1996-037 Equipment Lease Finance Agreement
• RESOLUTION NO. 37-96
A RESOLUTION QF THE VILLAGE OF NORTH PALM BEACH
AUTHORIZING THE EXECUTION OF THE MASTER
GOVERNMENTAL EQUIPMENT LEASE FINANCING AGREEMENT
WITH BARNETT BANK OF PALM BEACH COUNTY AND
RELATED CERTIFICATES AND DOCUMENTS; FINDING THAT A
NEGOTIATED LEASE IS IN THE BEST INTEREST OF LESSEE;
CERTIFYING THE LEASE FINANCING AGREEMENT AS A
QUALIFIED TAX EXEMPT OBLIGATION; PROVIDING FOR
PAYMENT; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED BY THE VILLAGE OF NORTH PALM BEACH
Section 1. It is hereby ascertained, determined and declared as follows:
A. The Village of North Palm Beach (the "Lessee") Is authorized by the laws of the
State of Florida to make and execute leases, contracts and other instruments necessary or
convenient for the purpose of facilitating the leasing of all equipment listed In the
Schedule of Lease Financed Equipment (the "Equipment"), and all such future schedules,
which is attached as Exhi I B to the Master Governmental Equipment Lease Financing
• Agreement (the "Lease Financfng Agreement") dated as of May 9th, 1996, between
Barnett Bank of Palm Beach County (the "Lessor") and the Lessee, attached hereto as
Exhibit A, to the end that the Lessee may be able to purchase such Equipment et the
lowest possible cost to the public by the execution of the Lease Financing Agreement.
B. The execution of the Lease Flnancing Agreement and the lease financing of
the Equipment will serve a valid governmental purpose and Is appropriate to the needs and
circumstances of Lessee and the Equipment 1s necessary to the efficient administration
and welfare of the residents of Lessee.
C. The Lessee's obligations under the Lease Flnancing Agreement shall not be or
constitute an indebtedness, liability, general or moral obligation, or a pledge of the faith,
credit or taxing power of the Lessee, the State of Florida or any political subdivision
thereof, within the meaning of any constitutional or statutory provision or limitation. The
lessor shall never have the right (1) to require or compel, directly ar Indirectly, the
exercise of any ad valorem taxing power to pay amounts due under the Lease Financing
Agreement or l21 to require or compel the payment thereof from any funtls of the Lessee
except as specifically provided for in the Lease Flnancing Agreement.
D. The principal and interest described in the Lease Financing Agreement are
payable from the Lessee pursuant to the Lessee's obligation to annually appropriate funds
for such purpose as set forth in the Lease Flnancing Agreement.
• --
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Section 2. The Lease Financing Agreement, in substantially the form attached
Exhibit A and incorporated herein by reference, with such changes, alterations,
completions and corrections as may be approved by the Mayor and Village Clerk
(collectively the "Designated Agents') of Lessee, such approval to be presumed by
execution thereof, is hereby approved. The Designated Agents are hereby authorized and
directed to execute the Lease Financing Agreement. The Designated Agents are authorized
and empowered, collectively or individually, to take all action and steps to execute and
deliver any and all instruments, documents, certificates or opinions on behalf of the
Lessee which are necessary or desirable in connection with the execution and deiiverY of
the Lease Financing Agreement and which ere not inoonsistent with the terms and
provisions of this Resolution.
Section 3. The Lessee hereby certifies that Lessee does not reasonably expect to
issue greater than 510,000,000 of qualified tax-exempt obligations (including the principal
amount of the Lease Financing Agreement) in the present calendar year. For purposes of
qualifying this lease Financing Agreement, for the exception contained in Section
265(b)(3) of the Internal Revenue Code, to the provisions contained in the Internal
Revenue Code which deny financial Institutions any deductions for interest expense
allocable to tax-exempt obligations acquired after August 7, 1986, the Lessee hereby
designates the Lease Financing Agreement to be a "qualified tax exempt obligation" within
the meaning of Section 265(b) of the Internal Revenue Code.
• Section 4. This resolution shall become effective upon signature by the Mayor.
LESSEE
VILLAGE OF NORTH PALM BEACH
• ~~OP.11~ ~~, Name: V.A. Marks, M.D.
' ~~'~ Title: Mayor
~; .
. •~
4,' _
~!~~E$ •(pA~•~~.
;~;' (SEAL)
,.
;N ; Kei:hlep?i F. Kelly, CMC
'fNrioa. ~iill2tati Clerk
t
Appro d aS to Form and C r ec s:
sy:
Na e: Geor W. Baldwin
• Title: Attorn y for the Lessee
60 'd OZ05lOL 'ON XVd lAU ONI S)INVB lJ,3N?lU8 46:11 03N 90-6Z-8dV
~ hereto as
EXHIBIT A
• ACCEPTANCE CERTIFICATE
In accordance with the terms of the Master Governmental Equipment
Lease Financing Agreement dated as of May 9th , 1996, and the
Schedule of Lease Financed Equipment, Number , dated as of
1996, by and between Barnett Bank of Palm
Beach County ("Lessor"), and the Village of North Palm Beach
("Lessee") or other agreements between Lessor and Lessee, Lessee
hereby certifies, represents and agrees that: (a) the Equipment
referred to in the attached invoice has been delivered at the
location specified in the Lease Financing Agreement or other
agreement; (b) we have conducted such inspection and testing of
the Equipment as we deem necessary and appropriate and we
acknowledge that the Equipment is in good condition, and is
performing satisfactorily, and that we accept the Equipment for
all purposes; (c) the Equipment is placed in service by Lessee on
the date of .this Acceptance Certificate; (d) Lessee, and its
representatives, have received: (i) all operating manuals and
instructions regarding the Equipment and (ii) instruction as to
the proper use of the Equipment; and (e) Lessor is authorized to
disburse the sum of $450,000.00 to the following in payment for
the Equipment:
• VENDOR NAME AND ADDRESS:
Street:
City:
County:
State:
EQUIPMENT LOCATION:
Street: 501 U.S. Highway 1
City: North Palm Beach
County: Palm Beach
State: Florida
Zip Code: 33408
The above referenced Equipment is accepted this day
Of , 1996.
LESSEE:
VILLAGE OF NORTH PALM BEACH
• By. -
Title:
EXHIBIT A
•
•
•
ACCEPTANCE CERTIFICATE
In accordance with the terms of the Master Governmental Equipment
Lease Financing Agreement dated as of May 9th , 1996, and the
Schedule of Lease Financed Equipment, Number , dated as of
May , 1996, by and between Barnett Bank of Palm Beach
County ("Lessor"), and the Village of North Palra Beach ("Lessee")
or other agreements between Lessor and Lessee, Lessee hereby
certifies, represents and agrees that: (a) the Equipment referred
to in the attached invoice has been delivered at the location
specified in the Lease Financing Agreement or other agreement;
(b) we have conducted such inspection and testing of the
Equipment as we deem necessary and appropriate and we acknowledge
that the Equipment is in good condition, and is performing
satisfactorily, and that we accept the. Equipment for all
purposes; (c) the Equipment is placed in service by Lessee on the
date of this Acceptance Certificate; (d) Lessee, and its
representatives, have received: (i) all operating manuals and
instructions regarding the Equipment and (ii) instruction as to
the proper use of the Equipment; and (e) Lessor is authorized to
disburse the sum of $110,000.00 to the following in payment for
the Equipment:
VENDOR NAME AND ADDRESS:
Street:
City:
County:
State:
EQUIPMENT LOCATION:
Street: 501 U.S. Highway 1
City: North Palm Beach
County: Palm Beach
State: Florida
Zip Code: 33408
The above referenced Equipment is accepted this day
of , 1996.
LESSEE:
VILLAGE OF NORTH PALM BEACH
By:
Title:
• EXHIBIT "B"
Schedule of Lease Financed Eauin ent #
This Schedule of Lease Financed Equipment is attached to and
made a part of the Master Governmental Equipment Lease Financing
Agreement # between the undersigned Lessor and Lessee
dated asp of May 9t_ h ~, 1996 (the "Lease Financing
Agreement ). Terms used herein shall have the meaning assigned
to those terms in the Lease Financing Agreement.
LESSOR: BARNETT BANK OF PALM BEACH COUNTY
625 N. Flagler Drive
West Palm Beach, Florida 33401
and its successors and assigns
and
LESSEE: VILLAGE OF NORTH PALM BEACH
501 U.S. Highway 1
North Palm Beach, Florida 33408
1. EQUIPMENT LEASE FINANCED. The Equipment lease financed
upon the terms and conditions contained in the Lease Financing
• Agreement is as follows:
? Ambulances
2. TERM. The Term commences on the Acceptance Date and
continues until all payments due hereunder have beett made.
3. ENT. During the Term, with respect to each item of
Equipment, Lessee shall make ~ consecutive semi-annual
installments of Rent, each in an amount equal to ~ * commencing
on the Acceptance Date and on the same day of each successive
semi-annual period. The semi-annual installments of Rent are
subject to adjustment as provided herein.
4. INTEREST RATE. Each Interest Payment made by Lessee is
determined by applying an annual rate of interest as hereinafter
provided (the "Interest Rate") to the outstanding balance of all
original principal payments due hereunder less any initial
payments and the aggregate principal portions of•prior payments.
The Interest Rate shall initially be ~~% per annum and
such Interest Rate (and related payments) shall be adjusted as
set forth below.
• If the interest on the Lease Financing Agreement becomes
includable in the gross income of Lessor for Federal income tax
purposes as a result of a Determination of Taxability, the
interest rate on the Lease Financing Agreement prior to the
effective date of the Determination of Taxability shall be equal
to the initial Interest Rate set forth above; and thereafter, for
as long as interest on the Lease Finanoing Agreement is
includabl
i
t •
e
n
he gross income of Lessor, the interest rate on
the Lease Financing Agreement shall be the Taxable Rate which is
* $. If the effective date of the Determination of
Taxability has passed at the time a Determination of Taxability
is determined to have occurred, then the Lease Financing
Agreement shall bear interest at the Taxable Rate retroactive to
the effective date of the Determination of Taxability. In the
event of a Determination of Taxability, Lessee covenants that it
shall also pay any penalties resulting from the interest on the
Lease Financing Agreement being includable in Lessor's gross
income for Federal income tax purposes. Lessee's obligation to
pay any such increased interest and penalties shall survive the
termination of the Lease Financing Agreement.
The rate of interest on the Lease Financing Agreement shall
be further adjusted as follows:
(i) Loss of Federal Income Tax Deduction or S ate Income
Taxes. if the federal income tax deduction for state income
taxes paid on the interest payments received under the Lease
Financing Agreement during any period is reduced because of any
change in the internal Revenue Code or regulations, then the
interest Rate on the Lease Financing Agreement shall be increased
during such period by an amount equal to A x B x C x D where:
(a) A equals the fraction (expressed as a decimal) of •
the total state income tax disallowed as a result of such
tax law change;
(b) B equals the rate of the applicable state income
tax (expressed as a decimal);
(c) C equals the maximum federal corporate tax rate
then in effect for Lessor or its affiliates (expressed as a
decimal); and
(d) D equals the Interest Rate on the Lease Financing
Agreement (expressed as a percentage).
(ii) Chanae in Tax Laws Reaa d;na Deductions. If the Lease
Financing Agreement has been designated by Lessee as a qualified
tax-exempt obligation under Section 265(b)(3) of the Code and if
the portion of interest expense incurred or deemed to have been
incurred by Lessor because Lessor holds the Lease Financing
Agreement and which is not deductible by Lessor during any period
(the "Related Interest") is increased above 20$ because of any
change fn the tax laws or regulations, (within the meaning of
Section 291, Section 265 or any successor provision of the
Internal Revenue Code), or because the Lease Financing Agreement •
is not or ceases to be qualified as a "qualified tax-exempt
obligation" under Section 265(b)(3)(B) of the Code, then the
• Interest Rate on the Lease Financing Agreement during such period
shall be increased each calendar year by a percentage amount
equal to (A - .20) x B x C where:
(1) A equals the fraction (expressed as a decimal) of
the Related Interest not allowable as a deduction to Lessor after
the effective date of the change;
(2) B equals the maximum corporate tax rate then in
effect (expressed as a decimal); and
(3) C equals Lessor's Adjusted Cost of Funds.
(iii) Other Change in Tax Laws. If the Internal Revenue
Code is amended to cause the interest on the Lease Financing
Agreement to be includable in the gross income of Lessor for
federal tax purposes, to be subject to a minimum tax or an
alternative minimum tax or to otherwise decrease the after tax
yield on the Lease Financing Agreement to Lessor (directly or
indirectly, other than a change described in (i) through (ii)
above or because of a Determination of Taxability), then the
Interest Rate on the Lease Financing Agreement shall be adjusted
to cause the interest received by Lessor, after payment of any
increase in tax, to equal the interest Lessor would have received
in the absence of such change or amendment in the tax laws or
• regulations.
The above adjustments shall be cumulative, but in no event
shall the increased Interest Rate on the Lease Financing
Agreement, as a result of these adjustments, exceed the lesser of
the Taxable Rate or the maximum rate permitted by law. The above
adjustments to the interest rate on the Lease Financing Agreement
shall be effective on the effective date of the applicable change
in circumstances or in the tax laws or regulations or in the case
of a Determination of Taxability, during the period interest on
the Lease Financing Agreement is includable in the gross income
of the holder thereof. Interest on the Lease Financing Agreement
and all other tax rates and interest rates are expressed as
annual rates. However, proper partial adjustment shall be made
if the change is effective after the first day of Lessor's tax
year or if interest on the Lease Financing Agreement does not
accrue for the entire tax year of Lessor. Adjustments which
create a circular calculation because the Interest Rate on the
Lease Financing Agreement is affected by the calculation shall be
carried out .sequentially, increasing the Interest Rate on the
Lease Financing Agreement accordingly in each successive
calculation using as the new value the increase in the Interest
Rate on the Lease Financing Agreement, until the change on the
interest Rate on the Lease Financing Agreement caused by the next
successive calculation of the adjustment is de minimis. if more
• than one of paragraphs (i) through (iii) apply, then the Interest
Rate on the Lease Financing Agreement shall be adjusted i'n the
order in which listed above.
To the extent an adjustment to the Interest Rate on the
Lease Financing Agreement is not made within three (3) months of •
the event giving rise to the adjustment, the additional interest
due as a result of such adjustment shall be paid with interest
thereon compounded monthly at the rate which is equal to the
Interest Rate on the Lease Financing Agreement. All unpaid
amounts determined to be owing as a result of such calculation
shall be due and payable within ten (10) days after delivery of
notice of the amount of such adjustment, and shall be paid to the
Holder of record during the period to which the adjustment
relates. This obligation shall survive the termination of the
Lease Financing Agreement.
* NOTE: The rata and payments quoted in the proposal dated
01/31/96 were indexed and will be recomputed to refleot any
changes prior to Commencement of the Lease. The rate and
payments will be fixed upon Commencement.
LESSEE:
VILLAG__JGE QFjNORTH PALM BEACH
By:
V.A. Marks, M.D.
Mayor
~At~t: tion: •
G~ ~ Kathleen F. F el Iy, CMC
~ Vi.7.],a.ge Clerk
LESSORS
BARNETT BANK OF PALM BEAC}i COUNTY
By:
Its Author zed Representative
_ •
r
• EXHIBIT "B"
Schedule of Lease Financed Eauipment ~
This Schedule of Lease Financed Equipment is attached to and
made a part of the Master Governmental Equipment Lease Financing
Agreement ~ between the undersigned Lessor and Lessee
dated as of Ma 9th , 1996 (the "Lease Financing
Agreement"). Terms used h~ shall have the meaning assigned
to those terms in the Lease Financing Agreement.
LESSOR: BARNETT BANK OF PALM BEACH COUNTY
625 N. Flagler Drive
West Palm Beach, Florida 33401
and its successors and assigns
and
LESSEE: VILLAGE OF NORTH PALM BEACH
501 U.S. Highway 1
North Palm Beach, Florida 33408
1. EOUIPN
upon the terms
• Agreement is as
1 ~
2. TERM
continues until
:ENT LEASE FINANCED. The Equipment lease financed
and conditions contained in the Lease Financing
follows:
ire Truck
The Term commences on the Acceptance Date and
all payments due hereunder have been made.
3. RENT. During the Term, with respect to each item of
Equipment, Lessee shall make ~,Q consecutive semi-annual
installments of Rent, each in an amount equal to $
commencing on the Acceptance Date and on the same day of each
successive semi-annual period. The semi-annual installments of
Rent are subject to adjustment as provided herein.
4. INTEREST RATE. Each Interest Payment made by Lessee is
determined by applying an annual rate of interest as hereinafter
provided (the "Interest Rate") to the outstanding balance of all
original principal payments due hereunder less any initial
payments and the aggregate principal portions of prior payments.
The Interest Rate shall initially be * $ per annum and
such Interest Rate (and related payments) shams be adjusted as
set forth below.
. If the interest on the Lease Financing Agreement becomes
includable in the gross income of Lessor for Federal income tax
purposes as a result of a Determination of Taxability, the
interest rate on the Lease Financing Agreement prior to the
effective date of the Determination of Taxability shall be equal
to the initial interest Rate set forth above; and thereafter, for •
as long as interest on the Lease Financing Agreement is
includable in the gross income of Lessor, the interest rate on
the Lease Financing Agreement shall be the Taxable Rate which is
* ~. If the effective date of the Determination of
Taxability has passed at the time a Determination of Taxability
is determined to have occurred, then the Lease Financing
Agreement shall bear interest at the Taxable Rate retroactive to
the effective date of the Determination of Taxability. In the
event of a Determination of Taxability, Lessee covenants that it
shall also pay any penalties resulting from the interest on the
Lease Financing Agreement being includable in Lessor's gross
income for Federal income tax purposes. Lessee's obligation to
pay any such increased interest and penalties shall survive the
termination of the Lease Financing Agreement.
The rate of interest on the Lease Financing Agreement shall
be further adjusted as follows:
(i) Loss of Federal Income Tax Deduction for State Income
Taxes. if the federal income tax deduction for state income
taxes paid on the interest payments received under the Lease
Financing Agreement during any period is reduced because of any
change in the Internal Revenue Code or regulations, then the
Interest Rate on the Lease Financing Agreement shall be increased •
during such period by an amount equal to A x B x C x D where:
(a) A equals the fraction (expressed as a decimal) of
the total state income tax disallowed as a result of such
tax law change;
(b) B equals the rate of the applicable state income
tax (expressed as a decimal);
(c) C equals the maximum federal corporate tax rate
then in effect for Lessor or its affiliates (expressed as a
decimal); and
(d) D equals the Interest Rate on the Lease Financing
Agreement (expressed as a percentage).
(11) Chanae in Tax Laws Regarding Deductions. If the Lease
Financing Agreement has been designated by Lessee as a qualified
tax-exempt obligation under Section 265(b)(3) of the Code and if
the portion of interest expense incurred or deemed to have been
incurred by Lessor because Lessor holds the Lease Financing
Agreement and which is not deductible by Lessor during any period
(the "Related Interest") is increased above 20$ because of any
change in the tax laws or regulations, (within the meaning of
section 291, Section 265 or any successor provision of the •
Internal Revenue Code), or because the Lease Financing Agreement
is not or ceases to be qualified as a "qualified tax-exempt
obligation" under Section 265(b)(3)(B) of the Code, then the
interest Rate on the Lease Financing Agreement during such period
• shall be increased each calendar year by a percentage amount
equal to (A - .20) x B x C where:
(1) A equals the fraction (expressed as a decimal) of
the Related Interest not allowable as a deduction to Lessor after
the effective date of the change;
(2) B equals the maximum corporate tax rate then in
effect (expressed as a decimal); and
(3) C equals Lessor's Adjusted Cost of Funds.
(iii) Other Chanae in Tax Laws. If the Internal Revenue
Code is amended to cause the interest on the Lease Financing
Agreement to be includable in the gross income of Lessor for
federal tax purposes, to be subject to a minimum tax or an
alternative minimum tax or to otherwise decrease the after tax
yield on the Lease Financing Agreement to Lessor (directly or
indirectly, other than a change described in (i) through (ii)
above or because of a Determination of Taxability), then the
Interest Rate on the Lease Financing Agreement shall be adjusted
to cause the interest received by Lessor, after payment of any
increase in tax, to equal the interest Lessor would have received
in the absence of such change or amendment in the tax laws or
• regulations.
The above adjustments shall be cumulative, but in no event
shall the increased Interest Rate on the Lease Financing
Agreement, as a result of these adjustments, exceed the lesser of
the Taxable Rate or the maximum rate permitted by law. The above
adjustments to the interest rate on the Lease Financing Agreement
shall be effective on the effective date of the applicable change
in circumstances or in the tax laws or regulations or in the case
of a Determination of Taxability, during the period interest on
the Lease Financing Agreement is includable in the gross income
of the holder thereof. Interest on the Lease Financing Agreement
and all other tax rates and interest rates are expressed as
annual rates. However, proper partial adjustment shall be made
if the change is effective after the first day of Lessor's tax
year or if interest on the Lease Financing Agreement does not
accrue for the entire tax year of Lessor. Adjustments which
create a circular calculation because the Interest Rate on the
Lease Financing Agreement is affected by the calculation shall be
carried out sequentially, increasing the Interest Rate on the
Lease Financing Agreement accordingly in each successive
calculation using as the new value the increase in the Interest
Rate on the Lease Financing Agreement, until the change on the
Interest Rate on the Lease Financing Agreement caused by the next
successive calculation of the adjustment is de minimis. If more
• than one of paragraphs (i) through (iii) apply, then the Interest
Rate on the Lease Financing Agreement shall be adjusted in the
order in which listed above.
• CERTIFICATION
State of Florida
County of Palm Beach
Village of North Palm Beach
I, Kathleen F. Kelly, Village Clerk of the Village of North Palm
Beach, Florida, do hereby certify that the attached is a true and
correct copy of:
RESOLUTION N0.37-96, ADOPTED BY
THE VILLAGE COUNCIL ON ~aY 9 1996,
AUTHORIZING THE EXECUTION OF THE
MASTER GOVERNMENTAL EQUIPMENT
LEASE FINANCING AGREEMENT WITH
BARNETT BANK OF PALM BEACH COUNTY
AND RELATED CERTIFICATES AND
DOCUMENTS; AND PROVIDING AN
EFFECTIVE DATE.
•
IN WITNESS WHEREOF, I hereunto set
my hand and affix the Seal of the Village of North Palm Beach
this 9th day of MaY 1996
e Kathleen F. Kelly, CMC
Title: Village Clerk
(SEAL)
• ---
•
THIS MASTER GOVERNMENTAL EQUIPMENT LEASE FINANCING
AGREEMENT ("Lease Financing Agreement") is made and entered
into by Lessor and Lessee as of the 9th day of May, 1996,
by and between:
LESSOR: BARNETT BANK OF PALM BEACH COUNTY
625 N. Flagler Drive
West Palm Beach, Florida 33401
and its successors and assigns
and
LESSEE: VILLAGE OF NORTH PALM BEACH
501 U.S. Highway 1
North Palm Beach, Florida 33408
PRELIMINARY STATEMENT
Lessor and Lessee desire to lease finance the
Equipment in accordance with the following terms and
conditions.
ACCORDINGLY, for and in consideration of the covenants
contained in this Lease Financing Agreement and other good
and valuable consideration the parties agree as follows:
1. DEFINITIONS
For purposes of this Lease Financing Agreement, the
following definitions shall apply:
1.1 "Acceptance Certificate" means an Acceptance
Certificate in the form attached hereto as
Exhibit A by which Lessee accepts the Equipment.
•
1.2 "Acceptance Date" means, as to each item of
Equipment, the earlier of: (i) the date on which
Lessee has accepted the Equipment by execution of
an Acceptance Certificate; (ii) the date that is
fifteen (15) days after the delivery oP the item
of Equipment; or (iii) the date on which Lessor
funds an account for the purchase of Equipment
for the benefit of Lessee.
1.3 "Determination of Taxability" means the
circumstance of interest paid or payable on the
Lease Financing Agreement becoming includable for
federal income tax purposes in the gross income
of Lessor. A Determination of Taxability will be •
-- deemed to have occurred upon receipt by the
Lessor of an opinion of counsel that any interest
on the Lease Financing Agreement has become
includable in the gross income of Lessor for
federal income tax purposes. The effective date
of a Determination of Taxability will be on the
date as of which the interest on the •Lease
Financing Agreement is deemed includable in the
.gross income of Lessor.
1.4 "Equipment" means the equipment described on
each Schedule of Lease Financed Equipment and
attachments thereto.
1.5 "Internal Revenue Code" means the Internal
Revenue Code of 1986, as amended.
1.6 " esso " means Barnett Sank of Palm Beach
County and its successors and assigns.
1.7 "Maximum Rate" means the highest rate of
interest allowed by applicable law in effect from
time to time.
1.8 " ent" means the rent and all other amounts •
payable during the term as set forth in each
Schedule of Lease Financed Equipment and all
other amounts payable hereunder.
1.9 "Schedule of Lease Financed ~uipment" means
the schedule(s) which, among other things,
describes the Equipment, the Term, the Taxable
Rate, the Rent, and other pertinent information,
attached hereto as Exhibit B, or as executed from
time to time by Lessor and Lessee.
1.10 "Taxable Rate" means the rate of interest
defined on each Schedule of Lease Financed
Equipment (per annum compounded monthly) as the
Taxable Rate.
1.11 "Term" means the full term for each Schedule
of Lease Financed Equipment.
LEABE
Lessor and Lessee agree to lease finance the Equipment
listed on any Schedule of Lease Financed Equipment, all of
which are incorporated in and made a part of this Lease •
Financing Agreement by this reference. --
• 3. TERM
The Term for each Schedule of Lease Financed Equipment
shall commence on the Acceptance Date and shall terminate,
unless earlier terminated or extended, on the last day of
the Term. The term of this Lease Financing Agreement
begins on the date of execution and shall end on the date
all payments due to Lessor hereunder have been made.
4. RENTAL PAYMENTS
4.1 Amount and Times of Pa ent.
(a) ent. As payment for amounts advanced by Lessor
for the Equipment, Lessee agrees to pay Lessor the Rent as
specified in each Schedule of Lease Financed Equipment.
(b) Interest. A portion of each payment is interest.
Each Schedule of Lease Financed Equipment sets forth the
annual interest rate for that schedule. No person liable
for the payment of the Rent shall be required to pay
interest in an amount or at a rate greater than the Maximum
Rate. If any interest or other charges in the nature of
interest paid by any person liable for the payment of the
• Rent result in interest in excess of the Maximum Rate, then
any excess is waived and any excess paid shall be
automatically credited against and be in reduction of the
Rent, and any portion of the excess which exceeds the Rent
will be paid by Lessor to Lessee. However, if in any
subsequent period the rate of interest charged is less than
the Maximum Rate, then the interest charged in that
subsequent period will increase to the Maximum Rate until
all of the interest which would have been due is paid.
(c) Prepayment. Lessee may, at its option, prepay
all, or any portion, of the Rent specified in each Schedule
of Lease Financed Equipment upon thirty (30) days written
notice to Lessor. Any partial prepayment shall be applied
to interest and then to principal amounts in the inverse
order of due dates.
4.2 Place of Payments. All payments required to be
made to Lessor under this Lease Financing Agreement shall
be made at Lessor's office.
4.3 Late Charaes. If Lessee fails to pay any sum
under this Lease Financing Agreement within ten (10) days
after the due date then Lessee shall pay a late payment
charge equal to five percent (5t) of the delinquent
• payment. If any payment is more than thirty (30) days past
due, Lessee shall pay Lessor interest on the overcTue
payment of 1.5$ per month.
7
4.4 Abatement of Pavments. There will be no
abatement or reduction of payments by Lessee for any
reason. Lessee assumes the entire risk of loss and damage •
to the Equipment from any cause whatsoever, and any sum
required to be paid to Lessor under this Lease Financing
Agreement, shall be paid in all events unless the
obligation to pay Rent is terminated as provided in this
Lease Financing Agreement.
4.5 Application of Pa ents. Any payment received
from Lessee may be applied by Lessor at any time against
any obligation due and owing by Lessee under this Lease
Financing Agreement or any Schedule of Lease Financed
Equipment, in Lessor's sole discretion, notwithstanding any
statement appearing on, or referred to in, any remittance
from Lessee or any prior application of such payment.
4.6 Title. Title to the Equipment shall be vested in
the Lessee unless the Lessee shall deliver the Equipment to
Lessor upon an early termination. Any motor vehicles
subject to registration with the Florida Department of
Motor Vehicles shall be registered by Lessee in Lessee's
name.
4.7 Obligation of essee. The Lessee shall not be
obligated, required, or compelled to exercise its ad
valorem taxing power or any other taxing power in any form
on any real or personal property to pay any amounts under •
the Lease Financing Agreement.
Lessee reasonably believes that sufficient funds will
be obtained and appropriated to make all payments during
the Term or any other payments hereunder. Lessee hereby
authorizes and directs the principal financial officer of
the Lessee to do all things lawfully within fte power to
obtain and maintain funds from which payments may be made,
including making provision for such payments to the extant
necessary in each annual budget submitted for the purpose
of obtaining funding and the Lessee shall use its bona fide
best efforts to have the budget providing such sufficient
funds approved by the appropriate governing body. However,
Lessee may not, without the written consent of the Lessor,
budget and appropriate funds for any year in an amount less
than the amount necessary to make all Lease payments on all
Equipment subject to this Lease Financing Agreement for
such year.
4.8 Early Terminatin.,, If the appropriate governing
body of the Lessee does not appropriate funds for any
portion of the Term for any item or items of Equipment or
if this Lease Financing Agreement is otherwise terminated
before all payments are made hereunder, Lessee shall •
promptly notify Lessor within five (5) days of such non-
appropriation or other termination and Lessor shall have a
a
• valid and enforceable lien against any funds which have
been budgeted and appropriated for the payment of Rent
during the fiscal year that such non-appropriation or
termination occurs and may enforce such lien for all
amounts of Rent which are unpaid. If any Rent remains
unpaid, then Lessee, at its sole option, shall take further
action as set forth in either (i) or (ii) below:
(i) Lessee shall promptly deliver to Lessor all title
to and possession of Equipment in full operational and good
working order, condition and appearance for Equipment of
similar age, type and usage, and shall pay to Lessor all of
Lessor's costs (including an inspection of the Equipment
and storage costs) in accepting such Equipment. Lessee
shall have no equity or interest as a result of any rent
paid during the term prior to any early termination of this
Lease Financing Agreement. However, in the event the
Lessor sells or otherwise disposes of the Equipment due to
a early termination, Lessor shall apply the net proceeds of
such Lease Financing Agreement in the following manner:
(a) first, to reimburse Lessor for all costs
associated with the taking, removing, holding, repairing,
and selling of the Equipment;
• (b) second, to reimburse Lessor for Lessee's
remaining obligations under the Lease Financing Agreement,
and
(c) third, any amounts remaining shall be
remitted to Lessee.
(ii) If Lessee fails to return Equipment incompliance
with the term of the preceding paragraph (i), Lessor shall
be entitled to compensatory damages, which Lessee agrees to
pay, in an amount equal to the balance of the Rent which
remains unpaid under the Lease Financing Agreement.
it is expressly understood and mutually agreed that
this Lease Financing Agreement is payable from the
operational budget of Lessee initially comprised of
sufficient amounts that have been allocated and
appropriated for Rent or from other. currently available and
appropriated funds from various sources and is an
obligation of appropriated funds of Lessee only during the
fiscal year of the Lessee in which such funds were
appropriated; this Lease Financing Agreement and the
obligation to pay rent, are otherwise not a general
• obligation of Lessee, nor shall this Lease Financ~g
Agreement nor any indebtedness of Lessee within the meaning
of any constitutional, statutory or .charter provision or
anything arising hereunder constitute an encumbrance upon
5
any property owned by Lessee. Moreover, the payments
provided for in this Lease Financing Agreement do not •
otherwise directly or indirectly pledge Lessee's property,
credit or general taxing power. If a early termination of
this Lease Financing Agreement occurs, such termination
shall not be a default under Section 11.1 of this Lease
Financing Agreement and, upon full compliance with this
Section, Lessee shall be relieved of and fully discharged
from its obligations hereunder to make further. Rent
payments. If Lessee shall fail to return the Equipment,
Lessor's remedies shall be limited to suit for compensatory
damages, as provided above, in the amount of the unpaid
Rent and any other remedies to which Lessee can lawfully
agree to subject itself to upon entering this Lease
Financing Agreement.
4.9 Rental Invoices for Convenience Only. Any rental
invoices are for the convenience of Lessee and are not a
condition of Lessee's payment.
5. RESPONSIBILITIES OF LE66EE
5.1 Care and Use. Lessee shall use the Equipment in
a careful and proper manner, in compliance with all
insurance policy conditions, with any and all applicable
laws, ordinances, and regulations and with all instructions
provided with or accompanying the Equipment, and at its •
sole cost and expense, service, repair and maintain the
Equipment so as to keep the Equipment in good condition,
repair, appearance and working order for the purposes
intended, ordinary wear and tear excepted, and shall
replace any part of the Equipment as may from time to time
become worn out, lost, stolen, destroyed or damaged or
unfit for use. All such replacement parts, mechanisms and
devices shall be manufacturer's required replacements or
other approved replacements and shall be free and clear of
all liens, encumbrances and rights of others, shall become
the property of Lessee and shall become subject to the
terms and conditions of this Lease Financing Agreement. At
the request of Lessor, Lessee shall enter into or cause to
be entered into, and maintained in full force and effect
during the Terra, manufacturer's or supplier's standard
maintenance contracts satisfactory to Lessor covering the
Equipment and shall comply with all ite obligations
thereunder, and Lessee shall furnish evidence to Lessor of
such signed maintenance agreement.
5.2 Inspection. Lessor shall have the right upon
reasonable prior notice to Lessee to enter into and upon
the premises where the Equipment is located and inspect the
Equipment and observe its use during normal business hours.
- •
• 5.3 a es. Lessee agrees to pay when due all taxes
relating to the Equipment and Lessee's obligations
hereunder, including but not limited to, all filing or
registration fees, gross receipts tax, sales and use tax,
license fees, documentary stamp taxes, rental taxes,
assessments, charges, ad valorem taxes, excise taxes, and
all other taxes, licenses and charges imposed on the
ownership, possession, rental, delivery, transportation or
use of the Equipment under this Lease Financing Agreement,
together with any interest and penalties, other than taxes
on or measured by the net income of Lessor. Upon the
expiration or earlier termination of this Lease Financing
Agreement, Lessee shall pay to Lessor any taxes assessed
but not yet due and payable.
5.4 Alterations. So long as Lessee is not in default
hereunder, Lessee may at its sole cost and expense make any
alterations, additions, modifications or attachments
("Improvement(s)") to the Equipment ff the Improvements (1)
are readily removable without causing damage to the
Equipment, (2) do not reduce the value or general
usefulness of the Equipment, and (3) are of a kind that
customarily are furnished by lessees or purchasers of like
equipment. Upon delivery of the Equipment to the Lessor,
Lessor shall have the right, exercisable upon written
• notice given to Lessee to purchase such Improvements
installed on the Equipment and owned by Lessee for a cash
price equal to the fair market sales value thereof, and if
Lessor does not purchase the Improvements, Lessee shall
immediately remove the Improvements at its own expense
without causing material damage to the Equipment.
Upon the prior approval of Lessor, Lessee may make
improvements which are not readily removable provided that
(1) the value of the Equipment is not reduced and (2) such
Improvements will not materially reduce the general
usefulness of the Equipment.
Any Improvements which are not readily removable shall
become the property of Lessor if the Equipment is delivered
to Lessor under this Lease Financing Agreement.
5.5 A~~iverv and Installation Cha ges• Delivery
Receipt. Lessee shall be responsible for all charges of
delivery and installation of the Equipment to Lessee's
location. Lessor may either: (a) prepay such charges and
invoice Lessee and Lessee shall remit payment within ten
(10) days; (b) forward invoices to Lessee as they are
received and Lessee shall remit payment within the time
required by the invoice; or (c) prepay such charges and add
• the full amount thereof to the Rent otherwise due and
payable by Lessee. Upon receipt of the Equipment, Lessee
shall furnish Lessor with a delivery receipt in a form
satisfactory to Lessor.
7
5.6 Insurance. Lessee shall maintain at its sole
cost-- and expense casualty insurance on all Equipment •
covering such risks and in such amounts, which shall not be
less than the fair market value of the Equipment, with such
deductibles as are customarily carried by entities similar
to Lessee. All insurance for loss or damage to Equipment
shall provide that losses shall be payable to Lessor.
Lessee shall pay the premiums therefore and deliver to
Lessor the policies of insurance or duplicates thereof or
other evidence satisfactory to Lessor of such insurance
coverage. Each insurer shall also agree by endorsement
upon the policy or policies issued by it that: (a) it will
give thirty (30) days' prior written notice to Lessor of
cancellation, non-renewal, or material modification of such
policy and ten (10) days' prior written notice for
non-payment of premium; and (b) the coverage of Lessor
shall not be terminated, reduced or affected in any manner
regardless of any breach or violation by Lessee of any
warranties, declarations or conditions of such insurance
policy or policies. The proceeds of such insurance, at the
option of Lessor, shall be applied: (s) toward the
replacement, restoration or repair of the Equipment, or (b)
toward payment of the obligations of Lessee hereunder.
Lessee hereby appoints Lessor as Lessee's attorney-in-fact
to make claim for, receive payment of, and execute all
documents, checks or drafts received in payment of loss or •
damage under any such insurance policy.
5.7 Risk of Loss. Lessee hereby assumes and shall
bear the entire risk of loss, theft, destruction and damage
to the Equipment from any and every cause or casualty
whatsoever. No loss, theft, destruction or damage to the
Equipment or any part thereof shall relieve Lessee from its
obligations under this Lease Financing Agreement.
5.8 Performance by Lessor of Lessee's
Responsibilities. Any performance required of Lessee or
any payments required to be made by Lessee may be performed
or paid by Lessor, and Lessor shall be immediately
reimbursed for such payments and for any coste and
expenses, legal or otherwise, associated with the payments
or other performance by Lessor, and Lessee shall pay Lessor
a service or handling charge equal to five percent (53) of
all such payments, costs, and expenses.
5.9 Payment of Fines. Lessee shall pay within ten
(10) days of billing by Lessor any fines imposed in
connection with the Equipment or the use thereof plus a
service or handling fee of fifty dollars ($50.00) per fine
for any and all payments of fines made by Lessor, plus all
legal fees and expenses of Lessor made necessary by the •
acts of Lessee or its agents which resulted in the fines..
8
• 5.10 Financial Statements. During the Term, Lessee
shall furnish Lessor with certified annual financial
statements of Lessee within 120 days after the end of
Lessee's fiscal year and shall promptly provide such other
information as Lessor shall reasonably request.
5.11 Reports. Lessee will provide Lessor (a) notice
of tax or other lien which attaches to the Equipment within
ten (10) days of Lessee's obtaining knowledge of the
attachment and additional information with respect to the
tax or other lien promptly upon request of Lessor; (b)
notice of the Equipment's location, and, the location of
all information, logs, documents and records regarding the
Equipment and its use, maintenance or condition,
immediately upon request; (c) notice of the relocation of
the Equipment ten (10) days prior to any relocation; (d)
notice of loss or damage to the Equipment (if the estimated
repair costs would exceed 10~ of the then fair market
value) within ten (l0) days of loss or damage; (e) notice
of any accident involving the Equipment causing personal
injury or property damage within ten (10) days of such
accident; (f) copies of the insurance policies or other
evidence of insurance required promptly upon request by
Lessor; (g) copies of all information, logs, documents and
records regarding or in respect to the Equipment and its
• use, maintenance and/or condition, within ten (10) days of
such request; (h) a certificate of the authorized officer
of Lessee stating that he has reviewed the activities of
Lessee and that, to the best of his knowledge, there exists
no default, Event of Default or event which with notice or
lapse of time (or both) would become such a default under
this Lease Financing Agreement; (i) copies of any
manufacturer's warranties, promptly upon request; (j)
evidence of Lessee's compliance with maintenance provisions
of this Lease Financing Agreement upon request; (k) notice
of any anticipated occurrence of a non-appropriation, if
practical, thirty (30) days prior to such occurrence; (1)
notice of an occurrence of a non-appropriation or
termination of this Lease Financing Agreement within five
(5) days of such occurrence; (m) proof of appropriation and
availability of budgeted funds for the ensuing budgetary
period in a form acceptable to Lessor within 90 days after
the end of Lessee's fiscal year; and (n) any other
documents or reports required by any addenda hereto or
reasonably requested by Lessor.
6. EQUIPMENT
• 6.1 Title. Title to the Equipment shall be in the
name of Lessee at all times.
6.2 'e s. Lessee shall not create or allow any
encumbrance or claim on or with respect to the Equipment.
6.3 Purchase. Delivery Prepay~nent i„~omni,~ys
inspection. Acceptance and Written Notice of De c*a. •
Lessee shall inspect the Equipment immediately on delivery
and execute and deliver an Acceptance Certificate if Lessee
is satisfied with the Equipment.
Lessee may request Lessor to purchase certain items
from a vendor selected by Lessee prior to the time when
those items have been accepted by Lessee or prior to the
time when those items have been reflected on a Schedule of
Lease Financed Equipment which is accepted by Lessor (any
item intended to be lease financed hereunder by Lessee but
which for any reason does not become a part of the
Equipment hereunder is called "Non-Lease Financed
Equipment"). in consideration for Lessor's making payments
for all or a portion of the purchase price of those items
of Non-Lease Financed Equipment or Lessor becoming
obligated to make such payments to a vendor or the party
designated by Lessee for such items of such Non-Lease
Financed Equipment, Lessee hereby agrees that if for any
reason any item is not delivered or does not perform, or
for any reason is not acceptable to Lessee or for any
reason any item does not become a part of the Schedule of
Lease Financed Equipment which is accepted by Lessor,
Lessee shall notify Lessor immediately in writing and
Lessee shall pay to Lessor, on demand, any amounts which •
Lessor has paid, or is obligated to pay to any vendor or
other party with respect to that item of Non-Lease Financed
Equipment, together with interest on any amounts paid
theretofore by Lessor at the Maximum Rate. In addition,
Lessee shall secure for Lessor an unconditional release of
any obligations that Lessor may have to any vendor or other
parties with respect to that item of Non-Lease Financed
Equipment. Upon paying Lessor and obtaining such release,
Lessee shall become subrogated to Lessor's Claims, if any,
against the vendor, manufacturer or other supplier of the
item of Non-Lease Financed 8quipment, and Lessee shall
become entitled to such item of Non-Lease Financed
Equipment as is, where is, without warranty expressed or
implied by Lessor with respect to any matter whatsoever.
Lessee also agrees to indemnify and hold Lessor harmless in
the event of any subsequent litigation in connection with
the item of Non-Lease Financed Equipment and will, from
legally available non-ad valorem funds, reimburse Lessor
for all expenses, including but not limited to, reasonable
attorneys' and paralegals' fees (whether or not in
connection with trials or appeals), and court costs.
6.4 Personal Property. The Equipment is, and shall
at all times be and remain, personal property
notwithstanding that the Equipment or any part thereof may •
now be, or hereafter become, in any manner affixed or
attached to real property or any building thereon. Upon
~o
• request of Lessor, Lessee shall obtain, as to any place
where the Equipment is located, a waiver from the landlord
and mortgagee thereof with respect to any rights they may
have in and to the Equipment or the rights of levy or
seizure thereon.
6.5 Substitution. The Lessee may substitute for an
item of Equipment other equipment by filing with the Lessor
a certificate of an officer of the Lessee stating that such
substitute Equipment (a) has the same or a greater
remaining useful life as the Equipment to be substituted
(determined at the time of the substitution), (b) has a
fair market value equal to or greater than the fair market
value of the item of Equipment for which it is substituted
(determined at the time of substitution), (c) is free and
clear of all lien and encumbrances and (d) has been titled
in the name of the Lessee and constitutes "Equipment" under
this Lease Financing Agreement.
6.6 Lessor is a Lease Financing Source. Lessee
acknowledges that Lessor is a third party lease financing
source for the Equipment who functions as a lender to
Lessee and Lessee agrees to consent to a motion made by
Lessor to be dismissed from any lawsuit brought by a third
party in any way relating to this Lease Financing
• Agreement. This covenant is not intended to be and is not
an indemnity.
7. REPRESENTATIONS AND WARRANTIES OF LESSEB
(a) Lessee is a duly constituted public body oP the
state and is authorized by the Constitution and laws of the
state to enter into this Lease Financing Agreement and to
carry out its obligations hereunder.
(b) Each member of the governing body of the Lessee
has been duly elected or appointed and continues to serve
within the term of office established by law.
(c) Lessee has been duly authorized to execute,
deliver, and perform its obligations under this Lease
Financing Agreement and, in the execution and delivery of
this Lease Financing Agreement has complied with all
applicable laws and regulations, including without
limitation open meeting, public procurement, and bidding
laws and this Lease Financing Agreement, and each Schedule
of Lease Financed Equipment, constitute legal, valid and
binding obligations of Lessee, enforceable against Lessee
in accordance with its terms.
• (d) This Lease Financing Agreement has. been executed
as required by laws and regulations governing Lessor and
has been executed by persons authorized and qualified to
execute the Lease Financing Agreement and similar
documents.
(e) Lessee will do or cause to be done all things •
necessary to preserve and keep this Lease Financing
Agreement in full force and effect, consistent with its
lawful capacity and with the terms and conditions of this
Lease Financing Agreement.
(f) Lessee is exempt from all personal property
taxes, and is exempt from all State of Florida and local
taxes with respect to the Lease Financing Agreement, the
Equipment and the Rent.
(g) No litigation or other proceedings are pending
or, to our knowledge, threatened, in or before any agency,
court or tribunal, state or federal (i) restraining or
enjoining or seeking to restrain or enjoin the execution or
delivery of the Lease Financing Agreement and any other
documents, agreements, or certificates executed by Lessee
in connection therewith or to carry out the purpose thereof
(the "Lease Documents"), (ii) contesting or affecting the
validity of any provision of the Lease Documents or the
Resolution, (iii) contesting or affecting the validity of
any of the proceedings or the authority for the
authorization, execution or delivery of the Lease
Documents, (iv) contesting or affecting the existence of •
Lessee or the title of any of its officers to their
respective offices or any powers of Lessee under the laws
of the State of Florida, or (v) contesting or affecting the
tax exempt status of the interest portion of Rent.
(h) The execution, delivery, receipt and due
performance of the Lease Documents and the Resolution and
Lessee's compliance with the provisions thereof will not
conflict with or constitute on Lessee's part a breach or a
default under any existing law, court or administrative
regulation, decree or order, or any agreement, indenture,
lease or other instrument, decree or order or any
agreement, indenture, lease or other instrument to which
Lessee is subject or by which Lessee is or may be bound.
(i) The Resolution has not been amended or modified
since its adoption and is currently in full force and
effect.
(j) No fee will be paid to any person acting as an
underwriter for the Lease Financing Agreement.
(k) This Lease Financing Agreement is a valid and
enforceable obligation of Lessee and funds have been
budgeted and appropriated by the appropriate governing body •
for the payments hereunder during Lessee's current fiscal
year.
12
• (1) [Delete and initial if not applicable.] If Lessee
has designated this Lease Financing Agreement as a
qualified tax-exempt obligation under Section 265(b)(3) of
the Internal Revenue Code, then Lessee does not reasonably
anticipate issuing more that $10,000,000 of tax-exempt
obligations (including those obligations of any entities
controlled by the Lessee), including the Lease Financing
Agreement, during the current calendar year and 'Lessee
represents and warrants that it will preserve the status of
the Lease Financing Agreement as a qualified tax exempt
obligation under Section 265(b)(3) of the Internal Revenue
Code.
(m) No covenant, stipulation or agreement herein
contained or contained in the Lease Financing Agreement
shall be deemed to be a covenant, stipulation, obligation
or agreement of any member, agent or employee of Lessee in
his individual capacity, and neither the members of the
Lessee nor any official executing the Lease Financing
Agreement shall be liable personally thereon or be subject
to any personal liability or accountability by reason of
the issuance thereof.
(n) The average net interest cost rate for the Lease
• Financing Agreement does not exceed the rate computed by
adding 150 basis points to The Bond Buyg~ "20 Bond Index"
published immediately preceding the first day of the
calendar month on which the leasehold interest was sold.
Lessee certifies that the interest rate establishing the
interest portion of the Rent, on the first date such
interest begins to accrue, does not exceed the rate of
interest permitted by Section 215.84 of the Florida
statutes.
8. TA% MATTERS
Lessee will take all necessary action to maintain the
exclusion from federal income tax of Lessor of the interest
portion of the Rent and will take all other actions
necessary to maintain the favorable tax attributes of the
Lease Financing Agreement to Lessor. Lessee shall
immediately notify Lessor in writing upon the occurrence of
any event which may jeopardize the favorable tax attributes
of the Lease Financing Agreement to Lessor. Lessee shall
be solely responsible for compliance with all applicable
arbitrage and rebate requirements under. the Internal
Revenue Code. Lessee agrees to hire competent accountants
or counsel to assist it in such calculation and reporting.
• 9. INDEMNIFICATION
13
9.1 GENERALLY. TO THE FULL EXTENT PERMITTED BY LAW
BUT ONLY FROM LEGALLY AVAILABLE NON-AD VALOREM FiJNDS, •
LESSEE HEREBY AGREES TO INDEMNIFY, PROTECT AND GAVE LESSOR
(WHICH BY DEFINITION INCLUDES LESSOR'S 80CCE88OR8 AND
ASSIGNS) HARMLESS FROM ANY AND ALL LIABILITIES, LIENS,
OBLIGATIONS, LOSSES, CLAIMS, DAMAGES, ACTIONS, SIIITS,
PROCEEDINGS, COSTS AND EXPENSES, INCLUDING REASONABLE
ATTORNEYS' AND PARALEGALS' FEES AND COSTS, WHETHER INCURRED
IN ANTICIPATION OF TRIAL, AT TRIAL OR ON APPEAL, IMPOSED OR
INCURRED BY OR ASSERTED AGAINST LESSOR, ARISING OIIT OF,
CONNECTED WITH, OR REBIILTING DIRECTLY OR INDIRECTLY FROM
THE EQIIIPMENT, INCLIIDING WITHOIIT LIMITATION, THE
MANIIFACTIIRE, PIIRCHASE, LEASE, POSSE68ION, OPERATION,
CONDITION (INCLIIDING ALL DEFECTS WHETHER OR NOT
DISCOVERABLE BY EITHER PARTY HERETO), DELIVERY, SELECTION,
OBE, OR RETURN OF THE EQIIIPMENT, OR BY OPERATION OF LAW.
LESSEE SHALL GIVE LESSOR PROMPT WRITTEN NOTICE OF ANY
MATTER HEREBY INDEMNIFIED AGAINST AND AGREES THAT IIPON
NOTICE BY LESSOR OF THE ASSERTION OF SUCH A CLAIM, ACTION,
DAMAGE, OBLIGATION, LIABILITY OR LIEN, LESSEE SHALL ASSUME
FULL RESPONSIBILITY FOR THE DEFENSE THEREOF. LESSOR, ITS
DIRECTORS, OFFICERS, AND EMPLOYEES, AT THEIR ELECTION, MAY
APPEAR AND DEFEND ANY SIICH SIIIT, ACTION, OR PROCEEDING AND
LESSEE SHALL PAY ALL COSTS OF DEFENSE, INCLIIDING REASONABLE
ATTORNEYS' AND PARALEGALS' FEES, INCURRED BY LESSOR, ITS
DIRECTORS, OFFICERS, AND EMPLOYEES.
9.2 DURATION. ALL OF THE RIGHTS AND PRIVILEGES OF •
LESSOR AND IT6 DIRECTORS, OFFICERS AND EMPLOYEES ARISING
FROM THE INDEMNITIES CONTAINED IN THIS LEASE FINANCING
AGREEMENT 6HALL SIIRVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS LEASE FINANCING AGREEMENT, AND 8IIC$
INDEMNITIES ARE EXPRESSLY MADE FOR THE BENEFIT OF, AND
6HALL BE ENFORCEABLE BY LESSOR (WHICH BY DEFINITION
INCLUDES LE66OR'8 SIICCEBSORB AND ASSIGNS) AND ITS
DIRECTORS, OFFICERS, AND EMPLOYEES. ALL OF LESSOR'S
RIGHTS, PRIVILEGES AND INDEMNITIES CONTAINED IN THIS
SECTION SHALL 6IIRVIVE THE EXPIRATION OR OTHER TERMINATION
OF THIS LEASE FINANCING AGREEMENT AND THS RIGHTS,
PRIVILEGES AND INDEMNITIES CONTAINED HEREIN ARS EXPRESSLY
HADE FOR THE BENEFIT OF, AND SHALL BE ENFORCEABLE BY
LESSOR, ITS DIRECTORS, OFFICERS, AND EMPLOYEES.
9.3 NO WAIVER OF SOVEREIGN IMMUNITY. NO PROVISION OF
THIS LEASE FINANCING AGREEMENT I8 INTENDED TO 88 OR SHALL
SE CONSTROED AS A WAIVER OF SOVEREIGN ZMMIINITY.
10. DISCLAIMER OF WARRANTIES
10.1 No Representations by Lessor. Lessee
acknowledges and agrees that it has selected each item, •
type, quality, quantity and supplier of Equipment basEd
upon its own judgment and disclaims any reliance upon any
14
statements or representations made by Lessor, and agrees
• that the Equipment is of a design, size, quality and
capacity required by Lessee and is suitable for its
purpose.
10.2 LESSOR MARES NO WARRANTIES OR R$PRESENTATIONS,
EXPRESS OR IMPLIED, AB TO TH8 VALOE, DEBIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
EQUIPMENT OR ANY OTHER REPRESENTATION OR WARRANTY WITH
RESPECT TO THE EQIIIPMENT~ AND, AS TO LESSOR, LESSEE
ACKNOWLEDGES THAT LESSOR Z8 ONLY A SOURCE OF FINANCING THE
EQUIPMENT AND LESSEE LEASE FINANCES THE EQUIPMENT ~~AS IB.~~
11. DEFAULT AND REMEDIES
11.1 Definition of Default. Lessee shall be deemed to
be in default hereunder upon the happening of any of the
following events of default:
(a) Lessee shall fail to pay Rent or any other sum
due hereunder when due;
(b) Lessee shall fail to perform or observe any term,
condition or covenant of this Lease Financing
• Agreement or any Schedule of Lease Financed Equipment
hereto or any other agreement now in existence or
hereafter executed with Lessor, and such failure shall
continue for thirty (30) days after written notice
thereof by Lessor;
(c) Proceedings under any bankruptcy, insolvency,
reorganization or similar litigation shall be
instituted by or against Lessee, or a custodian or
similar officer shall be appointed for Lessee or any
of its property;
(d) Any warranty, representation or statement made by
Lessee is found to be incorrect or misleading in any
material respect on the date made; or
(e) Lessee shall make an assignment for the benefit
of creditors, shall cease doing business as a going
concern, or become insolvent.
11.2 Remedies on Default. Upon the occurrence of any
event of default, Lessor may exercise any remedy available
under law, to which Lessee may lawfully subject itself to
by entering into this Lease Financing Agreement, including
• but not limited to the following remedies as Lessor in its
sole discretion shall elect:
IS
(a) Proceed by appropriate court action to enforce
performance by Lessee of the applicable covenants of this •
Lease Financing Agreement or to recover for the breach
thereof;
(b) Accelerate and declare all amounts due under this Lease
Financing Agreement or any Schedule of Lease Financed
Equipment to be immediately due and payable.
(c) Declare this Lease Financing Agreement terminated and
require the Lessee to perform upon such termination as
provided in Section 4.8 of this Lease Financing Agreement.
All remedies of Lessor are cumulative and may be exercised
concurrently or separately. The exercise of any one remedy
shall not be deemed an election of such remedy or preclude
the exercise of any other remedy.
11.3 Further Remedies. A termination hereunder shall
occur only upon notice by Lessor to Lessee and only with
respect to such part or parts of the Equipment as Lessor
specifically elects to terminate in such notice. Except as
to those parts of the Equipment with respect to which there
is a termination, this Lease Financing Agreement shall
remain in full force and effect and Lessee shall be and
remain liable for the full performance of all its
obligations under this Lease Financing Agreement. All •
remedies of Lessor are cumulative and may be exercised
concurrently or separately. The exercise of any one remedy
shall not be deemed an election of such remedy or preclude
the exercise of any other remedy.
11.4 Lessor's Expenses. Lessee shall pay Lessor, from
legally available non-ad valorem funds, all costs and
expenses including reasonable attorneys' and paralegals'
fees and court costs, incurred by or in exercising or
determining any of Lessor's rights or remedies hereunder or
enforcing any of the terms, conditions, or provisions
hereof.
11.5 Limitation on Rights and Reme~ip~.
Notwithstanding the foregoing, Lessee acknowledges that its
remedies hereunder are expressly limited as provided herein
hereof and that any covenant to make payments by Lessee is
a covenant only to make such payments from legally
available non-ad valorem funds.
12. ASSIGNMENT
12.1 Assignment by Lessee. Lessee shall not assign,
all or any part of its interest in this Lease Financing •
Agreement or the Equipment. --
1G
• 12.2 Assianment by Lessor. Lessor may, at any time
and from time to time, assign all or any part of its
interest in this Lease Financing Agreement.
13. THIS SECTION LEFT BLANK INTENTIONALLY
14. MISCELLANEOUS
14.1 Wa ve No covenant or condition of this Lease
Financing Agreement can be waived except by the written
consent of Lessor. Any failure of Lessor to require strict
performance by Lessee or any waiver by Lessor of any terms,
covenants or agreements herein shall not be construed as a
waiver of any other breach of the same or of any other
term, covenant or agreement herein.
14.2 Force Maieure. Lessor shall not be liable for
any failure or delay in delivering the Equipment, or in
performing any provision hereof, due to fire or other
casualty, labor difficulty, governmental restriction or any
cause beyond Lessor's reasonable control.
14.3 Severability. In the event any portion of this
Lease Financing Agreement shall be determined to be invalid
under any applicable law, such provision shall be deemed
void and the remainder of this Lease Financing Agreement
• shall continue in full force and effect.
14.4 Governing Law. This Lease Financing Agreement
shall be construed and interpreted in accordance with the
laws of the state of Florida.
14.5 ot'ce. All notices made or required to be given
pursuant to this Lease Financing Agreement shall be in
writing and shall be deemed duly served if and when mailed,
certified or registered mail, postage prepaid, return
receipt requested, to the other party at its address set
forth above or as otherwise designated in writing.
14.6 Fntire Aareement. This Lease Financing
Agreement, together with the Schedules of Leased Equipment
and the related certificates, agreements, and documents
executed in connection with this Lease Financing Agreement,.
constitute the entire indivisible agreement between the
parties and this Lease Financing Agreement shall not be
modified, amended, altered or changed except by written
agreement signed by the parties.
14.7 Bindina Effect. Subject to the specific
provisions of this Lease Financing Agreement, this Lease
Financing Agreement shall be binding upon and inure to the
• benefit of the parties and their respective successors and
assigns.
17
14.8 Time. Time is of the essence of this Lease
Financing Agreement and each and all of its Schedules of
Leased Equipment and provisions. •
14.9 Jurisdiction: Venue. LESSEE AGREES TO SUBMIT TO
THE PERSONAL JURISDICTION OF FLORIDA COURTS AND THAT THS
VENUE OF ANY SUCH LITIGATION SHALL BE IN THE COUNTY IN
FLORIDA WHERE LESSEE EXECIITED THIS LEASE FINANCING
AGREEMENT.
14.10 Further Assurances. Whenever requested to do
so by Lessor, Lessee will promptly execute and deliver or
cause to be delivered all such other and further
instruments, documents, or assurances, and promptly do or
cause to be done all such other and further things as may
be necessary or reasonably required in order to further and
more fully to vest in Lessor all rights, interests, powers,
benefits, privileges and advantages conferred or intended
to be conferred upon Lessor by this Lease Financing
Agreement.
14.11 Multiple Counterparts This Lease Financing
Agreement may be executed simultaneously in several or
multiple counterparts, each of which shall be an original
and all of which shall constitute one and the same
instrument.
14.12 Tax and Non-Arbitraae Certificate Pursuant to •
Treasury Regulation Section 1.148-2(b), the person
executing the Lease Financing Agreement on behalf of the
Lessee, by his execution of the Lease Financing Agreement
certifies that the following are reasonable expectations
with regard to the Lease Financing Agreement:
(a) No Arbitrage. The Lessee will not, so long as
any portion of the Lease Financing Agreement remains
outstanding and unpaid, use any moneys in a manner which
will cause the Lease Financing Agreement or any portion
thereof to constitute an "arbitrage bond" under Section 148
of the Code.
(b) Governmental Purposas. The Leases Financing
Agreement is being executed Por a governmental purpose of
Lessee.
(c) Not a Replacement Issue. The Lease Financing
Agreement is not being executed to replace any proceeds of
an earlier issue of governmental obligations that were not
expended on the project for which such earlier issue was
intended.
(d) No Other Ob icrAtinnc, No other Issuer •
obligations are being issued at substantially the same time
and sold pursuant to a common plan of financing, which will
is
• be paid out of (or will have substantially the same claim
to be paid out of) substantially the same source of funds.
(e) Net Proceeds. The proceeds from the execution of
the Lease Financing Agreement will be applied to pay
expenses incurred in connection with the execution of the
Lease Financing Agreement and purchase the Equipment. It
is expected that all of the proceeds from the execution of
the Lease Financing Agreement and the earnittgs from the
investment thereof will be expended within six months
following the date of execution of the Lease Financing
Agreement for the purposes expressed herein.
(f) No Other Fund or Account. No funds or accounts
other than those mentioned in this Certificate are expected
to be used for, or are expected to be available for, the
payment of debt service on the Lease Financing Agreement.
(g) Issuer Mav Certify Lease Financing Agreement.
Lessee has not been notified that it is disqualified from
certifying its Lease Financing Agreement or other tax
exempt obligations, nor has Lessee been notified that such
disqualification is contemplated.
(h) ~x ectations Are Reasonable. To the best of
• Lessee's knowledge and belief, there are no other facts,
estimates or circumstances that would materially change any
of the Lessee's expectations as to future events described
in this certificate, and said expectations are reasonable.
(i) No Arbitrage. Based upon the foregoing, the
Lessee does not reasonably expect that the proceeds of the
Lease Financing Agreement will be used in a manner which
would cause the Lease Financing Agreement to be or become
"arbitrage bonds" within the meaning of the Code and
regulations.
(i) Small Issuer ExcQot;~~. The Lessee covenants
that it is a governmental unit with general taxing powers,
that at least 95 percent of the net proceeds (as defined in
the Internal Revenue Code of 1986, as amended (the "Code"))
of the Lease Financing Agreement will be used for local
governmental activities of the Lessee, and that the
aggregate face amount of all tax-exempt obligations, other
than private activity bonds (as defined in the Code)
issued by or on behalf of the Lessee (and all subordinate
entities thereof) durittg the calendar year in which the
Lease Financing Agreement is first effective is not
reasonably expected to exceed $5,000,000. .[Delete attd
• initial if not applicable.] __
(k) Covenant Regarding Rebate. The Lessee shall
comply with the Code and the regulations promulgated
19
thereunder as such shall be supplemented and amended from
time to time for purposes of complying with all
requirements for rebate of amounts to the United States. •
(1) No Hedae Bond The Lease Financing Agreement
does not create a "hedge bond" as defined in Section 149(g)
of the Code, in that at least 85 percent of the proceeds of
the Lease Financing Agreement will be expended to carry out
the governmental purpose of the issue within three years
from the date of issuance of the Lease Financing Agreement,
and not more than 50 percent of the proceeds will be
invested in nonpurpose investments (as defined in Section
148(f)(6)(A) of the Code) having a substahtially guaranteed
yield of four years or more.
(m) No Sale of Eau~pmenti The Equipment has not been
and is not expected to be sold or otherwise disposed of in
whole or in part prior to the expiration of the maximum
Term.
(n) Not a Private Activity Bond The Lessee expects
that (a) less than l0$ of the proceeds of the Lease
Financing Agreement will be used for any private business
use as defined in Section 141 of the Code, and (b) less
than 5~ of the proceeds of the Lease Financing Agreement
will be used for any private business use which is not
related to a governmental use of the proceeds, or which is •
a disproportionate related business use within the meaning
of Section 141 of the Code. It is understood that such
limitations will not apply unless more than lob (with
respect to clause (a)) or more than 5~ (with respect to
clause (b)) of the Lease Financing Agreement is directly or
indirectly (including under the terms of the underlying
arrangement) secured by any interest in (i) property used
or to be used for a private business use, or (ii) payments
in respect of such property, or are 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, as provided in Section 141 of the
Code.
(o) Form 8038.
Form 8038, 8038-G or E
be filed by Lessee is
Lessee shall file, or
appropriate Internal
appropriate Office.
The information in the copy of the
1038-GC delivered to the Lessor or to
true, correct and complete, and the
cause to be filed, such Form in the
Revenue Service Office or other
14.13 Waiver of Jurv Trial Lessee and Lessor each
knowingly, voluntarily, and intentionally waives any right
it may have to a trial by jury, with respect to any
litigation or legal proceedings based on, or arising out of •
the Resolution, this Lease Financing Agreement, or aefy
other document, including any course of conduct, course of
20
dealings, verbal or written statements, or actions or
omissions of any party which in any way relates to the
• Lease Financing Agreement. The parties to this Agreement
have specifically discussed and negotiated this waiver and
understand the legal consequences of signing this
Agreement. This waiver by Lessee is a material inducement
for Lessor's execution of the Lease Financing Agreement and
Lessor's waiver is a material inducement for Lessee's
execution of the Lease Financing Agreement. At any party's
request, any other party will join in asking the court in
which suit is pending to try the case and decide all
issues, including issues of fact, without a jury.
IN WITNESS WHEREOF, the parties hereto have caused
this Lease Financing Agreement to be executed as of the day
and year first above written.
LESSEE:
VILLAGE OF NORTH P~ALM~BEACH
By: /j,/ /~Z~~/ s
V.A. Marks, M.D.
r '•~. Mayor
.. '
tAtt Eiori i
'Cathleen F. y, CMC
Village Clerk
Approved by Lessee's
as to/II'orm.
By:
LESSOR:
BARNETT BANK OF PALM BEACH COUNTY
By:
Name
•Its Authorized Representative
•
2l
MFlY-13-1996 16:14 FROM VILLRGE OF N.PRLM BCVILL. TO 842 1548 P.02
niy
THE VILLAGE OF
• I. North Palm Beach
501 U.S. HIGHWAY i • NORTH PALM BEACH, FLORIDA 33408.661.848.3475 • FAX 581.881.7409
'~.»„
Moynr OPINION OF LESSEE'S COUNSEL
V.A. MARKS, M.O.
Vice Moyer
TOM VALEME
Pre[Idonl Pro7om May 13, 1998
LARRY KELLEY
CounGl Memnon
ONL H. vA6TOlA
CHARLES O'MEILIA
VIIIYpB Manepor
DENNIS W. KELLY
Villepe Clnrk
KATHLEEN F. KELLY, CMC
Barnett Benk of Pelm Boech County
826 Notth Flagler Drlve
West Pelm Beech; Florida 33401
Ro: Master Govemmental Equipment Leese Agreement dated May 9, 1996
between tlta Vlllege of North Peim Boech end Barnett Benk of Pelm Beach, Florlde
Ledlos and Gontiomon:
This opinion is being provided to you end your assigns in connection with the Mestsr Governmental
Gqufpmont Leese (the "Lease"1 dated Mey 9, 1988 between the Vlllege of North Pelm Beech (the
• "Lessen") and Barnett Benk of Pelm Boech County, which relates to the Leese by Barnett Benk of Peim
Boech County of certain equipment more fully dscerlbed in the Lease (the "Equipment"1. We have
rovlowsd the Leese end such other documents end certificates as we deemed necessary to enable us
to render this opinion.
In connection with the Leese, wo ore of the opinion that:
1. Tho Lassos is en entity, validly exrsting end in good standing under the laws of the
Steto of Florida with adequate power [o enter into the Lease end Is duly quellfbd to carry on
its current business in those areas where it operetee, including, without limitation, those arses
whore the equipment will be located.
2. The Leese has been duly evthori:ed, executed end delivered by the Lessen end
constitutoe s valid, legal and binding agreement, enforceable against the Leitee N accordance
with Its terms.
3, No prior approval, consent or withholding or refection is required from any govornmentei
authority, body, or from any other person, group of parsons or agency with rMpoct to the
entering Into and the performance by lsccoe of the Lease except es'hes ekeedy properly
occurred. ,
4. The entering Into and the performance of the Lease by Lessee will not violate any
~udgmont, order, law or regulation applicable to Lessee or result In any brooch of or wnetituto
o defaul[ under any other agreement, covenant or recttlction to whkdt the Lascoo Is a party or
by which it or its assets may be bound.
•
•
MRY-13-1996 16 14 FROM VILLRGE OF N.PRLM BCV (LL. TO 842 1548
Barnett Bank of Pelm Beech County
Page 2
6. To my knowledge the Lessee Is not in default under any contraot, agreement or other
Instrumanr. by which it is bound in tiro paymem of any monetary obligation, or with respect to
any judgment, order, injunction, regulation of any county or govornmentel authority, end there
exists no condition or event which after notice or lapse of time constitutor any such default.
P. 03
6. There ere no pending suite which, if determined adversely, would have a materiel
negative effect on the financial operation of the lessee or In any way question or effect the
validity or onforcoebllity of the Lease.
7. As provided by Section 201.24, Florida 6tatutes, the Lossoe Is exempt from payment
of the Excise Tsx on Documents.
8. To the best of the undersigned's knowledge, the Lease and the payments thereunder
ere exempt from ell state end Iocei taxes end fees, Including but not limited to, ell filing or
rogietretion fees, gross receipts tax, sales and use tax, license fens, documentary etemp texas,
rental taxes, asaeasments, charges, ed velarem taxes, excise taxes, end ell other texas, licenses
end charges imposed on the ownership, possession, rental, delivery, transportetlon or use of
the Equipment other then taxes on or measured by rite net income of Lessor.
9. Tho Resolution has boon duly enacted and adopted by the Lessee end has not boon
emended, supplemented, or repeated end Is In fuli force end effeot and constitutes a valid end
binding contract of the Lessee enforcaebla in accordance with Its terms.
10. Any applicable public bidding requirements have boon met whh respect to rho execution
and delivery of rho Leese.
lr~
u
11. I have no knowledge of any leglsletion adopted by the prior or current session of the
Florida Legislature that restricts or otherwise adversely eNecta the Lecsee's power to execute
rho Loose or Its ability to pay the lease payments due under the lease.
VI OE OF NORTH PALM CH
By. / ~
N . e: Oeor W. dwin
Its: A ey
•
TOTRL P.03