Loading...
1988-38 Approves Master for Lease Purchase of Vehicles & Fire Truck t RESOLUTION N0.3$_gg A RESOLUTION OF THE VILLAGE COUNCIL OF NORTH PALM BEACH FLORIDA, APPROVING THE MASTER LEASE PURCHASE AGREEMENT BY AND BETWEEN THE VILLAGE OF NORTH PALM BEACH, AND SOUTHEAST BANK LEASING COMPANY, A FLORIDA CORPORATION, WITH RESPECT TO THE LEASE- PURCHASE FINANCING OF SIX (6) AUTOMOBILES AND ONE (1) FIRE TRUCK; SCHEDULES ATTACHED THERETO. ~ WHEREAS, The Village Of North Palm Beach ("The Village") has determined to purchase six (6I automobiles and one (1) fire truck; and WHEREAS, Southeast Bank Leasing Company (the "Lessor"), a Florida corporation, has offered to enter info a lease-purchase arrangement with the Village pursuant to which, the Lessor will lease the aforesaid vehicles to the Village; ahd WHEREAS, the Village has complied with all public bidding requirements with respect to the hereinafter mentioned Master Lease Purchase Agreement and the vehicles. NOW THEREFORE BE IT RESOLVED SY THE VILLAGE OF NORTH PALM BEACH AS FOLLOWS: Section 1. Approval of Master Lease-Purchase Agreement. The Master Lease-Purchase Agreement, substantially in the form attached hereto as Exhibit A is hereby approved and the Mayor of the Village is hereby authorized to execute said Master-Lease Purchase Agreement and any schedules attached thereto in the name of and on behalf of the Village. Section 2. Ordering of the vehicles. It is hereby found and determined that the Village has complied with all public bidding requirements applicable to the purchase of the vehicles ' listed on the schedule attached to the aforesaid Master Lease- Purchase Agreement and with respect to the Master Lease-Purchase Agreement itself. Section 3. For the purpose of Section 265 (b) (3) of the Internal Revenue Code of 1986, as amended, and any regulations promulgated thereunder (the "Code") the Village hereby designates the lease-purchase obligation identified on the schedule to which this resolution is attached (and :by this reference made part hereof) in connection with the Master Lease-Purchase Agreement to which the aforesaid Schedule is attached as a "qualified tax-exempt obligation" for the calendar year 1988. Section 4. All officials and officers of the Village are hereby authorized, directed and instructed to take all necessary steps and execute any and all necessary documents in order to carry out the full intent and purpose of this resolution. Section 5. This resolution shall take effect immediately upon passage. PASSED AND ADOPTED THIS 8TH DAY OF DECEMBER 1988. M Y R ATTEST: 1 f~ Vil ge~erk ' 1 THE PALM BEACH POST Published Daily and Sunday ~ ~K - West Palm Beach, Palm Beach County, Florida /~['/ ,3~r-F~- PROOF OF PUBLICATION S'1'ATF. OF FLORIDA COUNTY OF PALM BEACH Before the undersigned authority personally appeared Barbara who on oath says that she/he is Class . Adv . Mgr . of The Palm 1 a daily and Sunday newspaper published at Weat Palm Beach in Palm Be+ Florida; that the attached copy of advertising, being e Notice in the matter of requests for ,proposals in the --- Court, was published in said newspaper in the issues of October 21, 1988 Affiant further says that the said The Post ie a newspaper published at Weat Palm }3each, in said Palm Beach County, Florida, and that the said newspaper has heretofore been continuously published in said Palm Beach County, Florida, daily and Sunday and has been entered as second class mail matter at the post office in West Palm Beach, in said Palm Beach County, Florida, for a period of one year next preceding the first publication of the attached copy of advertisement; and affiant further says that she/he has neither paid nor promised any person, firm or corporation any discount, rebate, commission or refund for the purpose of securing this advertisement for publication in the said newspaper 21 October 88 Sworn to and subscribed before me thi day of A.D. 18 - Mn /~ED~I P } I rC Rlf i[7~1F~ MY COMMISSION E%P. NUV L`~, 198P BONGED iNNU GENEPNL INS, UN~. Proof of Publication ~s. Filed in Lhe Office of Clerk of Circuit Court Clerk °Y , D.C. Compleinant'e Solicitor. MASTER LEASE-PURCHASE THIS IS A MASTER LEASE-PURCHASE AGREEMENT between SOUTHEAST BANK LEASING COMPANY, a corporation duly organized and existing under the laws of the State of Florida as the LESSOR ("LESSOR"), whose address is Southeast Financial Center, 200 South Biscayne Boulevard, 21St Floor, Miami, Florida 33131; and the VILLAGE OF NORTH PALM BEACH,FI,ORIDA, a body politic and corporate and a political subdivision duly organized and existing under the laws bf the State of Florida, as LESSEE ("LESSEE"), whose address is Village Hall, 501 U.S. Highway # 1, North Palm Beach, Florida 33408; WITNESSETH: WHEREAS, the LESSEE wishes to lease-purchase certain equipment from the LESSOR (the items of equipment leased to LESSEE hereunder, together with all replacement parts, repairs, additions, attachments, accessories and replacements therefor, are herein collectively referred to as the "Equip- ment"), which Equipment is described on one or more schedules now attached or hereafter to be attached to this Master Lease-Purchase Agreement (which schedules, whether now or hereafter attached to this lease are incorporated herein and are hereafter collectively called (the "Schedules"); and WHEREAS, the relationship between the parties shall be a continuing one and items of equipment may be added to or deleted from the Equipment from time to time by mutual written consent of the parties hereto. NOW, THEREFORE, the parties hereto, by executing this Master Lease-Purchase Agreement (the "Agreement") do hereby agree as follows: 1. Covenants of Lessee. LESSEE represents, covenants and warrants for the benefit of LESSOR, its successors and assigns, as follows: (a) LESSEE is a public body, corporate and politic, duly organized and existing under the Constitution and laws of the State of Florida; and (b) LESSEE will do, or cause to be done, all things necessary to preserve and keep in full force and effect its existence as a public body, corporate and politic; and (c) LESSEE is authorized under the Constitution and laws of the State of Florida to enter into this agreement and the transactions contemplated hereby and to perform all of its obligations hereunder; and (d) LESSEE is duly authorized to execute, deliver and perform this Agreement pursuant to the terms and provi- sions of the resolution of its governing body attached hereto as Exhibit "A" or by other legal and proper official approval or action, and further represents, covenants and warrants that all requirements of law have been mat and procedures have occurred in order to ensure the enforceability of this Agreement, and LESSEE has complied with such public bidding requirements as may be applicable to this Agreement and the acquisition by LESSEE of the equipment hereunder. LESSEE shall cause to be executed an opinion of its counsel in the form attached hereto as Exhibit "B" in connection with each Schedule attached or to be attached hereto; and (e) During the term of this Agreement, the Equipment will be used by LESSEE only for the purpose of performing its essential governmental functions consistent with the permissible scope of LESSEE's authority; and (f) During the term of this Agreement and for so long as it is in force, LESSEE will annually provide LESSOR with current financial statements, budgets, proof of ap- propriation for the next ensuing fiscal year and such other financial information relating to the ability of LESSEE to continue this agreement ae may be reasonably requested by LESSOR or its assignee or assignees; and (g) The Equipment will have a useful life in the hands of the LESSEE that is substantially in excess of the term of this Agreement, and any extensions thereof remaining from the date the Schedule for such Equipment is executed to the end of such term; and (h) The Equipment ie, and shall remain during the period this Agreement is in force, personal property and when subject to use by LESSEE under this Agreement, will not become fixtures. 2. Terms and Rental Notices. Subject to the conditions stated herein, this Agreement, as to all items of Equipment, shall be for the initial term stated on the Schedule which includes that item and shall commence with the acceptance of that item by LESSEE. LESSEE agrees to pay as rent the total amount of all rental payments stated on each Schedule plus such additional amounts as are provided herein. A portion of each rental payment shall represent payment of interest and the balance of each such rental payment shall represent a payment of principal. The interest component and principal component for each item of Equipment shall be set -2- forth on the Schedule for such item of Equipment. PROVIDED, HOWEVER, THAT NEITHER THE LESSEE, THE STATE OF FIARIDA, NOR ANY POLITICAL SUBDIVISION THEREOF SHALL BE OBLIGATED TO PAY ANY SUMS DUE TO LESSOR HEREUNDER FROM AD VALOREM TAXES. All payments shall be made monthly in advance unless otherwise stated in the applicable Schedule at the address specified by LESSOR in its periodic invoice. No item shall itself be subject to the leasing provision of this Agreement until that item is reflected on a Schedule which has been accepted by LESSOR, as evidenced by its signature thereon. No holder of the obligations created hereunder shall ever have the right to compel the exercise of the ad valorem taxing power of the LESSEE or taxation in any form on any real property for the payment of the obligations hereunder, but such obligations shall be payable solely from the legally available general funds non-mod valorem revenues. All payments made hereunder shall be paid in any coin or currency of the United States of America which at the time of payment shall be legal tender for the payment of public and private debts. 3. Obligations Absolute. Except as otherwise provided in paragraph 2 and 16 hereof, LESSEE agrees that its obligations under this agreement are unconditional and absolute, and shall continue in full force and effect regardless of the inability of the LESSEE to use the Equip- ment for any reason whatsoever including, but not limited to, war, act of God, governmental regulation, strike, loss or damage, obsolescence, breach of contract or warranty, failure of, or delay in, delivery or misdelivery. LESSEE warrants that the application statements submitted by it to the LESSOR are material inducements to the LESSOR for the purpose of inducing LESSOR to enter into this agreement and that any material misrepresentation or omission therein shall con- stitute a default hereunder. 4. o„r^he~p- Delivery Authorization for Payment and Title. LESSOR and LESSEE may from time to time execute Schedules for the purchase of Certain items of Equipment from a vendor selected by the LESSEE. Upon the execution of all such Schedules, LESSOR, as LESSEE's agent, shall order such items of Equipment to be delivered to the LESSEE with title to be taken in the name of and delivered to the LESSEE free and clear of all liens and encumbrances or interest of any party therein except the interests of the LESSEE and LESSOR hereunder. The LESSEE shall at all times keep the Equipment free of any liens or encumbrances. LESSOR shall not pay any monies to the vendor until LESSEE certifies to the LESSOR that LESSEE has accepted the Equipment from the vendor. TITLE TO THE EQUIPMENT SHALL BE IN LESSEE upon LESSEE's acceptance of the Equipment as conforming to the purchase order therefor. The provisions contained in any Schedules attached hereto or hereafter to be attached to this Agreement -3- are included in and by this reference made part hereof. In the event of any conflict or inconsistency ae between this Agreement and the Schedule or Schedules attached hereto, said Schedule or Schedules shall be controlling. 5. Definition of "Balance Due Lessor". The term "Balance Due Lessor" shall mean, as to any item of Equipment to which LESSEE loses the right to possession for any reason hereunder including, but without limitation, for any of the reasons set forth in the sections hereof entitled "Termina- tion for Governmental Non-Appropriation", "Default" and "Remedies", and as to any Equipment as to which a casualty has occurred (see section hereof entitled "Risk of Loss"), the sum of all amounts which would have been due to LESSOR under this Agreement from the original date hereof to the end of the initially contemplated term hereof (and any extension of that term then in effect) had an event giving rise to the need to calculate the Balance Due Lessor not occurred, less only (i) amounts already paid LESSOR hereunder; and (ii) unearned interest for that portion of the initially con- templated term hereof (and any extensions of that term then in effect) remaining after the Balance Due Lessor is received by LESSOR. If one of the events described in the first sentence of this section occurs as to less than all of the Equipment, then the calculation of Balance Due Lessor shall be made only as to that Equipment to which the event has occurred and this Agreement shall continue in effect as to all Equipment as to which such event has not occurred. LESSEE may voluntarily terminate this Agreement with respect to any Equipment on any date by paying the Balance Due Lessor, computed as of such date, to the LESSOR, in which case LESSEE shall have title to such equipment free and clear of any further obligation. 6. Sublease. LESSEE may sublease the Equipment to other governmental agencies or districts or to non-profit corporations for the use by said organizations within the geographical confines of the State of Florida; PROVIDED, HOWEVER, that (i) any such sublease shall expressly agree in writing that the rights of the sublessee are subordinate to this Agreement, (ii) the sublessee shall, agree in writing that any of its rights in the Equipment are subject to all rights of the LESSOR hereunder, (iii) LESSEE shall remain fully obligated to LESSOR hereunder notwithstanding such subleasing, and (iv) prior to entering into any such sub- lease, LESSEE shall give LESSOR written notice of its intention to sublease the Equipment specifying the name of the sublessee and the place where the Equipment shall be maintained by the sublessee and LESSEE shall not enter into that sublease if LESSOR expresses its written objection thereto, based upon reasonable grounds, within fifteen (15) -4- days after LESSOR's receiving notice of such intention by LESSEE to sublease. Any such sublessees shall not assume or be responsible for the monetary payment obligations but LESSEE shall remain responsible therefor. 7. Maintenance and Use of Equipment. LESSEE and its sublessees, solely at their own expense, shall maintain the Equipment in good operating condition and appearance, and protect same from deterioration other than normal wear and tear; shall cause the Equipment to be used within its normal capacity, without abuse and in a manner contemplated by the manufacturer thereof; shall not make modifications, altera- tions or additions to the Equipment (other than additions or normal operating accessories or controls), without the written consent of LESSOR; shall not so affix the Equipment to realty so as to change its nature to real property and agree that the equipment shall remain personal property at all times. All modifications, repairs, alterations, replace- ments, substitutions, operating accessories and controls shall accrue to the Equipment and become subject to LESSOR's interests therein. LESSOR shall have the right to enter upon the premises where the Equipment is located in order to inspect, or otherwise protect LESSOR'S interest, and LESSEE shall cooperate in affording LESSOR the opportunity to do same. For the purpose of assuring LESSOR that the Equipment will be properly serviced, LESSEE agrees to cause the Equipment to be maintained pursuant to the standard pre- ventive maintenance contract and/or recommendations of the manufacturer thereof. LESSEE agrees that LESSOR shall not be responsible for latent defects, wear and tear or gradual deterioration or loss of service or use of the Equipment or any part thereof. LESSOR shall not be liable to LESSEE or anyone else for any liability, claim, loss, damage or expense of any kind or nature caused directly or indirectly by the inadequacy of the Equipment or any item supplied by the vendor or any other party, any interruption or use or loss of service or use or performance of any Equipment, any loss of business or other consequence or damage, whether or not resulting from any of the foregoing. 8. Net Lease. LESSEE intends the rental payments in this Agreement to be net to the LESSOR. LESSEE shall comply with all laws, bear all liabilities and pay all taxes, documentary stamp taxes, excise taxes, personal property taxes and assessments, licenses, registration fees, freight and transportation charges, utility charges and any other charges imposed or liabilities incurred with respect to the ownership, possession or use of the Equipment during the term of this Agreement and LESSEE shall pay all expenses incurred by LESSOR in connection with any filings or recordings of any documents relating to this Agreement or LESSOR'S rights in the Equipment. LESSOR shall have the right to make any of -5- the payments required of LESSEE under this Agreement but shall not be obligated to pay the same, and to charge such payments with interest at the highest legal rate from the date of payment, as additional rent (to be included in the calculation of "Balance Due Lessor") to be paid by LESSEE with the next rental payment. 9. Indemnity. LESSEE shall and does hereby indemnify and save LESSOR harmless from any and all liability arising out of the selection, possession, operation, control, use, maintenance, subleasing, delivery and/or return of the Equipment, including but not limited to, injuries causing personal injury, property damage and/or death but shall be credited with any amounts received by the LESSOR with respect thereto from liability insurance secured by LESSEE. Said indemnifications shall include all costs and expenses including attorney's fees (whether or not in connection with trials or appeals) incurred by LESSOR in connection with any suits or actions resulting from any such liability. The obligations of the LESSEE under this Section shall survive the termination of this Agreement. 10. Insurance. LESSEE shall keep all of the Equipment leased hereunder insured against all risks of loss or damage from every cause whatsoever for not less than the higher of (a) the then Balance Due Lessor (as defined in the section hereof entitled "Balance Due Lessor"), or (b) the fair market value of the Equipment. LESSEE shall carry public liability insurance, or provide a qualified self- insurance program as to both personal injury and property damage in the amounts of $500,000 and $100,000, respectively, or such other amounts as are set forth in the Schedule. All insurance shall be in form and with insurers satisfactory to LESSOR, provided that LESSOR's consent shall not be withheld unreasonably. All insurance for loss or damage shall provide that LESSOR shall be a joint-loss payee thereof and all such liability insurance shall insure LESSOR and LESSEE against liability. LESSEE shall pay the premium therefor and deliver to LESSOR the policies of insurance or duplicates thereof, or other evidence satisfactory to LESSOR of such insurance coverage. Each insurer shall agree, by endorsement upon the policy or policies issued by it or by independent instrument furnished to LESSOR, that it will give LESSOR thirty (30) days prior written notice of the effective date of any alternation or cancellation of such policy. The proceeds of such insurance payable as a result of loss or of damage to Equipment, shall be applied at the option of the LESSEE (a) toward the replacement, restoration or repair of Equipment which may be lost, stolen, destroyed or damaged, or (b) toward payment of the Balance Due Lessor hereunder. Any proceeds in excess of the Balance Due Lessor shall belong to LESSEE. -6- Provided the Equipment is not deemed by the insurer to be a total loss, LESSEE shall, if LESSEE is not then in default hereunder, cause the repairs, replacement or restoration of the Equipment and pay the cost thereof. in the event of total destruction or damage to the Equipment, whether or not LESSEE ie in default, at LESSOR'S option, LESSEE shall pay to LESSOR on the rent payment due date next succeeding the date of such loss ("Rent Payment Due Date") the amount of the Balance Due Lessor applicable to such Rent Payment Due Date, plus the rental payment due on such date, plus any other amounts payable by LESSEE hereunder. Upon payment in full of such amounts, the lease term shall with respect to such Equipment terminate. The amount of the Net Proceeds in excess of the then applicable Balance Due Leasor, if any, shall be retained by LESSEE. LESSEE agrees that if the net proceeds of insurance are insufficient to pay in full LESSEE'S obligation hereunder, LESSEE shall make such payments to the LESSOR to the extent of any deficiency. LESSEE shall not be entitled to any reimbursement therefor from LESSOR nor shall LESSEE be entitled to any diminution of the amounts payable under Section 2 hereof. 11. Default. If (i) LESSEE shall default in the payment of any rent or in making any other payment hereunder when due and if such default continues for fifteen (15) days after the mailing of written notice thereof to LESSEE by LESSOR, or (ii) LESSEE shall default in the performance of any other covenant herein and such default continues for thirty (30) days after the mailing of written notice thereof by LESSOR, or (iii) LESSEE becomes insolvent or makes an assignment for the benefit of creditors, or (iv) LESSEE applies for, or consents to, the appointment of a receiver, trustee, conservator or liquidator of LESSEE or of all or a substantial part of the assets of LESSEE, or if such receiver, trustee, conservator or liquidator is appointed without the application or consent of LESSEE, or (v) a petition is filed by or against LESSEE under Bankruptcy Act or any amendment thereto (including, without limitation, a petition for reorganization, arrangement or extension) or under any other insolvency law or law providing for the relief of debtors, then, if and to the extent permitted by applicable law, LESSOR shall have the right to exercise the remedies provided hereafter and any other remedies permitted by law. 12. Remedies. Upon default by LESSEE as described above, LESSOR shall have the right to demand implementation of the Remedy Procedure (defined below). The Remedy Procedure shall apply to such portion of the Equipment as will result in the payment to LESSOR of the Balance Due Lessor. The parties recognize that the Equipment may consist -7- of more than one item and it is the intent of the parties that the word "portion" as used in this paragraph contemplates one or more complete items and not a part of any item of equipment. Immediately upon demand by LESSOR then the following procedure (the "Remedy Procedure") shall apply: A. Lessee Right of Dienosition. LESSEE shall (i) immediately cease any use of the proper portion of the Equipment and cause that portion to be properly stored in an appropriate place, (ii) use its best efforts at LESSEE'S expense to dispose of that portion of the Equipment within sixty (60) days from receipt of such written demand, for fair consideration, which in no event shall be less than the amount necessary to provide LESSOR with the Balance Due Lessor from the proceeds thereof and LESSEE shall thereupon pay to LESSOR the Balance Due Lessor; or B. Deliverv to Lessor. If LESSEE fails to so dispose of that portion of the Equipment for at least the Balance Due Lessor within that sixty (60) days period, then LESSEE shall, at its expense, cause possession of the Equipment together with all documents necessary to transfer title to LESSOR and to evidence the termination of all of LESSEE'S interests in the Equipment to be delivered at LESSOR'S direction consistent with the terms hereof. Upon receipt of such Equipment, LESSOR may sell or lease the Equipment or sublease it for the account of the LESSEE, holding LESSEE liable, to the extent permitted by law, for all rent payments due prior to the effective date of such selling, leasing or subleasing and for the difference between the purchase price, rental and other such amounts paid by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the amounts payable by the LESSEE hereunder. No failure on the part of the LESSOR to exercise, and no delay in exercising any right or remedy shall operate as a waiver thereof; nor shall any single or partial exercise by LESSOR of any right or remedy provided hereunder preclude any other or further exercise of any other right or remedy provided hereunder. Whenever any payment is not made when due hereunder, LESSEE promises to pay LESSOR, not later than thirty (30) days after notice thereof is given to LESSOR, an amount calculated at the highest rate of interest permitted by law not to exceed 15t per annum, for the period of delay. No remedy herein conferred upon or reserved to LESSOR is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver -8- thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. 13. Risk of Loss. LESSEE hereby assumes the entire risk of loss, from any and every cause whatsoever to the Equipment including, but not limited to damage or destruction by fire or other casualty, the exercise of eminent domain by any governmental entity, or theft or conversion of the Equipment. In the event of loss, LESSEE at its expense and at LESSEE'S option shall either (a) repair the Equipment, returning it to its previous condition or (b) replace same with like Equipment acceptable to LESSOR and in good condition and equivalent value which shall become subject to all of LESSOR'S interests in the Equipment so replaced, or (c) pay LESSOR the Balance Due Lessor and upon such payment this Agreement shall terminate as to any such Equipment. 14 Other Covenants. LESSEE agrees that this Agreement shall continue in full force and effect, subject to the provisions relating to termination herein, regardless of the inability of the LESSEE to use the Equipment because of any reason whatsoever, including, but not limited to, wear, act of God, war, strike, loss or damage, obsolescence or breach of warranty. LESSEE warrants that this Agreement and the performance of LESSEE'S obligations hereunder has been duly approved, authorized, executed and delivered with all proper procedures fully complied with, and that this Agree- ment is valid, legal, binding and is enforceable against LESSEE in accordance with its terms, subject only to the extent that the enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights heretofore or hereinafter enacted and to the exercise of judicial discre- tion in accordance with general principles of equity. 15 Assignments. This Agreement or any of LESSOR'S rights in the Equipment or any rents or other sums to become due hereunder may be transferred or assigned by LESSOR with notice, and in such event, LESSOR'S transferee or assignee shall have all rights, powers, privileges and remedies of LESSOR hereunder. 16. Termination for Governmental Non-Approgria- t ons. LESSEE is a bona fide political subdivision of the State of Florida with LESSEE'S fiscal year ending September 30 of each calendar year. If LESSEE does not appropriate sufficient funds to continue making the payments required under this Agreement for any of LESSEE'S fiscal years subsequent to the one in which this Agreement is executed and entered into, then this Agreement shall be terminated effective upon expiration of the fiscal year in which -9- sufficient funds to continue satisfaction of LESSEE's obligations under this Agreement were last appropriated by LESSEE and LESSEE shall not, in this sole event, be obligated to make any further payments due beyond said fiscal year. LESSEE warrants that the necessary funds have been appropri- ated for any Equipment shown on a Schedule for LES$EE's fiscal year during which the date of the execution by LESSEE of that Schedule occurred. LESSEE shall give LESSOR not less than sixty (60) days notice of LESSEE'S intent to terminate this Agreement under this Section, which notice shall contain the termination date (which shall be the end of the last of LESSEE'S fiscal years for which appropriations for the Equipment were made) and shall advise the LESSOR of the location or locations where the Equipment may be found on the Termination Date'. In the event of an early termination of the Agreement under this Section, the Remedy Procedure (see Section 12 hereof entitled "Remedies") shall apply to the Equipment as to which the Agreement is terminated. All obligations of the LESSEE to make rental payment which would otherwise be due hereunder after the Termination Date shall cease. LESSOR shall pick up the Equipment, at LESSEE'S expense, at the location or locations designated by the LESSEE. The LESSEE agrees to permit LESSOR access to the Equipment and to cooperate with LESSOR in the removal of the Equipment. However, LESSEE agrees: (i) not to cancel this Agreement under this provision if any funds are appropriated to it for the acquisition (by purchase or lease) of other functionally similar equipment for the fiscal year of termination, and (ii) to expressly include in its appropria- tions each year a line entry for payments due under this Agreement and not to decrease such line entry during such fiscal year. 17. Vendors' Warranties. LESSOR hereby irrevoc- ably appoints LESSEE as its agent and attorney-in-fact, during the term of this agreement, so long as LESSEE shall not be in default hereunder, to assert from time to time whatever claims and rights, including warranties with respect to the Equipment, which LESSOR may have against any vendor of the Equipment. LESSEE'S sole remedy for the breach of such warranties, indemnifications or representation shall be against the vendor of the Equipment, and not against LESSOR, nor shall such matter have any effect whatsoever on the rights and obligations of LESSOR with respect to this agreement including, but not limited to, the right to receive full and timely payments hereunder. LESSOR acknowledges, however, that LESSOR has made no representations as to the existence or availability of such warranties of the vendor of the Equipment. 18. Additional Schedules: Amendments. This Agreement and all Schedules added hereto shall be construed -10- as one lease (the term "Lease" as used herein shall mean this instrument and all Schedules hereto). Except as provided herein, this Lease contains the entire agreement between the parties and may not be altered, modified, terminated or discharged except in writing. 19. Waiver of Trial by Jurv. LESSOR and LESSEE hereby knowingly, voluntarily and intentionally waive the right either may have to a trial by jury in respect of any litigation arising out of or under this Agreement. -11- 20. Miscellaneous. (a) This Agreement shall be deemed to have been executed and entered into within the State of Florida and any dispute arising hereunder shall be governed by the laws of Florida. (b) THIS INSTRUMENT DOES NOT CREATE A SECURITY INTEREST IN OR UPON THE EQUIPMENT. (c) In no event shall the LESSOR or its assigns have any cause of action against the officers or employees of LESSEE, or against any elected official of LESSEE based upon or materially related to any finding by any court that any or all provisions of this Agreement violate Florida law. (d) The paragraph headings used herein are for convenience only and shall have no significance in the interpretation of this instrument. (e) This Agreement and the Schedules attached hereto shall be binding only when accepted by LESSOR and when signed by both LESSEE and LESSOR. (f) LESSOR HAS MADE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OR MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE EQUIPMENT. AS BETWEEN LESSEE AND LESSOR, LESSEE AGREES THAT THE EQUIPMENT HAS BEEN SELECTED BY LESSEE AS A PROPER DESIGN, SIZE, FITNESS AND CAPACITY. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR THE EXISTENCE, FURNISHING, OR FUNCTIONING LESSEE'S USE OF ANY ITEM OR PRODUCTS OR SERVICES PROVIDED FOR IN THIS AGREEMENT OR THE SCHEDULES ATTACHED HERETO. (g) THE PROVISIONS UPON ANY SCHEDULES ATTACHED HERETO OR HEREAFTER TO BE ATTACHED TO THIS AGREEMENT ARE INCLUDED IN AND MADE A PART HEREOF. THE PARTIES ACKNOWLEDGE RECEIPT OF A SIGNED, TRUE AND AN EXACT COPY OF THIS AGREE- MENT. (h) All notices, certificates or other communica- tions hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, first class postage prepaid, to the parties at their respec- tive places of business as set forth herein or as the parties shall designate hereafter in writing. (i) This Agreement shall inure to the benefit of -12- and shall be binding upon LESSOR and LESSEE and their respective successors and assigns. (j) The terms of this Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever except by written instrument signed by the LESSOR and the LESSEE, and, then, such waiver, modification, amendment or change shall be affective only in the specific instance and for the specific purpose given; nor shall any such amendment that affects the rights of LESSOR's assignee be effective without such assignee's consent. Whenever any writing is required to be executed by LESSOR under this Agreement, the execution of such writing by LESSOR's assignee shall be sufficient for such purposes if this Agreement has been assigned by LESSOR. (k) This Agreement constitutes the entire agree- ment between LESSOR and LESSEE. There are no understandings, agreements, representations or warranties, express or implied, not specified herein regarding this Agreement or the Equipment leased hereunder. Any terms and Conditions of any purchase order or other document (with the exception of Schedules) submitted by LESSEE 1n connection with this Agreement which are in addition to or inconsistent with the terms and conditions of this Agreement will not be binding on LESSOR and will not apply to this Agreement. LESSEE by the signature below of its authorized representative acknowledges that it has read this Agreement, understands it, and agrees to be bound by its terms and conditions. (1) In the event that any portion of this Agreement shall be finally determined by a court of competent jurisdiction to be invalid or-unenforceable, such provision shall be deemed void and the remainder of this Agreement shall continue in full force and effect. -13- IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their proper corporate officers, all as of the day and year indicated below. ACCEPTED, Miami, Florida on Dated: December 8, 1988 LESSOR: SOUTHEAST BANK LEASING COMPANY By: LESSEE: VILLAGE OF NORTH PALM BEACH, FLORIDA By: ~__ M yoR. By: illage Manager MASTER LEASE-PURCHASE AGREEMENT NO. -14- INSURANCE COVERAGE INFORMATION TO: SOUTHEAST BANK LEASING COMPANY FROM: VILLAGE OF NORTH PALM BEACH, FLORIDA SUBJECT: Insurance Coverage 1. In accordance with Section 10 of the Master Lease-Purchase Agreement, No. , dated December 8,1988,we have instructed the insurance agent named below: F.I.R.M.A. 1451 E. Ocean Blvd. Stuart, Florida 33494 to issue: a. All Risk Physical Damage Insurance on the lease property evidenced by a Certificate of Insurance with a Loss Payable Clause naming Southeast Bank Leasing Company and/or its assigns as Loss Payee. Minimum Coverage Required: Replacement value of property at the time of loss or damage. b. Liability Insurance evidenced by a Certificate of Insurance naming Southeast Bank Leasing Company, and/or its assigns as an additional insured. Minimum Coverage Required: $500,000 per person $500,000 aggregate bodily injury liability $500,000 aggregate products liability $100,000 property damage liability 2. Proof of insurance coverage as described above will be provided to Southeast Bank Leasing Company prior to the time that the property is delivered to us. 3. Thirty (30) days notice of cancellation required on all coverages. A copy of this letter has been sent to the above insurance agent. LESSEE: VILLAGE OF NORTH PALM BEACH,FLORIDA Craig Mu d , Mayor CERTIFICATE OF INCUMBENCY Southeast Bank Leasing Company One Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Re: Master Lease-Purchase Agreement dated December 8, 1988 by and between Southeast Bank Leasing Company, as Lessor and The Village of North Palm Beach. Florida as Lessee With reference to the above-entitled matter, I hereby certify that the following people were, at the time of the execution of the said Lease Purchase Agreement dated December 8,1988 the Mayor, Vice Mayor, Village Manager, Village Clerk respectively of the Village of North Palm Beach, Florida and were duly qualified to execute the aforementioned Lease Purchase Agreement: ame Craig Mundt -Judy M. Pierman Raymond Howland Shaukat Khan Dolores Walker Villaae Clerk IN WITNESS WHEREOF, I have duly executed this Certificate hereto this 8 th day of December, 1988. LESSEE: VILLAGE OF NORTH PALM BEACH, FLORIDA By : u-~ ~~+~ Vt111ageTG~lerk Title Signature TAX CERTIFICATE AND AGREEMENT December 8 ,1988 Lessee: VILLAGE OF NORTH PALM BEACH, FLORIDA Village Hall 501 U.S. Highway # 1 North Palm Beach, Florida 33408 Lessor: SOUTHEAST BANK LEASING COMPANY One Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Re: Master Lease Purchase Agreement dated as of December 8 1988. In consideration of the Master Lease-Purchase Agreement dated as of December 8 1988 (the "Lease"), by and between the Village of North Palm Beach, Florida (the "Lessee") and Southeast Bank Leasing Company (the "Lessor"), and with the understanding that the exemption from Federal income taxes of the interest component of payments under the Lease has induced the Lessor to enter into the Lease, I, Craig Mundt , the duly elected, qualifed and acting Mayor of the Village of North Palm Beach, Florida of the Lessee, DO HEREBY CERTIFY as follows: (a) Debt Service Fund. The Lessee may establish a fund (the "Sinking Fund") that will be used to pay rent on the Lease. If the Lessee establishes such a fund, it will be intended to achieve a proper matching of revenues and debt service in each year. On the basis of first-in-first-out accounting, amounts deposited 1n the Sinking Fund will be used to pay debt service on the Lease within 13 months of receipt thereof. The Sinking Fund will be fully depleted at least annually, except for a reasonable carryover amount not to exceed the greater of (i) one year's earnings on the Sinking Fund or (ii) 1/12 of annual debt service on the Lease. Amounts received from the investment of such deposits will be retained therein and expended within one year from the date of receipt thereof. (b) No Other Funds. Except for the Sinking Fund, there will be no other funds or accounts from which the amounts deposited therein will be reasonably expected to be used to pay debt service on the Lease and there will be no other funds or accounts as to which there will be any reasonable assurance that such funds or accounts will be available to pay debt service on the Lease in the event the Lessee (c) No Replacement. The Lease will not be used as a substitute for other funds which were otherwise to be used as a source of financing for the payment of debt service on the Lease and which have been, or will be, used to acquire, directly or indirectly, obligations producing a yield in excess of the yield on the Lease. (d) Separate issue. There are no governmental obliga- tions of the Lessee: (i) being issued at substantially the same time as the Lease, (11) sold pursuant to a common plan of financing with the Lease, and (iii) to be paid out of substantially the same source of funds (or which will have substantially the same claim to be paid out of substantially the same source of funds) ae will be used to pay the Lease. (e) Interest Deduction Disallowance. (i) The Lessee (A) has designated the Lease as a "qualified tax-exempt obligation" within the meaning of section 265(b)(3)(B) df the Internal Revenue Code of 1986, as amended and the regulations promulgated thereunder (the "Code"), for the purpose of ensuring any holders of the Lease, who qualifies as a financial institutions within the meaning of section 265(b)(5) of the Code, that it will not be subject to the dis- allowance of certain deductions for carrying charges under section 265(b)(1) of the Code; and (B) reasonably expects that the aggregate amount of tax-exempt obliga- tions (other than "private activity bonds," within the meaning of section 141 of the Code) issued by the Lessee and all entities subordinate thereto during the calendar year ending December 31, 1988, w111 not exceed $10,000,000.00 (ii) Interest Deduction Disallowance. In connec- tion with the Lessee's designation of the Lease as "qualified tax-exempt obligations" within the meaning of section 265(b)(3)(B) of the Code, the Lessee hereby covenants that: (A) it will not at any time while the Lease are outstanding take any action which will result in the Lease failing to constitute "qualified tax-exempt obligations"; and (B) neither it nor any entities subordinate thereto will designate any obligations other than the Lease as "qualified tax-exempt obligations" if such obligations, when combined with the Lease, will result in the designation by the Lessee and such subordinate entities of more then $10,000,000 of obligations as "qualified tax-exempt obligations" during this calendar year, unless it receives an unqualified opinion of nationally recognized bond oounsel or a ruling from the Internal Revenue Service to the effect that any additional designation will not result in the Lease failing to constitute "qualified tax-exempt obligations" within the meaning of section 265(b)(3)(B) of the Code. (f) No Adverse Action. To the best of the knowledge of the Lessee, the Commissioner of Internal Revenue has not published notice in the Internal Revenue Bulletin that the Lessee may not certify its bond issues under section 1.103-13(a)(2) of the Regulations, nor has the Lessee been advised that any such adverse action is contemplated by the Commissioner of Internal Revenue. (g) Compliance with Covenants. The Lessee reasonably anticipates that it will comply with the covenants contained in this Certificate and Agreement. (h) Executing Officer. The undersigned is an executing officer of the Lessee, and as such is duly authorized to execute and deliver this Certificate and is charged, with others, with the responsibility for entering into the Lease. (i) Reasonable Expectations. The expectations set forth in this Certificate and Agreement are based upon the facts, estimates, circumstances and expectations of the Lessee in existence on the date hereof. (j) Tax-Exempt Status of Lease. The Lessee agrees that it will not take any action or permit any action to be taken on its behalf, or cause or permit any circumstance within its control to arise or continue, if such action or circumstance, or its expectation on the date of issue of the Lease, would cause the interest component of the rental paid by the Lessee under the Lease to be subject to federal income tax in the hands of the holders thereof. (k) Federal Guarantees. (i) Prohibition. The Lessee shall not (A) permit the payment of the principal of or interest on the Lease to be directly or indirectly guaranteed (in whole or in part) by the United States (or an agency or instru- mentality thereof), (B) use 5$ or more of the proceeds of the Lease to make loans the payment of principal or interest with respect to which are to be guaranteed (in whole or in part) by the United States (or any agency or instrumentality thereof), or (C) invest (directly or indirectly) 5~ or more of the proceeds of the Lease in federally insured deposits or account (as defined in section 149(b)(4)(D)) of the Internal Revenue Code of 1986, as amended, with the exceptions set forth in section (k)(11) hereof. (ii) Exceptions. The provisions of Section (k)(i) shall not apply to the following: (A) any guarantee by the Federal Housing Administration, the Veterans Administration, the Federal National Mortgage Association, the Federal Home Loan Mortgage Association or the Government National Mortgage Association or any guarantee of student loans; or (B) investments that are (I) bonds issued by the United States Treasury, or (II) permitted under regulations promulgated under section 149(b) of the Code. (1) Private Activity Bonds. (i) Private Business Tests. (A) The Lessee shall ensure that (A) not in excess of 10$ of the Equipment is used for Private Business Use (as defined in section (1)(ii) hereof) if, in addition, the payment of more than 10$ of the principal or 10$ of the interest due on the Lease during the term thereof is, under the terms of the Lease or any underlying arrangement, directly or indirectly, secured by any interest in property used or to be used for a Private Business Use or in payments in respect of property used or to be used for a Private Business Use or is to be derived from payments, whether or not to the Lessee in respect of property or borrowed money used or to be used for a Private Business Use; and (B) and that, in the event that both (1) in excess of 5$ of the Equipment is used for a Private Business Use, and (2) an amount in excess of 5~ of the principal or 5$ of the interest due on the Lease during the term thereof is, under the terms of the Lease or any underlying arrangement, directly or indirectly, secured by any interest in property used or to be used for said Private Business Use or in payments in respect of property used or to be used for said Private Business Use or is to be derived from payments, whether or not to the Lessee, in respect of property or borrowed money used or to be used for said Private Business Use, then said excess over said 5$ of Net Proceeds of the Lease used for a Private Business Use shall be used for a Private Business Use related to the governmental use of a portion of the projects and shall not exceed the proceeds used for the governmental use of the portion of the projects to which such Private Business Use ie related. (fi) Private Business Use. "Private Business Use" is defined for purposes of this Certificate and Agree- ment as use directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural person, excluding, however, use by a state or local governmental unit and use by a member of the general public. A person may be a user of the Net Proceeds of the Bonds or the Project as a result of (A) ownership, (B) actual or beneficial use of property pursuant to a lease, a management or incentive payment contract, or (C) any other arrangement such as a take-or-pay or other output-type contract. Use (including use as an in- dustrial customer) on the same basis ae the general public is not taken into account; however, trade or business use by all persons on a basis different from the general public is aggregated. (m) Amendment. (i) In order to comply with the covenants con- tained herein regarding compliance with the requirements of the Code and the exemption from federal income taxation of the interest paid and to be paid on the Lease, the procedures, the provisions of this Certifi- cate and Agreement may be modified as necessary, based on the advice of nationally recognized bond counsel, to comply with such rulings, regulations, legislation or judicial decisions as may be applicable to the Lease. (ii) By the signature of the Lessee's officer or authorized representative below, who is authorized to act for and on the Lessee's behalf for this purpose, the Lessee acknowledges that the Lessee has examined this Certificate and Agreement and agrees to follow the instructions and guidelines it contains in discharging the duties and obligations accepted by the Lessee hereunder and under the Lease and to fulfill each of the Lessee's commitments hereunder and under the Lease. (iii) Also, the Lessee hereby confirms that if it decides, based on advice of counsel, not to follow the provisions of this Certificate and Agreement, the Lessee shall notify the Lessor of the actions the Lessee has taken or will take with respect to such provisions. Notwithstanding any provision contained herein to the contrary, however, the Lessor shall be under no obliga- tion to take any action in the event that it is so notified or to notify any of the parties to this transaction of any change 1n any law applicable to this transaction or suggest any amendment to this Certificate and Agreement. (n) Survival. Notwithstanding any provision of this Certificate and Agreement or the Lease to the contrary, the obligation of the Lessee to comply with all of the require- ments contained in this Certificate and Agreement survive the termination of the Lease. (o) Reliance. The Lessee understands that the Lessor is relying on this Certificate and Agreement in entering into the Lease. IN WITNESS WHEREOF, the undersigned have set their hands hereunto as of the th day of 1988. VILLAGE OF NORTH PALM BEACH, FLORIDA Cra g M ndt, Mayor Accepted and agreed to as of the th day of , 1988. SOUTHEAST BANK LEASING COMPANY By: .~ ~' C ice President