) all maintenance manuals initially furnished with the Equipment, including any
s)rbse Illent amendments or sl)ppleMCllts to such manuals issued by the manuftictu►-Cr from lime to
time, and (ii) all reC0ljllllerlded "Service 131.11letins" issued, supplied, or available by or through the
ManufcuaurCr alld/or the manufacturer of any Part with respect to the Equipment. Lessee shall
maintain all records, logs and other materials required by file ►1lantlfaCtl)l-el'thel'eof f0relllorCeme►lt
of any warranties. All maintenance procedures required hereby shall be undertaken and completed
in accordance with file nlanr)facturer's recollllrlendCd 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 expec(ed.
lilt II)719u, 1
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(c) Lessee agrees to notify Lessor in writing thirty (30) clays 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 he considered a
materiel change in the appearance or coloring of the Equipment.
(d) Lessee shall be entitled from time to time (luring the Term of this lease to
acquire and install on the Equipment at Lessee's expense, any additional accessory, device or
equipment as Lessee may desire (each such accessory, device orequipment, an "Addition"), but only
SO long as such Addition does not alter ar impair the originally intended function or use of the
Equipment, and'can be readily removed by Lessee prior to the return of the EgGlipment, 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 tills Lease be required to comply with any
applicable law or ally governmental rule or regulation shall he made at the expense of Lessee. Ally
repair made: by Lessee of or upon the Equipment or replacement parts installed thereon in the course
of repairing or maintaining tile Equipment, or any Alteration required by law or Amy governmental
rule nr regulation, shall he (jeenled an accession and shall become it part of the Equipment.
(f) Except as permitted under this Section 8, Lessee will not modify the
Equipment or affix or renuwe any accessory to the E(lUipinent leased hereunder without I.CSst�i's
Corlselll.
Section 9. LIENS, S[II LU"ASE AND ASSIGNMEINT.
(a) Lessee shall not sell, transfer, assign or encumber the (Equipment or 1 .cssor's
rights under this Lease and shall not sublet nr part with possession of the Equipment or any part
thereof. lessee shall keep the Equipment and any part (hereof free and clear of all liens and
encillnhrances other than those which result from (i) the respective rights of Lessor and Lessec as
herein provided; (ii) liens arising from the acls of Lessor; (iii) liens for taxes not yet (rue; and (iv)
inchoate nlalerlalmCll'S, mechanics', workmen's, repairmen's, employees' orother like liens wising in
the ordinary course of husiness of Lessee for stints not yet delinquent or heing contested in good faith
(and fur the payment of which adequate assurances in L.eSstlr'S Judgment have been providCd I .essor).
(b) All of Lessor's right, title and/or interest in and to this Lease, the Rent
Payments and other artutunts due hereunder and the Equipment may be assigned and reassigned in
Whole or in part to one or more assignees or suhassignees at any time, without the consent of f_essee.
No such assignment shall be effective as against Lessee unless and until the Lessor or assignor, as
oil I01198i 1 7
the case may he, shall have filed with Lessee a copy or written notice thereof identifying the
assignee. All Rent I ayments clue hereunder shall he paid to Lessor at the address set forth herein car
at the direction of Lessor or assignee designated in the most recent notice of assignment lilecl 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 I I
hereof to be modified to protect the assignees.
(c) This Lease shall inure to the benefit of and shall be binding LIpOn the Lessor
and the Lessee and their respective successors and permitted assigns.
Section 10. LOSS, DAMAGE AND STIPULATED LOSS VALUE.
lessee herehy assumes and shall bear the entire risk of any loss, theft, confiscation,
expropriation, I-eduiSition, damage to, ordestruction of, the ECILtipnlent, Orally part thereol' front any
cause whatsoever. Lessee shall promptly and fully notify Lessor in writing if Equipment shall be or
become worn out, lost, stolen, confiscated, expropriated, requisitiOned, cleStroyed, irreparably
darlulged elf- permanently rendered unfit for use frorn any cause whatsoever (such occurrences being
hcreinafter called "Casualty Occurrences"). In the event that, in the opinion of Lessor, a Casually
OCCLII7enCe 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 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 elate next succeeding a Casualty Occurrence (the
"Payment Dale"), Lessee shall pay Lessor the suns of (i) an amount equal to the portion of the
Prepayment Price applicable to the affected Equipment for the tinge period of the Casualty
OCCLrrrenCe; and (11) all Rent Payments and other amounts which are due or accrued her'erlllller as of
the Payment Date. Upon payment Of all SLIMS due hereunder, the Ternl of this Lease as to the item of
I:quipnlent shall terminate, and Lessee shall be entitled to retain possession of' such Ecluipnlcnt.
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 such amounts and forsuch risks as iscustomury forequipnlent
Of the nature and type of the Equipment and as may be reasonably requested by the Lessor. The
insurance shall (1) name Lessor as additional 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 omission of
Lessee; (ii) shall not be subject to any co-insurance clause; and (iii) shall provide that it play not be
altered or cancelled by the insurer Until after thirty (30) clays written notice to Lessor. Any expense
of Lessor in adjusting or collecting insurance shall be horse by Lessee. Lessee shall not make
ad) list lnents 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'X) of such item's fair market value, or (b) with
Lessor's written consent. Lessor may, at its option, ripply proceeds of insurance, in whole or in part,
to repair or replace the Clamaged or lost item of Equipment or any portion thereof, or to satisfy any
obligation of Lessee to lessor hereunder. In addition to properly and liability insurance referenced
above, if required by State law, Lessee shall carry workmen's compensation insurance covering Ill
u1i 10319b; 1 8
employees on, in, near or ahout the Equipment, and upoll request shall furnish to Lessor certificates
evidencing such coverage. Upon priorwritten consent ol'I._essor, I-.essee nlayself-insure forsonle or
Lill of the above -referenced public liability, property, and casualty damage risks.
If Lessee is covered udder 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 progranl
which sleets the requirements of applicable law. In such event, Lessee shall provide a minimum of
tell (10) days written notice to lxssol- of any material change or cancellation of said self Insurance
progranl. 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, lnCILlchng fire,
theft, and extended coverage insurance on the Equipment, insuring the full insurable value against
risk of loss or damage and providing for a mininlunl 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 I?QUII'MENT.
(a) Upon termination oft III s Lease clue to an Event of Nonappropriation, or due to
an Event nl' Default and L CSSOI-'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), I-essee covenants to promptly return all Equipment leased hereunder to Lessor together
with all logs, manuals and data, inClllding willlollt llrllitatiofl, inspection, modification and overhaul
records regLlircd to be maintainer! With I'eSpeCt IICI'eto Lllldel- this Lease Or LIl1drI- 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 part thereof. All expenses for return of such f:cluipmlent
and delivery of.* the aforementioned logs, manuals and data shall he borne by lessee. Tlie Equipment
shall he returned in the condition in which rile Equipment is required to he nlaintailled pursuant to
SCCH011 b hereof, hilt with all logos ur other identifying marks of lessee removed.
(b) Upon return of the Equipment, Lessorshall arrange for the inspection ol'sanle
within thirty (30) days of return to determine il'such Equipment has been maintained and returned in
accordance Willi the provisions hereof. Lessee shall he responsible for the reasonahlc cost of such
inspection and shall pay lessor such a►llount as additional Rent within ten (10) clays of demand 1'01,
satlle. In the event that the results of such inspection indicate that such Equiprllent, or any part
thereof, has not been maintained or returned in accordance with the provisions hereof, Lessee shall
pay to Lessor within tell (10) clays of clenlancl, as liequiclatcd damages, the estimated cost ("Estimated
Cost") of sel-Vicing Or repairing such Egllil)llleflt, OC paI't. '['he Estimated Cost shall be determined by
I.CSSOI- by obtaining two quotes For such service or repair Work and taking the averago; of Sallie.
Lessee shall bear the cost, if any, incurred by Lessor in obtaining slicll 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
ulduJ198; 1 9
reasonable judgment cleems 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, but not limited to, the applicable Prepayment Price; and (iii)
lastly, any amounts remaining thereafter shall be remitted to Lessee.
(d) All of L.essor's rights contained in this Section shall sul•vive the expiration or
other termination of this Lease.
Section 13. 1NTEREST It ATE SUIMEC`1' TO ADJUS`I'IMENT.
In setting the interest rate used in calculating the interest component of the Rental Payments
set forth in the Amortization Schedule, the Lessor has taken into consideration: (a) the current
Maximum Corporate Income Tax Rate, including Sub Chapter S corporations, as established in
Section I 1 of the Internal Revenue Code of 1986, as amended (the "Cocle"), (b) the treatment of this
Lease as it "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 ill the Code or related
rcgulatirins which affect the after-tax yield to Lessor. Should there be future changes in the Code or
related regulations which affect the alter -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 elate hereof.
As utilized in this Section, the terns "Determination of Taxability" shall mean ally
delernllnation, decision or decree by the Commissioner of Internal Revenue or any District Director
of Internal Revenue, as such officers arc; identified by the Code, or any court of competent
j(iriSdiction, or an opinion of counsel experienced in tax matters that the Interest component payable
under (his Lease is includable in the gross income (as defined ill Section G 1 of the Code) of tilt;
Lessor as it result of tilt: occurrence of it Taxable Event (herein defined). A Determination of
`I'axahility shall he decrlled to have occurred on the first to occur of' the following:
(a) on that (late when the Lessee files any statement, supplemental statement or
outer tax schedule, return or document which discloses that a Taxable Event (hereirlaher ddined)
Shall have occurred;
(b) on that (late when the Lessee or the Lessor shall be advised by said
(*oil trill ssioner of Internal Revenue or any such District Director of Internal Revenue thal, based
upon (1) filings of the Lessee, (ii) any review or audit of the Lessee, or (iii) upon any ground
whatsoever, a Taxable Event shall have occurre(l; or
(C) oil that (.late (I) whell the Lessee shall receive notice froth the Lessor, that the
Internal Revenue Service has assessed as includable in the gross income (as defined in Seclion 61 of'
the Code) of' the lessor the interest component due to the occurrence of a Taxable Event; or
(ii) when the Lessee steal I 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' it Taxable Event; or (iii) when the; Lessee shall receive an opinion of counsel
"u10l19IS; l 10
experienced ►n tax matters that the interest component is includable in gross income clue 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
inconle tax purposes in the gross income of the Lessor as a consequence of any act, omission of -
event whatsoever, other than an act, onlission or event caused by the Lessor, anti 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 elate on which it is alleged that interest became so includable.
If if Determination ofTaxahility should occur, the interest portion of the Rent Payments shall
he 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 alter 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 of -
administrative body of competent jurisdiction to the effect that aTaxable Event has not occurred and
the tinge for any appeal of such order or judgment has expired, then no Taxable Event shall he
c1ee11c(1 to have occurred and interest rate adjustments theretofore paid shall he refunded by the
l .essor.
Section 14. PE'RSONU, PROPERTY.
The Equipment shall at all times be anti remain, personal property notwithstanding that the
Equipment or any part thereof may slow be, or hereafter become, in any planner affixed ur atlached
t(1, or enilledded in, or permanently resting upon, rea! property orally building thereon, or attached in
ally planner to what is Permanent as by means of cement, plaster, nails, bolts, screws, or tltherwlse.
It', notwithstanding the intention of the parties and the provisions of this Section 14, any person
ae(!uires 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 rllanner to interfere
with the continued quiet enjoyment of the Equipment by Lessee as contemplateci by tilis Lease,
Lessee shall immediately notify Lessor in writing of such fact and shall seek diligently to remove the
basis fur any such interference. I_Inless the hasiS for such interference is waived or removed to the
satisfaction of Lessor within thirty (30) clays from the elate it is asserted, Lessee, upon written request
from Lessor, shall within ten (10) clays after such request pay to Lessor an alllot1111 egllal to tile s11111
of (i) an amount equal to the Prepayment Price applicable to the time Period of the interference; and
00 all Rent Payments and other amOLIMS which arc; clue or accrued hereunder. Upon such payment
the I .ease of such Equipment shall terminate and all of Lessor's title to and rights in such L:quipnlent
shall become the property of Lessee,
oft IUJ198; 1
I
Section 15. NET LEASE; NO SET-()1 ,1�'I'C.
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
unconclikonal. 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 oral legedly 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 base
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 Manufacturerorsellerof the Equipment. Subject to the provisions of Section 3 subsection (c), it
is the intention of the parties that Rent Payments and other amounts clue hereunder shall continue to
he 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 16. INDEMNIFICATION.
(a) Lessee hereby agrees to the extent permitted 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 mature, in
contract or tort, whether caused by the active or passive negligence of Lessor or otherwise, anel
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 by I-essee
during the "Perot of this Lease, and the (lei ivery, lease, possession, maintenance, use, condition, rcttt►-it
nrctperation of the Equipment (including, without limitation, latent and otherdefects, whcaheror nut
discoverable by Lessor or Lessee and any claim fur patent, trademark or copyright infringement), or
(ii) the condition of the Equipment sold or disposed of alter use by Lessee, any sublessee nr
employees of Lessee. Lessee shall, upon request, defend any actions based on, or arising out ol", any
ul the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained ill this Sel:tion
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.
Section 17. DISCLAIMER.
LESSEE ACKNOWLEDGES TIIAT IT SI]ALL SELECTTHE EQUIPMENT Wrl,I [O[1T
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES AND THAT LESSEE
LEASES 'THE EQUIPMENT IN AN "AS IS" CONDITION. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED-1-O MAKE OR HAVE MADE, ANY WARRANTY OR
REPRESEN ('ATION, EI'TIIEIZ EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT
TO THE EQUIPMENT LEASED THEREUNDER OR ANY COMPONENT THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO CONDITION, DESIGN,
COMPLIANCE WI`I'II SPECLFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP,
Iv1F?RCHANTABILITY, 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
(except at such times as Lessor is in possession of the Equipment), regardless of any negligence of
Lessor 0) 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, orally
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 oranticipated profits or
consequential damages; or (iv) the delivery, operation, servicing, maintenance, repair, improvement
or replacement of the Equipment. If, and so land as, no default exists under this Lease, Lessee Shall
be, and hereby is, authorized dluring the Tern, to assert and enforce, at I .essee's Sole: cost and expense,
from time to time, in the name of and for the account of L CSSor and/or Lessee, as their interests arty
appear, whatever claims and rights Lessor truly have against any Stlpplicr of the I:quipnlent.
Section 18. PURCHASE OPTION.
(a) Provided that no Event of Default has occurred and is continuing lleretlnete:r,
I_essc;e shall have the option to purchase all of Lessor's right and/or interest in anti to the [ quiprl,ent
on any Rent Payment Date (the "Purchase Date") for the applicable Prepayment Price as sec forth in
the Amortization SChedtlle. The sale of the Lessor's interest in and to the Equipment to LeSSOC Shall
he on an AS IS, WlTI RE IS basis, without any recourse or warranty whatsoever as ag linst [.essor.
(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 oil which the Option is to be exercised and shall
remit to I-CSS011'011 Such date an amount equal to the S11111 Of the Prepayment Price; and (ii) all Rent
PayrllentS Mid outer M1101-illtS title or aCCrtletl till'oug11 anti including the Purchase Date,
u�+lUflya�1 13
Section 19. NIU'I'UAL COVI1aNAN'I' RI.C,AIZI)INC; TAX-EXENIP'I' S'1'ik'1'US.
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 it' such action or omission (i) would cause the interest component of the Rent to lose its
exclusion from gross inconle 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 m inll item taxable
income as defined in Section 55(b)(2) of the Code except to the extent such interest is required to he
included in the adjusted net book income and adjusted current earnings adjustments applicable to
alrporations under Section 56 of the Code in calculating corporate alternative mininulm taxable
income, or (iii) would subject the Lessee to any penalties under Section 148 of the Code. Subject to
file 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 oil which all
obligations of (lie Lessee In fulfilling the above covenant 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 pal;scant to or in compliance with 1111yjUd"I11CI1t,
decree or order of any court or any order, rule or I-cgu11160n or any adrilinistrative or governmental
body: (it) Lessee: shall Fail to nlilke 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
steal I 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, Ilse
tite 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, nr 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), (e) or (d) above which is requ1111—Cd to Ile
performed or ohserved by it under this Lease or any itgreetiler) t, doctnMen t orCCI-tll ICaIC delivered by
Lessee in connection herewith, and such failure shall continue for twenty (20) days after written
notice thereof front 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 (1) any
representation or warranty made by Lessee in this l.easC nr any agreement, document or certificale
dClivel'ed by Lessee in collnectinn herewith or pursuant hereto shall prove to have been incorrect in
any material respect when any such representation or warranty was made orgiven (o►-, ifa continuing
representation or warranty, at any material time); or (g) Lessee shall generally fail to pay its debts as
they heconle title or shall file it voluntary petition in bitnkrup(cy; or (h) a petition is filed against
lessee in a proceeding tinder applicable bankruptcy litws 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, antler the provisions of any law (other than any law which (Ines not
provide for or permit ilily readjustment or alteration of f_essee's obligations hereunder in each case)
ok103198;1 14
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) clays; or (j) Lessee becomes
insolvent.
Section 21. ItEN/II+:DIE'S.
Whenever any Event of Default referred to in Section 20 hereof shall have happened will be
continuing with respect to the Equipment, Lessor shall have the right, at its option and without any
fill-tller demand or notice, and with or without terminating this Lease, to declare all Rent Payments
clue or to become clue during the Fiscal Year In effect when the default occurs to be immediately (file
and payable by Lessee, whereupon such Rental Payments shall be immediately (file and payable. If
the Event of Default is Lessee's breach of its covenant to return the Equipment, Lessor shall be
entitled to liquidated clamages equal to the Rent Payments for the Equipment pro -rated on it daily
basis for each clay the Equipment is retained. Any judgment for damages shall be payable solely
front legally available funds of the Lessee., and Lessor shall not have the power to require levies of act
val(Wertt tuxes 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 sliall in no event have the right to
involuntarily dispossess Lessee of the Equipment or title thereto. Lessor and f.essee do nl)t tlltcn(I to
create it See:trllty interest in any 11'quipntent.
No delay or omission to exercise any right or remedy accruing hereunder shall impair any
such right or remecly or shall be construed to be a waiver thereof, but any such right and remedy play
be exemsed front time to time and as often as may be deemed expedient. In order to entitle; Lessor
to cxurcisc: any retttedy reserved to it in this Lease it shall not be necessary to dive any notice, odier
than such notice as may be required in this Cease.
In the event any agreement contained in this Lease should he breached by either party hereto,
and thereaker such breach should be waived by the other party hereto, such waivershall be lin)ited to
the particular breach so waived and shall not be deemed to waive any other breach heretll)der.
In the event that there is an Event of Default and the nonclefa(rlting party should employ
attorneys and/or incur other expenses for the collection of nwneys or the enforcement of pel-Voltnance
or observance of any obligation or agreement on the part of the nondefaulting party herein contained,
the defaulting party agrees that it will on demand therefor pay to the nonclefaulting party the
reasonable fee of such attorneys and/or such reasonable 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 demand or notice, to require a late payment charge for each thirty (30) clay
("100li9n,1
15
period or hart thereof during which such Event of Default occurs equal to one and one-half percent
1/2'%,) of the delinquent 1111101111t, and Lessee shall be obligated to pay from funds legally available for
such purpose, the same immediately Upon reccipt of Lessor's written invoice therefore, provided,
however, that this provision shall not be applicable if or to the extent that the application thereol,
would affect the validity of this lease.
Section 22. ESCROW AGIt11EMENT; TRUST FUND.
"f o the extent approved by Lessor and Lessee, SUMS advanced by Lessor for the acquisition of
E(lui1)n1C1I1 May be funded through IISC of an escrow agent. All aspects of any such arrangement
shall he subject to the prior approval of Lessor including, but not by way of limitation, selection of
the escrow agent and the procC(IurCS for disbursements. Lessee agrees that any such CScrow 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 Lessee.
For the initial funding hereunder as reflected in the SClle(Itlle of Terms dated April 17, 2000,
and Ii)r future fundings, if approved by Lessor and Lessee, Lessor shall deposit Fl1ndS with LCSSeC to
be applied by Lessee to acquire EquipnlCnt. Such ft111(IS shall be held by Lessee in a segregate(!
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)(1), (4), (5), (9), (1 1) and (12) hereol'. Any halaulcc
remaining in such tend after the date which is two (2) years after the (ICpoSlt of funds therein shall he
applied to pay scheduled Rent Pitynlents until fully expended.
Section 23. EXI,CU`L'ION AND TANS GOVIMNING V1 NUE.
This Lease and each of the exhibits hereto shall be binding only when accepted by the lessor
at its O1lande), Florida office and shall be construed and governed by the Laws of the State of L-'loricla.
As part of the consideratirin for the Lessor's executing this Lease, Lessee agrees that all actions m-
proceCdillgS arising directly or indirectly from this Lease shall be litigated only in courts having its
Sites within Orange County, Florida, and Lessee herebyconsents to thCj(llriSdiction of that court and
waives any rights to the selection of- venue.
Section 24. N11SC1A,1,2kN1?0l1S.
(a) Any cancellittion or termination by LeSSnr, I)III'Sllallt tO the proVlSlOr15 ()l IIIIS
Lease, any Cxhibit, supplCrllent or amendment hereto, or the release of the L quipment 11CI-Cunder,
shall not release Lessee from any then outstanding obligations to Lessor hereunder. All exhibits,
certificates, consents and other attendant documents referenced herein are inemporated herein by
reference.
(b) Tinle is of the essence. Lessor's failure at any tinge to require strict
performance by Lessee of any of the provisions hereof shall not waive: or diminish Lessor's right
thereafier to demand strict compliance therewith.
GI<l03198; 1 16
(c) All notices, certilicates orotherconu1nulications hereunderslialI he 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 ally furlllel- or different addresses to which subsequent notices, certificates or other
communication shall be sent.
(d) If the (late for making any payment or the last clay for performance of any act
or the exercising of any right, as provicled 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 il'done
on the date otherwise specified herein.
(e) In the event that any provision of the Lease (other than the requirement of
(1) the Lessee to make Rent Payments; (ii) the Lessor to provide quiet enjoyment of the Equipment;
and (iii) the Lessee to convey the Equipment to the Lessor under the conditions set forth herein) shall
he 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 will) any statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.
(f) This lease may he 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 01' law rules, of the State of lalorida,
Mid rules and regulcuions 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 ur 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 SIGNET) BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE
PARTIES HERETO. Any such waiver, consent, modification orchange 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 mo(lificatiort
ok103198;1 17
of this lease, or waiver of any of its provisions or conditions shall be valicl after assignment by either
party unless approved by assignee.
IN WITNESS WIIEREOF, Lessee and Lessor have caused this Lease to he executed by
their duly authorized representatives as of the date first above written.
AYIJISTLI ):
Marion Swenson, City .ler
(SI-AI)
LESSOR:
KISLAII NATIONAL BANK
y. , V'c ri
XI)Aii�tS) ATiMi MOLLY A. TITME
Its: Executive Vice President
LESSEE:
CITY OF TAMAIZAC, FLORIDA
Joe Schreiber
Its: Mayor
UR10314tl; 1 18
of TAM.9
City of Tamarac
7525 N.W. 88th Avenue, Tamarac, Florida 33321-2401
Telephone: (954) 724-1240 • Facsimile (954) 724-1370
Mitchell S. Kraft
City Attorney
August 1, 2000
Mayor
City of Tamarac
Kislak National Bank
713 Pinar Drive
Orlando, Florida 32825
CITY OF TAMARAC
EQUIPMENT LEASE OBLIGATION
Gentlemen:
I have acted as the City Attorney for the City of Tamarac, Florida (the "Lessee") in connection
with the issuance by the Lessee of a lease obligation, pursuant to the Constitution and laws of
the State of Florida, particularly Chapter 166, Florida Statutes, and all other applicable
provisions of law (collectively, the "Act") and Resolution No. R-2000-194 adopted by the
Lessee on July 12, 2000 (the "Resolution"). The lease obligation of the Lessee is created
pursuant to a Master Lease -Purchase Agreement (the "Lease -Purchase Agreement") between the
Lessee and Kislak National Bank (the "Lessor"), dated as of April 17, 2000, whereby the Lessee
agrees to make rental payments to the Bank during the Lessee's current budget year and
subsequent budget years for which funds have been budgeted and appropriated for that purpose.
The obligation of the Lessee to make such rental payments in this budget year and any
subsequent budget year for which funds have been budgeted and appropriated for that purpose,
shall be referred to hereinafter as the "Lease Obligation".
In connection with this opinion, I have examined certified copies of the Resolution, the Lease -
Purchase Agreement, the Lease Documents, and such other documents, certificates, and proofs
as I have deemed necessary for the purposes hereof. Based thereon, I am of the opinion:
1. The Lessee is a duly created and validly existing municipal corporation of the State of
Florida, with the power to adopt and perform the Resolution and to issue the Lease
Obligation.
Equal Opportunity Employer
2. The Lease -Purchase Agreement and the Lease Documents have been duly authorized,
executed and delivered by the Lessee and, assuming due authorization, execution and
delivery by the other parties thereto, constitute legal, valid and binding obligations of
the Lessee.
3. The Lease Obligation is a valid and binding obligation of the Lessee payable solely
from funds budgeted and appropriated for that purpose during the Lessee's then current
budget year. The Lease Obligation constitutes a current expense of the Lessee and does
not constitute a debt of the Lessee in contravention of any applicable constitutional,
statutory or charter limitations or requirements concerning the creation of indebtedness.
Neither the faith and credit of the Lessee nor the State of Florida is pledged in payment
of the Lease Obligation.
4. No further approval, consent, or authorization of, or filing with any governmental or
public body or agency is required in connection with the Lessee's issuance of the Lease
Obligation and the execution and delivery of the Lease -Purchase Agreement and Lease
Documents and the performance of its obligations thereunder.
5. The execution, delivery, and performance by the Lessee of the Lease -Purchase
Agreement and the Lease Documents do not conflict with or constitute a breach of or
default under any existing law, administrative regulation, court decree, resolution, or
agreement to which the Lessee is subject as of the date of closing.
5- The Resolution has been duly adopted by the Lessee and has not been amended,
supplemented, or repealed and is in full force and effect and constitutes a valid and
binding contract of the Lessee enforceable in accordance with its terms.
7. To the best of my knowledge after due inquiry, no litigation or other proceedings are
pending or threatened in any court or other tribunal of competent jurisdiction, state or
federal, in any way, (1) to restrain or enjoin the execution of the Lease -Purchase
Agreement, the Lease Documents, or the incurrence of the Lease Obligation; or (2)
questioning or affecting the validity of the Lease -Purchase Agreement, Lease
Documents or sources of payment the Lease Obligation; or (3) questioning or affecting
the validity of any of the proceedings for the authorization, execution, registration,
issuance, or delivery of the Lease -Purchase Agreement, the Lease Documents or the
incurrence of the Lease Obligation or the acquisition of the Equipment (as defined in
the Lease -Purchase Agreement); or (4) questioning or affecting the organization or
existence of the Lessee or the title to office of any member of the Lessee; or (5) which,
if adversely determined, would adversely affect the ability or capacity of the Lessee to
perform its obligations under the Resolution or the Lease -Purchase Agreement.
Pa
UAEVAG\LETTERS\KRAFT\OPINION LTR-EQUIP LEASE. I)OC(REV.6/13/94)
8. Any and all applicable public bidding requirements have been met with respect to the
execution and delivery of the Lease -Purchase Agreement and the Lease Documents.
9. The Lessee is exempt from all personal property taxes and is exempt from sales and/or
use taxes with respect to the transactions contemplated by the Lease -Purchase
Agreement and the Lease Documents.
10. I have no knowledge of any legislation adopted by the prior or current session of the
Florida Legislature that restricts or otherwise adversely affects the Lessee's power to
issue the Lease Obligation or its ability to pay the rent payments due thereunder.
It is to be understood that the rights of the holders of the Lease Obligation, and the enforceability
of the Resolution and the Lease -Purchase Agreement, may be subject to the exercise of judicial
discretion in accordance with general principles of equity, to the valid exercise of the sovereign
police powers of the State of Florida, and of the constitutional powers of the United States of
America and to bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights heretofore or hereafter enacted.
submitted,
Mitchell S. Kraft
City Attorney
MSK/eg
W
U:\EVAG\LETTERS\KRAMOPINION LTR-EQUIP LEASE. DOC(REV.6/13/94)
12/07/2000 18:18 4072079193 DENISE BEAUCHAMP PAGE 02
<,,�KISLAK
NATIONAL BANK
November 29, 2000
Ms, Leanne Williams
Treasury Manager
City of Tamarac
7525 NW 880' Avenue
Tamarac, FL 33321-2401
VIA FACSIMILE: 954-724-1321
Dear lets. Williams:
Temp Reso #9228
December 7, 2000
EXHIBIT "B"
The following is the Kislak National Bank proposal for financing for the capital equipment which the City.of Tamarac
anticipates acquiring.
LE� $5 R: Kislak National Bank, Miami Lakes, Florida
LESSEE: City of Tamarac, Florida
EQU IPHENT; . AS400 — 5 year Terra
AMQUNT TO B )FINANCED: $140,500
ESTIMATED CLQSING DAB: December 15, 2000
EQUIP ENT FIN&NCING VEHICLE.;. 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 and execute a new contract. Under this
structure, there would be no covenant to budiggit and ro riat d no rev ue pledge, he lease- chase would
not be eomidered Iona term debt.
EASE TERM. 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 Bark 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 Tenn would commence on the date that the Trust Account is funded,,with lease
amortization commencing at that point. This alternative would allow the City to lock 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 vendm(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]LEA5E: The Lessee will snake periodic lease payments sufficient to pay the debt service on the obligation
during each year the Lease is in effect 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: 407.207.9193 • Toll Free 877.7%5253
12/07/2000 18:18 4072079193 DENISE BEAUCHAMP PAGE 03
Ms. Leanne Williams
City of Tamarac, FL
November 29, 2000
Page 2
RC QUALIFIED INTEREST RATE!
Five (5) Year Term 5.06%
The interest sate will be fixed through 12/15/2000
After executioo 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- EXE PT STA_ TEM,ENT: ',fife parties anticipate that the Agreement will qualify as a "qualified tax-exempt
obligation" within the meaning of Section 265(b)(3) of the Code.
PREPAXMIENT SCHEDULE: Prepayments may be made in whole or in part without penalty per the amortization
schedule to be included in the documentation package.
SALES AND USE TAX: Lessee will pay all fees, assessments, sales, use, property, and other taxes imposed upon Lessor,
resulting from the lease of the equipment.
INSURANCE: 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 TO EQUIPMENT: 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.
ROCUMENTATIQN. To be provided by the Bank. As is customary, the Lessee's local counsel will be required to
provide an opinion letter.
TRANSACTION EXPENSES: Lessee shall he responsible fear fees and expenses incurred by it, No other bank fees or
expenses will apply.
MATERIAL ADVERSE CHANGE, 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 PROPOSAL: This proposal expires unless accepted on or prior to January 15, 2001.
12/07/2000 18:18 4072079193 DENISE BEAUCHAMP PACE 04
Ms. Leese Williams
City of Tamarac, FL
November 29, 2000
Page 3
APPROVAL: This proposal does constitute a commitment to lend. Bank credit approval has 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 (977) 759-5253
l3est Regards,
D to 41B,
Senior Vice President
.Proposal accepted this .4-� day of \,�Qh`(t�]Qf(' , 2000.
CITY OF TAMARAC, FL
Title:
12/07/2000 18:18 4072079193 DENISE BEAUCHAMP PAGE 05
12/07/2000 Page 1
Tamarac 5 year
Compound Period .......: Annual
Nominal Annual Rate ...:
5.060 %
Effective Annual Rate ..:
5.060 %p
Periodic Rate ..............:
5.0600 %
Daily Rate ............. ......:
0.01386 %
CASH FLOW DATA
Event
Start Date
Amount
Number Period
1
Loan
12/15/2000
140,500.00
1
2
Payment
12/15/2001
32,505.80
5 Annual
AMORTIZATION SCHEDULE - Normal Amortization
Date _
_— Payment —_
Interest
Principal_
Loan
12/15/2000
2000
Totals
0.00
0.00
0.00
1
12/15/2001
32,505.80
7,109.30
25,396.50
2001
Totals
32,505.80
7,109.30
25,396.50
2
12/15/2002
32,505.80
5,824.24
26,681.56
2002
Totals
32,505.86
5,824,24
26,681.56
3
12/15/2003
32,505.80
4,474.15
28,031.65
2003
Totals
32,505.80
4,474.15
28,031.65
4
12/15/2004
32,505.80
3,055.75
29,450.05
2004
Totals
32,505.80
3,055.75
29,450.05
5
12/15/2005
32,505.80
1,665.56
30,940.24
2005
Totals
32,505.80
1,565.56
30,940.24
Grand Totals
162,529.00
22,029.00
140,500.00
End Date
12/15/2006
Balance
140,500.00
115,103.50
88,421.94
60, 390.29
30,940.24
M