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Res 54-05 (''' /,\ RESOLUTION NO. 54-05 RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT SCHEDULE NO. 01 AND RELATED INSTRUMENTS, AND DETERMINING OTHER MATTERS IN CONNECTION THEREWITH. WHEREAS, at a duly called meeting of the governing body of Lessee held in accordance with all applicable legal requirements, including open meeting laws; and WHEREAS, the governing body of City of Delray Beach, FL ("Lessee") desires to obtain certain equipment (the "equipment") described in Equipment Schedule No. 01 to the Master Lease Agreement (collectively, the "Lease") with The Fifth Third Leasing Company, the form of which has been available for review by the governing body of Lessee prior to this meeting; and WHEREAS, the Equipment is essential for the Lessee to perform its governmental functions; and WHEREAS, the funds made available under the Lease will be applied to the acquisition of the Equipment in accordance with such Lease; and WHEREAS, Lessee has taken the necessary steps, including those relating to any applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and WHEREAS, Lessee proposes to enter into the Lease with The Fifth Third Leasing Company substantially in the form presented to this meeting; and NOW, THEREFORE, be it resolved by the Commission of the City of Delray Beach, Florida, as follows: SECTION 1. It is hereby found and determined that the terms of the Lease in the form presented to this meeting and incorporated in this resolution are in the best interests of Lessee for the acquisition of the Equipment. SECTION 2. The Lease and the acquisition and financing of the Equipment under the terms and conditions as described in the Lease are hereby approved. The Mayor of Lessee and any other officer of Lessee who shall have power to execute contracts on behalf of Lessee be, and each of them hereby is, authorized to execute, acknowledge and deliver the Lease with any changes, insertions and omissions therein as may be approved by the officers who execute the Lease, such approval to be conclusively evidenced by such execution and delivery of the Lease. The Mayor of the Lessee and any other officer of Lessee who shall have power to do so be, and each of them hereby is, authorized to affix the official seal of Lessee to the Lease and attest the same. SECTION 3. Pursuant to Section 265(b) of the Internal Revenue Code of 1986 , as amended (the "Code"), Lessee hereby specifically designates the Lease as a "qualified tax-exempt obligation" for purposes of Section 265(b )(3) of the Code. (, /"\ SECTION 4. The undersigned further certifies that the above resolution has not been repealed or amended and remains in full force and effect and further certifies that the Lease executed on behalf of Lessee is the same as presented at such meeting of the governing body of Lessee, excepting only such changes. insertions and omissions as shall have been approved by the officers who executed the same. PASSED and ADOPTED in regular session on this 2nd day of August, 2005. CITY OF DELRAY BEACH Lessee BY: !J#¡ l « Mayor ATTESTED BY: ~n~Oo ./ Acting City Clerk I I ; 2 Resolution No. 54-05 ill Fifth Third Bank MASTER LEASE-PURCHASE AGREEMENT This Master Lease-Purchase Agreement is made this 9 day of August 2005 by and between THE FIFTH THIRD LEASING COMPANY (hereinafter called together with its successors and assigns, if any, "Lessor"), an Ohio corporation with offices at 38 Fountain Square Plaza, Cincinnati, Ohio 45263, and CITY OF DELRAY BEACH, FLORIDA ("Lessee"), with its principal address at 100 N. W. 1st Avenue, Delray Beach, Palm Beach County, Florida 33444, a city and a political subdivision of the State of Florida, organized and eXisting under and by virtue of the laws and Constitution of the State of Florida. RECITALS WHEREAS, Lessee is authorized by law to acquire equipment and other items of personal property and to finance such equipment and/or personal property by entering into lease-purchase agreements; WHEREAS, Lessee has determined that it is necessary for it to acquire under this Agreement certain items of personal property described herein as Equipment; and WHEREAS, Lessor is willing to acquire such items of Equipment and to lease and sell them to Lessee pursuant to this Agreement; NOW, THEREFORE, in the joint and mutual exercise of their powers, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows: 1. Certain Defined Terms and References. (a) In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings given below unless the context clearly requires otherwise: "Acquisition Fund" means the Acquisition Fund established pursuant to Section 4 of this Agreement. "Additional Rent" means the payments required to be made pursuant to Section 7 in addition to the Base Rent. "Agreement" means this Master Lease-Purchase Agreement as the same may be amended or supplemented from time to time, and all other documents and certificates required to be executed in connection herewith. "Applicable Rate of Interest" means such rate as shall be determined from each Individual Payment Schedule. "Authorized Officer" means: (i) With respect to Lessee, any officer of Lessee who is designated in writing by Lessee as an Authorized Officer for the purposes of this Agreement; THIS INSTRUMENT IS INTENDED BY THE PARTIES TO CONSTITUTE A SECURITY AGREEMENT UNDER THE FLORIDA UNIFORM COMMERCIAL CODE. @2003 Fifth Third Bancorp (ii) With respect to Lessor, any officer of Lessor who is designated in writing as an Authorized Officer for purposes of this Agreement; or (iii) With respect to any successor to Lessor as the Lessor, means the officer of the successor who is designated in writing by the successor's governing body as an Authorized Officer for purposes of this Agreement. "Base Rent" means the payments, including the principal and Interest components thereof, specified in the Individual Payment Schedules attached hereto "Bond Fund" means, to the extent an Escrow Agreement is applicable to a particular Lease, the Bond Fund established pursuant to Section 2 of the Escrow Agreement. "Certificate of Acceptance" means a certificate evidencing Lessee's inspection and acceptance of the Equipment described on an Individual Payment Schedule, in form and substance satisfactory to Lessor. "Commencement Date" means the date when the term of the Individual Payment Schedule begins and Lessee's obligation to make Lease-Purchase Payments accrues, as evidenced by payment by Lessor to the Vendor of the purchase price (or pertinent portion thereof) for the applicable Equipment "Contractor" means each of the manufacturers or vendors from whom Lessee has ordered or will order or with whom Lessee has contracted or will contract for the manufacture, delivery or installation of the Equipment. "Environmental Law" means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, decree or judicial or agency interpretation relating to pollution or protection of the environment, health, safety or natural resources, including those relating to the use, handling, treatment, storage, disposal or release of any substance designated, classified or regulated as hazardous or toxic material, including petroleum and petroleum by-products, asbestos-containing materials, PCBs, radioactive materials and radon gas. "Escrow Agent" means the Escrow Agent acting under and pursuant to the Escrow Agreement, if applicable. "Escrow Agreement" means, to the extent required by an Individual Payment Schedule, an Escrow Agreement by and between the Escrow Agent and Lessee, as the same may be amended and supplemented from time to time. "Equipment" means the personal property described in the Individual Payment Schedules, which is being leased and purchased by Lessee pursuant to this Agreement The property so listed shall be, collectively, the "Equipment" and individually, a "Unit of Equipment." "Equipment Location" means the location or locations within Lessee's jurisdiction where the Equipment is installed, used or maintained by Lessee. "Event of Loss" means with respect to any Unit of Equipment if such Unit of Equipment or any material part thereof has been lost, stolen, requisitioned or condemned by any governmental authority, damaged beyond repair or damaged in such a manner that results in an insurance settlement on the basis of an actual or arranged total loss. "Final Renewal Period" or "Final Period" means the last period during which a lease will be renewed, commencing on the first day of the Fiscal Period of Lessee specified in the applicable Individual Payment Schedule with respect to each Unit of Equipment and ending on the date specified in such Individual Payment Schedule as the last payment date. - 2 - @2003 Fifth Third Bancorp --- "Fiscal Period" means the applicable fiscal year of lessee. "Implicit Rate of Interest" means the rate used to determine the interest portion of the lease-Purchase Payments, as set forth in the Individual Payment Schedules "Independent Counsel" means any attorney or attomeys duly admitted to practice law before the highest court of any state and not an officer or full time employee of lessor or lessee and who is not reasonably objected to by lessee. "Individual Payment Schedules" means the schedules which identify specific Units of Equipment, the Commencement Date of the Individual leases and terms thereof (which are treated as separate lease obligations) which may become a part of this Agreement from time to time. "Initial Fiscal Period" or "Initial Period" means such period as shall be indicated by the Commencement Date set forth in each Individual Payment Schedule for the Equipment, which shall terminate the last day of lessee's then current Fiscal Period. The term of the leases will be renewed in the manner described in Section 6 hereof at the end of the Initial Period or any Renewal Period for one (1) additional year, upon lessee's budgeting of sufficient funds for the making of lease-Purchase Payments for the next occurring Renewal Period with respect to the Equipment or specific Units of Equipment, as provided in Section 10 of the Agreement. "Lease-Purchase Payment Account" means the account established by lessor for receipt and deposit of the lease-Purchase Payments of lessee under the Agreement and for deposit of any insurance proceeds not used for repair or replacement of Equipment, as provided in Section 19 of this Agreement. "Lease-Purchase Payments" means the sum of the Base Rent and any Additional Rent due at or during a stated time. "lease Tenn" means, collectively, the Initial Period and thereafter, each Renewal Period provided for in the Agreement. "lease" or "Leases" means an individual lease or leases of the Units of Equipment, as specified in the Individual Payment Schedules and the other documents, agreements and instruments executed in connection therewith, entered into as a part of and pursuant to the Agreement. "Lessee" means as referenced above, a political subdivision of the State "Lessor" means as referenced above, or its successors or assigns. "Maximum Fiscal Periods" means the total number of Fiscal Periods of lessee during which the leases may be renewed from and including the first Fiscal Period to and including the final Fiscal Period. "Payment Date" means each date of payment during the lease Term designated as a Payment Date in the Individual Payment Schedules, commencing as of the Commencement Date. "Purchase Price" means, as of any Purchase Price Date, the amount set forth in the Individual Payment Schedules which lessee may pay to purchase the Equipment or specific Units of Equipment. "Purchase Price Date" means any Payment Date referred to in the Individual Payment Schedules, on which lessee may purchase the Equipment or specific Units of Equipment by payment of the applicable Purchase Price after payment of the lease-Purchase Payment due on such date. "Renewal Period" means any Fiscal Period subsequent to the Initial Period of an individual lease during which such lease is renewed. -3- ~003 Fifth Third Bancorp "State" means the State or Commonwealth where lessee is located. "Taxable Rate of Interest" means a rate of interest equal to the Tax Equivalent Yield. "Tax Equivalent Yield" means the Implicit Rate of Interest divided by the remainder resulting from subtracting the current maximum federal corporate income tax rate from one. "Vendor" means the manufacturer of the Equipment as well as the agents or dealers of the manufacturer from whom lessor purchased or will purchase the Equipment. (b) References to sections, exhibits or attachments, unless otherwise indicated, are to sections of or exhibits or attachments to this Agreement. 2. Assianment of Warranties. lessor hereby assigns to lessee during the Lease Term, all warranties, if any, express or implied with respect to the Equipment. This assignment includes an authorization to Lessee to obtain the customary services furnished in connection with those warranties, at Lessee's expense. 3. Lease of Equipment. Lessor hereby agrees to demise, lease and let to Lessee, and Lessee hereby agrees to rent, lease and hire from Lessor, the Equipment in accordance with the provisions of this Agreement, to have and to hold for the Lease Term. Upon and during acquisition of the Equipment, all leasehold rights granted to Lessee by Lessor under this Agreement shall vest in Lessee, without any further action on the part of Lessor. Each Lease of each Unit of Equipment shall be evidenced by an Individual Payment Schedule executed by Lessor and Lessee describing specific personal property, and setting forth provisions relating to the rent, term of the Lease, and other details relating to such Equipment. The Lease for each Unit of Equipment shall become effective on the Commencement Date, and the Individual Payment Schedule for such Equipment shall specify such date as the effective date of the Lease. 4. Disbursements. Subject to the terms and conditions hereof, Lessor and Lessee agree to disburse funds directly to the Vendor of Equipment or, to the extent an Escrow Agreement is applicable to any Individual Payment Schedule, establish an Acquisition Fund for the purposes hereinafter described for each Individual Payment Schedule through such Escrow Agreement. Lessor is authorized to disburse such funds directly to the applicable party or from the Acquisition Fund, in accordance with the provisions of the Escrow Agreement, as applicable, in each case for payment of, or reimbursement to Lessor or Lessee for payment of, the following: (a) Expenses incurred in connection with the authorization, issuance and delivery of this Agreement and the preparation and delivery of all agreements, instruments and documents related thereto, Including, but not limited to, all financial, legal, administrative, accounting and printing fees, expenses and charges and all recording, filing or insurance, and any other fees, expenses or charges relating to the Equipment or this Agreement; (b) Any other costs, expenses, fees and charges properly chargeable to the cost of acquisition and installation of the Equipment; and (c) Any other costs relating to the Equipment for which payment may be made under the terms of this Agreement. Any such disbursements in respect of the purchase price of the Equipment or related costs from the Acquisition Fund or otherwise for the payment of costs shall be made upon acceptance of the Equipment pursuant to Section 5 hereof. -4 - (1;)2003 Fifth Third Bancorp ~---- -- ---- ----- Reimbursements to Lessee for amounts paid on the Equipment (by virtue of a down payment or payment for the Equipment) from the amounts provided for by this Agreement must be in accordance with U.S Treas. Reg § 1.150-2. 5. Acceptance of Equipment. Upon the acquisition and installation of each Unit of Equipment, Lessee shall acknowledge and certify in writing its acceptance of such Equipment by signing a Certificate of Acceptance. 6. Lease Term. The term of each Lease will be for the Initial Period and will be renewable upon budgeting by Lessee of sufficient funds to pay Base Rent and Additional Rent on the first day of each succeeding Fiscal Period for the Maximum Fiscal Periods indicated on the Individual Payment Schedules, unless Lessee exercises its Purchase Option (as specified in Section 20 hereof) prior to the end of the Final Renewal Period. The Lease will terminate upon payment of the final Lease-Purchase Payment indicated on the applicable Individual Payment Schedule (plus any Additional Rent payable under the terms of this Agreement), or on a sooner Purchase Price Date. This paragraph shall not be considered a general obligation of the City and the taxing power of the Lessee is not pledging in any way 7. Rent. (a) Lessee agrees to pay to Lessor during the Lease Term of each Lease the Lease-Purchase Payments set forth in the Individual Payment Schedules on the dates and in the amounts set forth therein, including the interest components thereof, equal to the amounts provided below in this Section. The Lease-Purchase Payments during the Lease Term will be absolute and unconditional in all events and will not be subject to any set-off, defense, counterclaim or recoupment for any reason whatsoever. (b) Lessee agrees to pay as Base Rent directly to Lessor the following amounts: (i) Lessee agrees to pay the Lease-Purchase Payments specified in each Individual Payment Schedule. Each payment shall be applied first to payment of the interest component of the respective Lease-Purchase Payment. (if) To the extent permitted by law, if any Lease-Purchase Payment shall not have been received by Lessor ten (10) days after the Payment Date, Lessee agrees to pay a late payment fee equal to 1 Y2% of the due and owing Lease-Purchase Payment. (c) Lessee agrees to pay to Lessor the following amounts as Additional Rent: (i) Lessee represents that no charges or taxes (local, state or federal) are currently imposed on the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, exclusive of taxes on or measured by Lessor's income, and acknowledges that no provision has been made for the inclusion of any such charges or taxes in the Base Rent. If during the Lease Term, the ownership, leasing, rental, sale, purchase, possession or use of the Equipment shall result in the imposition on Lessor of any charges or taxes (local, state or federal), exclusive of taxes on or measured by Lessor's income, Lessee shall promptly pay to Lessor, upon receipt from Lessor of a statement therefor, as Additional Rent an amount equal to those charges and taxes imposed on Lessor. (ii) Upon an Event of Default, Lessee will pay to Lessor as Additional Rent all reasonable costs and expenses incurred or to be paid by Lessor under the Agreement, which were not part of the original cost of the Equipment. -5- @2003 Fifth Third Bancorp -~---- (iii) Lessee will pay to Lessor as Additional Rent all supplemental payments required by Section 8(d) below in the amount necessary to preserve the Tax Equivalent Yield to Lessor under the terms of the Agreement, in the manner provided therein (d) If Lessee does not make payment of all or any part of the Additional Rent, Lessor shall have the right, but shall not be obligated, to payor advance the amount of such Additional Rent If Lessor pays any portion of such Additional Rent, Lessee shall pay Lessor no later than the first Payment Date in the next succeeding Fiscal Period during which the Lease Term is in effect an amount equal to the sum of such AdditIonal Rent and the costs incurred by Lessor in making such payment or advance, including the amount Lessor would have earned from investment of the amount paid or advanced before repayment thereof as determined by the prime rate of Fifth Third Bank as announced from time to time, plus 1 '!/z%. Lessor shall notify Lessee in writing of the costs incurred in any case of its paying or advancing such Additional Rent. If Lessor pays or advances such Additional Rent, and is repaid as provided for in this paragraph, then such initial failure to pay shall be deemed to be cured and shall not be deemed to be an Event of Default under Section 22 of this Agreement. (e) Lease-Purchase Payments shall be payable at the principal commercial leasing office of Lessor or at such other place as Lessor may from time to time designate in writing 8. Actions RelatinQ to Tax Exemption of Interest Components. (a) Lessor and Lessee each covenant that it will restrict the use of moneys realized under this Agreement or otherwise In connection with the acquisition and financing of the Equipment in such manner and to such extent, if any, as may be necessary, after taking into account reasonable expectations at the time of entering into this Agreement, so that there will not exist at any time any obligation in connection with this Agreement or the EquIpment that constitutes an obligation the interest on which is includible in gross income for federal income tax purposes or an "arbitrage bond" under Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations prescribed under that Section and any subsequent amendments or modifications thereto. Any officer of Lessor or Lessee having responsibility with respect to the execution and delivery of this Agreement shall, alone or in conjunction with any other officer, employee or agent of or consultant to Lessor or Lessee, give an appropriate certificate of Lessor or Lessee (in form and substance satisfactory to Lessor or Lessee, as applicable) pursuant to Sections 103 and 148 of the Code and those regulations, setting forth the reasonable expectations of Lessor or Lessee on the date of entering into each Individual Payment Schedule of this Agreement, regarding each Lease and the use of those moneys, which such certificate shall bind the Lessee with respect to the covenants and undertakings contained therein. (b) Lessee represents and covenants that it will not use the Equipment, or permit the Equipment to be used, in such a manner as would result in the loss of the exclusion from gross income for federal income tax purposes of the component of the Lease-Purchase Payments designated as interest on the Individual Payment Schedules afforded under Section 103(a) of the Code. (c) Lessor and Lessee each covenant to take all action required to maintain exclusion from gross income for federal income tax purposes afforded under Section 103(a) of the Code, of the Lease-Purchase Payments designated as the interest component on the Individual Payment Schedules attached hereto. (d) (i) If at any time the yield to Lessor as to any Lease is decreased by any change in the limitation in the deductibility of the interest paid on debt incurred by Lessor to carry tax exempt obligations from that which is presently incurred by Lessor, or if there shall occur any other change in law which lowers the Tax Equivalent Yield to Lessor, then Lessee shall make a supplemental payment to Lessor annually, on written demand by Lessor, in an amount which is equal to the amount necessary on an after-tax basis to preserve the same Tax Equivalent Yield. (ii) If for any reason the interest portion of the Lease-Purchase Payments of any Lease is determined not to be excludable from gross income for federal income tax purposes, the Implicit Rate of Interest will increase to a rate equal to a Taxable Rate of Interest. In addition, Lessee will pay an amount equal to the difference between the portion of the - 6- C2003 Fifth Third Bancorp Lease-Purchase Payments which constituted interest with respect to such Lease which were actually paid and the interest which would have been paid if the Implicit Rate of Interest had been a Taxable Rate of Interest from the Commencement Date or, if later, the effective date from which the interest component IS determined to be taxable, plus any penalties, interest, assessments and additions to tax payable by Lessor as a result of the loss of the tax exempt status of interest on the Lease. 9. Authority and Authorization. Lessee represents, covenants and warrants, and will deliver to Lessor not later than the Commencement Date an opinion of its counsel to the effect that: (i) Lessee is a political subdivision of the State, duly organized and validly existing under and by virtue of the laws of the State; (ii) the execution, delivery and performance by Lessee of this Agreement have been duly authorized by all necessary action on the part of Lessee; and (iii) this Agreement constitutes a legal, valid and binding obligation of Lessee enforceable in accordance with its terms Lessee agrees and warrants that: (i) it will do or cause to be done all things necessary to preserve and keep this Agreement, including each Individual Payment Schedule hereunder, in full force and effect; (ii) it has complied with all requirements applicable to it, and has taken all steps for approval and adoption of this Agreement as a valid obligation on its part; and (iil) sufficient funds are appropriated to pay all amounts due under this Agreement for the Initial Period 10. Title: Termination: NonaDDroDriation. (a) Lessee will obtain title to the Equipment during the Lease Term, subject to Lessor's rights under this Agreement. Lessor and Lessee agree that this Agreement or any other appropriate documents may be filed or recorded to evidence the parties' respective interests in the Equipment and the Agreement. (b) The Equipment shall become the property of Lessee and Lessor's interest therein shall pass to Lessee without cost upon (i) Lessee's exercise of the Purchase Option granted in Section 20 hereof, or (ii) the complete payment and performance by Lessee of all of its obligations during the Lease Term; provided, however, that title shall immediately and without any action by Lessee vest in Lessor, and Lessee shall immediately surrender possession of the applicable Units of Equipment to Lessor upon (A) any termination of any Lease under this Agreement without Lessee exercising its Purchase Option to purchase with respect thereto, or (8) the occurrence of an Event of Default which is not cured in accordance with the terms of this Agreement. In any of such cases, Lessee agrees to execute such instruments and do such things as Lessor reasonably requests In order to effectuate transfer of any and all of Lessee's right, title and interest in such Equipment, as is, to Lessor. Subject to Lessee's obligations under Section 14 hereof, It is hereby acknowledged by Lessor and Lessee that Lessee will purchase the Equipment on the terms set forth in the Individual Payment Schedules of this Agreement. (c) It is Lessee's intent to pay Lease-Purchase Payments for the Initial Period and all Renewal Periods as scheduled on each Individual Payment Schedule if funds are legally available to it and in this regard, Lessee represents that the use of the Equipment is essential to its operations. If Lessee is not allotted funds for any successive Fiscal Period to continue paying the Lease-Purchase Payments as to any Individual Payment Schedule for the Units of Equipment relating thereto and it has no funds legally available for such payment from other sources, Lessee may terminate the applicable Individual Payment Schedules of this Agreement at the end of the then current Fiscal Period, and Lessee shall not be obligated to make any payments thereon beyond the end of the then current Fiscal Period Lessee shall provide Lessor with thirty (30) days written notice of its intention to terminate this Agreement as a result of an event of nonappropriation. In such event, Lessor shall have all the rights and remedies to take possession of the Units of Equipment relating to the Individual Payment Schedules so terminated. Lessee agrees to transfer all of its right, title and interest and to peaceably surrender possession of the applicable Units of Equipment to Lessor or its assignee on the effective date of such termination, and to have such Equipment packaged for shipment in accordance with manufacturer's specifications. 11. Security Interest. In order to secure all of its obligations hereunder, Lessee hereby (a) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in (i) the - 7- ©2003 Fifth Third Bancorp Equipment and in all additions, attachments, accessions, and substitutions thereto, and on any proceeds therefrom, (ii) all general intangibles, software intangibles and other property relating thereto (excluding accounts receivable), (iii) all warehouse receipts, bills of lading and other documents of title now or hereafter covering any of the foregoing property, (iv) all securities, funds, moneys, deposits and other property at any time held In or subject to the Acquisition Fund (If any), (v) all accessions thereto, (vi) all accesSOries, attachments, parts, equipment and repairs now or hereafter attached or affixed or used in connection with any of the foregoing property, (vii) all substitutions for any of the foregoing property and (viii) proceeds of any of the foregoing property (including, without limitation, any property acquired by lessee with such proceeds); (b) agrees that this Agreement may be filed as a financing statement evidencing such security interest and authorizes lessor to file such other UCC Financing Statements relating to such collateral in such jurisdictions as lessor shall determine are necessary or appropnate; and (c) agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to evidence such security interest and lessee hereby irrevocably makes, constitutes and appoints lessor as lessee's true and lawful attorney with full power to sign the name of lessee to any such document. 12. Disclaimer of Warranties. lESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, SUBJECT TO lESSEE'S OBLIGATIONS UNDER SECTION 14 HEREOF, OF ANY OF THE EQUIPMENT OR AS TO ITS TITLE THERETO OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. lessor hereby assigns to lessee for and during the lease Term all manufacturer's warranties or guaranties, express or implied, issued on or applicable to the Equipment and lessor authorizes lessee to obtain the customary services fumished in connection with such warranties or guaranties at lessee's expense. lessee acknowledges that the Equipment shall be purchased by lessor in accordance with lessee's specifications and from a vendor selected by Lessee; that Lessor is not a manufacturer of or dealer of such Equipment and takes no part in or responsibility for the installation of the Equipment, and that lessor has made no representation or warranty and assumes no obligation with respect to the merchantability, condition, quality or fitness of the Equipment or the enforcement of the manufacturer's warranties or guaranties. All such risks, as between lessor and lessee, are to be bome by lessee. Without limiting the foregoing Lessor shall have no responsibility or liability to Lessee or any other person with respect to any of the following: (i) any liability, loss or damage caused or alleged to be caused directly or Indirectly by the Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any other circumstances in connection therewith; (il) the use, operation or performance of the Equipment or any risks relating thereto; (iii) any interruption of service, loss of business or anticipated profits or consequential damages; or (iv) the delivery, operation, servicing, maintenance, repair, improvement or replacement of the Equipment. 13. Personal Property. The Equipment is and shall at all times be and remain personal property notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner affixed or attached to or embedded in or permanently rested upon real property or any building or fixtures thereon or otherwise attached in any manner to what is permanent by means of cement, plaster, nails, bolts, screws or otherwise. 14. Use: Maintenance and Repair: Indemnification. (a) lessee will: (i) use the Equipment in a careful manner for the use contemplated by this Agreement and the laws of the State with respect to equipment of this type; (ii) comply with all laws, insurance policies and regulations relating to the use, maintenance and operation of the Equipment; and (iil) pay all costs, claims, damages, fees and charges arising out of its possession, use or maintenance of the Equipment. - 8- @2003 Fifth Third Bancorp (b) Lessee, at its expense, will: (i) keep the Equipment in good repair and furnish all parts, mechanisms and devices required therefor, and (ii) obtain and maintain any governmental licenses and permits required for ownership and operation of the Equipment. (c) Lessee will repair and maintain, or by contract provide for the proper repair and maintenance of, the Equipment during the Lease Term. (d) Lessor agrees that so long as no Event of Default has occurred and is continuing during the Lease Term it will not impair Lessee's abilities to operate or maintain the Equipment in sound operating condition so that the Equipment will be able to carry out its intended functions 15. Alterations. Following completion of the acquisition of the Equipment, Lessee will not make any alterations, additions, substitutions, subtractions or replacements to the Equipment which would have an adverse effect on either the nature of the Equipment or the function or value of the Equipment, unless such alterations, additions, substitutions, subtractions, replacements or improvements may be readily removed or re-added without damage to the Equipment. Any alterations, additions or improvements to the Equipment which may not be readily removed without damage to the Equipment, and any substitutions or replacements, shall be considered to constitute a part of the Equipment. 16. Location: Inspection. Lessee shall not remove the Equipment from the Equipment Location without the consent of Lessor, which consent shall not be unreasonably withheld Lessor will be entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to Inspect or observe the use, operation and maintenance of the Equipment. 17. Liens and Encumbrances lessee and lessor shall keep the Equipment free and clear of all liens and encumbrances except those created or permitted under this Agreement. 18. Risk of Loss: Damage: Destruction. Lessee assumes all risk of loss or damage to the Equipment from any cause whatsoever. No loss of or damage to, or appropriation by govemmental authorities of, or defect in or unfitness after delivery or obsolescence of, the Equipment will relieve Lessee of its obligation under this Agreement or the Individual Payment Schedules hereunder. Lessee will promptly repair or replace any portions of Equipment lost, destroyed, damaged or appropriated necessary to maintain the Equipment in sound operating condition so that at all times during the Lease Term the Equipment will be able to carry out its intended functions. If an Event of Loss to any Equipment has occurred, Lessee shall immediately notify Lessor of same, and at the option of Lessor, Lessee shall: (a) repair or replace such Equipment in accordance with the immediately preceding sentence and the other terms and conditions hereof or (b) pay to Lessor on the next succeeding Payment Date the sum of (i) all Base Rent and Additional Rent due on such Payment Date and all other amounts then due and owing hereunder plus (ii) the Purchase Price as of such Payment Date with respect to the Equipment. Upon Lessor's receipt of the payment required under subsection (b) above, Lessee shall be entitled to Lessor's interest in such Equipment, in its then condition and location, "as is" and "where is", without any representations or warranties, express or implied. 19. Insurance. lessee during the lease Term of this Agreement shall maintain: (a) property insurance, with any loss deductible commonly used by lessee, covering the Equipment, naming lessor as loss payee and otherwise on the terms and in the amounts specified in the Insurance Coverage Certificate executed by Lessee; (b) liability insurance covering the use of the Equipment, which may be a combination of self-insurance and an excess liability policy, naming Lessor as an additional insured and otherwise on the terms and in the amounts specified in the Insurance Coverage Certificate executed by Lessee; -9- ©2003 Fifth Third Bancorp (c) the proceeds of any personal injury insurance, casualty insurance, or appropriatIon awards, to the extent they are not promptfy used or encumbered for the purposes stated in 18 hereof, shall be paId to Lessor for deposit in the Lease-Purchase Payment Account; and (d) in the event of total destruction of any Units of Equipment, Lessee shall apply insurance proceeds, self-insurance and any other moneys available and appropriated for the purpose, to the acquisition of replacement EqUipment. 20. Purchase Option. Lessee, upon thirty (30) days prior written notice to Lessor and after the Commencement Date, shall have the right to purchase the Equipment or any Unit of Equipment thereof on any Purchase Price Date by paying to Lessor the Lease-Purchase Payment then due on the applicable Individual Payment Schedule, together with the Purchase Price relating to that date Any purchase of Equipment hereunder shall be on an "as-is, where-is" basis without representation or warranty of any kind from Lessor except that Lessor shall warrant that the Equipment is free, clear and unencumbered of all liens arising by, through or under Lessor except for such liens as Lessee is required to remove pursuant to the terms hereof. 21. Assignments. (a) Lessee may not, without the prior written consent of Lessor: (i) assign, transfer, pledge, hypothecate or grant any security interest in or otherwise dispose of this Agreement or any Individual Payment Schedule under this Agreement or any Unit of Equipment (without replacement or substitution) or any interest in this Agreement or any Individual Payment Schedule under this Agreement or Unit of Equipment, or (il) sublease the Equipment or permit it to be operated by anyone other than Lessee, Lessee's employees or persons authorized by Lessee In connection with Lessee's operation and maintenance of the Equipment. (b) This Agreement and each Individual Payment Schedule and the obligations of Lessee to make payments under each Individual Payment Schedule, may be sold, assigned or otherwise disposed of in whole or in part to one or more successors, grantees, holders, assignees or subassignee by Lessor, whereupon such successors, grantees, holders, assignees or subassignee shall succeed to all of Lessor's rights and (except to the extent of any servicing obligations retained by Lessor) obligations. Upon any sale, disposition, assignment or reassignment, Lessee shall be provided with a notice of the same by Lessor or its grantees, holders, assignees or subassignee; provided, however, that failure to provide such notIce to Lessee shall not invalidate, void or render ineffective such assignment. Such sale, disposition, assignment or reassignment shall be effective upon receipt of such notice by Lessee. (c) Lessee agrees to make all payments to the assignee designated in the assignment, notwithstanding any claim, defense, setoff or counterclaim whatsoever (except arising from Lessor's breach of this Agreement) that Lessee may from time to time have against Lessor or Vendor. Lessee agrees to execute all documents, including registering of assignments, notices of assignment and chattel mortgages or financing statements, which may be reasonably requested by Lessor or assignee to protect its interest in the Equipment, in this Agreement and in each Individual Payment Schedule. (d) Lessee hereby agrees that Lessor may sell or offer to sell this Agreement (i) through a certificate of participation program, whereby one or more interests are created in the Agreement under each Individual Payment Schedule, the Equipment or the Rental Payments under this Agreement and each Individual Payment Schedule or (it) with other similar instruments, agreements and obligations through a pool, trust, limited partnership, or other entity. 22. Events of Default. The occurrence of anyone or more of the following events constitutes an "Event of Default" under this Agreement: (a) Lessee's failure to make during the then current Fiscal Period any Lease-Purchase Payment (or any other payment) as it becomes due in accordance with the terms of any -10 - 02003 Fifth Third Bancorp Individual Payment Schedule of this Agreement, and the failure continues for thirty (30) days after the due date; or (b) Lessee's failure to perform or observe any other covenant, condition or agreement to be performed or observed by it under this Agreement, and the failure is not cured or steps satisfactory to Lessor taken to cure the failure, within fifteen (15) days after written notice of the failure to Lessee by Lessor; or (c) The discovery by Lessor that any material statement, representation or warranty made by Lessee in this Agreement or in any writing delivered by Lessee pursuant to or in connection with this Agreement is false, misleading or erroneous in any material respect; or (d) The initiation by Lessee of a proceeding under any federal or state bankruptcy or insolvency law seeking relief under such laws conceming the indebtedness of Sub-Lessee or Lessee; or (e) Lessee shall be or become insolvent, or admit in writing its inability to pay its or his debts as they mature, or make an assignment for the benefit of creditors; or Lessee shall apply for or consent to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property; or such receiver, trustee or similar officer shall be appointed without the application or consent of Lessee; or Lessee shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction; or any such proceeding shall be instituted (by petition, application or otherwise) against Lessee, or any judgment, Writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of Lessee. 23. Remedies. Upon the occurrence of an Event of Default, and as long as the Event of Default is continuing, Lessor may, at its option, exercise anyone or more of the following remedies as to the Equipment: (a) By written notice to Lessee, dedare an amount equal to all amounts then due under all Individual Payment Schedules and all remaining Lease-Purchase Payments due thereon during the then applicable Fiscal Period, whereupon that amount shall become immediately due and payable; (b) Within fifteen (15) days after written demand or notice to Lessee, enter and take immediate possession of the Equipment wherever situated, without any court order or process of law and without liability for entering the premises; (c) Sell or lease the Equipment or sublease the Equipment for the account of Lessee, holding Lessee liable for all Lease-Purchase Payments and other payments due during the then applicable Fiscal Period to the effective date of such selling, leasing or subleasing and for the difference between the purchase price, rental and other amounts paid by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the amounts payable during such Fiscal Period by Lessee under all Individual Payment Schedules of this Agreement; and (d) Exercise any other right, remedy or privilege which may be available to it under the applicable laws of the State or any other applicable law or proceed by appropriate court action to enforce the terms of this Agreement or to recover damages for the breach of this Agreement or to rescind this Agreement as to any or all of the Equipment. Upon an Event of Default or as otherwise required herein or in any Agreement, Lessee shall within ten (10) calendar days after notice from Lessor, at its own cost and expense: (a) if deinstallation, disassembly or crating is required, cause the Equipment to be deinstalled, disassembled and crated by an authorized manufacturer's representative or such other service person as is satisfactory to Lessor; and (b) deliver the Equipment to a location specified by Lessor, freight and insurance prepaid by Lessee. If -11 - @2003 Fifth Third Bancorp Lessee refuses to deliver the Equipment in the manner designated, Lessor may enter upon Lessee's premises where the Equipment is kept and take possession of the Equipment and charge to Lessee the costs of such taking To the extent permitted by applicable law, Lessee hereby expressly waives any damages occasioned by such taking, unless caused solely and directly by Lessor's failure to comply with the UCC If Lessee makes modifications to a site after any Equipment has been installed therein and such modifications impede the removal of the Equipment, the cost of removing the Impediments and restoring the site shall be the sole expense of Lessee. Lessee agrees that if Lessee is required to deliver any item of Equipment to Lessor or Lessor's agent, the Equipment shall be delivered free of all substances which are regulated by or form a basis for liability under any Environmental Law (other than items necessary for the use or operation of the Equipment for the purposes for which it was intended so long as such items have been hauled, conveyed, stored, treated, transported and disposed of In accordance with Environmental Laws). All of Lessee's right, title and interest in any Equipment the possession of which is taken by Lessor upon the occurrence of an Event of Default (including, without limitation, construction contracts, warranties, guaranties or completion assurances applicable to such Equipment) shall pass to Lessor, and Lessee's rights in such Equipment shall terminate immediately upon such repossession. 24. No Remedv exclusive. No remedy herein conferred upon or reserved to Lessor or Lessee 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 or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. All remedies herein conferred upon or reserved to Lessor shall survive the termination of this Agreement. 25. Notices. All notices to be given under this Agreement shall be made in writing and mailed by certified or registered mail, return receipt requested, to the parties at the addresses set forth herein or at such other address as the party may provide in writing from time to time 26. Headlnas. All section headings contained in this Agreement are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 27. Governina Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. 28. Delivery of Related Documents. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the transactions contemplated by this Agreement, including the Individual Payment Schedules which are or become a part of this Agreement. Lessor and Lessee agree that this Agreement or any other appropriate documents may be filed or recorded to evidence the parties' respective interests in the Equipment and this Agreement or the individual Leases hereunder. 29. Special Representations and Covenants of Lessor. Lessor represents that: (a) Lessor is an Ohio corporation authorization to do business in Florida and is duly organized, existing and in good standing under the laws of such state; has full and complete power to enter into this Agreement and to enter into and carry out the transactions contemplated hereby, and to carry out its obligations under this Agreement; is possessed of full power to own and hold real and personal property, and to lease the same, and has duly authorized the execution and delivery of this Agreement; (b) neither the execution and delivery of this Agreement or any Lease, nor the fulfillment of or compliance with the terms and conditions hereof and thereof, nor the consummation of the -12 - @2003 Fifth Third Bancorp transactions contemplated hereby and thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or Instrument to which Lessor is now a party or by which Lessor or its property is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge, or encumbrance whatsoever upon any of the property or assets of Lessor, or upon the Equipment, as defined in any Lease except encumbrances permitted by the Lease; and (c) upon exercise by Lessee of its option to purchase the Equipment pursuant to any Lease, Lessor will deliver to Lessee all documents which are or may be necessary to vest all of Lessor's nght, title and interest in and to the Equipment in Lessee, and will release all liens and encumbrances created under the Lease with respect to the Equipment. 30. Special Representations and Covenants of Lessee. Lessee represents that: (a) it is a Florida Municipal corporation of the State of Florida responsible for City Office Equipment and that acquiring, owning and financing of the Equipment and the leasing of the Equipment will advance such purposes. Lessee further represents that it intends, to the fullest extent possible, to support and maintain the Equipment to assure performance of its essential function; (b) the laws of the State of Florida authorize Lessee to acquire, operate and maintain the equipment to be leased pursuant to the Lease, to enter into the Lease and the transactions contemplated thereby, and carry out its obligations under the Lease; (c) the officers of Lessee executing the Lease have been duly authorized to execute and deliver the Lease under the terms and provisions of a resolution of Lessee's governing body or by other appropriate official action; (d) Lessee has complied with all open meeting laws, all public bidding laws and all other laws of the State and the United States applicable to the Lease and the acquisition of the Equipment by Lessee; (e) except as provided under the terms of the Lease, Lessee will not transfer, lease, assign, mortgage or encumber the Equipment; (f) the Equipment constitutes public property to be used solely for public purposes and Lessee will use the Equipment during the term of the Lease only to perform essential governmental functions; (g) Lessee will execute and file with the Internal Revenue Service the information reporting statement required by Section 149(e) of the Code, (Form 8038G or 8038GC); (h) Lessee does not reasonably anticipate that less than ninety-five percent (95%) of the proceeds of the Lease will be used for "local government activities' of Lessee; and (i) all representations, warranties, covenants and statements contained in this Lease are true and correct. Upon the execution of each Individual Payment Schedule, Lessee will provide Lessor a completed and executed copy of the opinion of the legal counsel to Lessee, in form and substance satisfactory to Lessor. The opinion of legal counsel to Lessee will be dated the date that funding for the Individual Payment Schedule is provided by Lessor. In addition, Lessor's obligation to fund the purchase price for the Equipment referred to in any Individual Equipment Schedule executed pursuant hereto is conditioned upon prior receipt of the following documents. in each case, duly executed by Lessee and in form and substance satisfactory to Lessor: (i) Arbitrage and Tax Certificate, (ii) Certificate of Fiscal Officer, (Iii) -13 - @2003 Fifth Third Bancorp Bank Eligibility Certificate, (iv) Insurance Coverage Letter, (v) Municipal Certificate and (vi) Essential Use/Source of Funds Certificate. 31. Escrow AQreement To the extent required by any Individual Payment Schedule executed pursuant hereto, at the time of the execution and delivery of such Individual Payment Schedule, Lessor and Lessee agree to execute and deliver and to cause Escrow Agent to execute and deliver the Escrow Agreement. Such Individual Payment Schedule shall take effect only upon execution and delivery of the Escrow Agreement by the parties thereto. Upon receipt of each properly completed Payment Request Form, in the form prescribed by the Escrow Agreement, Lessor shall deposit or cause to be deposited with Escrow Agent for credit to the Acquisition Fund the sum designated therein, which shall be held, invested and disbursed in accordance with the Escrow Agreement. 32. Entire Aareement. This Agreement, together with all Individual Payment Schedules and attachments and exhibits, and other documents or instruments executed by Lessee and Lessor in connection with this Agreement, constitute the entire agreement between the parties with respect to the lease of the Equipment. 33. Amendments. This Agreement may not be modified, amended, altered or changed except with the written consent of Lessee and Lessor and except as contemplated by the addition of Individual Payment Schedules 34. Severability. In any provision of, or any covenant, obligation or agreement contained in this Agreement is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained in this Agreement. The invalidity or unenforceability shall not affect any valid or enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. 35. Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same Agreement. 36. Disputes: Venue. All disputes shall be governed by the laws of the State of Florida with venue in Palm Beach County, Florida. -14 - @2003 Fifth Third Bancorp IN WITNESS WHEREOF, the parties have executed this Master Lease-Purchase Agreement by their authorized officers as of the date set forth above. LESSOR: THE FIFTH THIRD LEASING COMPANY By: Name: Mark J. Zink Title: Assistant Vice President LESSEE: CITY OF DELRAY BEACH, FLORIDA By: Name: Title: Attested by: City Clerk Approved as to legal sufficiency and form on behalf of Lessee -15 - ©2003 Fifth Third Bancorp m Fifth Third Bank INSURANCE COVERAGE CERTIFICATE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") Please provide the evidence of insurance to Lessor at The Fifth Third Leasing Co, 38 Fountain Square Plaza, MD10904A, Cincinnati, Ohio 45263 Attn: Sales Support Manager FROM. CITY OF DELRAY BEACH, FLORIDA a city in the State of Florida RE: INSURANCE COVERAGE REQUIREMENTS of the Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August9, 2005 (the "Individual Payment Schedule") 1. In accordance with Section 19 of the Master Lease and the Individual Payment Schedule referenced above (collectively, the "Agreement"), we have instructed the insurance agent named below. A.J. GallaQher (Name of Insurance Agent) (Name of Insurance Agency) 8200 NW 41 st St. Ste. #200 (Street Address) (Street Address) Miami Florida 33166 (City) (State) (ZIP Code) 800-488-3003 (Phone) to issue: (a) All Risk Physical Damage Insurance on the leased Equipment or Unit thereof (as defined in the Agreement) evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming Lessor "and/or its assigns" as Loss Payee. (b) Public Liability insurance evidence by a Certificate of Insurance naming Lessor "and/or its assigns" as an Additional Insured. Minimum Coverage Required: $1,000,000 per person $1,000,000 aggregate bodily Injury liability $1,000,000 property damage liability @2003 Fifth Third Bancorp 2. Proof of insurance coverage will be provided to Lessor prior to the time that the Equipment or Unit thereof is delivered to us. 3. Lessee will furnish a Certificate of Insurance with the following additional endorsements: (a) Endorsement requiring that insurer furnish Lessor thirty (30) days' prior written notice of the effective date of any material alteration or the cancellation or expiration of coverage. (b) Endorsement confirming that the interest of Lessor shall not be invalidated by any actions, inactions, breach of warranty or conditions or negligence of the undersigned Lessee or any person other than Lessor. (c) Endorsement waiving any right of insurer to subrogation action against Lessor. (d) Endorsement providing that premiums may be paid by the Lessor, but without liability on the part of Lessor for such premiums. (e) Endorsement confirming that the each policy of insurance is pnmary without any right of set-off or right of contribution from any other insurance carried by Lessor. IN WITNESS WHEREOF, the undersigned has executed this Insurance Coverage Certificate this 2nd day of August 2005. LESSEE: CITY OF DELRAY BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor -2 - ©2003 Fifth Third Bancorp DRAFT FOR DISCUSSION PURPOSES ONLY - 7/26/05 m Fifth Third Bank INDIVIDUAL PAYMENT SCHEDULE - No. 001 DATED AUGUST 9, 2005 To MASTER LEASE-PURCHASE AGREEMENT DATED AS OF AUGUST 9,2005 Lessor: THE FIFTH THIRD LEASING COMPANY an Ohio corporation Lessee: CITY OF DELRA Y BEACH, FLORIDA a city in the State of Florida This Individual Payment Schedule is entered into this August 9, 2005, by and between Lessor and Lessee pursuant to and subject to the terms and conditions of the Master Lease-Purchase Agreement dated as of August 9, 2005 (as amended, supplemented or modified from time to time, the "Master Lease-Purchase Agreement"). All of the terms of the Master Lease-Purchase Agreement are incorporated by reference herein. Capitalized terms used, and not otherwise defined, herein shall have the meanings attached thereto in the Master Lease- Purchase Agreement. 1. Equipment covered by this Individual Payment Schedule. Subject to the terms and conditions hereof, Lessor agrees to acquire and lease to Lessee the equipment listed below ("Equipment"). Manuf. and/or Description of Equipment Serial Invoice Vendor Name & Equipment Location Number Total Invoice No. ProSys 133 Laptop computers 100 N W. 1st Avenue $487,977 00 Invoice #38356 Delray Beach, FL 33444 Palm Beach County Total $487,977 00 The total cost of the Equipment covered by this Individual Payment Schedule is Four Hundred Eighty-seven Thousand, Nine Hundred Seventy-seven and 00/100 dollars ($487,977.00). 2. Billing Address. 100 N. W. 1st Avenue Attention: R.S. O'Connor Defray Beach, Florida 33444 3. Term. The Scheduled Term is 36 months. The Final Period shall be the period commencing on the first day of the Fiscal Year in which the final payment is scheduled to occur and ending on July 9, 2008. ©2003 Fifth Third Bancorp 4. Rent and Purchase Option. (a) Base Rent: See Schedule 1 (b) Commencement Date: August 9, 2005 (c) First Payment Date: August 9, 2005 (d) Payment Frequency: monthly (e) Number of Payments: thirty-six (36) (f) Purchase Price Dates and Purchase Price: See dates and amounts designated on Schedule 2 5. Base Rent. The total cost for the Equipment is the amount specified in Section 1 hereof. Of that amount, Lessee shall pay zero ($0.00) and, subject to the terms and conditions hereof, Lessor shall advance Four Hundred Eighty-seven Thousand, Nine Hundred Seventy-seven and 00/100 dollars ($487,977 .00) (the "Lessor Amount"). The Base Rent of the Lease-Purchase Payments is determined by applying an annual rate of interest equal to Three and 37/100 percent (3.37%) (the "Implicit Interest Rate") of the outstanding balance equal to the Lessor Amount. (Remainder of page intentionally left blank. Signature page follows.) - 2- ©2003 Fifth Third Bancorp IN WITNESS WHEREOF, the parties have executed this Individual Payment Schedule by their authorized officers as of the date set forth above. LESSOR: THE FIFTH THIRD LEASING COMPANY By: Name: Mark J. Zink Title: Assistant Vice President LESSEE: CITY OF DELRAY BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor -3- ©2003 Fifth Third Bancorp SCHEDULE 1 TO INDIVIDUAL PAYMENT SCHEDULE 001 SCHEDULE OF PAYMENTS Payment Rent Payment Interest Principal Total Base Number Date Component Component Rent of Base Rent of Base Rent Payment Due 1 08/09/05 0.00 14,230.71 14,230.71 2 09/09/05 1,330.44 12,900.27 14,230.71 3 1 0/09/05 1,29421 12,936.50 14,230.71 4 11/09/05 1,257.88 12,972.83 14,230.71 5 12109/05 1,221.45 13,009.26 14,23071 6 01/09/06 1,184.91 13,045.80 14,230.71 7 02/09/06 1,148.28 13,082.43 14,230.71 8 03/09/06 1,111.54 13,119.17 14,230.71 9 04/09/06 1,074.69 13,156.02 14,230.71 10 05/09/06 1,037.75 13,192.96 14,230.71 11 06/09/06 1,000.70 13,230.01 14,230.71 12 07/09/06 963.54 13,267.17 14,230.71 13 08/09/06 926.28 13,304.43 14,230.71 14 09/09/06 888.92 13,341.79 14,230.71 15 1 0/09/06 851.45 13,379.26 14,230.71 16 11/09/06 813.88 13,416.83 14,230.71 17 12/09/06 776.20 13,454.51 14,230.71 18 01/09/07 738.41 13,492.30 14,230.71 19 02/09/07 700.52 13,530.19 14,230.71 20 03/09/07 662.53 13,568.18 14,230.71 21 04/09/07 624.42 13,606.29 14,230.71 22 05/09/07 586.21 13,644.50 14,230 71 23 06/09/07 547.89 13,682.82 14,230.71 24 07/09/07 509.47 13,721.24 14,23071 25 08/09/07 470.93 13,759.78 14,230.71 26 09/09/07 432.29 13,798.42 14,230.71 27 10/09/07 393.54 13,837.17 14,230.71 28 11/09/07 354.68 13,876.03 14,230.71 29 12/09/07 315.71 13,915.00 14,230.71 30 01/09/08 276.64 13,954.07 14,230.71 31 02/09/08 237.45 13,993.26 14,230.71 32 03/09/08 198.15 14,032.56 14,230.71 33 04/09/08 158.74 14,071 97 14,230.71 34 05/09/08 119.22 14,111.49 14,230.71 35 06/09/08 79.59 14,151.12 14,230.71 36 07/09/08 40.05 14,190.66 14,230.71 -4 - ©2003 Fifth Third Bancorp SCHEDULE 2 TO INDIVIDUAL PAYMENT SCHEDULE 001 PURCHASE PRICE DATES AND PURCHASE PRICES Purchase Price Purchase Price Date 08/09/05 473,746.29 09/09/05 460,846.02 1 0/09/05 447,909.52 11/09/05 434,936.69 12/09/05 421,927.43 01/09/06 408,881.63 02/09/06 395,799.20 03/09/06 382,680.03 04/09/06 369,524.01 05/09/06 356,331.05 06/09/06 343,101.04 07/09/06 329,833.87 08/09/06 316,52944 09/09/06 303,187.65 10/09/06 289,808.39 11/09/06 276,391.56 12/09/06 262,937.05 01/09/07 249,444.75 02/09/07 235,914.56 03/09/07 222,346.38 04/09/07 208,740.09 05/09/07 195,095.59 06/09/07 181,412.77 07/09/07 167,691.53 08/09/07 153,931.75 09/09/07 140,133.33 1 0/09/07 126,296.16 11/09/07 112,420.13 12/09/07 98,505.13 01/09/08 84,551.06 02/09/08 70,557.80 03/09/08 56,525.24 04/09/08 42,453.27 05/09/08 28,341.78 06/09/08 14,190.66 07/09/08 0.00 -5 - ©2003 Fifth Third Bancorp il1 Fifth Third Bank CERTIFICATE OF FISCAL OFFICER TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9,2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned, Director of Finance of Lessee, pursuant to the Master Lease and Individual Payment Schedule referenced above, hereby certifies that the moneys required to meet the obligations of the Lessee during the current fiscal period for the payments due or coming due pursuant to the Individual Payment Schedule have been lawfully appropriated by Lessee for such purposes and are in the treasury of Lessee or in the process of collection to the credit of an appropriate fund, free from any encumbrances IN WITNESS WHEREOF, the undersigned has executed this Certificate of Fiscal Officer this 2nd day of August 2005. CITY OF DELRA Y BEACH, FLORIDA Name: Joseph M. Safford Title: Director of Finance ©2003 Fifth Third Bancorp m Fifth Third Bank ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE TO THE FIFTH THIRD lEASING COMPANY, an Ohio corporation ("lessor") RE: Master lease-Purchase Agreement between lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned, Mayor of Lessee, pursuant to the Master Lease and Individual Payment Schedule referenced above, hereby certifies as follows' 1. That the equipment identified in the Individual Payment Schedule (the "Equipmenf') is essential to the governmental functions of Lessee and constitutes public property to be used for public purposes. 2. lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future The Equipment will be used by Lessee for the purpose of performing one or more of Lessee's governmental functions consistent with the permissible scope of Lessee's authority. 3. The estimated useful life of the Equipment, based upon manufacturer's representations and Lessee's projected needs, is three (3) years. 4. Lessee's source of funds for making rental payments under the Lease is the General Fund Non Advalorem revenues. Lessee expects and anticipates adequate funds to be available to make all future rental payments. IN WITNESS WHEREOF, the undersigned has executed this Essential Use/Source of Funds Certificate this 2nd day of August 2005. CITY OF DELRA Y BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor ©2003 Fifth Third Bancorp m Fifth Third Bank MUNICIPAL CERTIFICATE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRA Y BEACH, FLORIDA ("Lessee") dated as of August 9,2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") I, the undersigned, the duly appointed, qualified and acting Mayor of the above-captioned Lessee do hereby certify as follows: 1. Lessee did, at a Commission meeting of the governing body of the Lessee held on August 15, 2005 by motion duly made, seconded and carried in accordance with all requirements of law approve and authorize the execution and delivery of the above-referenced Master Lease-Purchase Agreement, Individual Payment Schedule No 001 (collectively, the "Agreement") on behalf of Lessee by its following named representatives, to wit: Printed Name: Jeff Perlman Title: Mavor Signature: Printed Name: Title: Signature: 2. One (1) of the above named representatives is required to execute each such document. 3. Each of the above named representatives of the Lessee held at the time of such authorization, and holds at the present time, the office set forth above. 4. The meeting of the goveming body of the Lessee at which the Agreement and the Escrow Agreement were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite majority of the members thereof and the action approving the Agreement and the Escrow Agreement and authorizing the execution thereof has not been altered or rescinded. 5. There is no litigation of any nature, either pending or threatened, restraining or enjoining the execution of the Lease nor directly or indirectly affecting the proceedings and authority by which the Agreement and the Escrow Agreement have been authorized and executed, nor any dispute, controversy or litigation affecting the validity of or security for the Agreement. 6. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the date hereof. @2003 Fifth Third Bancorp DRAFT FOR DISCUSSION PURPOSES ONLY - 7/26105 7 All insurance required in accordance with the Agreement is currently maintained by the Lessee. 8. Lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to make the rental payments scheduled to come due during the Initial Period and to meet its other obligations for the Initial Period (as such terms are defined in the Agreement) and such funds have not been expended for other purposes. 9. Lessee is not in default for the payment of principal of or interest on any of its notes or bonds or other obligations now outstanding. IN WITNESS WHEREOF, the undersigned has executed this Municipal Certificate this _ day of August 2005. CITY OF DELRAY BEACH, FLORIDA By: Name: Janet Whipple Title: ActinQ City Clerk STATE OF FLORIDA SS: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this 2nd day of August, 2005 by , , on behalf of the Lessee. Notary Public My commission expires: [SEAL] - 2 - @2003 Fifth Third Bancorp m Fifth Third Bank CERTIFICATE OF ACCEPTANCE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned Lessee under the Master Lease and Individual Payment Schedule referenced above hereby certifies that: 1 A present need exists for the Equipment (as defined in the Individual Payment Schedule) which need is not temporary or expected to diminish in the near futureò The Equipment is essential to and will be used by Lessee only for the purpose of performing one or more governmental functions of Lessee consistent with the permissible scope of Lessee's authority. 2. Lessee confirms that sufficient funds have been appropriated to make all Rental Payments due during its current fiscal year and expects and anticipates that sufficient funds will be available to make all Rental Payments due in subsequent years 3. The Equipment is covered by insurance in the types and amounts required by the Master Lease and is located at the location set forth In the Individual Payment Schedule 4. The Equipment has been delivered to, and installed at, the Equipment Location specified therein and, as between Lessor and Lessee, is good working order and is hereby accepted 5. Lessee acknowledges, affirms and agrees to be bound by the terms and conditions of the Master Lease and the Individual Payment Schedule Lessee represents and warrants that (a) each of the representations and warranties of Lessee contained in the Master Lease is true and correct as of the date hereof and (b) no Default or Event of Default (as defined in the Master Lease) has occurred and is continuing as of the date hereof. IN WITNESS WHEREOF, the Lessee has caused this Certificate of Acceptance to be executed as of this 2nd day of August 2005. LESSEE: CITY OF DELRA Y BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor @2003 Fifth Third Bancorp 0 ... .... , MEMORANDUM To: City Commission From: KVid T. Harden, City Manager Subject: Proposed $487,977 Master Lease Purchase Date: July 29,2005 Staff received bids on July 20, 2005 for the lease purchase financing of 133 laptops at the Police department. Staff recommended Fifth Third Leasing. Fifth Third Leasing Company will provide a lease purchase financing at a rate of 3.37% for a thirty six (36) month term. I concur with their recommendation. <6~ · - ~ MEMORANDUM To: David T. Harden, City Manager From: Rebecca S. O'Connor, Treasurer Thru: Joseph M. Saffor~ctor of Finance Subject: Proposed Lease Agreement - Laptops Date: July 25, 2005 Backaround On July 20, 2005, the City Finance Department received bids for the above referenced financing ("Lease Agreement"). The Lease Agreement will provide funding the cost of the acquisition of 133 lap tops to be used by the Police Department ($487,977). Term We asked that the banks make their bids based on a 3-year fixed rate term. Bid ResDonses The City received responses from Bank of America thru the League of Cities, Fifth Third Bank, SunTrust Leasing and Wachovia. Please see the table below: Bank Rate Interest Cost Misc. Cost Total Cost Bank of America 4.18% $30,278 $488 $30,766 Fifth Third Bank 3.37% 24,328 0 24,328 SunTrust LeasinQ 3.38% 33,651 0 33,651 Wachovia 4.38% 31,754 0 31,754 Recommendation We recommend approving Resolution #54-05 authorizing the master lease purchase agreement with Fifth Third Leasing Company, the lowest bidder, as well as authorizing the execution of other such documents that may be necessary to execute the agreement. The lease will be at a rate of 3.37% for a 36 month term. File: rfp/commission/laptops pd -- ~-~--- - -- - --------- - RESOLUTION NO. 54-05 RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT SCHEDULE NO. 01 AND RELATED INSTRUMENTS, AND DETERMINING OTHER MATTERS IN CONNECTION THEREWITH. WHEREAS, at a duly called meeting of the governing body of Lessee held in accordance with all applicable legal requirements, including open meeting laws; and WHEREAS, the governing body of City of Delray Beach, FL ("Lessee") desires to obtain certain equipment (the "equipmenf') described in Equipment Schedule No. 01 to the Master Lease Agreement (collectively, the "Lease") with The Fifth Third Leasing Company, the form of which has been available for review by the governing body of Lessee prior to this meeting; and WHEREAS, the Equipment is essential for the Lessee to perform its governmental functions; and WHEREAS, the funds made available under the Lease will be applied to the acquisition of the Equipment in accordance with such Lease; and WHEREAS, Lessee has taken the necessary steps, including those relating to any applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and WHEREAS, Lessee proposes to enter into the Lease with The Fifth Third Leasing Company substantially in the form presented to this meeting; and NOW, THEREFORE, be it resolved by the Commission of the City of Delray Beach, Florida, as follows: SECTION 1. It is hereby found and determined that the terms of the Lease in the form presented to this meeting and incorporated in this resolution are in the best interests of Lessee for the acquisition of the Equipment. SECTION 2. The Lease and the acquisition and financing of the Equipment under the terms and conditions as described in the Lease are hereby approved. The Mayor of Lessee and any other officer of Lessee who shall have power to execute contracts on behalf of Lessee be, and each of them hereby is, authorized to execute, acknowledge and deliver the Lease with any changes, insertions and omissions therein as may be approved by the officers who execute the Lease, such approval to be conclusively evidenced by such execution and delivery of the Lease. The Mayor of the Lessee and any other officer of Lessee who shall have power to do so be, and each of them hereby is, authorized to affix the official seal of Lessee to the Lease and attest the same. SECTION 3. Pursuant to Section 265(b) of the Internal Revenue Code of 1986 , as amended (the "Code"), Lessee hereby specifically designates the Lease as a "qualified tax- exempt obligation" for purposes of Section 265(b)(3) of the Code. SECTION 4. The undersigned further certifies that the above resolution has not been repealed or amended and remains in full force and effect and further certifies that the Lease executed on behalf of Lessee is the same as presented at such meeting of the governing body of Lessee, excepting only such changes, insertions and omissions as shall have been approved by the officers who executed the same. --~--~ . . PASSED and ADOPTED in regular session on this 2nd day of August, 2005. CITY OF DELRA Y BEACH Lessee BY: Mayor ATTESTED BY: City Clerk Res. No. 54-05 , ~ flJ Fifth Third Bank MASTER LEASE-PURCHASE AGREEMENT This Master Lease-Purchase Agreement is made this 9 day of August 2005 by and between THE FIFTH THIRD LEASING COMPANY (hereinafter called together with its successors and assigns, if any, " Lessor") , an Ohio corporation with offices at 38 Fountain Square Plaza, Cincinnati, Ohio 45263, and CITY OF DELRAY BEACH, FLORIDA ("Lessee"), with its principal address at 100 N. W. 1st Avenue, Delray Beach, Palm Beach County, Florida 33444, a city and a political subdivision of the State of Florida, organized and existing under and by virtue of the laws and Constitution of the State of Florida. RECITALS WHEREAS, Lessee is authorized by law to acquire equipment and other items of personal property and to finance such equipment and/or personal property by entering into lease-purchase agreements; WHEREAS, Lessee has determined that it is necessary for it to acquire under this Agreement certain items of personal property described herein as Equipment; and WHEREAS, Lessor is willing to acquire such items of Equipment and to lease and sell them to Lessee pursuant to this Agreement; NOW, THEREFORE, in the joint and mutual exercise of their powers, and in consideration of the mutual covenants herein contained, the parties hereto agree as follows' 1. Certain Defined Terms and References. (a) In addition to the terms defined elsewhere in this Agreement, the following terms have the meanings given below unless the context clearly requires otherwise' "Acquisition Fund" means the AcqUisition Fund established pursuant to Section 4 of this Agreement. "Additional Rent" means the payments required to be made pursuant to Section 7 in addition to the Base Rent. "Agreement" means this Master Lease-Purchase Agreement as the same may be amended or supplemented from time to time, and all other documents and certificates required to be executed In connection herewith. "Applicable Rate of Interest" means such rate as shall be determined from each Individual Payment Schedule. "Authorized Officer" means: (i) With respect to Lessee, any officer of Lessee who is designated in writing by Lessee as an Authorized Officer for the purposes of this Agreement; THIS INSTRUMENT IS INTENDED BY THE PARTIES TO CONSTITUTE A SECURITY AGREEMENT UNDER THE FLORIDA UNIFORM COMMERCIAL CODE. ©2003 Fifth Third Bancorp (ii) With respect to Lessor, any officer of Lessor who is designated in writing as an Authorized Officer for purposes of this Agreement; or (iil) With respect to any successor to Lessor as the Lessor, means the officer of the successor who is designated in writing by the successor's governing body as an Authorized Officer for purposes of this Agreement "Base Rent" means the payments, including the principal and interest components thereof, specified in the Individual Payment Schedules attached hereto "Bond Fund" means, to the extent an Escrow Agreement is applicable to a particular Lease, the Bond Fund established pursuant to Section 2 of the Escrow Agreement. "Certificate of Acceptance" means a certificate evidencing Lessee's inspection and acceptance of the Equipment described on an Individual Payment Schedule, in form and substance satisfactory to Lessor. "Commencement Date" means the date when the term of the Individual Payment Schedule begins and Lessee's obligation to make Lease-Purchase Payments accrues, as evidenced by payment by Lessor to the Vendor of the purchase pnce (or pertinent portion thereof) for the applicable Equipment "Contractor" means each of the manufacturers or vendors from whom Lessee has ordered or will order or with whom Lessee has contracted or will contract for the manufacture, delivery or Installation of the Equipment. "Environmental Law" means any federal, state, local or foreign statute, law, ordinance, rule, regulation, code, order, writ, judgment, decree or judicial or agency interpretation relating to pollution or protection of the environment, health, safety or natural resources, including those relating to the use, handling, treatment, storage, disposal or release of any substance designated, classified or regulated as hazardous or toxic matenal, including petroleum and petroleum by-products, asbestos-containing materials, PCBs, radioactive materials and radon gas. "Escrow Agenf' means the Escrow Agent acting under and pursuant to the Escrow Agreement, if applicable. "Escrow Agreemenf' means, to the extent required by an Individual Payment Schedule, an Escrow Agreement by and between the Escrow Agent and Lessee, as the same may be amended and supplemented from time to time. "Equlpmenf' means the personal property described in the Individual Payment Schedules, which is being leased and purchased by Lessee pursuant to this Agreement. The property so listed shall be, collectively, the "Equipment" and individually, a "Unit of Equipment" "Equipment Location" means the location or locations within Lessee's jurisdiction where the Equipment is installed, used or maintained by Lessee. "Event of Loss" means with respect to any Unit of Equipment if such Unit of Equipment or any material part thereof has been lost, stolen, requisitioned or condemned by any governmental authority, damaged beyond repair or damaged in such a manner that results in an insurance settlement on the basis of an actual or arranged total loss. "Final Renewal Period" or "Final Period" means the last period during which a Lease will be renewed, commencing on the first day of the Fiscal Period of Lessee specified in the applicable Individual Payment Schedule with respect to each Unit of Equipment and ending on the date specified in such Individual Payment Schedule as the last payment date. -2 - ©2003 Fifth Third Bancorp · "Fiscal Period" means the applicable fiscal year of Lessee. "Implicit Rate of Interest" means the rate used to determine the interest portion of the Lease-Purchase Payments, as set forth in the Individual Payment Schedules. "Independent Counsel" means any attorney or attorneys duly admitted to practice law before the highest court of any state and not an officer or full time employee of Lessor or Lessee and who is not reasonably objected to by Lessee. "Individual Payment Schedules" means the schedules which identify specific Units of Equipment, the Commencement Date of the individual leases and terms thereof (which are treated as separate lease obligations) which may become a part of this Agreement from time to time "Initial Fiscal Period" or "Initial Period" means such period as shall be indicated by the Commencement Date set forth in each Individual Payment Schedule for the Equipment, which shall terminate the last day of Lessee's then current Fiscal Period. The term of the Leases will be renewed in the manner described in Section 6 hereof at the end of the Initial Period or any Renewal Period for one (1) additional year, upon Lessee's budgeting of sufficient funds for the making of Lease-Purchase Payments for the next occurring Renewal Period with respect to the Equipment or specific Units of Equipment, as provided in Section 10 of the Agreement. "Lease-Purchase Payment Account" means the account established by Lessor for receipt and deposit of the Lease-Purchase Payments of Lessee under the Agreement and for deposit of any insurance proceeds not used for repair or replacement of Equipment, as provided in Section 19 of this Agreement. "Lease-Purchase Payments" means the sum of the Base Rent and any Additional Rent due at or during a stated time. "Lease Term" means, collectively, the Initial Period and thereafter, each Renewal Period provided for in the Agreement. "Lease" or "Leases" means an individual lease or leases of the Units of Equipment, as specified in the Individual Payment Schedules and the other documents, agreements and instruments executed in connection therewith, entered Into as a part of and pursuant to the Agreement. "Lessee" means as referenced above, a political subdivision of the State. "Lessor" means as referenced above, or its successors or assigns. "Maximum Fiscal Periods" means the total number of Fiscal Periods of Lessee during which the Leases may be renewed from and including the first Fiscal Period to and including the final Fiscal Period "Payment Date" means each date of payment during the Lease Term designated as a Payment Date In the Individual Payment Schedules, commencing as of the Commencement Date. "Purchase Price" means, as of any Purchase Price Date, the amount set forth in the Individual Payment Schedules which Lessee may pay to purchase the Equipment or specific Units of Equipment. "Purchase Price Date" means any Payment Date referred to in the Individual Payment Schedules, on which Lessee may purchase the Equipment or specific Units of Equipment by payment of the applicable Purchase Price after payment of the Lease-Purchase Payment due on such date. "Renewal Period" means any Fiscal Period subsequent to the Initial Period of an individual Lease during which such Lease is renewed. -3- ©2003 Fifth Third Bancorp "State" means the State or Commonwealth where Lessee is located. "Taxable Rate of Interest" means a rate of interest equal to the Tax Equivalent Yield "Tax Equivalent Yield" means the Implicit Rate of Interest divided by the remainder resulting from subtracting the current maximum federal corporate income tax rate from one. "Vendor" means the manufacturer of the Equipment as well as the agents or dealers of the manufacturer from whom Lessor purchased or will purchase the Equipment. (b) References to sections, exhibits or attachments, unless otherwise indicated, are to sections of or exhibits or attachments to this Agreement. 2. Assianment of Warranties. Lessor hereby assigns to Lessee during the Lease Term, all warranties, if any, express or implied with respect to the Equipment. This assignment includes an authorization to Lessee to obtain the customary services furnished in connection with those warranties, at Lessee's expense. 3. Lease of Equipment. Lessor hereby agrees to demise, lease and let to Lessee, and Lessee hereby agrees to rent, lease and hire from Lessor, the Equipment in accordance with the provisions of this Agreement, to have and to hold for the Lease Term. Upon and during acquisition of the Equipment, all leasehold rights granted to Lessee by Lessor under this Agreement shall vest In Lessee, without any further action on the part of Lessor. Each Lease of each Unit of Equipment shall be evidenced by an Individual Payment Schedule executed by Lessor and Lessee describing specific personal property, and setting forth provisions relating to the rent, term of the Lease, and other details relating to such Equipment. The Lease for each Unit of Equipment shall become effective on the Commencement Date, and the Individual Payment Schedule for such Equipment shall specify such date as the effective date of the Lease. 4. Disbursements. Subject to the terms and conditions hereof, Lessor and Lessee agree to disburse funds directly to the Vendor of Equipment or, to the extent an Escrow Agreement is applicable to any Individual Payment Schedule, establish an Acquisition Fund for the purposes hereinafter described for each Individual Payment Schedule through such Escrow Agreement. Lessor is authorized to disburse such funds directly to the applicable party or from the Acquisition Fund, in accordance with the provisions of the Escrow Agreement, as applicable, In each case for payment of, or reimbursement to Lessor or Lessee for payment of, the following: (a) Expenses incurred in connection with the authorization, issuance and delivery of this Agreement and the preparation and delivery of all agreements, instruments and documents related thereto, including, but not limited to, all financial, legal, administrative, accounting and printing fees, expenses and charges and all recording, filing or insurance, and any other fees, expenses or charges relating to the Equipment or this Agreement, (b) Any other costs, expenses, fees and charges properly chargeable to the cost of acquisition and installation of the Equipment; and (c) Any other costs relating to the Equipment for which payment may be made under the terms of this Agreement. Any such disbursements in respect of the purchase price of the Equipment or related costs from the AcqUisition Fund or otherwise for the payment of costs shall be made upon acceptance of the Equipment pursuant to Section 5 hereof. -4 - ©2003 Fifth Third Bancorp Reimbursements to Lessee for amounts paid on the Equipment (by virtue of a down payment or payment for the Equipment) from the amounts provided for by this Agreement must be in accordance with U.S. Treas. Reg. § 1.150-2. 5. Acceptance of Eaulpment. Upon the acquisition and installation of each Unit of Equipment, Lessee shall acknowledge and certify in writing its acceptance of such Equipment by signing a Certificate of Acceptance. 6. Lease Term. The term of each Lease will be for the Initial Period and will be renewable upon budgeting by Lessee of sufficient funds to pay Base Rent and Additional Rent on the first day of each succeeding Fiscal Period for the Maximum Fiscal Periods indicated on the Individual Payment Schedules, unless Lessee exercises its Purchase Option (as specified in Section 20 hereof) prior to the end of the Final Renewal Period. The Lease will terminate upon payment of the final Lease-Purchase Payment indicated on the applicable Individual Payment Schedule (plus any Additional Rent payable under the terms of this Agreement), or on a sooner Purchase Price Date. This paragraph shall not be considered a general obligation of the City and the taxing power of the Lessee is not pledging In any way. 7. Rent. (a) Lessee agrees to pay to Lessor during the Lease Term of each Lease the Lease-Purchase Payments set forth in the Individual Payment Schedules on the dates and in the amounts set forth therein, including the interest components thereof, equal to the amounts provided below in this Section. The Lease-Purchase Payments during the Lease Term will be absolute and unconditional in all events and will not be subject to any set-off, defense, counterclaim or recoupment for any reason whatsoever. (b) Lessee agrees to pay as Base Rent directly to Lessor the following amounts: (i) Lessee agrees to pay the Lease-Purchase Payments specified in each Individual Payment Schedule. Each payment shall be applied first to payment of the Interest component of the respective Lease-Purchase Payment. (ii) To the extent permitted by law, if any Lease-Purchase Payment shall not have been received by Lessor ten (10) days after the Payment Date, Lessee agrees to pay a late payment fee equal to 1 Y2% of the due and owing Lease-Purchase Payment. (c) Lessee agrees to pay to Lessor the following amounts as Additional Rent. (i) Lessee represents that no charges or taxes (local, state or federal) are currently imposed on the ownership, leasing, rental, sale, purchase, possession or use of the Equipment, exclusive of taxes on or measured by Lessor's income, and acknowledges that no provision has been made for the inclusion of any such charges or taxes in the Base Rent. If during the Lease Term, the ownership, leasing, rental, sale, purchase, possession or use of the Equipment shall result in the imposition on Lessor of any charges or taxes (local, state or federal), exclusive of taxes on or measured by Lessor's Income, Lessee shall promptly pay to Lessor, upon receipt from Lessor of a statement therefor, as Additional Rent an amount equal to those charges and taxes imposed on Lessor. (il) Upon an Event of Default, Lessee will pay to Lessor as Additional Rent all reasonable costs and expenses incurred or to be paid by Lessor under the Agreement, which were not part of the original cost of the Equipment -5- @2003 Fifth Third Bancorp ----- --- (iii) Lessee will pay to Lessor as Additional Rent all supplemental payments required by Section 8(d) below in the amount necessary to preserve the Tax Equivalent Yield to Lessor under the terms of the Agreement, in the manner provided therein. (d) If Lessee does not make payment of all or any part of the Additional Rent, Lessor shall have the right, but shall not be obligated, to payor advance the amount of such Additional Rent. If Lessor pays any portion of such Additional Rent, Lessee shall pay Lessor no later than the first Payment Date in the next succeeding Fiscal Period during which the Lease Term is in effect an amount equal to the sum of such Additional Rent and the costs incurred by Lessor in making such payment or advance, including the amount Lessor would have earned from investment of the amount paid or advanced before repayment thereof as determined by the prime rate of Fifth Third Bank as announced from time to time, plus 1 Y:æ%. Lessor shall notify Lessee in writing of the costs incurred in any case of its paying or advancing such Additional Rent. If Lessor pays or advances such Additional Rent, and is repaid as provided for in this paragraph, then such initial failure to pay shall be deemed to be cured and shall not be deemed to be an Event of Default under Section 22 of this Agreement. (e) Lease-Purchase Payments shall be payable at the principal commercial leasing office of Lessor or at such other place as Lessor may from time to time designate in writing 8. Actions Relatina to Tax ExemDtlon of Interest ComDonents (a) Lessor and Lessee each covenant that it will restrict the use of moneys realized under this Agreement or otherwise in connection with the acquisition and financing of the Equipment in such manner and to such extent, if any, as may be necessary, after taking into account reasonable expectations at the time of entering into this Agreement, so that there will not exist at any time any obligation in connection with this Agreement or the Equipment that constitutes an obligation the interest on which is includible in gross income for federal income tax purposes or an "arbitrage bond" under Section 148 of the Internal Revenue Code of 1986, as amended (the "Code"), and the regulations prescribed under that Section and any subsequent amendments or modifications thereto Any officer of Lessor or Lessee having responsibility with respect to the execution and delivery of this Agreement shall, alone or In conjunction with any other officer, employee or agent of or consultant to Lessor or Lessee, give an appropriate certificate of Lessor or Lessee (in form and substance satisfactory to Lessor or Lessee, as applicable) pursuant to Sections 103 and 148 of the Code and those regulations, setting forth the reasonable expectations of Lessor or Lessee on the date of entering into each Individual Payment Schedule of this Agreement, regarding each Lease and the use of those moneys, which such certificate shall bind the Lessee with respect to the covenants and undertakings contained therein. (b) Lessee represents and covenants that It will not use the Equipment, or permit the Equipment to be used, in such a manner as would result in the loss of the exclusion from gross income for federal income tax purposes of the component of the Lease-Purchase Payments designated as interest on the Individual Payment Schedules afforded under Section 103(a) of the Code. (c) Lessor and Lessee each covenant to take all action required to maintain exclusion from gross income for federal income tax purposes afforded under Section 103(a) of the Code, of the Lease-Purchase Payments designated as the interest component on the Individual Payment Schedules attached hereto. (d) (i) If at any time the yield to Lessor as to any Lease is decreased by any change in the limitation in the deductibility of the interest paid on debt incurred by Lessor to carry tax exempt obligations from that which is presently incurred by Lessor, or if there shall occur any other change In law which lowers the Tax Equivalent Yield to Lessor, then Lessee shall make a supplemental payment to Lessor annually, on written demand by Lessor, in an amount which is equal to the amount necessary on an after-tax basis to preserve the same Tax Equivalent Yield. (ii) If for any reason the interest portion of the Lease-Purchase Payments of any Lease is determined not to be excludable from gross income for federal income tax purposes, the Implicit Rate of Interest will increase to a rate equal to a Taxable Rate of Interest. In addition, Lessee will pay an amount equal to the difference between the portion of the -6 - ©2003 Fifth Third Bancorp · Lease-Purchase Payments which constituted interest with respect to such Lease which were actually paid and the interest which would have been paid if the Implicit Rate of Interest had been a Taxable Rate of Interest from the Commencement Date or, if later, the effective date from which the interest component IS determined to be taxable, plus any penalties, interest, assessments and additions to tax payable by Lessor as a result of the loss of the tax exempt status of Interest on the Lease. 9. Authorltv and Authorization. Lessee represents, covenants and warrants, and will deliver to Lessor not later than the Commencement Date an opinion of its counsel to the effect that: (i) Lessee is a political subdivision of the State, duly organized and validly existing under and by virtue of the laws of the State; (ii) the execution, delivery and performance by Lessee of this Agreement have been duly authorized by all necessary action on the part of Lessee; and (iii) this Agreement constitutes a legal, valid and binding obligation of Lessee enforceable In accordance with its terms. Lessee agrees and warrants that. (i) it will do or cause to be done all things necessary to preserve and keep this Agreement, including each Individual Payment Schedule hereunder, In full force and effect; (Ii) it has complied with all requirements applicable to it, and has taken all steps for approval and adoption of this Agreement as a valid obligation on its part, and (iil) sufficient funds are appropriated to pay all amounts due under this Agreement for the Initial Period. 10. Title: Termination: Nonappropriation. (a) Lessee will obtain title to the Equipment during the Lease Term, subject to Lessor's rights under this Agreement. Lessor and Lessee agree that this Agreement or any other appropriate documents may be filed or recorded to evidence the parties' respective interests in the Equipment and the Agreement. (b) The Equipment shall become the property of Lessee and Lessor's interest therein shall pass to Lessee without cost upon (i) Lessee's exercise of the Purchase Option granted in Section 20 hereof, or (ii) the complete payment and performance by Lessee of all of its obligations during the Lease Term; provided, however, that title shall immediately and without any action by Lessee vest in Lessor, and Lessee shall immediately surrender possession of the applicable Units of Equipment to Lessor upon (A) any termination of any Lease under this Agreement without Lessee exercising its Purchase Option to purchase with respect thereto, or (8) the occurrence of an Event of Default which IS not cured in accordance with the terms of this Agreement. In any of such cases, Lessee agrees to execute such instruments and do such things as Lessor reasonably requests in order to effectuate transfer of any and all of Lessee's right, title and interest in such Equipment, as is, to Lessor. Subject to Lessee's obligations under Section 14 hereof, it is hereby acknowledged by Lessor and Lessee that Lessee will purchase the Equipment on the terms set forth in the Individual Payment Schedules of this Agreement. (c) It is Lessee's intent to pay Lease-Purchase Payments for the Initial Period and all Renewal Periods as scheduled on each Individual Payment Schedule if funds are legally available to it and in this regard, Lessee represents that the use of the Equipment is essential to its operations. If Lessee is not allotted funds for any successive Fiscal Period to continue paying the Lease-Purchase Payments as to any Individual Payment Schedule for the Units of Equipment relating thereto and it has no funds legally available for such payment from other sources, Lessee may terminate the applicable Individual Payment Schedules of this Agreement at the end of the then current Fiscal Period, and Lessee shall not be obligated to make any payments thereon beyond the end of the then current Fiscal Period. Lessee shall provide Lessor with thirty (3D) days written notice of its intention to terminate this Agreement as a result of an event of nonappropriation. In such event, Lessor shall have all the rights and remedies to take possession of the Units of Equipment relating to the Individual Payment Schedules so terminated. Lessee agrees to transfer all of its right, title and interest and to peaceably surrender possession of the applicable Units of Equipment to Lessor or its assignee on the effective date of such termination, and to have such Equipment packaged for shipment in accordance with manufacturer's specifications. 11. Security Interest In order to secure all of its obligations hereunder, Lessee hereby (a) grants to Lessor a first and prior security interest in any and all right, title and interest of Lessee in (i) the - 7 - ©2003 Fifth Third Bancorp --- --- Equipment and in all additions, attachments, accessions, and substitutions thereto, and on any proceeds therefrom, (ii) all general intangibles, software intangibles and other property relating thereto (excluding accounts receivable), (iil) all warehouse receipts, bills of lading and other documents of title now or hereafter covering any of the foregoing property, (iv) all securities, funds, moneys, deposits and other property at any time held In or subject to the Acquisition Fund (If any), (v) all accessions thereto, (VI) all accessories, attachments, parts, equipment and repairs now or hereafter attached or affixed or used in connection with any of the foregoing property, (vii) all substitutions for any of the foregoing property and (viii) proceeds of any of the foregoing property (including, without limitation, any property acquired by Lessee with such proceeds); (b) agrees that this Agreement may be filed as a financing statement evidencing such security interest and authorizes Lessor to file such other UCC Financing Statements relating to such collateral in such jurisdictions as Lessor shall determine are necessary or appropriate; and (c) agrees to execute and deliver all financing statements, certificates of title and other instruments necessary or appropriate to eVidence such security interest and Lessee hereby irrevocably makes, constitutes and appoints Lessor as Lessee's true and lawful attorney with full power to sign the name of Lessee to any such document. 12. Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, SUBJECT TO LESSEE'S OBLIGATIONS UNDER SECTION 14 HEREOF, OF ANY OF THE EQUIPMENT OR AS TO ITS TITLE THERETO OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. Lessor hereby assigns to Lessee for and during the Lease Term all manufacturer's warranties or guaranties, express or implied, issued on or applicable to the Equipment and Lessor authorizes Lessee to obtain the customary services furnished in connection with such warranties or guaranties at Lessee's expense. Lessee acknowledges that the Equipment shall be purchased by Lessor in accordance with Lessee's specifications and from a vendor selected by Lessee; that Lessor IS not a manufacturer of or dealer of such Equipment and takes no part in or responsibility for the installation of the Equipment, and that Lessor has made no representation or warranty and assumes no obligation with respect to the merchantability, condition, quality or fitness of the Equipment or the enforcement of the manufacturer's warranties or guaranties. All such risks, as between Lessor and Lessee, are to be borne by Lessee. Without limiting the foregoing Lessor shall have no responsibility or liability to Lessee or any other person with respect to any of the following: (i) any liability, loss or damage caused or alleged to be caused directly or indirectly by the Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any other circumstances in connection therewith; (ii) the use, operation or performance of the Equipment or any risks relating thereto; (iii) any interruption of service, loss of business or anticipated profits or consequential damages; or (iv) the delivery, operation, servicing, maintenance, repair, improvement or replacement of the Equipment. 13. Personal Property. The Equipment is and shall at all times be and remain personal property notwithstanding that the Equipment or any part thereof may be or hereafter become in any manner affixed or attached to or embedded in or permanently rested upon real property or any building or fixtures thereon or otherwise attached in any manner to what is permanent by means of cement, plaster, nails, bolts, screws or otherwise. 14. Use: Maintenance and Repair: Indemnification. (a) Lessee WIll: (i) use the Equipment in a careful manner for the use contemplated by this Agreement and the laws of the State with respect to equipment of this type; (ii) comply with all laws, insurance policies and regulations relating to the use, maintenance and operation of the Equipment; and (iii) pay all costs, claims, damages, fees and charges arising out of its possession, use or maintenance of the Equipment. - 8- ©2003 Fifth Third Bancorp (b) Lessee, at its expense, will: (i) keep the Equipment in good repair and furnish all parts, mechanisms and devices required therefor, and (ii) obtain and maintain any governmental licenses and permits required for ownership and operation of the Equipment. (c) Lessee will repair and maintain, or by contract provide for the proper repair and maintenance of, the Equipment during the Lease Term. (d) Lessor agrees that so long as no Event of Default has occurred and is continuing during the Lease Term it will not impair Lessee's abilities to operate or maintain the Equipment in sound operating condition so that the Equipment will be able to carry out its intended functions 15. Alterations. Following completion of the acquisition of the Equipment, Lessee will not make any alterations, additions, substitutions, subtractions or replacements to the Equipment which would have an adverse effect on either the nature of the Equipment or the function or value of the Equipment, unless such alterations, additions, substitutions, subtractions, replacements or improvements may be readily removed or re-added without damage to the Equipment. Any alterations, additions or improvements to the Equipment which may not be readily removed without damage to the Equipment, and any substitutions or replacements, shall be considered to constitute a part of the Equipment. 16. Location: Inspection. Lessee shall not remove the Equipment from the Equipment Location without the consent of Lessor, which consent shall not be unreasonably withheld. Lessor will be entitled to enter upon the Equipment Location or elsewhere during reasonable business hours to Inspect or observe the use, operation and maintenance of the Equipment. 17. Liens and Encumbrances. Lessee and Lessor shall keep the Equipment free and clear of all liens and encumbrances except those created or permitted under this Agreement 18. Risk of Loss: Damaae: Destruction. Lessee assumes all risk of loss or damage to the Equipment from any cause whatsoever. No loss of or damage to, or appropriation by govemmental authorities of, or defect in or unfitness after delivery or obsolescence of, the Equipment will relieve Lessee of its obligation under this Agreement or the Individual Payment Schedules hereunder. Lessee will promptly repair or replace any portions of Equipment lost, destroyed, damaged or appropriated necessary to maintain the Equipment in sound operating condition so that at all times during the Lease Term the Equipment will be able to carry out its intended functions. If an Event of Loss to any Equipment has occurred, Lessee shall immediately notify Lessor of same, and at the option of Lessor, Lessee shall: (a) repair or replace such Equipment in accordance with the immediately preceding sentence and the other terms and conditions hereof or (b) pay to Lessor on the next succeeding Payment Date the sum of (i) all Base Rent and Additional Rent due on such Payment Date and all other amounts then due and owing hereunder plus (ii) the Purchase Price as of such Payment Date with respect to the Equipment Upon Lessor's receipt of the payment required under subsection (b) above, Lessee shall be entitled to Lessor's interest in such Equipment, in its then condition and location, "as is" and "where is", without any representations or warranties, express or implied. 19. Insurance Lessee during the Lease Term of this Agreement shall maintain: (a) property insurance, with any loss deductible commonly used by Lessee, covering the Equipment, naming Lessor as loss payee and otherwise on the terms and in the amounts specified in the Insurance Coverage Certificate executed by Lessee; (b) liability insurance covering the use of the Equipment, which may be a combination of self-insurance and an excess liability policy, naming Lessor as an additional Insured and otherwise on the terms and in the amounts specified in the Insurance Coverage Certificate executed by Lessee; -9- ©2003 Fifth Third Bancorp (c) the proceeds of any personal injury insurance, casualty insurance, or appropriation awards, to the extent they are not promptly used or encumbered for the purposes stated in 18 hereof, shall be paid to Lessor for deposit in the Lease-Purchase Payment Account, and (d) in the event of total destruction of any Units of Equipment, Lessee shall apply insurance proceeds, self-insurance and any other moneys available and appropriated for the purpose, to the acquisition of replacement Equipment. 20. Purchase Option. Lessee, upon thirty (30) days prior written notice to Lessor and after the Commencement Date, shall have the right to purchase the Equipment or any Unit of Equipment thereof on any Purchase Price Date by paying to Lessor the Lease-Purchase Payment then due on the applicable Individual Payment Schedule, together with the Purchase Price relating to that date. Any purchase of Equipment hereunder shall be on an "as-is, where-is" basis without representation or warranty of any kind from Lessor except that Lessor shall warrant that the Equipment IS free, clear and unencumbered of all liens arising by, through or under Lessor except for such liens as Lessee is required to remove pursuant to the terms hereof. 21. Assianments. (a) Lessee may not, without the prior written consent of Lessor: (i) assign, transfer, pledge, hypothecate or grant any security interest in or otherwise dispose of this Agreement or any Individual Payment Schedule under this Agreement or any Unit of Equipment (without replacement or substitution) or any interest in this Agreement or any Individual Payment Schedule under this Agreement or Unit of Equipment, or (ii) sublease the Equipment or permit it to be operated by anyone other than Lessee, Lessee's employees or persons authorized by Lessee in connection with Lessee's operation and maintenance of the Equipment. (b) This Agreement and each Individual Payment Schedule and the obligations of Lessee to make payments under each Individual Payment Schedule, may be sold, assigned or otherwise disposed of in whole or in part to one or more successors, grantees, holders, assignees or subassignee by Lessor, whereupon such successors, grantees, holders, assignees or subassignee shall succeed to all of Lessor's rights and (except to the extent of any servicing obligations retained by Lessor) obligations Upon any sale, dispoSItion, assignment or reassignment, Lessee shall be provided with a notice of the same by Lessor or its grantees, holders, assignees or subassignee; provided, however, that failure to provide such notice to Lessee shall not invalidate, void or render ineffective such assignment. Such sale, disposition, assignment or reassignment shall be effective upon receipt of such notice by Lessee. (c) Lessee agrees to make all payments to the assignee designated in the assignment, notwithstanding any claim, defense, setoff or counterclaim whatsoever (except arising from Lessor's breach of this Agreement) that Lessee may from time to time have against Lessor or Vendor Lessee agrees to execute all documents, including registering of assignments, notices of assignment and chattel mortgages or financing statements, which may be reasonably requested by Lessor or assignee to protect its interest in the Equipment, in this Agreement and in each Individual Payment Schedule. (d) Lessee hereby agrees that Lessor may sell or offer to sell this Agreement (i) through a certificate of participation program, whereby one or more interests are created in the Agreement under each Individual Payment Schedule, the Equipment or the Renta! Payments under this Agreement and each Individual Payment Schedule or (ii) with other similar instruments, agreements and obligations through a pool, trust, limited partnership, or other entity. 22. Events of Default. The occurrence of anyone or more of the following events constitutes an "Event of Default" under this Agreement: (a) Lessee's failure to make during the then current Fiscal Period any Lease-Purchase Payment (or any other payment) as it becomes due in accordance with the terms of any -10 - @2003 Fifth Third Bancorp Individual Payment Schedule of this Agreement, and the failure continues for thirty (30) days after the due date; or (b) Lessee's failure to perform or observe any other covenant, condition or agreement to be performed or observed by it under this Agreement, and the failure is not cured or steps satisfactory to Lessor taken to cure the failure, within fifteen (15) days after written notice of the failure to Lessee by Lessor; or (c) The discovery by Lessor that any material statement, representation or warranty made by Lessee in this Agreement or in any writing delivered by Lessee pursuant to or in connection with this Agreement is false, misleading or erroneous in any material respect; or (d) The initiation by Lessee of a proceeding under any federal or state bankruptcy or insolvency law seeking relief under such laws concerning the indebtedness of Sub-Lessee or Lessee; or (e) Lessee shall be or become insolvent, or admit in writing its inability to pay its or his debts as they mature, or make an assignment for the benefit of creditors; or Lessee shall apply for or consent to the appointment of any receiver, trustee or similar officer for it or for all or any substantial part of its property, or such receiver, trustee or similar officer shall be appointed without the application or consent of Lessee; or Lessee shall institute (by petition, application, answer, consent or otherwise) any bankruptcy, Insolvency, reorganization, arrangement, readjustment of debt, dissolution, liquidation or similar proceeding relating to it under the laws of any jurisdiction, or any such proceeding shall be instituted (by petition, application or otherwise) against Lessee, or any judgment, writ, warrant of attachment or execution or similar process shall be issued or levied against a substantial part of the property of Lessee. 23. Remedies. Upon the occurrence of an Event of Default, and as long as the Event of Default is continuing, Lessor may, at its option, exercise anyone or more of the following remedies as to the Equipment: (a) By written notice to Lessee, declare an amount equal to all amounts then due under all Individual Payment Schedules and all remaining Lease-Purchase Payments due thereon during the then applicable Fiscal Period, whereupon that amount shall become immediately due and payable; (b) Within fifteen (15) days after written demand or notice to Lessee, enter and take immediate possession of the Equipment wherever situated, without any court order or process of law and without liability for entering the premises; (c) Sell or lease the Equipment or sublease the Equipment for the account of Lessee, holding Lessee liable for all Lease-Purchase Payments and other payments due during the then applicable Fiscal Period to the effective date of such selling, leasing or subleasing and for the difference between the purchase price, rental and other amounts paid by the purchaser, lessee or sublessee pursuant to such sale, lease or sublease and the amounts payable during such Fiscal Period by Lessee under all Individual Payment Schedules of this Agreement; and (d) Exercise any other right, remedy or privilege which may be available to it under the applicable laws of the State or any other applicable law or proceed by appropriate court action to enforce the terms of this Agreement or to recover damages for the breach of this Agreement or to rescind this Agreement as to any or all of the Equipment. Upon an Event of Default or as otherwise required herein or in any Agreement, Lessee shall within ten (10) calendar days after notice from Lessor, at its own cost and expense: (a) if deinstallation, disassembly or crating is required, cause the Equipment to be deinstalled, disassembled and crated by an authorized manufacturer's representative or such other service person as is satisfactory to Lessor; and (b) deliver the Equipment to a location specified by Lessor, freight and insurance prepaid by Lessee If -11 - ©2003 Fifth Third Bancorp Lessee refuses to deliver the Equipment in the manner designated, Lessor may enter upon Lessee's premises where the Equipment is kept and take possession of the Equipment and charge to Lessee the costs of such taking. To the extent permitted by applicable law, Lessee hereby expressly waives any damages occasioned by such taking, unless caused solely and directly by Lessor's failure to comply with the UCC. If Lessee makes modifications to a site after any Equipment has been Installed therein and such modifications impede the removal of the Equipment, the cost of removing the impediments and restoring the site shall be the sole expense of Lessee. Lessee agrees that if Lessee is required to deliver any item of Equipment to Lessor or Lessor's agent, the Equipment shall be delivered free of all substances which are regulated by or form a basIs for liability under any Environmental Law (other than items necessary for the use or operation of the Equipment for the purposes for which it was Intended so long as such items have been hauled, conveyed, stored, treated, transported and disposed of in accordance with Environmental Laws) All of Lessee's right, title and Interest in any Equipment the possession of which is taken by Lessor upon the occurrence of an Event of Default (Including, without limitation, construction contracts, warranties, guaranties or completion assurances applicable to such Equipment) shall pass to Lessor, and Lessee's rights in such Equipment shall terminate immediately upon such repossession. 24. No Remedy Exclusive. 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 or now or hereafter existing at law or in equity No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient. All remedies herein conferred upon or reserved to Lessor shall survive the termination of this Agreement. 25. Notices. All notices to be given under this Agreement shall be made in writing and mailed by certified or registered mail, return receipt requested, to the parties at the addresses set forth herein or at such other address as the party may provide in writing from time to time. 26. Headinas. All section headings contained in this Agreement are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 27. Governina Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Florida. 28. Deliverv of Related Documents. Lessee will execute or provide, as requested by Lessor, such other documents and information as are reasonably necessary with respect to the transactions contemplated by this Agreement, including the Individual Payment Schedules which are or become a part of this Agreement. Lessor and Lessee agree that this Agreement or any other appropriate documents may be filed or recorded to evidence the parties' respective interests in the Equipment and this Agreement or the individual Leases hereunder. 29. SDeclal ReDresentations and Covenants of Lessor. Lessor represents that: (a) Lessor is an Ohio corporation authorization to do business in Florida and is duly organized, existing and in good standing under the laws of such state; has full and complete power to enter Into this Agreement and to enter into and carry out the transactions contemplated hereby, and to carry out ItS obligations under this Agreement; is possessed of full power to own and hold real and personal property, and to lease the same; and has duly authorized the execution and delivery of this Agreement; (b) neither the execution and delivery of this Agreement or any Lease, nor the fulfillment of or compliance with the terms and conditions hereof and thereof, nor the consummation of the -12 - ©2003 Fifth Third Bancorp transactions contemplated hereby and thereby, conflicts with or results in a breach of the terms, conditions or provisions of any restriction or any agreement or instrument to which Lessor is now a party or by which Lessor or Its property is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge, or encumbrance whatsoever upon any of the property or assets of Lessor, or upon the Equipment, as defined in any Lease except encumbrances permitted by the Lease; and (c) upon exercise by Lessee of its option to purchase the Equipment pursuant to any Lease, Lessor will deliver to Lessee all documents which are or may be necessary to vest all of Lessor's right, title and interest in and to the Equipment in Lessee, and will release all liens and encumbrances created under the Lease with respect to the Equipment. 30. SDecial ReDresentations and Covenants of Lessee. Lessee represents that. (a) it is a Florida Municipal corporation of the State of Flonda responsible for City Office Equipment and that acquiring, owning and financing of the Equipment and the leasing of the Equipment will advance such purposes. Lessee further represents that it intends, to the fullest extent possible, to support and maintain the Equipment to assure performance of its essential function; (b) the laws of the State of Florida authorize Lessee to acquire, operate and maintain the equipment to be leased pursuant to the Lease, to enter into the Lease and the transactions contemplated thereby, and carry out its obligations under the Lease; (c) the officers of Lessee executing the Lease have been duly authorized to execute and deliver the Lease under the terms and provisions of a resolution of Lessee's governing body or by other appropriate official action; (d) Lessee has complied with all open meeting laws, all public bidding laws and all other laws of the State and the United States applicable to the Lease and the acquisition of the Equipment by Lessee; (e) except as provided under the terms of the Lease, Lessee will not transfer, lease, assign, mortgage or encumber the Equipment; (f) the Equipment constitutes public property to be used solely for public purposes and Lessee will use the Equipment during the term of the Lease only to perform essential governmental functions; (g) Lessee will execute and file with the Internal Revenue Service the information reporting statement required by Section 149(e) of the Code, (Form 8038G or 8038GC); (h) Lessee does not reasonably anticipate that less than ninety-five percent (95%) of the proceeds of the Lease will be used for "local government activities" of Lessee; and (i) all representations, warranties, covenants and statements contained in this Lease are true and correct. Upon the execution of each Individual Payment Schedule, Lessee will provide Lessor a completed and executed copy of the opinion of the legal counsel to Lessee, in form and substance satisfactory to Lessor The opinion of legal counsel to Lessee will be dated the date that funding for the Individual Payment Schedule is provided by Lessor. In addition, Lessor's obligation to fund the purchase price for the Equipment referred to In any Individual Equipment Schedule executed pursuant hereto is conditioned upon prior receipt of the following documents, in each case, duly executed by Lessee and in form and substance satisfactory to Lessor: (i) Arbitrage and Tax Certificate, (ii) Certificate of Fiscal Officer, (iii) -13 - ©2003 Fifth Third Bancorp ----- Bank Eligibility Certificate, (iv) Insurance Coverage Letter, (v) Municipal Certificate and (vi) Essential Use/Source of Funds Certificate. 31. Escrow Agreement. To the extent required by any Individual Payment Schedule executed pursuant hereto, at the time of the execution and delivery of such Individual Payment Schedule, Lessor and Lessee agree to execute and deliver and to cause Escrow Agent to execute and deliver the Escrow Agreement. Such Individual Payment Schedule shall take effect only upon execution and delivery of the Escrow Agreement by the parties thereto. Upon receipt of each properly completed Payment Request Form, In the form prescribed by the Escrow Agreement, Lessor shall deposit or cause to be deposited with Escrow Agent for credit to the Acquisition Fund the sum designated therein, which shall be held, invested and disbursed in accordance with the Escrow Agreement. 32. Entire Aareement. This Agreement, together with all Individual Payment Schedules and attachments and exhibits, and other documents or instruments executed by Lessee and Lessor in connection with this Agreement, constitute the entire agreement between the parties with respect to the lease of the Equipment. 33. Amendments. This Agreement may not be modified, amended, altered or changed except with the written consent of Lessee and Lessor and except as contemplated by the addition of Individual Payment Schedules. 34. Severa b llitv. In any provision of, or any covenant, obligation or agreement contained in this Agreement is determined by a court to be invalid or unenforceable, that determination shall not affect any other provision, covenant, obligation or agreement, each of which shall be construed and enforced as if the invalid or unenforceable portion were not contained in this Agreement. The invalidity or unenforceability shall not affect any valid or enforceable application thereof, and each such provision, covenant, obligation or agreement shall be deemed to be effective, operative, made, entered into or taken in the manner and to the full extent permitted by law. 35. Counterparts. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same Agreement. 36. Disputes: Venue. All disputes shall be govemed by the laws of the State of Florida with venue in Palm Beach County, Florida. -14 - ©2003 Fifth Third Bancorp IN WITNESS WHEREOF, the parties have executed this Master Lease-Purchase Agreement by their authorized officers as of the date set forth above. LESSOR: THE FIFTH THIRD LEASING COMPANY By: Name: Mark J. Zink Title: Assistant Vice President LESSEE: CITY OF DELRAY BEACH, FLORIDA By: Name: Title: Attested by: City Clerk Approved as to legal sufficiency and form on behalf of Lessee -15 - @2003 Fifth Third Bancorp ill Fifth Third Bank INSURANCE COVERAGE CERTIFICATE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") Please provide the evidence of insurance to Lessor at The Fifth Third Leasing Co, 38 Fountain Square Plaza, MD10904A, Cincinnati, Ohio 45263 Attn: Sales Support Manager. FROM: CITY OF DELRAY BEACH, FLORIDA a city in the State of Florida RE: INSURANCE COVERAGE REQUIREMENTS of the Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August9, 2005 (the "Individual Payment Schedule") 1. In accordance with Section 19 of the Master Lease and the Individual Payment Schedule referenced above (collectively, the "Agreement"), we have instructed the insurance agent named below A.J. Gallaaher (Name of Insurance Agent) (Name of Insurance Agency) 8200 NW 41st S1. Ste. #200 (Street Address) (Street Address) Miami Florida 33166 (City) (State) (ZIP Code) 800-488-3003 (Phone) to issue: (a) All Risk Physical Damage Insurance on the leased Equipment or Unit thereof (as defined in the Agreement) evidenced by a Certificate of Insurance and Long Form Loss Payable Clause naming Lessor "and/or its assigns" as Loss Payee. (b) Public Liability insurance evidence by a Certificate of Insurance naming Lessor "and/or its assigns" as an Additional Insured. Minimum Coverage Required: $1,000,000 per person $1,000,000 aggregate bodily injury liability $1,000,000 property damage liability @2003 Fifth Third Bancorp 2. Proof of insurance coverage will be provided to Lessor prior to the time that the Equipment or Unit thereof is delivered to us. 3. Lessee will furnish a Certificate of Insurance with the following additional endorsements (a) Endorsement requiring that insurer furnish Lessor thirty (30) days' prior written notice of the effective date of any material alteration or the cancellation or expiration of coverage. (b) Endorsement confirming that the interest of Lessor shall not be invalidated by any actions, inactions, breach of warranty or conditions or negligence of the undersigned Lessee or any person other than Lessor. (c) Endorsement waiving any right of insurer to subrogation action against Lessor. (d) Endorsement providing that premiums may be paid by the Lessor, but without liability on the part of Lessor for such premiums. (e) Endorsement confirming that the each policy of insurance is primary without any right of set-off or right of contribution from any other insurance carried by Lessor IN WITNESS WHEREOF, the undersigned has executed this Insurance Coverage Certificate this 2nd day of August 2005. LESSEE: CITY OF DELRAY BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor -2 - ©2003 Fifth Third Bancorp DRAFT FOR DISCUSSION PURPOSES ONLY - 7/26/05 m Fifth Third Bank INDIVIDUAL PAYMENT SCHEDULE - No. 001 DATED AUGUST 9,2005 To MASTER LEASE-PURCHASE AGREEMENT DATED AS OF AUGUST 9, 2005 Lessor: THE FIFTH THIRD LEASING COMPANY an Ohio corporation Lessee: CITY OF DELRA Y BEACH, FLORIDA a city in the State of Florida This Individual Payment Schedule is entered into this August 9, 2005, by and between Lessor and Lessee pursuant to and subject to the terms and conditions of the Master Lease-Purchase Agreement dated as of August 9, 2005 (as amended, supplemented or modified from time to time, the "Master Lease-Purchase Agreement"). All of the terms of the Master Lease-Purchase Agreement are incorporated by reference herein. Capitalized terms used, and not otherwise defined, herein shall have the meanings attached thereto in the Master Lease- Purchase Agreement. 1. Equipment covered by this Individual Payment Schedule. Subject to the terms and conditions hereof, Lessor agrees to acquire and lease to Lessee the equipment listed below ("Equipment"). Manuf. and/or Description of Equipment Serial Invoice Vendor Name & Equipment location Number Total Invoice No. ProSys 133 Laptop computers 100 N. W 1st Avenue $487,977 00 Invoice #38356 Delray Beach, FL 33444 Palm Beach County Total' $487,977.00 The total cost of the Equipment covered by this Individual Payment Schedule is Four Hundred Eighty-seven Thousand, Nine Hundred Seventy-seven and 00/100 dollars ($487,977.00). 2. Billing Address. 100 N. W. 1st Avenue Attention: R.S. O'Connor Delray Beach, Florida 33444 3. Term. The Scheduled Term is 36 months. The Final Period shall be the period commencing on the first day of the Fiscal Year in which the final payment is scheduled to occur and ending on July 9,2008. ©2003 Fifth Third Bancorp 4. Rent and Purchase Option. (a) Base Rent: See Schedule 1 (b) Commencement Date: August 9, 2005 (c) First Payment Date: August 9, 2005 (d) Payment Frequency: monthly (e) Number of Payments: thirty-six (36) (f) Purchase Price Dates and Purchase Price: See dates and amounts designated on Schedule 2 5. Base Rent. The total cost for the Equipment is the amount specified in Section 1 hereof. Of that amount, Lessee shall pay zero ($O.OO) and, subject to the terms and conditions hereof, Lessor shall advance Four Hundred Eighty-seven Thousand, Nine Hundred Seventy-seven and 00/100 dollars ($487,977 OO) (the "Lessor Amount"). The Base Rent of the Lease-Purchase Payments is determined by applying an annual rate of interest equal to Three and 37/100 percent (3.37%) (the "Implicit Interest Rate") of the outstanding balance equal to the Lessor Amount (Remainder of page intentionally left blank. Signature page follows.) - 2 - ©2003 Fifth Third Bancorp IN WITNESS WHEREOF, the parties have executed this Individual Payment Schedule by their authorized officers as of the date set forth above. LESSOR: THE FIFTH THIRD LEASING COMPANY By: Name: Mark J. Zink Title' Assistant Vice President LESSEE: CITY OF DELRA Y BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor - 3- ©2003 Fifth Third Bancorp SCHEDULE 1 TO INDIVIDUAL PAYMENT SCHEDULE 001 SCHEDULE OF PAYMENTS Payment Rent Payment Interest Principal Total Base Number Date Component Component Rent of Base Rent of Base Rent Payment Due 1 08/09/05 0.00 14,230.71 14,230.71 2 09/09/05 1,330.44 12,900.27 14,230.71 3 1 0/09/05 1,294.21 12,936.50 14,230.71 4 11/09/05 1,257.88 12,972.83 14,230.71 5 12/09/05 1,221.45 13,009.26 14,230.71 6 01/09/06 1,18491 13,045.80 14,230.71 7 02/09/06 1,148.28 13,082.43 14,230.71 8 03/09/06 1,111.54 13,119.17 14,230.71 9 04/09/06 1,074.69 13,156.02 14,23071 10 05/09/06 1,037.75 13,192.96 14,230.71 11 06/09/06 1,000.70 13,230.01 14,230.71 12 07/09/06 963 54 13,267.17 14,230.71 13 08/09/06 926 28 13,304.43 14,230.71 14 09/09/06 888.92 13,341.79 14,230.71 15 10/09/06 851.45 13,379.26 14,230.71 16 11/09/06 813.88 13,416.83 14,230.71 17 12/09/06 776.20 13,454.51 14,230.71 18 01/09/07 738.41 13,492.30 14,23071 19 02/09/07 700.52 13,530.19 14,230.71 20 03/09/07 662.53 13,568.18 14,230.71 21 04/09/07 624.42 13,606.29 14,230.71 22 05/09/07 586.21 13,644.50 14,230.71 23 06/09/07 547.89 13,682.82 14,230.71 24 07/09/07 509.47 13,721.24 14,230.71 25 08/09/07 470.93 13,759.78 14,230.71 26 09/09/07 432.29 13,798.42 14,23071 27 1 0/09/07 393.54 13,837.17 14,230.71 28 11/09/07 354.68 13,876.03 14,230.71 29 12/09/07 315.71 13,915.00 14,230.71 30 01/09/08 276.64 13,954.07 14,230.71 31 02/09/08 237.45 13,99326 14,230.71 32 03/09/08 198.15 14,03256 14,230.71 33 04/09/08 158.74 14,071.97 14,230.71 34 05/09/08 119.22 14,111 49 14,230.71 35 06/09/08 79.59 14,151.12 14,230.71 36 07/09/08 4005 14,190.66 14,230.71 -4 - ©2003 Fifth Third Bancorp ---- SCHEDULE 2 TO INDIVIDUAL PAYMENT SCHEDULE 001 PURCHASE PRICE DATES AND PURCHASE PRICES Purchase Price Purchase Price Date 08/09/05 473,746.29 09/09/05 460,846.02 1 0/09/05 447,909.52 11/09/05 434,936.69 12/09/05 421,927.43 01/09/06 408,881.63 02/09/06 395,799.20 03/09/06 382,680.03 04/09/06 369,524.01 05/09/06 356,331.05 06/09/06 343,101.04 07/09/06 329,833.87 08/09/06 316,529.44 09/09/06 303,187.65 1 0/09/06 289,808.39 11/09/06 276,391.56 12/09/06 262,937.05 01/09/07 249,444.75 02/09/07 235,914.56 03/09/07 222,346.38 04/09/07 208,740.09 05/09/07 195,095.59 06/09/07 181,412.77 07/09/07 167,691.53 08/09/07 153,931.75 09/09/07 140,133.33 10/09/07 126,296.16 11/09/07 112,420.13 12/09/07 98,505.13 01/09/08 84,551.06 02/09/08 70,557.80 03/09/08 56,525.24 04/09/08 42,453.27 05/09/08 28,341.78 06/09/08 14,190.66 07/09/08 0.00 - 5- ©2003 Fifth Third Bancorp m Fifth Third Bank CERTIFICATE OF FISCAL OFFICER TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned, Director of Finance of Lessee, pursuant to the Master Lease and Individual Payment Schedule referenced above, hereby certifies that the moneys required to meet the obligations of the Lessee during the current fiscal period for the payments due or coming due pursuant to the Individual Payment Schedule have been lawfully appropriated by Lessee for such purposes and are In the treasury of Lessee or in the process of collection to the credit of an appropriate fund, free from any encumbrances. IN WITNESS WHEREOF, the undersigned has executed this Certificate of Fiscal Officer this 2nd day of August 2005. CITY OF DELRAY BEACH, FLORIDA Name: JoseDh M. Safford Title: Director of Finance ©2003 Fifth Third Bancorp ----- m Fifth Third Bank ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9,2005 (the "Master Lease") and Individual Payment Schedule No 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned, Mayor of Lessee, pursuant to the Master Lease and Individual Payment Schedule referenced above, hereby certifies as follows: 1. That the equipment identified in the Individual Payment Schedule (the "Equipment") is essential to the governmental functions of Lessee and constitutes public property to be used for public purposes. 2. Lessee has an immediate need for, and expects to make immediate use of, substantially all the Equipment, which need is not temporary or expected to diminish in the foreseeable future. The Equipment will be used by Lessee for the purpose of performing one or more of Lessee's governmental functions consistent with the permissible scope of Lessee's authority. 3. The estimated useful life of the Equipment, based upon manufacturer's representations and Lessee's projected needs, is three (3) years. 4. Lessee's source of funds for making rental payments under the Lease is the General Fund Non Advalorem revenues. Lessee expects and anticipates adequate funds to be available to make all future rental payments. IN WITNESS WHEREOF, the undersigned has executed this Essential Use/Source of Funds CertIficate this 2nd day of August 2005. CITY OF DELRAY BEACH, FLORIDA By: Name: Jeff Perlman Title: Mayor @2003 Fifth Third Bancorp - -- m Fifth Third Bank MUNICIPAL CERTIFICATE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") I, the undersigned, the duly appointed, qualified and acting Mayor of the above-captioned Lessee do hereby certify as follows: 1. Lessee did, at a Commission meeting of the governing body of the Lessee held on August 15, 2005 by motion duly made, seconded and carried in accordance with all requirements of law approve and authorize the execution and delivery of the above-referenced Master Lease-Purchase Agreement, Individual Payment Schedule NO.001 (collectively, the "Agreement") on behalf of Lessee by its following named representatives, to wit: Printed Name: Jeff Perlman Title: Mavor Signature: Printed Name: Title: Signature: 2. One (1) of the above named representatives is required to execute each such document. 3. Each of the above named representatives of the Lessee held at the time of such authorization, and holds at the present time, the office set forth above. 4. The meeting of the governing body of the Lessee at which the Agreement and the Escrow Agreement were approved and authorized to be executed was duly called, regularly convened and attended throughout by the requisite majority of the members thereof and the action approving the Agreement and the Escrow Agreement and authorizing the execution thereof has not been altered or rescinded. 5. There is no litigation of any nature, either pending or threatened, restraining or enjoining the execution of the Lease nor directly or indirectly affecting the proceedings and authority by which the Agreement and the Escrow Agreement have been authorized and executed, nor any dispute, controversy or litigation affecting the validity of or security for the Agreement. 6. No event or condition that constitutes, or with the giving of notice or the lapse of time or both would constitute, an Event of Default (as such term is defined in the Agreement) exists at the date hereof. ©2003 Fifth Third Bancorp DRAFT FOR DISCUSSION PURPOSES ONLY - 7/26105 . . 7. All insurance required in accordance with the Agreement is currently maintained by the Lessee. 8. lessee has, in accordance with the requirements of law, fully budgeted and appropriated sufficient funds for the current fiscal year to make the rental payments scheduled to come due during the Initial Period and to meet its other obligations for the Initial Period (as such terms are defined in the Agreement) and such funds have not been expended for other purposes. 9. Lessee is not in default for the payment of principal of or interest on any of its notes or bonds or other obligations now outstanding. IN WITNESS WHEREOF, the undersigned has executed this Municipal Certificate this _ day of August 2005. CITY OF DElRAY BEACH, FLORIDA By: Name: Janet Whiccle Title' Actin!:! Citv Clerk STATE OF FLORIDA SS: COUNTY OF PALM BEACH The foregoing instrument was acknowledged before me this 2nd day of August, 2005 by . . on behalf ofthe Lessee. Notary Public My commission expires' [SEAL] - 2 - @2003 Fifth Third Bancorp . . ill Fifth Third Bank CERTIFICATE OF ACCEPTANCE TO: THE FIFTH THIRD LEASING COMPANY, an Ohio corporation ("Lessor") RE: Master Lease-Purchase Agreement between Lessor and CITY OF DELRAY BEACH, FLORIDA ("Lessee") dated as of August 9, 2005 (the "Master Lease") and Individual Payment Schedule No. 001 thereto dated August 9, 2005 (the "Individual Payment Schedule") The undersigned Lessee under the Master Lease and Individual Payment Schedule referenced above hereby certifies that: 1. A present need exists for the Equipment (as defined in the Individual Payment Schedule) which need is not temporary or expected to diminish in the near future. The Equipment is essential to and will be used by Lessee only for the purpose of performing one or more governmental functions of Lessee consistent with the permissible scope of Lessee's authority. 2. Lessee confirms that sufficient funds have been appropriated to make all Rental Payments due during its current fiscal year and expects and anticipates that sufficient funds will be available to make all Rental Payments due in subsequent years. 3. The Equipment is covered by insurance in the types and amounts required by the Master Lease and is located at the location set forth in the Individual Payment Schedule. 4. The Equipment has been delivered to, and installed at, the Equipment Location specified therein and, as between Lessor and Lessee, is good working order and is hereby accepted. 5. Lessee acknowledges, affirms and agrees to be bound by the terms and conditions of the Master Lease and the Individual Payment Schedule. Lessee represents and warrants that (a) each of the representations and warranties of Lessee contained in the Master Lease IS true and correct as of the date hereof and (b) no Default or Event of Default (as defined In the Master Lease) has occurred and is continuing as of the date hereof. IN WITNESS WHEREOF, the Lessee has caused this Certificate of Acceptance to be executed as of this 2nd day of August 2005. LESSEE: CITY OF DELRA Y BEACH, FLORIDA By: Name: Jeff Perlman Title: Mavor ©2003 Fifth Third Bancorp --------- AGENDA ITEM NUMBER: ~ AGENDA REQUEST Date: 7/27/04 Request to be placed on: ~ Consent Agenda Special Agenda Workshop Agenda When: 812105 Description of agenda item: Approve Resolution# 54-05 authorizing the execution and Delivery of a master lease agreement with Fifth Third Bank. The lease purchase agreement Provides financing for 133 laptops at the Police Department at a rate of 3.37% for a period of 36 months. ORDINANCE/RESOLUTION REQUIRED: X YES NO Draft of Resolution Attached: X YES NO Recommendation: Recommend the approval of Resolution# 54-05. Department Head Signature: '" ~ ' ~ Determination of Consistency with Comprehensive Plan: " City Attorney Review/Recommendation (if applicable): Budget Director Review (required on all items involving expenditure of funds): Funding available: Yes X No Funding alternatives (if applicable): Account Number: 001 7111 51971 50 and 001 7111 51972 50 Account Description: Lease - Principal Exp; Account Balance: $106,154 City Manager Review: Approved for Agenda: @ k No Hold Until: Agenda Coordinator Review: Received: Action: Approved: Disapproved: P.O. #