Res 03-06
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RESOLUTION NO. 3-06
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
DELRA Y BEACH, FLORIDA, AUTHORIZING THE EXECUTION
AND DELIVERY OF A MASTER LEASE/PURCHASE AGREEMENT
WITH BANC OF AMERICA LEASING & CAPITAL, LLC;
AUTHORIZING A LEASE OF TELEPHONE EQUIPMENT AND
GOLF CARTS THEREUNDER; AUTHORIZING THE EXECUTION
OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO
COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY;
AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED by the City Council of the City of Del ray Beach, Florida (the
"City") as follows:
Section 1. Findings. It is hereby ascertained. determined and declared that:
(a) The City deems it necessary, desirable and in the best financial interest
of the City and its inhabitants that it enter into a Master Equipment Lease/Purchase
Agreement (the "Master Lease/Purchase Agreement") with Banc of America Leasing &
Capital. LLC (the "Lessor"), to provide for the lease and purchase from time to time of
equipment essential to the governmental. municipal or public purposes or functions of the
City or to the services the City provides its inhabitants.
(b) The City has an immediate need for Telephone Equipment & Golf
Carts (the "Equipment") for the welfare of its citizens, and it is in the best financial
interest of the City that the Equipment be leased pursuant to the Master Lease/Purchase
Agreement.
(c) The City is authorized and empowered by the Constitution and laws of
the State of Florida, including particularly Chapter 166, Florida Statutes, and other
applicable provisions oflaw (the "Act").
(d) The City is authorized and empowered by the Act to enter into
transactions such as those contemplated by the Master Lease/Purchase Agreement and to
fully perform its obligations thereunder in order to acquire the Equipment.
(e) The small size of the lease financing, current market conditions and
other circumstances require that the Master Lease/Purchase Agreement and the leases of
equipment thereunder be negotiated at private sale rather than offered by competitive bid.
( -,
Section 2. Authorization of Execution and Delivery of Master LeaselPurchase
Airreement. The Master LeaselPurchase Agreement, substantially in the form attached hereto as
Exhibit A, with such omissions, insertions and variations as may be approved on behalf of the
City by the Mayor, such approval to be evidenced conclusively by the Mayor's execution
thereof. is hereby approved and authorized. The City hereby authorizes and directs the Mayor to
execute the Master Lease/Purchase Agreement and deliver the same to the Lessor. All of the
provisions of the Master Lease/Purchase Agreement, when executed, dated and delivered by or
on behalf of the City as authorized herein and by or on behalf of the Lessor, shall be deemed to
be part ofthis Resolution as fully and to the same extent as if incorporated verbatim herein.
Section 3. Authorization of Leases of the Equipment. The lease of the
Equipment pursuant to the Master Lease/Purchase Agreement. as set forth on Schedule of
Property No. 001 (together with the Rental Payment Schedules associated therewith, the
"Schedules"), is hereby approved. The City hereby authorizes and directs the Mayor to execute
each of the Schedules and deliver the same to the Lessor. All of the Schedules, when executed.
dated and delivered by or on behalf of the City as authorized herein and by or on behalf of the
Lessor, shall be deemed to be part of this Resolution as fully and to the same extent as if
incorporated verbatim herein.
Section 4. General Authority. The Mayor, the City Clerk and the officers,
attorneys and other agents and employees of the City are hereby authorized to do all acts and
things required of them by this Resolution or desirable or consistent with the requirements hereof
for the full, punctual and complete performance of all of the terms. covenants and agreements
contained in the Master Lease/Purchase Agreement and the Schedules, and they are hereby
authorized to execute and deliver all certificates and documents which shall reasonably be
required by the Lessor to effectuate the transactions described herein, including without
limitation the documents described in Exhibits B. C and E of the Master Lease/Purchase
Agreement.
Section 5. Severability of Invalid Provisions. If anyone or more of the
covenants. agreements or provisions of this Resolution shall be held contrary to any express
provision of law or contrary to the policy of express law, though not expressly prohibited. or
against public policy, or shall for any reason whatsoever be held invalid, then such covenants,
agreements and provisions shall be null and void and shall be deemed separable from the
remaining covenants. agreements and provisions of this Resolution. and shall in no way affect
the validity of any of the other covenants, agreements or provisions hereof.
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Resolution No. 3-06
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Section 6. Effective Date. This Resolution shall become effective immediately
upon its passage.
PASSED AND ADOPTED this 3rd day of January. 2006.
[OFFICIAL SEAL]
ATTEST:
Mayor a#; l ~
~S).~~
City Clerk
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Resolution No. 3-06
MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT
(FLORIDA VERSION)
This Master Equipment Lease/Purchase Agreement' (this "Agreement") dated as of
December 29, 2005, and entered into between Banc of America Leasing & Capital, LLC, a
Delaware limited liability company ("Lessor"), and City of Delray Beach, FL, a body corporate
and politic/municipality existing'under the laws of the State of Florida ("Lessee").
WITNESSETH:
Whereas, Lessee desires to lease and acquire from Lessor certain equipment described in
each Schedule (as each such term is defined herein), subject to the terms and conditions of and
for the purposes set forth in each Lease; and in the event of a conflict the terms of a Schedule
prevail; and
Whereas, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional
Schedules by the parties hereto and as otherwise provided herein; and
Whereas, Lessee is authorized under the constitution and laws of the State to enter into
this Agreement and the Schedules hereto for the purposes set forth herein;
Now, Therefore, for / good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties herepy
agree as follows: /
ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by
Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall be not
less than $100,000 per Lease for Leases where the Acquisition Amount is to be paid directly to
the Vendor.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by
the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
Agreement in form and substance acceptable to and executed by Lessee, Lessor and the
Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and
administered.
"Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any
Acquisition Fund Agreement, and its successors and assigns.
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"Acquisition Period" means, with respect to each Lease, that period stated in the
Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be
expended on Equipment Costs.
"Act" means, collectively, Chapter 166, Florida Statutes, the Constitution of the State,
and other applicable provisions of law.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.06.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on
which the Equipment listed in such Lease is accepted by Lessee in the manner described in
Section 5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such
Lease are deposited for that purpose with an Acquisition Fund Custodian.
"Equipment" means the property listed in each of the Leases and all replacements,
repairs, restorations, modifications and improvements thereof or thereto made pursuant to
Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in
a Lease, such reference shall be deemed to include all such replacements, repairs, restorations,
modifications and improvements of or to such Equipment.
"Equipment Costs" means, to the extent permitted by the Act, the total cost of the
Equipment listed in each Lease, including all delivery charges, installation charges, capitalizable
consulting and training fees approved by Lessor, legal fees, financing costs, motor vehicle
registration fees, recording and filing fees, and other costs necessary to vest full, clear legal title
to the Equipment in Lessee, subject to the security interest granted to and retained by Lessor as
set forth in each Lease, and otherwise incurred in connection with the financing provided by the
lease-purchase of the Equipment as provided in each Lease; provided that in no event shall
approved consulting and training fees or other non-capitalizable "soft" costs relating to the
Equipment listed in any Lease which are to be financed by Lessor hereunder exceed 2% of the
total cost of such Equipment as. determined by Lessor; and provided further, that in no event
shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft
costs" relating to such Equipment be included without Lessor's prior consent.
"Expense Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement.
"Event of Default" means an Event of Default described in Section 12.01.
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule. Each Schedule with the incorporated terms of this Agreement
shall constitute a separate and independent Lease.
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"Lease Proceeds" means, with respect to each Lease, the total amount of money to be
paid by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with
such Lease and the Acquisition Fund Agreement.
"Lease Term" for each Lease means the Original Term and all Renewal Terms therein
provided and for this Agreement means the period from the date hereof until this Agreement is
terminated.
"Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this
Agreement or (b) any assignee or transferee of any right, title or interest of Lessor in and to the
Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to
Section 11.01, but does not include any entity solely by reason of that entity retaining or
assuming any obligation of Lessor to perform under a Lease.
"Original Term" means the period from the Commencement Date for each Lease until
the end of the fiscal year of Lessee in effect at such Commencement Date.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount
that Lessee may pay to Lessor to purchase such Equipment as provided in such Lease.
"Renewal Terms" means the renewal terms of each Lease, each having a duration of one
year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable
thereto.
"Rental Payments" means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the
form of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially
in the form of Exhibit A-I hereto.
"State" means the State of Florida.
"Utilization Period" means the date, with respect to each Lease not funded under an
Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the
Equipment under such Lease as indicated in Section 5.01(a).
"Vendor" means the manufacturer or supplier of the Equipment or any other person as
well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged
Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease.
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ARTICLE II
Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth
facts and estimates upon which Lessor and its counsel may rely regarding the exclusion of the
interest portion of the Rental Payments from the gross income of Lessor, and the facts and
estimates upon which Lessee bases its reasonable expectation that the obligation to make Rental
Payments pursuant to the Leases does not create an arbitrage bond under Section 148 of the
Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations.
Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and
as of the Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 1 03( c) of the Code, duly organized and existing under the constitution and laws of the
State, including the Act, with full power and authority to enter into this Agreement and each
Lease and the transactions contemplated hereby and to perform all of its obligations hereunder
and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and each
Lease by proper action of its governing body at a meeting duly called, regularly convened and
attended throughout by the requisite quorum of the members thereof, or by other appropriate
official approval, and all requirements have been met and procedures have occurred in order to
ensure the validity and enforceability of this Agreement and each Lease.
(c) 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 exists at the date hereof. Lessee is not in
default under any indenture, mortgage, deed of trust, bank loan, credit agreement or other
instrument to which Lessee is a party.
(d) The entering into and performance of each Lease by Lessee will not violate any
judgment, order, or regulation applicable to Lessee, and except as otherwise expressly provided
in this Agreement, result in the creation of any lien, charge, security interest, or other
encumbrance upon any assets of Lessee pursuant to any indenture, mortgage, deed of trust, bank
loans, credit agreement or other instrument to which Lessee is a party or by which it or its assets
may be bound.
(e) There are no actions, suits or proceedings pending or, to the knowledge of Lessee,
threatened against or affecting Lessee in any court or before any governmental commission,
board or authority, which, if adversely determined, will have a material adverse effect on the
ability on Lessee to perform its obligations under this Agreement or any Lease.
(f) Lessee has complied and will comply with Sections 218.38, 218.385(2) and
218.385(3), Florida Statutes, with respect to each Lease.
(g) The interest rate for the interest portion of the Rental Payments, on the first date
interest begins to accrue, does not exceed a rate of interest permitted by Section 215.84, Florida
Statutes.
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(h) Lessee will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a body corporate and politic.
(i) Lessee has complied and will comply with such open meeting laws and public
bidding requirements as may be applicable to this Agreement and each Lease and the acquisition
by Lessee of the Equipment as provided in each Lease or, in the case of public bidding
requirements, has otherwise complied and will comply with Section 218.385(1), Florida Statutes,
in connection with each Lease.
G) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee permitted under
the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest
therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid
under each Lease.
(k) Lessee has kept, and throughout the Lease Term will keep, its books and records
in accordance with generally accepted accounting principles and practices consistently applied,
and shall deliver to Lessor (i) annual audited financial statements (including a balance sheet,
statement of revenues, expenses and changes in fund balances for budget and actual, statement of
cash flows and notes, and schedules and attachments to the financial statements) within 180 days
of its fiscal year end, (ii) such other financial statements and information as Lessor may
reasonably request, and (iii) its annual budget for the following fiscal year within 90 days of the
adoption of such budget. Such statements in clause (i) above shall be accompanied by an
unqualified opinion of Lessee's auditor. Credit information relating to Lessee may be
disseminated among Lessor and any of its affiliates and any of their respective successors and
aSSIgns.
(1) The proceeds of the Lease, together with investment earnings thereon, will be
expended to acquire Equipment within 6 months from the first day of the Original Term.
(m) Lessee has an immediate need for the Equipment listed on each Schedule and
expects to make immediate use of the Equipment listed on each Schedule. Lessee's need for the
Equipment is not temporary and Lessee does not expect the need for any item of the Equipment
to diminish during the Lease Term of such item. The use of the Equipment is essential to
Lessee's proper efficient and economic operation.
(n) The original proceeds of each Lease, and the interest to be earned thereon, do not
and will not exceed the amount necessary for the purpose for which such Lease is executed.
(0) No sinking fund is expected to be created by Lessee with respect to any Lease or
the Rental Payments.
(p) No other governmental obligations of Lessee are being issued at substantially the
same time and sold pursuant to a common plan of financing which will be paid out of (or have
substantially the same claim to be paid out of) substantially the same source of funds as each
Lease.
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(q) No portion of the amounts received pursuant to each Lease will be used as a
substitute for other funds which were otherwise to be used as a source of financing for any
portion of the costs of Equipment and which have been and will be used to acquire, directly or
indirectly, obligations producing a yield in excess ofthe yield on each Lease.
(r) In connection with the execution and delivery of each Lease, no action has or will
be taken which attempts to circumvent the provisions of Section 148 of the Code and the
regulations promulgated thereunder by (i) enabling Lessee to exploit the difference between tax-
exempt and taxable interest rates to gain a material financial advantage and (ii) over burdening
the tax -exempt bond market.
(s) Lessee will not directly or indirectly use or permit the use of any proceeds of a
Lease, or take or omit to take any action, that would cause the Rental Payments to be "federally
guaranteed" within the meaning of Section 149(b) of the Code.
(t) Lessee will submit to the Secretary of the Treasury information reporting
statements and other information related to each Lease at the times and in the forms required by
the Code.
(u) To the best of the knowledge and belief of Lessee, the expectations of Lessee, as
set forth in this Section 2.01, are reasonable, and there are no present facts, estimates and
circumstances which would change the expectations contained therein.
(v) There is no pending litigation, tax claim, proceeding or dispute that may adversely
affect Lessee's financial condition or impairs its ability to perform its obligations hereunder.
Lessee will, at its expense, maintain its legal existence in good standing and do any further act
and execute, acknowledge, deliver, file, register and record any further documents Lessor may
reasonably request in order to protect Lessor's security interest in the Equipment and Lessor's
rights and benefits under this Lease.
(w) The payment of the Rental Payments or any portion thereof is not (under the
terms of any Lease or any underlying arrangement) directly or indirectly (1) secured by any
interest in property used or to be used in any activity carried on by any person other than a state
or local governmental unit or payments in respect of such property; or (2) on a present value
basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed
money, used or to be used in any activity carried on by any person other than a state or local
governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried
on by any person other than a state or local governmental unit. No portion of the Equipment
Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any
person other than Lessee.
(x) Lessee has reviewed and will review Internal Revenue Service Form 8038-G to be
filed in connection with the execution and delivery of each Lease, and all of the information
contained therein is, and will be, to the best of Lessee's knowledge, true and correct, and Lessee
will cause such Form 8038-G to be filed not later than 30 days after the execution and delivery of
each Lease.
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(y) Lessee reasonably expects that at least 85% of the proceeds of each Lease will be
expended for the governmental purpose of the Lease within 3 years of the initial date of the
Lease term, and less than 50% of the proceeds of each Lease will be invested in investment
securities with a substantially guaranteed yield for 4 years or longer.
ARTICLE III
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor
agrees to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the
Equipment. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to
Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such
Lease and in accordance with the terms thereof.
Section 3.02. Continuation of the Lease Term. The Lease Term for each Lease may be
continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term
for the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease.
At the end of the Original Term and at the end of each Renewal Term until the maximum Lease
Term has been completed, Lessee shall be deemed to have exercised its option to continue each
Lease for the next Renewal Term unless Lessee terminates such Lease pursuant to Section 3.03
or Section 10.01. The terms and conditions during any Renewal Term shall be the same as the
terms and conditions during the Original Term, except that the Rental Payments shall be as
provided in the applicable Lease.
Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease
through the Original Term and all Renewal Terms and to pay the Rental Payments thereunder.
Lessee affirms that sufficient funds are available for the current fiscal year, and Lessee
reasonably believes that an amount sufficient to make all Rental Payments during the entire
Lease Term of each Lease can be obtained from legally available funds of Lessee. Subject to
Section 3.03, Lessee further intends to do all things lawfully within its power to obtain and
maintain funds sufficient and available to discharge its obligation to make Rental Payments due
hereunder, including making provision for such payments to the extent necessary in each budget
or appropriation request submitted and adopted in accordance with applicable provisions of law,
to have such portion of the budget or appropriation request approved and to exhaust all available
reviews and appeals in the event such portion of the budget or appropriation request is not
approved.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made from funds budgeted and appropriated for that
purpose during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or
otherwise make available funds to pay Rental Payments under any Lease following the then
current Original Term or Renewal Term, such Lease or Leases shall be deemed terminated at the
end of the then current Original Term or Renewal Term. Lessee agrees to deliver notice to
Lessor of such termination at least 90 days prior to the end of the then current Original Term or
Renewal Term, but failure to give such notice shall not extend the term beyond such Original
Term or Renewal Term. If any Lease is terminated in accordance with this Section, Lessee
agrees to peaceably deliver the Equipment to Lessor at the location(s) to be specified by Lessor.
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Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value, utility and remaining useful life as
the Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld, and shall be reflected in an amendment to the
appropriate Schedule.
Section 3.05. Conditions to Lessor's Performance Under Any Lease.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition
Fund Custodian, unless Lessor pays 100% of the Acquisition Amount directly to the
Vendor upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other comparable
officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the
satisfaction of Lessor;
(iv) A certified copy of a resolution or other official action of Lessee's
governing body authorizing the execution and delivery of the Lease and performance by
Lessee of its obligations thereunder;
(v) An opinion of counsel to Lessee in substantially the form attached hereto
as Exhibit D respecting such Lease and otherwise satisfactory to Lessor;
(vi) An executed Essential Use/Source of Funds Certificate in substantially the
form attached hereto as Exhibit E;
(vii) Evidence of insurance as required by Section 7.02 hereof;
(viii) All documents, including financing statements, affidavits, notices and
similar instruments, in form satisfactory to Lessor;
(ix) A copy of a fully completed and executed Form 8038-G; and
(x) Such other items, if any, as are set forth in such Lease or are reasonably
required by Lessor.
(b) In addition, the performance by Lessor of any of its obligations pursuant to any
Lease shall be subject to: (i) no material adverse change in the financial condition of Lessee
since the date of this Agreement, (ii) no Event of Default having occurred, and (iii) if no
Acquisition Fund has been established, the Equipment must be accepted by Lessee no later than
January 31, 2006 (the "Utilization Period").
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(c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount
for Equipment described in a Schedule to the Vendor upon receipt of the documents described in
Section 5.01; or if an Acquisition Fund has been established pursuant to an Acquisition Fund
Agreement, Lessor will deposit the Acquisition Amount for Equipment described in the
Schedule with the Acquisition Fund Custodian.
(d) This Agreement is not a commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any obligation
upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into
any proposed Lease shall be a decision solely within Lessor's discretion.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed Lease.
Such documentation may include, without limitation, documentation concerning the Equipment
and its contemplated use and location and documentation or information concerning the financial
status of Lessee and other matters related to Lessee.
ARTICLE IV
Section 4.01. Rental Payments. Subject to Section 3.03, Lessee shall promptly pay
Rental Payments, in lawful money of the United States of America, to Lessor on the dates and in
such amounts as provided in each Lease. Lessee shall pay Lessor a charge on any Rental
Payment not paid on the date such payment is due at the rate of 16% per annum or the maximum
amount permitted by law, whichever is less, from such date. Rental Payments consist of principal
and interest payments as more fully detailed on each Schedule, the interest on which begins to
accrue as of the Commencement Date for each such Schedule.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as,
and represents payment of, principal. Each Lease shall set forth the principal and interest
components of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a
debt of Lessee in contravention of any applicable constitutional or statutory limitation or
requirement concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS
ARE TO BE MADE ONLY FROM LESSEE'S LEGALLY AVAILABLE REVENUES
APPROPRIATED ON AN ANNUAL BASIS, AND NEITHER LESSEE, THE ST ATE, NOR
ANY POLITICAL SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO
PAY ANY SUMS DUE UNDER A LEASE FROM THE COMPELLED LEVY OF AD
V ALOREM OR OTHER TAXES EXCEPT FROM THOSE LEGALLY AVAILABLE
REVENUES APPROPRIATED BY LESSEE ON AN ANNUAL BASIS, AND NEITHER THE
FULL FAITH AND CREDIT NOR THE TAXING POWER OF LESSEE, THE ST ATE OF
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FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF ARE PLEDGED FOR
PAYMENT OF SUCH SUMS DUE UNDER A LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03,
the obligations of Lessee to make Rental Payments and to perform and observe the other
covenants and agreements contained in each Lease shall be absolute and unconditional in all
events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any failure of the Equipment, after it has been accepted by lessee, any defects,
malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or
unforeseen circumstances.
Section 4.05. Tax Covenant. Lessee agrees that it will not take, or fail to take in a timely
manner, any action that would cause the interest component of Rental Payments to be or to
become ineligible for the exclusion from gross income of the owner or owners thereof for federal
income tax purposes, including, without limitation, the calculation and payment of any rebate
required to preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided
herein, the foregoing covenant shall remain in effect until the date on which all obligations of
Lessee in fulfilling the above covenant under the Code have been met.
Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at a Taxable Rate retroactive to the date as of which the interest
component is determined by the Internal Revenue Service to be includible in the gross income of
the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional
amount as will result in the owner receiving the interest component at the Taxable Rate
identified in the related Lease.
For purposes of this Section, "Event of Taxability" means a determination that the
interest component is includible for federal income tax purposes in the gross income of the
owner thereof due to Lessee's action or failure to take any action.
Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition
Period and not applied to Equipment Costs, shall be applied by Lessor on the next Rental
Payment date, pro rata to the prepayment of the principal component of the outstanding Rental
Payments due under the applicable Schedule.
ARTICLE V
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Leases, and pay any and all delivery and installation
costs and other Equipment Costs in connection therewith. When the Equipment listed in any
Lease has been delivered and installed, Lessee shall promptly accept such Equipment and
evidence said acceptance by executing and delivering to Lessor an acceptance certificate in the
form attached hereto as Exhibit B.
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(b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such
Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With
respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of
an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment
Schedule. Lessee shall execute and deliver such Schedules to Lessor within 5 business days of
receipt.
Section 5.02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and
enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly
have, hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance
from Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not
interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in
default under the related Lease.
Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not
move any item of the Equipment from the location specified for it in the Lease on which such
item is listed without Lessor's consent, which consent shall not be unreasonably withheld.
Lessor shall have the right at all reasonable times during regular business hours to enter into and
upon the property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly
provide any information about the Equipment or a Lease that may be reasonably requested by
Lessor.
Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use,
operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or
in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits
and licenses, if any, necessary for the installation and operation of the Equipment. In addition,
Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any
legislative, executive, administrative, or judicial body; provided that Lessee may contest in good
faith the validity or application of any such law, regulation or ruling in any reasonable manner
that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary
interest) of Lessor in and to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in accordance with manufacturer's recommendations. Lessor shall have no
responsibility to maintain, repair or make improvements or additions to the Equipment. If
commercially available, Lessee will maintain in force a standard maintenance contract with the
manufacturer of the Equipment, and upon request will provide Lessor with a copy of that
contract. Upon the prior written consent of Lessor, which consent shall not be unreasonably
withheld, Lessee may use another third party maintenance provider provided the maintenance
contract between Lessee and such third party requires the third party to maintain the Equipment
at the manufacturer's then current release, revision and engineering change levels, including
hardware, software enhancements and microcode levels. In all cases, Lessee agrees to pay any
costs necessary for the manufacturer to re-certify the Equipment as eligible for manufacturer's
maintenance upon the return of the Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or
device on an item of Equipment if that would impair any applicable warranty, the originally
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intended function or the value of that Equipment. All repairs, parts, accessories, equipment and
devices furnished, affixed to or installed on any Equipment, excluding temporary replacements,
shall thereupon become subject to the security interest of Lessor.
ARTICLE VI
Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is
not in default under Article XII hereof, all right, title and interest in and to each item of the
Equipment shall be vested in Lessee immediately upon its acceptance of each item of
Equipment, subject to the terms and conditions of the applicable Lease. Lessee shall at all times
protect and defend, at its own cost and expense, its title in and to the Equipment from and against
all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all
such claims, liens and processes. Upon the occurrence of an Event of Default or upon
termination of a Lease pursuant to Section 3.03 hereof, full and unencumbered legal title to the
Equipment shall pass to Lessor, and Lessee shall have no further interest therein except as
provided in Section 12.02(c). In addition, upon the occurrence of such an Event of Default or
such termination, Lessee shall execute and deliver to Lessor such documents as Lessor may
request to evidence the passage of such legal title to Lessor and the termination of Lessee's
interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor
in accordance with Section 12.02. Upon purchase of the Equipment under a Lease by Lessee
pursuant to Section 10.01, Lessor's interest in the Equipment shall terminate, and Lessor shall
execute and deliver to Lessee such documents as Lessee may request to evidence the termination
of Lessor's interest in Equipment subject to the related Lease.
Section 6.02. Personal Property. The Equipment is and will remain personal property
and will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any
manner physically affixed or attached to real estate or any building thereon. Upon the request of
Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from
any party having an interest in any such real estate or building.
ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies, liens, and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the Equipment will be used for a
governmental, municipal or public purpose or function of Lessee and that the Equipment will
therefore be exempt from all property taxes. If the use, possession or acquisition of any
Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all
taxes and governmental charges lawfully assessed or levied against or with respect to such
Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of
the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided
that, with respect to any such taxes or charges that may lawfully be paid in installments over a
period of years, Lessee shall be obligated to pay only such installments as accrue during each
Lease Term. In the event that the installation of any component of any item of Equipment could
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be deemed to require a performance and payment bond under Section 255.05, Florida Statutes, or
be deemed subject to the mechanic's lien provisions of Chapter 713, Florida Statutes, or any
successor statute to each, as they may be amended from time to time, Lessee shall require such
bonds, post such notices and do all other things provided for under such laws in order to keep the
Equipment free of and exempt from all liens.
Section 7.02. Insurance. Lessee shall during each Lease Term maintain or cause to be
maintained (a) casualty damage insurance naming Lessor and its assigns as additional insured
and loss payee and insuring the Equipment against loss or damage by fire and all other risks
covered by the standard extended coverage endorsement then in use in the State, and any other
risks reasonably required by Lessor, in an amount at least equal to the then applicable Purchase
Price of the Equipment; (b) liability insurance of no less than one million per occurrence that
protects Lessor from liability in all events from Lessor's lease use of the equipment in form and
amount satisfactory to Lessor; and (c) worker's compensation coverage as required by the laws
of the State; provided that, with Lessor's prior written consent, Lessee may self-insure against
the risks described in clause (a through c). Lessee shall furnish to Lessor evidence of such
insurance or self-insurance coverage throughout each Lease Term. Lessee shall not cancel or
modify such insurance or self-insurance coverage in any way that would affect the interests of
Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such
cancellation or modification. All insurance policies required by this Section 7.02 shall be taken
out and maintained with responsible insurance companies qualified to do business in the State
and shall contain a provision that the insurer shall not cancel or revise coverage thereunder
without giving written notice to the insured parties at least 30 days before the cancellation or
revision becomes effective.
Section 7.03. Advances. In the event Lessee shall fail to keep the Equipment in good
repair and working order, Lessor may, but shall be under no obligation to, maintain and repair
the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute
additional rent for the then current Original Term or Renewal Term and Lessee covenants and
agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until
paid at the rate of 16% per annum or the maximum amount permitted by law, whichever is less.
ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have
exercised its option to purchase the Equipment by making payment of the Purchase Price as
provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the
Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other
casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken
under the exercise or threat of the power of eminent domain by any governmental body or by any
person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will
cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of
condemnation to be applied to the prompt replacement, repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has
been completed shall be paid to Lessee.
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If Lessee elects to replace any item of the Equipment (the "Replaced Equipment")
pursuant to this Section, the replacement equipment (the "Replacement Equipment") shall be of
similar type, utility and condition to the Replaced Equipment and shall be of equal or greater
value than the Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that
each item of Replacement Equipment is free and clear of all claims, liens, security interests and
encumbrances, excepting only those liens created by or through Lessor, and shall provide to
Lessor any and all documents as Lessor may reasonably request in connection with the
replacement, including, but not limited to, documentation in form and substance satisfactory to
Lessor evidencing Lessor's security interest in the Replacement Equipment. Lessor and Lessee
hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this
paragraph shall constitute "Equipment" for purposes of this Master Equipment Lease and the
related Lease. Lessee shall complete the documentation of Replacement Equipment on or before
the next Rent Payment date after the occurrence of a casualty event, or be required to exercise
the Purchase Option with respect to the damaged equipment.
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining
from the gross proceeds of any insurance claim or condemnation award or sale under threat of
condemnation after deducting all expenses, including attorneys' fees, incurred in the collection
thereof.
Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement referred to in Section 8.01,
Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay
or cause to be paid to Lessor the amount of the then applicable Purchase Price for the Equipment,
and, upon such payment, the applicable Lease Term shall terminate and Lessor's security interest
in the Equipment shall terminate as provided in Article VI hereof. The amount of the Net
Proceeds, if any, remaining after completing such repair, restoration, modification or
improvement or after purchasing such Equipment and such other Equipment shall be retained by
Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled
to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the
amounts payable under Article IV.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for
particular purpose or fitness for use of the Equipment, or any other warranty or representation,
express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment
shall be on an "as is" Basis. In no event shall Lessor be liable for any incidental, indirect, special
or consequential damage in connection with or arising out of this Agreement, any Lease, the
Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or
service provided for in this Agreement or any Lease.
Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent
and attorney-in-fact during each Lease Term, so long as Lessee shall not be in default under the
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related Lease, to assert from time to time whatever claims and rights (including without
limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's
sole remedy for the breach of such warranty, indemnification or representation shall be against
Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect
whatsoever on the rights and obligations of Lessor with respect to any Lease, including the right
to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor
makes, and has made, no representations or warranties whatsoever as to the existence or the
availability of such warranties by Lessor of the Equipment.
ARTICLE X
Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the
Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than
120, days before the date of purchase, at the following times and upon the following terms:
(a) From and after the date specified in the related Schedule (the "Purchase Option
Commencement Date"), on the Rental Payment dates specified in each Lease, upon payment in
full of the Rental Payments then due under such Lease plus the then applicable Purchase Price,
and any prepayment premium on the unpaid balance as set forth in the applicable Schedule; or
(b) In the event of substantial damage to or destruction or condemnation of
substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to
Lessor of its exercise of the Purchase Option upon payment in full to Lessor of the Rental
Payments then due under such Lease plus the then applicable Purchase Price; or
(c) Upon the expiration of the Lease Term, upon payment in full of all Rental
Payments then due and all other amounts then owing under the Lease, and the payment of $1.00
to Lessor.
ARTICLE XI
Section 11.01. Assignment by Lessor. Lessor's right, title and interest in and to Rental
Payments and any other amounts payable by Lessee under any and all of the Leases, and all
proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees
or subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided,
however, that any such assignment, transfer or conveyance to a trustee for the benefit of owners
of certificates of participation shall be made in a manner that conforms to any applicable State
law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from
executing any such assignment, transfer or conveyance that does not involve funding through the
use of certificates of participation within the meaning of applicable State law, including any such
assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust,
interests in which are offered and sold in a private placement or limited offering only to investors
whom Lessor reasonably believes are qualified institutional buyers or accredited investors within
the meaning of the applicable federal securities law; provided further, however, that in any event,
Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with
respect to matters arising under a Lease with or to more than one individual or entity. No
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assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until
Lessee shall have received a written notice of assignment that discloses the name and address of
each such assignee; provided, however, that if such assignment is made to a bank or trust
company as trustee or paying agent for owners of certificates of participation, trust certificates or
partnership interests with respect to the Rental Payments payable under a Lease, it shall
thereafter be sufficient that Lessee receives notice of the name and address of the bank: or trust
company as trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause
to be kept, a complete and accurate record of all such assignments in form necessary to comply
with Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees
and shall make all payments to the assignee or assignees designated in such register. Lessee
shall not have the right to and shall not assert against any assignee any claim, counterclaim or
other right Lessee may have against Lessor or the Vendor. Assignments in part may include
without limitation assignment of all of Lessor's rights in, to and under the Lease related to the
Equipment listed in a particular Lease. The option granted in this Section may be separately
exercised from time to time with respect to the Equipment listed in each Lease, but such option
does not permit the assignment of less than all of Lessor's interests in the Equipment listed in a
single Lease.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or
encumbered by Lessee without prior written consent of Lessor.
ARTICLE XII
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event of Default" under a Lease, subject to Section 3.03:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid
under any Lease at the time specified herein;
(b) Failure by Lessee to observe and perform any covenant, condition or agreement
on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a
period of 30 days after written notice specifying such failure and requesting that it be remedied is
given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior
to its expiration; provided that, if the failure stated in the notice cannot be corrected within the
applicable period, Lessor will not unreasonably withhold its consent to an extension of such time
if corrective action is instituted by Lessee within the applicable period and diligently pursued
until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to any
Lease or its execution, delivery or performance shall prove to have been false, incorrect,
misleading, or breached in any material respect on the date when made;
(d) Any default occurs under any other agreement for borrowing money or receiving
credit under which Lessee may be obligated as borrower, if such default consists of (i) the failure
to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder
and gives the holder of the indebtedness the right to accelerate the indebtedness;
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(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered
against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an arrangement with creditors or taking
advantage of any insolvency law or any answer admitting the material allegations of a petition
filed against Lessee in any bankruptcy, reorganization or insolvency proceeding;
(f) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or
Lessee or of all or a substantial part of the assets of Lessee, in each case without its application,
approval or consent, and such order, judgment or decree shall continue unstayed and in effect for
any period of 30 consecutive days; or
(g) Lessee shall consolidate, merge or otherwise combine with any other entity, or
sell, lease or dispose of all or a substantial portion of its assets.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
(a) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all
rights of Lessee to use the Equipment shall cease and terminate;
(b) By written notice to Lessee, Lessor may demand that Lessee pay, as liquidated
damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by Lessee
pursuant to such Lease and other amounts payable by Lessee under such Lease to the end of the
then current Original Term or Renewal Term;
(c) With or without terminating the Lease Term under such Lease, Lessor may
request that Lessee at Lessee's expense promptly return any or all of such Equipment to the
possession of Lessor at such place within the United States as Lessor shall specify. In such
event, Lessor shall use its best efforts to sell or lease such Equipment or, for the account of
Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or
otherwise disposes of any or all of the Equipment, Lessor shall apply the proceeds of such sale,
lease or other disposition in the following order of priority: FIRST, to pay all of Lessor's costs,
charges and expenses incurred in taking, holding, repairing, selling, leasing or otherwise
disposing of Equipment, then SECOND, to the extent not previously paid by Lessee, to pay
Lessor all Rental Payments under the applicable Lease through the termination date, then
THIRD, to pay the Purchase Price applicable as of the end of the then current Original Term or
Renewal Term, as set forth in the Schedule for such Equipment, then FOURTH to pay any
remainder to Lessee. Lessee shall not be liable for any deficiency after sale, lease or other
disposition of the Equipment. If Lessee elects not to return the Equipment, Lessor is entitled to
payment of unpaid Rental Payments through the date of Lessor's request to return the Equipment
plus the then applicable Purchase Price, as set forth in the applicable Schedule for such
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Equipment. The exercise of any such remedies respecting any such Event of Default shall not
relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and
(d) Lessor may take whatever action at law or in equity may appear necessary or
desirable to enforce its rights under such Lease.
Section 12.03. 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 a Lease now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any
notice other than such notice as may be required in this Article.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any
remedy under this Agreement, including the application specified in Section 12.02(b) (after
deducting all expenses of Lessor in exercising such remedies including without limitation all
expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all
brokerage, auctioneer's or attorney's fees), shall be applied as follows:
(a) If such remedy is exercised solely with respect to a single Lease, Equipment listed
in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other
amounts related to such Lease or such Equipment.
(b) If such remedy is exercised with respect to more than one Lease, Equipment listed
in more than one Lease or rights under more than one Lease, then to amounts due pursuant to
such Leases pro rata.
ARTICLE XIII
Section 13.01. No Fees Paid by Lessor. Lessor hereby certifies that it has not paid or has
not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor
to act as an intermediary between Lessee and Lessor for the purpose of influencing any
transaction in connection with this Agreement or any Lease.
Section 13.02. Notices. All notices, certificates or other communications under any
Lease shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile
transmission (with electronic confirmation) to the parties hereto at the addresses immediately
after the signatures to this Agreement (or at such other address as either party hereto shall
designate in writing to the other for notices to such party) and to any assignee at its address as it
appears on the registration books maintained by Lessee.
Section 13.03. Release and Indemnification. To the extent permitted by law, but only
from legally available funds, Lessee shall indemnify, protect, hold harmless, save and keep
harmless Lessor from and against any and all liability, obligation, loss, claim, tax and damage
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whatsoever, regardless of cause thereof, and all expenses in connection therewith (including,
without limitation, counsel fees and expenses, penalties connected therewith imposed on interest
received) arising out of or as a result of (a) the entering into of this Agreement or any Lease,
(b) the ownership of any item of the Equipment, (c) the ordering, acquisition, use, operation,
condition, purchase, delivery, rejection, storage or return of any item of the Equipment, (d) any
accident in connection with the operation, use, condition, possession, storage or return of any
item of the Equipment resulting in damage to property or injury to or death to any person, and/or
(e) the breach of any covenant in a Lease or any material misrepresentation contained in a Lease.
The indemnification arising under this paragraph shall continue in full force and effect
notwithstanding the full payment of all obligations under all Leases or the termination of the
Lease Term under all Leases for any reason. The Lessee's liability hereunder, as a governmental
entity, is limited to the amounts set forth in Florida Statutes section 768.28 to the extent such
section governs Lessee's liability.
Section 13.04. Binding Effect. Each Lease shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.05. Severability. In the event any provision of any Lease shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof. Any provisions in this Lease which are in
conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.
Section 13.06. Amendments, Changes and Modifications. Each Lease may only be
amended by Lessor and Lessee in writing.
Section 13.07. Execution in Counterparts. Each Lease 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 instrument.
Section 13.08. Applicable Law. Each Lease shall be governed by and construed III
accordance with the laws of the State.
Section 13.09. Captions. The captions or headings in this Agreement and in each Lease
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Agreement or any Lease.
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IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as of the date first above written.
LESSOR:
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
By
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LESSEE:
City of Delray Beach, FL
100 N.W. 1 st Avenue
Delray Beach, FL 33444
By
Title
(Seal)
Attest:
By
Title
20
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EXHIBIT A
SCHEDULE OF PROPERTY No.
Re: Master Equipment Lease/Purchase Agreement, dated as of December 29,
2005, between Banc of America Leasing & Capital, LLC, as Lessor, and
City of Delray Beach, FL, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Master Equipment Lease.
Quantity
Description
Serial No.
Model No.
Location
3. Payment Schedule.
(a) Rental Payments. The Rental Payments shall be in such amounts and
payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as
Exhibit A-I. Rental Payments shall commence on the date on which the Equipment listed in this
Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the
form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to
purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian,
whichever is earlier.
(b) Purchase Price Schedule. The Purchase Price on each Rental Payment
date for the Equipment listed in this Schedule shall be the amount set forth for such Rental
Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this
Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule
(including the Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that no material adverse
change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease.
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A-I
5. The Lease. The terms and provisions of the Master Equipment Lease (other than
to the extent that they relate solely to other Schedules or Equipment listed on other Schedules)
are hereby incorporated into this Schedule by reference and made a part hereof.
6. Acquisition Amount. The Acquisition Amount for the Equipment described in
this Schedule to be paid to the Vendor is $
Dated:
LESSOR:
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
LESSEE:
City of Delray Beach, FL
100 N.W. 1st Avenue
Delray Beach, FL 33444
By
Title
By
Title
(Seal)
Approved as to legal sufficiency and form on
Behalf of the City
Attest:
By
Title
#347725v4 (Florida Lease Template)
A-2
EXHIBIT A-I
RENT AL PAYMENT SCHEDULE
Rental Rental Interest Principal Purchase
Payment Payment
Date Amount Portion Portion Price*
*The Purchase Option Commencement Date shall be . The Purchase
Price payable (i) on any Rental Payment date is the amount equal to the aggregate principal
portion of the remaining Rental Payments after payment of the Rental Payment payable on such
Rental Payment date, plus a prepayment premium described below which is in addition to the
amount stated in the "Purchase Price" column above and (ii) on any date other than a Rental
Payment date is the amount equal to the aggregate principal portion of the remaining Rental
Payments plus an amount equal to the interest portion of such Rental Payments accrued thereon
to such date, without such prepayment premium or penalty.
Date of Purchase
Premium
For purposes of this Lease, "Taxable Rate, " with respect to the interest component of
Rental Payments, means an annual rate of interest equal to _ %.
Lessee:
City of Delrav Beach, FL
By
Title
After payment ofthe applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
#347725v4 (Florida Lease Template)
A-l-l
EXHIBIT B
ACCEPTANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Schedule of Property No. , dated
to Master Equipment Lease/Purchase Agreement, dated as of December
29, 2005, between Banc of America Leasing & Capital, LLC, as Lessor,
and City of Delray Beach, FL, as Lessee
Ladies and Gentlemen:
In accordance with the Master Equipment Lease/Purchase Agreement (the "Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the
above-referenced Schedule of Property (the "Schedule") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02
of the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both,
would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
LESSEE:
City of Delrav Beach, FL
By
Title
(Seal)
#347725v4 (Florida Lease Template)
B-1
EXHIBIT C
CLERKCERTIFICA TE
The undersigned, a duly elected and acting [Clerk/Secretary] of City of Delray Beach, FL
("Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials") in the capacity set forth opposite their respective names below and that the facsimile
signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and
deliver the Master Equipment Lease/Purchase Agreement dated as of December 29,2005 and the
Schedule(s) thereunder and all future Schedule(s) (the "Agreements") by and between City of
Delray Beach and Banc of America Leasing & Capital, LLC and these Agreements are binding
and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms.
Name of Official
Title
Signature
Dated
By
Title
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
#347725v4 (Florida Lease Template)
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EXHIBIT D
OPINION OF COUNSEL TO LESSEE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Schedule of Property No. , dated
to Master Equipment Lease/Purchase Agreement, dated as of December
29,2005, between Banc of America Leasing & Capital, LLC, as Lessor,
and City of Delray Beach, FL, as Lessee
Ladies and Gentlemen:
As legal counsel to City of Delray Beach, FL ("Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
December 29, 2005, and Exhibits thereto by and between Banc of America Leasing & Capital,
LLC ("Lessor") and Lessee (the "Agreement"), and an executed counterpart of Schedule of
Property No. , dated , by and between Lessor and Lessee (the
"Schedule"), which, among other things, provides for the lease of certain property listed in the
Schedule (the "Equipment"), (b) an executed counterpart of the ordinances or resolutions of
Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule
and (c) such other opinions, documents and matters of law as I have deemed necessary in
connection with the following opinions. The Schedule and the terms and provisions of the
Agreement incorporated therein by reference together with the Rental Payment Schedule
attached to the Schedule are herein referred to collectively as the "Lease".
Based on the foregoing, I am of the following opinions:
1. Lessee is a public body corporate and politic, duly organized/municipality duly
created and existing under the laws of the State, and is a political subdivision of a state within the
meaning of Section 1 03( c) of the Internal Revenue Code of 1986, as amended (the "Code"), and
the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the
meaning of Section 103(a) of the Code, notwithstanding Section 103(b) of the Code;
2. Lessee has the requisite power and authority to lease and acquire the Equipment
and to execute and deliver the Lease and to perform its obligations under the Lease;
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in
accordance with its terms;
4. To the best of my knowledge, the authorization, approval, execution and delivery
of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby
have been performed in accordance with all open meeting laws, public bidding laws and all other
applicable state or federal laws;
#347725v4 (Florida Lease Template)
D-I
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease or the security interest of Lessor or
its assigns, as the case may be, in the Equipment thereunder; and
6. The portion of rentals designated as and constituting interest paid by Lessee and
received by Lessor is excluded from Lessor's gross income for federal income tax purposes
under Section 103 of the Code; and such interest is not a specific item for purposes of the federal
individual or corporate alternative minimum taxes.
All capitalized terms herein shall have the same meanings as in the Lease unless
otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an
opinion on the tax -exempt status of the interest components of the Rental Payments, are entitled
to rely on this opinion.
Yours truly,
#347725v4 (Florida Lease Template)
D-2
EXHIBIT E
ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Master Equipment Lease/Purchase Agreement dated December 29,2005,
Schedule of Property No. dated
This certificate confirms and affirms that the Equipment described in the Agreement
referenced above is essential to the governmental, municipal or public purposes or functions of
Lessee or to the services Lessee provides its citizens. Further, Lessee has an immediate need for,
and expects to make immediate use of, substantially all such Equipment, which need is not
temporary or expected to diminish in the foreseeable future. Such Equipment will be used by
Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary
functions permitted under the Act (as defined in the Agreement referenced above).
Lessee expects and anticipates adequate funds to be available for all future payments or
rent due after the current budgetary period, subject to annual appropriation.
City of Delray Beach, FL
By
Name
--t~lf
1~'II'1i'
Title
#347725v4 (Florida Lease Template)
E-l
SCHEDULE OF PROPERTY No. 001
Re: Master Equipment Lease/Purchase Agreement, dated as of December 29,
2005, between Banc of America Leasing & Capital, LLC, as Lessor, and
City of Delray Beach, FL, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Master Equipment Lease.
Quantity
Description
Serial No.
Model No.
Location
See Exhibit A attached hereto and made a part hereof.
3. Payment Schedule.
(a) Rental Payments. The Rental Payments shall be in such amounts and
payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as
Exhibit A-I. Rental Payments shall commence on the date on which the Equipment listed in this
Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the
form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to
purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian,
whichever is earlier.
(b) Purchase Price Schedule. The Purchase Price on each Rental Payment
date for the Equipment listed in this Schedule shall be the amount set forth for such Rental
Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this
Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule
(including the Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representations, Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that no material adverse
change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease.
5. The Lease. The terms and provisions of the Master Equipment Lease (other than
to the extent that they relate solely to other Schedules or Equipment listed on other Schedules)
are hereby incorporated into this Schedule by reference and made a part hereof.
#347725v4 (Florida Lease Template)
A-I
6. Acquisition Amount. The Acquisition Amount for the Equipment described in
this Schedule to be paid to the Vendor is $317,112.74.
Dated:
~A:v\'^k~ '0 \ ~
LESSOR:
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
#347725v4 (Florida Lease Template)
A-2
LESSEE:
City of Del ray Beach, FL
100N.W. 1st Avenue
Delray Beach, FL 33444
By
Title
(Seal)
By
Title
Attest:
~\~ \).~
City Clerk
Exhibit A
to Schedule of Property No. 001 to
Master Equipment Lease/Purchase Agreement, dated as December 29,2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City of Delray Beach, FL, as Lessee
~
Description
Cost
LOCATION: DELRAY BEACH POLICE DEPARTMENT, 300 W. ATLANTIC AVE., DELRAY BEACH, FL 33444
1
1
1
1
1
2
CATALYST 2950,24 10/100w/ 2GBIC SLOTS, ENHANCED IMAGE
CISCO POWER CORD AC, 11 Ov
CANOGA PERKINS EDGEACCESS 1 030E ENCLOSURE FOR ONE 2u MODULE
1000 BASE TX TO 1000 BASE SX (850NM MULTIMODE)
SC-SC FIBER JUMPERS (DUPLEX/MUL TI-MODE,PVC) 3 METER
PA TCH CORD CA T5E GRAY, 7 FOOT STRAIGHT THRU
PROJECT MGT/INST ALUST AGING/CONFIGURA TION/ETC.
FREIGHT
LABOR
DISCOUNT
$2,495.00
$0.00
$367.00
$2,144.59
$39.68
$6.82
$0.00
$27.16
$603.64
($2.081.60)
$3,602.29
1
1
I
1
1
2
CATALYST 2950,2410/100 w/ 2GBIC SLOTS, ENHANCED IMAGE
CISCO POWER CORD AC, 11 Ov
CANOGA PERKINS EDGEACCESS 1 030E ENCLOSURE FOR ONE 2u MODULE
1000 BASE TX TO 1000 BASE SX (850NM MUL TIMODE)
SC-SC FIBER JUMPERS (DUPLEX/MUL TI-MODE,PVC) 3 METER
PATCH CORD CA T5E GRAY, 7 FOOT STRAIGHT THRU
PROJECT MGT/INST ALUST AGING/CONFIGURATION/ETC.
FREIGHT
LABOR
DISCOUNT
$2,495.00
$0.00
$367.00
$2,144.59
$39.68
$6.82
$0.00
$27.16
$603.64
($2.081.60)
$3,602.29
DATACARE 8x5x4 ONSITE SBD PARTS
$326.00
32
10
1
2
1
1
1
1
16
8
I
$17,216.00
$590.00
$3,100.00
$2,256.00
$5,970.00
$1,500.00
$1,947.00
$500.00
$0.00
$0.00
$0.00
$35.02
$2,694.41
($13.965.98)
$21,842.45
8 ADVANCED CALL CENTER SERVICES TO PREMIUM NETWORK SERVICES
ACD AGENT ISM UPGRADE ADVANCED CALL CNTR TO PREM NTWRK SERVICE
SDI/DCH PACKAGE
8 ITG ISDN TRUNK ISM
IP-TRUNK 32 PORT PACKAGE (SUCCESSION 3.0 SYSTEMS)
OTM Lx ENHANCED, 250 SETS EXPANSION
OTM BILLING ENHANCED, 250 RU
OTM, ADDITIONAL CLIENT FOR ONE (1) PC
INSTALL COMMON EQUIPMENT \12 HOUR PREMIUM (OT)
INSTALL MISC EQUIPMENT - \12 HOUR
PREMISE VISIT
FREIGHT
LABOR
DISCOUNT
215
2
2
1
2
8
32
64
$0.00
$3,199.54
$127.38
$3,548.33
$1,793.66
$176.80
$0.00
$0.00
REUSED WIRING CHARGES
KENTROX csu Tl D4/ESF/B8zs SA PACKAGE
T -l/DSL CPE PROTECTOR
ON2000 RM/FM EXT RUN TIME 1900v A UPS wi SOFTWARE
BATT. PACKONXBc-417
PROTECTOR co/2500 ANALOG 6AP
INSTALL MISC EQUIPMENT - \12 HOUR
INSTALL COMMON EQUIPMENT \12 HOUR PREMIUM (OT)
1
1
1
1
6
1
1
1
1
2
1
36
144
I
1
1
1
30
1
2
1
1
2
1
4
12
1
3
2
2
1
1
26
8
1
1
1
1
I
1
1
1
1
COMPETITIVE ADVANTAGE DISCOUNT
CALLPILOT 201 I BASE S YSTEM PACKAGE - RELEASE 3
CALLPILOT 2.0 FOR M 1 INTEGRATION SW
CALLPILOT NEW SYSTEM ORDER CODE
CALLPILOT 2011 BASE HW PACKAGE FOR OPT 11 C
CALLPILOT 2 VOICE CHANNELS
CALLPILOT 2011 EXTERNAL SCSI TAPE DRIVE KIT
CALLPILOT CD ROM DRIVE
CALLPILOT EXTERNAL MODEM KIT
PWR CORD NEMA 1-15p TO IEC320 c7 6.0FT BLACK
CALLPlLOT MULTIMEDIA MAILBOXES wi vOlcE-200 USERS
CALLPlLOT MULTIMEDIA MAILBOXES wi VOICE-50 USERS
MERIDIAN M3904 PROFESSIONAL, RELEASE 3, CHARCOAL
MERIDIAN M3903 ENHANCED RELEASE 3, CHARCOAL
CONSOLE/CARD-SPECIAL PKG
MERIDIAN INTEGRA TED RAN (REL 3) MEDIUM OPTION
AUDIO CABLE
PC MAINT. CABLE
RAN CON ISM
IP-TRUNK 32 PORT PACKAGE (SUCCESSION 3.0 SYSTEMS)
8 ITG ISDN TRUNK ISM
OPTION llc CABINET SYSTEM SOFTWARE
57-BARS-BASIC ALTERNATIVE ROUTE SELECTION
OPTION 11 C TMDI PACKAGE 1.5MB
UNIVERSAL TRUNK CARD
ANALOG LINE CARD wi MSG WAITING
DIGITAL LINE CARD (DLC)
OPTION 11 C MAIN CABINET AC
AC POWERCORD-NA NEMA 5-15p 125v 13A 10FT
OPTION 11c EXPANSION CABINET AC
OPTION llc -30 FOOT EXPANSION KIT
30FT DUAL PORT FIBER DAUGHTERBOARD
SDIIDCH PACKAGE
8 (DIGITAL) ADV NETWORK SERVICEGITAL USER ISM
8 (ANALOG) ADV NETWORK SERV ANALOG USER ISM
CLOCK CONTROLLER CARD
CABINET SYSTEM AMP-300
COMPETITIVE ADVANTAGE MPR051 00
NORTEL PBX REMOTE MONITORING PACKAGE
BST PRI TRACKING CODE
CLASS MODEM CARD (XCMC)
8 ADVANCED NETWORK SERVICES CLASS USER ISM
PREMISE VISIT
FREIGHT CHARGES
LABOR
DISCOUNT
10
12003, M3903/4/5 WALL MNT KIT, CHARCOAL
FREIGHT
LO~A nON: LAKEVIEW GOLF CLUB, 1200 DOVER ROAD, DELRA Y BEACH, FL 33445
30
NEW 2006 CLUB CAR OS GASOLINE GOLF CARTS wi CANOPY, CANOPY KIT STRUTS
S/N'S:AG0611605939,AG0611605940,AG0611605941,AG0611605942, AG061 1605943,
AG0611605944,AG0611605945,AG0611605946,AG0611605947,AG0611605948,
AG0611605949,AG0611605950,AG0611605951,AG0611605952,AG0611605953,
AG0611605954,AG0611605955,AG0611605956,AG0611605957,AG0611605958,
AG0611605959,AG0611605960,AG0611605961,AG0611605962,AG0611605963,
AG0611605964,AG0611605965,AG0611605966,AG0611605967,AG0611605968
NUMBER DECAL 2 EA BLK/GOLD INS
30
($40,326.64)
$9,000.00
$0.00
$0.00
$0.00
$21,000.00
$2,352.00
$700.00
$300.00
$20.00
$12,000.00
$2,000.00
$19,800.00
$48,240.00
$5,000.00
$5,400.00
$45.00
$80.00
$8,580.00
$5,970.00
$2,256.00
$1,746.00
$0.00
$6,100.00
$2,710.00
$10,600.00
$31,800.00
$1,859.00
$75.00
$2,574.00
$714.00
$1,600.00
$3,100.00
$15,808.00
$4,864.00
$1,000.00
($13,754.00)
($2.12)
$4,050.00
$0.00
$4,000.00
$752.00
$0.00
$1,987.09
$30,753.99
($53.529.82)
$170,069.21
$100.00
$30.50
$130.50
$104,304.00
$288.00
30
30
30
30
30
30
BUCKET KIT - DRIVER SIDE
BUCKET KIT - PASS SIDE
RAKE HOLDER INST
COMMODITY SURCHARGE OS GAS
CLUB CAR TRUCK-FREIGHT CHARGES
FUEL SURCHARGE NEW CAR
CREDIT
INFO HOLDER HARD STYLE, SET 10
6
30
NEW 2006 CLUB CAR OS GASOLINE GOLF CARTS wi CANOPY, CANOPY KIT STRUTS
SiN'S: AG0611605969, AG0611605970,AG0611605971,AG0611605 972,AG0611605973,
AG0611605974,AG0611605975,AG0611605976,AG0611605977,AG0611605978,
AG0611605979,AG0611605980,AG0611605981,AG0611605982,AG0611605983,
AG0611605984,AG0611605985,AG0611605986,AG0611605987,AG0611605988,
AG0611605989,AG0611605990,AG0611605991,AG0611605992,AG0611605993,
AG0611605994,AG0611605995,AG0611605996,AG0611605997,AG0611605998
NUMBER DECAL 2 EA BLKlGOLD INS
BUCKET KIT - DRIVER SIDE
BUCKET KIT - PASS SIDE
RAKE HOLDER INST
COMMODITY SURCHARGE OS GAS
CLUB CAR TRUCK-FREIGHT CHARGES
FUEL SURCHARGE NEW CAR
CREDIT
CREDIT
30
30
30
30
30
30
30
TOTAL:
$1,026.00
$1,026.00
$396.00
$1,530.00
$1,950.00
$624.00
($17,457.00)
$666.00
$94,353.00
$104,304.00
$288.00
$1,026.00
$1,026.00
$396.00
$1,530.00
$1,950.00
$624.00
($17,457.00)
($70.500.00)
$23,187.00
$317,112.74
EXHIBIT A-I
RENTAL PAYMENT SCHEDULE
Rental Rental Interest Principal Purchase
Payment Payment
Date Amount Portion Portion Price*
01/10/06 0.00 0.00 0.00 317,112.74
02/10/06 7,105.07 954.30 6,150.77 310,961.97
03/10/06 7,105.07 935.79 6,169.28 304,792.70
04/10/06 7,105.07 917.23 6,187.84 298,604.86
05/1 0/06 7,105.07 898.60 6,206.46 292,398.39
06/10/06 7,105.07 879.93 6,225.14 286,173.25
07/10/06 7,105.07 861.19 6,243.87 279,929.38
08/10/06 7,105.07 842.40 6,262.66 273,666.71
09/10/06 7,105.07 823.56 6,281.51 267,385.20
10/1 0/06 7,105.07 804.65 6,300.41 261,084.79
11/1 0/06 7,105.07 785.69 6,319.37 254,765.42
12/1 0/06 7,105.07 766.68 6,338.39 248,427.02
01/10/07 7,105.07 747.60 6,357.47 242,069.56
02/1 0/07 7,105.07 728.47 6,376.60 235,692.96
03/1 0/07 7,105.07 709.28 6,395.79 229,297.17
04/1 0/07 7,105.07 690.03 6,415.03 222,882.14
05/10/07 7,105.07 670.73 6,434.34 216,447.80
06/10/07 7,105.07 651.37 6,453.70 209,994.10
07/10/07 7,105.07 631.94 6,473.12 203,520.98
08/1 0/07 7,105.07 612.46 6,492.60 197,028.37
09/10/07 7,105.07 592.93 6,512.14 190,516.23
10/1 0/07 7,105.07 573.33 6,531.74 183,984.49
11/1 0/07 7,105.07 553.67 6,551.40 177,433.10
12/10/07 7,105.07 533.96 6,571.11 170,861.99
01/10/08 7,105.07 514.18 6,590.89 164,271.10
02/1 0/08 7,105.07 494.35 6,610.72 157,660.38
03/1 0/08 7,105.07 474.45 6,630.61 151,029.77
04/1 0/08 7,105.07 454.50 6,650.57 144,379.20
05/1 0/08 7,105.07 434.49 6,670.58 137,708.62
06/1 0/08 7,105.07 414.41 6,690.66 131,017.97
07/1 0/08 7,105.07 394.28 6,710.79 124,307.18
08/1 0/08 7,105.07 374.08 6,730.98 117,576.19
09/1 0/08 7,105.07 353.83 6,751.24 110,824.95
10/10/08 7,105.07 333.51 6,771.56 104,053.39
11/10/08 7,105.07 313.13 6,791.94 97,261.46
12/1 0/08 7,105.07 292.69 6,812.37 90,449.08
01/10/09 7,105.07 272.19 6,832.88 83,616.21
#347725v4 (Florida Lease Template)
A-l-l
02/10/09 7,105.07 251.63 6,853.44 76,762.77
03/1 0/09 7,105.07 231.01 6,874.06 69,888.71
04/10/09 7,105.07 210.32 6,894.75 62,993.96
05/10/09 7,105.07 189.57 6,915.50 56,078.46
06/10/09 7,105.07 168.76 6,936.31 49,142.15
07/10/09 7,105.07 147.89 6,957.18 42,184.97
08/1 0/09 7,105.07 126.95 6,978.12 35,206.85
09/10/09 7,105.07 105.95 6,999.12 28,207.73
10/10/09 7,105.07 84.89 7,020.18 21,187.55
11/10/09 7,105.07 63.76 7,041.31 14,146.25
12/10/09 7,105.07 42.57 7,062.50 7,083.75
01/10/10 7,105.07 21.32 7,083.75 0.00
TOTAL 341,043.25 23,930.51 317,112.74
*The Purchase Option Commencement Date shall be January 10, 2006. The Purchase Price
payable (i) on any Rental Payment date is the amount equal to the aggregate principal portion of
the remaining Rental Payments after payment of the Rental Payment payable on such Rental
Payment date, and (ii) on any date other than a Rental Payment date is the amount equal to the
aggregate principal portion of the remaining Rental Payments plus an amount equal to the
interest portion of such Rental Payments accrued thereon to such date, without such prepayment
premium or penalty.
For purposes of this Lease, "Taxable Rate, " with respect to the interest component of
Rental Payments, means an annual rate of interest equal to 5.6335%.
Lessee:
City of Delray Beac
By
Title
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
#347725v4 (Florida Lease Template)
A-1-2
ACCEPT ANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Schedule of Property No. 001, dated ..5~I\~ to I-ZO()~ , to Master
Equipment Lease/Purchase Agreement, dated as of December 29,2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City of
Delray Beach, FL, as Lessee
Ladies and Gentlemen:
In accordance with the Master Equipment Lease/Purchase Agreement (the "Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the
above-referenced Schedule of Property (the "Schedule") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02
of the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both,
would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
-
Date: J'tNv~ S.2.cOb
By
Title
~~~~
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B-1
ESSENTIAL USE/SOURCE OF fuNDS CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Master Equipment Lease/Purchase Agreement dated December 29,2005,
Schedule of Property No. 001 dated SiU'lolt<-V4 lOI '2-CD(,
This certificate confirms and affirms that the Equipment described in the Agreement
referenced above is essential to the governmental, municipal or public purposes or functions of
Lessee or to the services Lessee provides its citizens. Further, Lessee has an immediate need for,
and expects to make immediate use of, substantially all such Equipment, which need is not
temporary or expected to diminish in the foreseeable future. Such Equipment will be used by
Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary
functions permitted under the Act (as defined in the Agreement referenced above).
Lessee expects and anticipates adequate funds to be available for all future payments or
rent due after the current budgetary period, subject to annual appropriation.
City OfDelraY_B:a~FL
By ()itf j
Name ~ g/ynqf'
Title
~(Y
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E-l
CLERKCERTIFICA TE
The undersigned, a duly elected and acting Clerk/Secretary of City of Delray Beach, FL
("Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials") in the capacity set forth opposite their respective names below and that the facsimile
signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and
deliver the Master Equipment Lease/Purchase Agreement dated as of December 29,2005 and the
Schedule(s) thereunder and all future Schedule(s) (the "Agreements") by and between City of
Delray Beach and Banc of America Leasing & Capital, LLC and these Agreements are binding
and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms.
Name of Official
Title
Signature lit
fjlf
leffPerJman
Mayor
Dated
I ~ ~~ov>
By
~k~~'~"b. ~\~
Title City Clerk
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
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C-l
[ITY DF DELIA' BEA[H
CITY ATTORNEY'S OFFICE
]()() NW 1st AVENUE' DELRAY BEACH. FLORIDA 33444
TILEPHONF: 561/]4cq()l)()' FACSIMILE: 5611n8-4755
DELRAY BEACH
f LOR I [) ^
___ Banc of America Leasing & Capital, LLC
All-America City 2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
, III J!
1993
2001
Re:
Schedule of Property No. 001, dated \fc:t.\I1.\L(\N \0 \ 'Z-IlO<, , to Master
Equipment Lease/Purchase Agreement, dated as of December 29,2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City of
Delray Beach, FL, as Lessee
Ladies and Gentlemen:
As legal counsel to City of Delray Beach, FL ("Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
December 29, 2005, and Exhibits thereto by and between Banc of America Leasing & Capital.
LLC ("Lessor") and Lessee (the "Agreement"), and an executed counterpart of Schedule of
Property No. 001, dated J(.V\.~ ~ to, 2bl11p , by and between Lessor and Lessee (the
"Schedule"), which, among other things. provides for the lease of certain property listed in the
Schedule (the "Equipment"), (b) an executed counterpart of the ordinances or resolutions of
Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule
and (c) such other opinions, documents and matters of law as I have deemed necessary in
connection with the following opinions. The Schedule and the terms and provisions of the
Agreement incorporated therein by reference together with the Rental Payment Schedule
attached to the Schedule are herein referred to collectively as the "Lease".
Based on the foregoing, I am of the following opinions:
1. Lessee is a public body corporate and politic, duly organized/municipality duly
created and existing under the laws of the State. and is a political subdivision ofa state within the
meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code"), and
the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the
meaning of Section I03(a) of the Code. notwithstanding Section 103(b) of the Code;
2. Lessee has the requisite power and authority to lease and acquire the Equipment
and to execute and deliver the Lease and to perform its obligations under the Lease;
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in
accordance with its terms;
4. To the best of my knowledge, the authorization, approval, execution and delivery
of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby
have been performed in accordance with all open meeting laws, public bidding laws and all other
applicable state or federal laws;
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease or the security interest of Lessor or
its assigns, as the case may be, in the Equipment thereunder; and
6. The portion of rentals designated as and constituting interest paid by Lessee and
received by Lessor is excluded from Lessor's gross income for federal income tax purposes
under Section 103 of the Code; and such interest is not a specific item for purposes of the federal
individual or corporate alternative minimum taxes.
All capitalized terms herein shall have the same meanings as in the Lease unless
otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an
opinion on the tax-exempt status of the interest components of the Rental Payments, are entitled
to rely on this opinion.
MEMORANDUM
To:
From:
City Commission
David T. Harden, City ManagetM
Proposed Nortel PBX PBX Phone System ($199,572.74) and Golf Cart Lease
Financing ($117,540)
Subject:
Date:
December 29, 2005
Staff received bids on December 7,2005 for the lease purchase financing of a Nortel PBX Phone
System from Bell South totaling $199,572.74 and 60 Club Car golf carts totaling $117,540. Staff
recommended approving Resolution #3-06 authorizing a master lease purchase agreement with
Banc of America Leasing and Capital, LLC, the low bidder, as well as well as authorizing the
execution of such documents that may be necessary to execute addendums to the Master
Agreement. The lease will be at a rate of 3.6112% for a 48 month term.
It should be advised that we did not get the indemnification language that was desired.
I concur with their recommendation to approve Resolution #3-06 authorizing the execution and
delivery of a master lease/purchase agreement with Banc of America Leasing LLC.; authorizing a
lease of telephone equipment and golf carts; authorizing the execution of other such documents
as may be necessary to complete the transactions contemplated.
~L
0/<
d71
[IT' DF DELRAY IEA[H
CITY ATTORNEY'S OFFICE
200 NW 1st AVENUE' DELRAY BEACH. FLORIDA 33444
TELEPHOi\E: 561!24.,.70C)O' FACSIMILE: 561/278-4755
DELRAY BEACH
F L () II. I D ^
D.8I:II
All-America City
, III I! DATE:
1993 TO:
2001
Writer's Direct Line: 561/243-7091
MEMORANDUM
December 29,2005
City Commission
David Harden. City Manager
FROM: Susan A. Ruby, City Attorney
SUBJECT: Bank America Master Lease
The Supreme Court recently held that cities are not protected by Sovereign
Immunity limits in indemnification clauses and have permitted contractual
indemnification by cities.
Our office, through Becky O'Conner, tried to insert limits to the City's liability that
was not accepted by Bank of America.
Your choice is to accept the lease as drafted or go out to bid looking for a
company that would accept no indemnification from the City or a limit to the City's
indemnification.
Since this is a financing instrument, if you decide to go forward, it does not appear
that t risk is great in this instance.
cc: Doug Smith, Assistant City Manager
Joe Safford, Finance Director
Becky O'Connor, Treasurer
Brian Shutt, Assistant City Attorney
MEMORANDUM
To:
David T. Harden, City Manager
From:~
Thru:
Rebecca S. O'Connor, Treasurer
Joseph M. saffor~ctor of Finance
Subject:
Proposed Lease Agreement - Police Department Telephone System
and Golf Carts
Date:
December 29, 2005
Backaround
On November 29, 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 a Nortel PBX Phone System from Bell South totaling $199,572.74 and 60 Club Car
golf carts totaling $117,540.
Term
We asked that the banks make their bids based on a 4-year fixed rate term.
Bid Responses
The City received responses from Banc of America Leasing, Fifth Third Bank, GE Capital
Corporation, RBC Centura, Sun Trust Leasing and Wachovia. Please see the table below:
Bank Rate Payment Interest Misc. Total Cost
Upfront Cost Cost
or in
Arrears
Banc of 3.6112% Arrears $23,930 $0 $23,930
America
Fifth Third Bank 3.96% Upfront $25,170 $0 $24,328
GE Capital 5.12% Phone Arrears $35,049 $0 $35,049
COrD. 5.43% Carts
RBC Centura 3.71% Arrears $24,601 $2,000 $26,601
SunTrust 3.88% Upfront $24,651 $200 $24,851
LeasinQ
Wachovia 4.298% Arrears $28,606 $0 $28,606
Recommendation
We recommend approving Resolution # 3-06 authorizing a master lease purchase agreement
with Banc of America Leasing and Capital, LLC, the lowest bidder, as well as authorizing the
execution of such documents that may be necessary to execute addendums to the master lease
agreement. The lease will be at a rate of 3.6112% for a 48 month term.
It should be advised that we did not get the indemnification language that was desired.
File: rfp/lease/telephone pd_golf carts
RESOLUTION NO. 3-06
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
DELRA Y BEACH, FLORIDA, AUTHORIZING THE
EXECUTION AND DELIVERY OF A MASTER
LEASE/PURCHASE AGREEMENT WITH BANC OF
AMERICA LEASING & CAPITAL, LLC; AUTHORIZING A
LEASE OF TELEPHONE EQUIPMENT AND GOLF CARTS
THEREUNDER; AUTHORIZING THE EXECUTION OF
SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO
COMPLETE THE TRANSACTIONS CONTEMPLATED
HEREBY; AND PROVIDING AN EFFECTIVE DATE.
BE IT RESOLVED by the City Council of the City of Delray Beach,
Florida (the "City") as follows:
Section 1. Findings. It is hereby ascertained, determined and declared
that:
(a) The City deems it necessary, desirable and in the best
financial interest of the City and its inhabitants that it enter into a Master
Equipment Lease/Purchase Agreement (the "Master Lease/Purchase
Agreement") with Banc of America Leasing & Capital, LLC (the" Lessor"), to
provide for the lease and purchase from time to time of equipment essential to
the governmental, municipal or public purposes or functions of the City or to
the services the City provides its inhabitants.
(b) The City has an immediate need for Telephone Equipment &
Golf Carts (the "Equi pment") for the welfare of its citizens, and it is in the best
financial interest of the City that the Equipment be leased pursuant to the Master
Lease/Purchase Agreement.
(c) The City is authorized and empowered by the Constitution
and laws of the State of Florida, including particularly Chapter 166, Florida
Statutes, and other applicable provisions of law (the "Act").
(d) The City is authorized and empowered by the Act to enter
into transactions such as those contemplated by the Master Lease/Purchase
Agreement and to fully perform its obligations thereunder in order to acquire the
Equipment.
(e) The small size of the lease financing, current market
conditions and other circumstances require that the Master Lease/Purchase
Agreement and the leases of equipment thereunder be negotiated at private sale
rather than offered by competitive bid.
004.270434.1
1
Section 2. Authorization of Execution and Delivery of Master
Lease/Purchase Agreement. The Master Lease/Purchase Agreement, substantially in
the form attached hereto as Exhibit A, with such omissions, insertions and variations as
may be approved on behalf of the City by the Mayor, such approval to be evidenced
conclusively by the Mayor's execution thereof, is hereby approved and authorized.
The City hereby authorizes and directs the Mayor to execute the Master Lease/Purchase
Agreement and deliver the same to the Lessor. All of the provisions of the Master
Lease/Purchase Agreement, when executed, dated and delivered by or on behalf of the
City as authorized herein and by or on behalf of the Lessor, shall be deemed to be part
of this Resolution as fully and to the same extent as if incorporated verbatim herein.
Section 3. Authorization of Leases of the Equipment. The lease of the
Equipment pursuant to the Master Lease/Purchase Agreement, as set forth on Schedule
of Property No. 001 (together with the Rental Payment Schedules associated therewith,
the "Schedules"), is hereby approved. The City hereby authorizes and directs the
Mayor to execute each of the Schedules and deliver the same to the Lessor. All of the
Schedules, when executed, dated and delivered by or on behalf of the City as
authorized herein and by or on behalf of the Lessor, shall be deemed to be part of this
Resolution as fully and to the same extent as if incorporated verbatim herein.
Section 4. General Authority. The Mayor, the City Clerk and the
officers, attorneys and other agents and employees of the City are hereby authorized to
do all acts and things required of them by this Resolution or desirable or consistent with
the requirements hereof for the full, punctual and complete performance of all of the
terms, covenants and agreements contained in the Master Lease/Purchase Agreement
and the Schedules, and they are hereby authorized to execute and deliver all certificates
and documents which shall reasonably be required by the Lessor to effectuate the
transactions described herein, including without limitation the documents described in
Exhibits B, C and E of the Master Lease/Purchase Agreement.
Section 5. Severability of Invalid Provisions. If anyone or more of the
covenants, agreements or provisions of this Resolution shall be held contrary to any
express provision of law or contrary to the policy of express law, though not expressly
prohibited, or against public policy, or shall for any reason whatsoever be held invalid,
then such covenants, agreements and provisions shall be null and void and shall be
deemed separable from the remaining covenants, agreements and provisions of this
Resolution, and shall in no way affect the validity of any of the other covenants,
agreements or provisions hereof.
004.270434.1
2
Section 6. Effective Date. This Resolution shall become effective
immediately upon its passage.
PASSED AND ADOPTED this 3rd day of January, 2006.
[OFFICIAL SEAL]
ATTEST:
Mayor
City Clerk
004.270434.1
3
Exhibit A
MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT
(FLORIDA VERSION)
This Master Equipment Lease/Purchase Agreement (this "Agreement") dated as of
December 29, 2005, and entered into between Banc of America Leasing & Capital, LLC, a
Delaware limited liability company ("Lessor"), and City of Delray Beach, FL, a body corporate
and politic/municipality existing under the laws of the State of Florida ("Lessee").
WITNESSETH:
Whereas, Lessee desires to lease and acquire from Lessor certain equipment described in
each Schedule (as each such term is defined herein), subject to the terms and conditions of and
for the purposes set forth in each Lease; and in the event of a conflict the terms of a Schedule
prevail; and
Whereas, the relationship between the parties shall be a continuing one and items of
equipment may be added to the Equipment from time to time by execution of additional
Schedules by the parties hereto and as otherwise provided herein; and
Whereas, Lessee is authorized under the constitution and laws of the State to enter into
this Agreement and the Schedules hereto for the purposes set forth herein;
Now, Therefore, for good and valuable consideration, receipt of which is hereby
acknowledged, and in consideration of the premises hereinafter contained, the parties hereby
agree as follows:
ARTICLE I
Section 1.01. Definitions. The following terms will have the meanings indicated below
unless the context clearly requires otherwise:
"Acquisition Amount" means the amount specified in each Lease and represented by
Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall be not
less than $100,000 per Lease for Leases where the Acquisition Amount is to be paid directly to
the Vendor.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by
the Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement, if any.
"Acquisition Fund Agreement" means, with respect to any Lease, an Acquisition Fund
Agreement in form and substance acceptable to and executed by Lessee, Lessor and the
Acquisition Fund Custodian, pursuant to which an Acquisition Fund is established and
administered.
"Acquisition Fund Custodian" means the Acquisition Fund Custodian identified in any
Acquisition Fund Agreement, and its successors and assigns.
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"Acquisition Period" means, with respect to each Lease, that period stated in the
Schedule to such Lease during which the Lease Proceeds attributable to such Lease may be
expended on Equipment Costs.
"Act" means, collectively, Chapter 166, Florida Statutes, the Constitution of the State,
and other applicable provisions of law.
"Agreement" means this Master Equipment Lease/Purchase Agreement, including the
exhibits hereto, together with any amendments and modifications to the Agreement pursuant to
Section 13.06.
"Code" means the Internal Revenue Code of 1986, as amended. Each reference to a
Section of the Code herein shall be deemed to include the United States Treasury Regulations
proposed or in effect thereunder.
"Commencement Date" means, for each Lease, the date when Lessee's obligation to pay
Rental Payments commences under such Lease, which date shall be the earlier of (i) the date on
which the Equipment listed in such Lease is accepted by Lessee in the manner described in
Section 5.01, or (ii) the date on which sufficient moneys to purchase the Equipment listed in such
Lease are deposited for that purpose with an Acquisition Fund Custodian.
"Equipment" means the property listed in each of the Leases and all replacements,
repairs, restorations, modifications and improvements thereof or thereto made pursuant to
Section 8.01 or Article V. Whenever reference is made in this Agreement to Equipment listed in
a Lease, such reference shall be deemed to include all such replacements, repairs, restorations,
modifications and improvements of or to such Equipment.
"Equipment Costs" means, to the extent permitted by the Act, the total cost of the
Equipment listed in each Lease, including all delivery charges, installation charges, capitalizable
consulting and training fees approved by Lessor, legal fees, financing costs, motor vehicle
registration fees, recording and filing fees, and other costs necessary to vest full, clear legal title
to the Equipment in Lessee, subject to the security interest granted to and retained by Lessor as
set forth in each Lease, and otherwise incurred in connection with the financing provided by the
lease-purchase of the Equipment as provided in each Lease; provided that in no event shall
approved consulting and training fees or other non-capitalizable "soft" costs relating to the
Equipment listed in any Lease which are to be financed by Lessor hereunder exceed 2% of the
total cost of such Equipment as. determined by Lessor; and provided further, that in no event
shall capitalizable delivery charges, installation charges, taxes and similar capitalizable "soft
costs" relating to such Equipment be included without Lessor's prior consent.
"Expense Fund" means, with respect to any Lease, the fund established and held by the
Acquisition Fund Custodian pursuant to the related Acquisition Fund Agreement.
"Event of Default" means an Event of Default described in Section 12.01.
"Lease" means a Schedule and the terms of this Agreement which are incorporated by
reference into such Schedule. Each Schedule with the incorporated terms of this Agreement
shall constitute a separate and independent Lease.
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2
"Lease Proceeds" means, with respect to each Lease, the total amount of money to be
paid by Lessor to the Acquisition Fund Custodian for deposit and application in accordance with
such Lease and the Acquisition Fund Agreement.
"Lease Term" for each Lease means the Original Term and all Renewal Terms therein
provided and for this Agreement means the period from the date hereof until this Agreement is
terminated.
"Lessee" means the entity referred to as Lessee in the first paragraph of this Agreement.
"Lessor" means (a) the entity referred to as Lessor in the first paragraph of this
Agreement or (b) any assignee or transferee of any right, title or interest of Lessor in and to the
Equipment under a Lease or any Lease (including Rental Payments thereunder) pursuant to
Section 11.01, but does not include any entity solely by reason of that entity retaining or
assumi~g any obligation of Lessor to perform under a Lease.
"Original Term" means the period from the Commencement Date for each Lease until
the end of the fiscal year of Lessee in effect at such Commencement Date.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount
that Lessee may pay to Lessor to purchase such Equipment as provided in such Lease.
"Renewal Terms" means the renewal terms of each Lease, each having a duration of one
year and a term coextensive with Lessee's fiscal year, as specified in the Schedule applicable
thereto.
"Rental Payments" means the basic rental payments payable by Lessee under each Lease
pursuant to Section 4.01, in each case consisting of a principal component and an interest
component.
"Schedule" means each separately numbered Schedule of Property substantially in the
form of Exhibit A hereto together with a Rental Payment Schedule attached thereto substantially
in the form of Exhibit A-I hereto.
"State" means the State of Florida.
. "Utilization Period" means the date, with respect to each Lease not funded under an
Acquisition Fund Agreement, by which Lessee must deliver an Acceptance Certificate for the
Equipment under such Lease as indicated in Section 5.01(a).
"Vendor" means the manufacturer or supplier of the Equipment or any other person as
well as the agents or dealers of the manufacturer or supplier from whom Lessor arranged
Lessee's acquisition and financing of the Equipment pursuant to the applicable Lease.
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3
ARTICLE II
Section 2.01. Representations and Covenants of Lessee. This Section 2.01 sets forth
facts and estimates upon which Lessor and its counsel may rely regarding the exclusion of the
interest portion of the Rental Payments from the gross income of Lessor, and the facts and
estimates upon which Lessee bases its reasonable expectation that the obligation to make Rental
Payments pursuant to the Leases does not create an arbitrage bond under Section 148 of the
Internal Revenue Code of 1986, as amended, and applicable Treasury Regulations.
Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and
as ofthe Commencement Date of each Lease as follows:
(a) Lessee is a state or a political subdivision thereof within the meaning of
Section 1 03( c) of the Code, duly organized and existing under the constitution and laws of the
State, including the Act, with full power and authority to enter into this Agreement and each
Lease and the transactions contemplated hereby and to perform all of its obligations hereunder
and under each Lease.
(b) Lessee has duly authorized the execution and delivery of this Agreement and each
Lease by proper action of its governing body at a meeting duly called, regularly convened and
attended throughout by the requisite quorum of the members thereof, or by other appropriate
official approval, and all requirements have been met and procedures have occurred in order to
ensure the validity and enforceability of this Agreement and each Lease.
(c) 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 exists at the date hereof. Lessee is not in
default under any indenture, mortgage, deed of trust, bank loan, credit agreement or other
instrument to which Lessee is a party.
(d) The entering into and performance of each Lease by Lessee will not violate any
judgment, order, or regulation applicable to Lessee, and except as otherwise expressly provided
in this Agreement, result in the creation of any lien, charge, security interest, or other
encumbrance upon any assets of Lessee pursuant to any indenture, mortgage, deed of trust, bank
loans, credit agreement or other instrument to which Lessee is a party or by which it or its assets
may be bound.
(e) There are no actions, suits or proceedings pending or, to the knowledge of Lessee,
threatened against or affecting Lessee in any court or before any governmental commission,
board or authority, which, if adversely determined, will have a material adverse effect on the
ability on Lessee to perform its obligations under this Agreement or any Lease.
(f) Lessee has complied and will comply with Sections 218.38, 218.385(2) and
218.385(3), Florida Statutes, with respect to each Lease.
(g) The interest rate for the interest portion of the Rental Payments, on the first date
interest begins to accrue, does not exceed a fate of interest permitted by Section 215.84, Florida
Statutes.
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(h) Lessee will do or cause to be done all things necessary to preserve and keep in full
force and effect its existence as a body corporate and politic.
(i) Lessee has complied and will comply with such open meeting laws and public
bidding requirements as may be applicable to this Agreement and each Lease and the acquisition
by Lessee of the Equipment as provided in each Lease or, in the case of public bidding
requirements, has otherwise complied and will comply with Section 218.385(1), Florida Statutes,
in connection with each Lease.
(j) During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing essential governmental or proprietary functions of Lessee permitted under
the Act. Lessee does not intend to sell or otherwise dispose of the Equipment or any interest
therein prior to the last Rental Payment (including all Renewal Terms) scheduled to be paid
under each Lease.
(k) Lessee has kept, and throughout the Lease Term will keep, its books and records
in accordance with generally accepted accounting principles and practices consistently applied,
and shall deliver to Lessor (i) annual audited financial statements (including a balance sheet,
statement of revenues, expenses and changes in fund balances for budget and actual, statement of
cash flows and notes, and schedules and attachments to the financial statements) within 180 days
of its fiscal year end, (ii) such other financial statements and information as Lessor may
reasonably request, and (iii) its annual budget for the following fiscal year within 90 days of the
adoption of such budget. Such statements in clause (i) above shall be accompanied by an
unqualified opinion of Lessee's auditor. Credit information relating to Lessee may be
disseminated among Lessor and any of its affiliates and any of their respective successors and
asSIgnS.
(1) The proceeds of the Lease, together with investment earnings thereon, will be
expended to acquire Equipment within 6 months from the first day of the Original Term.
(m) Lessee has an immediate need for the Equipment listed on each Schedule and
expects to make immediate use of the Equipment listed on each Schedule. Lessee's need for the
Equipment is not temporary and Lessee does not expect the need for any item of the Equipment
to diminish during the Lease Term of such item. The use of the Equipment is essential to
Lessee's proper efficient and economic operation.
(n) The original proceeds of each Lease, and the interest to be earned thereon, do not
and will not exceed the amount necessary for the purpose for which such Lease is executed.
(0) No sinking fund is expected to be created by Lessee with respect to any Lease or
the Rental Payments.
(P) No other governmental obligations of Lessee are being issued at substantially the
same time and sold pursuant to a common plan of financing which will be paid out of (or have
substantially the same claim to be paid out of) substantially the same source of funds as each
Lease.
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5
(q) No portion of the amounts received pursuant to each Lease will be used as a
substitute for other funds which were otherwise to be used as a source of financing for any
portion of the costs of Equipment and which have been and will be used to acquire, directly or
indirectly, obligations producing a yield in excess of the yield on each Lease.
(r) In connection with the execution and delivery of each Lease, no action has or will
be taken which attempts to circumvent the provisions of Section 148 of the Code and the
regulations promulgated thereunder by (i) enabling Lessee to exploit the difference between tax-
exempt and taxable interest rates to gain a material financial advantage and (ii) over burdening
the tax -exempt bond market.
(s) Lessee will not directly or indirectly use or permit the use of any proceeds of a
Lease, or take or omit to take any action, that would cause the Rental Payments to be "federally
guaranteed" within the meaning of Section 149(b) of the Code.
(t) Lessee will submit to the Secretary of the Treasury information reporting
statements and other information related to each Lease at the times and in the forms required by
the Code.
(u) To the best of the knowledge and belief of Lessee, the expectations of Lessee, as
set forth in this Section 2.01, are reasonable, and there are no present facts, estimates and
circumstances which would change the expectations contained therein.
(v) There is no pending litigation, tax claim, proceeding or dispute that may adversely
affect Lessee's financial condition or impairs its ability to perform its obligations hereunder.
Lessee will, at its expense, maintain its legal existence in good standing and do any further act
and execute, acknowledge, deliver, file, register and record any further documents Lessor may
reasonably request in order to protect Lessor's security interest in the Equipment and Lessor's
rights and benefits under this Lease.
(w) The payment of the Rental Payments or any portion thereof is not (under the
terms of any Lease or any underlying arrangement) directly or indirectly (1) secured by any
interest in property used or to be used in any activity carried on by any person other than a state
or local governmental unit or payments in respect of such property; or (2) on a present value
basis, derived from payments (whether or not to Lessee) in respect of property, or borrowed
money, used or to be used in any activity carried on by any person other than a state or local
governmental unit. The Equipment will not be used, directly or indirectly, in any activity carried
on by any person other than a state or local governmental unit. No portion of the Equipment
Costs for the Equipment will be used, directly or indirectly, to make or finance loans to any
person other than Lessee.
(x) Lessee has reviewed and will review Internal Revenue Service Form 8038-G to be
filed in connection with the execution and delivery of each Lease, and all of the information
contained therein is, and will be, to the best of Lessee's knowledge, true and correct, and Lessee
will cause such Form 8038-G to be filed not later than 30 days after the execution and delivery of
each Lease.
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(y) Lessee reasonably expects that at least 85% of the proceeds of each Lease will be
expended for the governmental purpose of the Lease within 3 years of the initial date of the
Lease term, and less than 50% of the proceeds of each Lease will be invested in investment
securities with a substantially guaranteed yield for 4 years or longer.
ARTICLE III
Section 3.01. Lease of Equipment. Subject to the terms of this Master Lease, Lessor
agrees to provide the funds specified as the "Acquisition Amount" in each Lease to acquire the
Equipment. Upon the execution of each Lease, Lessor demises, leases, transfers and lets to
Lessee, and Lessee acquires, rents and leases from Lessor, the Equipment as set forth in such
Lease and in accordance with the terms thereof.
Section 3.02. Continuation of the Lease Term. The Lease Term for each Lease may be
continued, solely at the option of Lessee, at the end of the Original Term or any Renewal Term
for the next succeeding Renewal Term up to the maximum Lease Term set forth in such Lease.
At the end of the Original Term and at the end of each Renewal Term until the maximum Lease
Term has been completed, Lessee shall be deemed to have exercised its option to continue each
Lease for the next Renewal Term unless Lessee terminates such Lease pursuant to Section 3.03
or Section 10.01. The terms and conditions during any Renewal Term shall be the same as the
terms and conditions during the Original Term, except that the Rental Payments shall be as
provided in the applicable Lease.
Lessee intends, subject to Section 3.03, to continue the Lease Term of each Lease
through the Original Term and all Renewal Terms and to pay the Rental Payments thereunder.
Lessee affirms that sufficient funds are available for the current fiscal year, and Lessee
reasonably believes that an amount sufficient to make all Rental Payments during the entire
Lease Term of each Lease can be obtained from legally available funds of Lessee. Subject to
Section 3.03, Lessee further intends to do all things lawfully within its power to obtain and
maintain funds sufficient and available to discharge its obligation to make Rental Payments due
hereunder, including making provision for such payments to the extent necessary in each budget
or appropriation request submitted and adopted in accordance with applicable provisions of law,
to have such portion of the budget or appropriation request approved and to exhaust all available
reviews and appeals in the event such portion of the budget or appropriation request is not
approved.
Section 3.03. Nonappropriation. Lessee is obligated only to pay such Rental Payments
under each Lease as may lawfully be made from funds budgeted and appropriated for that
purpose during Lessee's then current fiscal year. Should Lessee fail to budget, appropriate or
otherwise make available funds to pay Rental Payments under any Lease following the then
current Original Term or Renewal Term, such Lease or Leases shall be deemed terminated at the
end of the then current Original Term or Renewal Term. Lessee agrees to deliver notice to
Lessor of such termination at least 90 days prior to the end of the then current Original Term or
Renewal Term, but failure to give such notice shall not extend the term beyond such Original
Term or Renewal Term. If any Lease is terminated in accordance with this Section, Lessee
agrees to peaceably deliver the Equipment to Lessor at the 10cation(s) to be specified by Lessor.
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Section 3.04. Substitution. Lessee reserves the right to substitute Equipment of the same
quantity and general type with the approximate equal value, utility and remaining useful life as
the Equipment so replaced. Such substitution is subject to Lessor's prior written consent, which
consent shall not be unreasonably withheld, and shall be reflected in an amendment to the
appropriate Schedule.
Section 3.05. Conditions to Lessor's Performance Under Any Lease.
(a) As a prerequisite to the performance by Lessor of any of its obligations pursuant
to any Lease, Lessee shall deliver to Lessor the following:
(i) A fully completed Schedule, executed by Lessee;
(ii) An Acquisition Fund Agreement, executed by Lessee and the Acquisition
Fund Custodian, unless Lessor pays 100% of the Acquisition Amount directly to the
Vendor upon execution of the Lease;
(iii) A Certificate executed by the Clerk or Secretary or other comparable
officer of Lessee, in substantially the form attached hereto as Exhibit C, completed to the
satisfaction of Lessor;
(iv) A certified copy of a resolution or other official action of Lessee's
governing body authorizing the execution and delivery of the Lease and performance by
Lessee of its obligations thereunder;
(v) An opinion of counsel to Lessee in substantially the form attached hereto
as Exhibit D respecting such Lease and otherwise satisfactory to Lessor;
(vi) An executed Essential Use/Source of Funds Certificate in substantially the
form attached hereto as Exhibit E;
(vii) Evidence of insurance as required by Section 7.02 hereof;
(viii) All documents, including financing statements, affidavits, notices and
similar instruments, in form satisfactory to Lessor;
(ix) A copy of a fully completed and executed Form 8038-G; and
(x) Such other items, if any, as are set forth in such Lease or are reasonably
required by Lessor.
(b) In addition, the performance by Lessor of any of its obligations pursuant to any
Lease shall be subject to: (i) no material adverse change in the financial condition of Lessee
since the date of this Agreement, (ii) no Event of Default having occurred, and (iii) if no
Acquisition Fund has been established, the Equipment must be accepted by Lessee no later than
January 31,2006 (the "Utilization Period").
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(c) Subject to satisfaction of the foregoing, Lessor will pay the Acquisition Amount
for Equipment described in a Schedule to the Vendor upon receipt of the documents described in
Section 5.01; or if an Acquisition Fund has been established pursuant to an Acquisition Fund
Agreement, Lessor will deposit the Acquisition Amount for Equipment described in the
Schedule with the Acquisition Fund Custodian.
(d) This Agreement is not a 'commitment by Lessor to enter into any Lease not
currently in existence, and nothing in this Agreement shall be construed to impose any obligation
upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into
any proposed Lease shall be a decision solely within Lessor's discretion.
(e) Lessee will cooperate with Lessor in Lessor's review of any proposed Lease.
Without limiting the foregoing, Lessee will provide Lessor with any documentation or
information Lessor may request in connection with Lessor's review of any proposed Lease.
Such documentation may include, without limitation, documentation concerning the Equipment
and its contemplated use and location and documentation or information concerning the financial
status of Lessee and other matters related to Lessee.
ARTICLE IV
Section 4.01. Rental Payments. Subject to Section 3.03, Lessee shall promptly pay
Rental Payments, in lawful money of the United States of America, to Lessor on the dates and in
such amounts as provided in each Lease. Lessee shall pay Lessor a charge on any Rental
Payment not paid on the date such payment is due at the rate of 16% per annum or the maximum
amount permitted by law, whichever is less, from such date. Rental Payments consist of principal
and interest payments as more fully detailed on each Schedule, the interest on which begins to
accrue as of the Commencement Date for each such Schedule.
Section 4.02. Interest and Principal Components. A portion of each Rental Payment is
paid as, and represents payment of, interest, and the Balance of each Rental Payment is paid as,
and represents payment of, principal. Each Lease shall set forth the principal and interest
components of each Rental Payment payable thereunder during the Lease Term.
Section 4.03. Rental Payments to Constitute a Current Expense of Lessee. Lessor and
Lessee understand and intend that the obligation of Lessee to pay Rental Payments under each
Lease shall constitute a current expense of Lessee payable solely from its general fund or other
funds that are legally available for that purpose and shall not in any way be construed to be a
debt of Lessee in contravention of any applicable constitutional or statutory limitation or
requirement concerning the creation of indebtedness by Lessee. THE RENTAL PAYMENTS
ARE TO BE MADE ONLY FROM LESSEE'S LEGALLY AVAILABLE REVENUES
APPROPRIATED ON AN ANNUAL BASIS, AND NEITHER LESSEE, THE STATE, NOR
ANY POLITICAL SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO
PAY ANY SUMS DUE UNDER A LEASE FROM THE COMPELLED LEVY OF AD
VALOREM OR OTHER TAXES EXCEPT FROM THOSE LEGALLY AVAILABLE
REVENUES APPROPRIATED BY LESSEE ON AN ANNUAL BASIS, AND NEITHER THE
FULL FAITH AND CREDIT NOR THE TAXING POWER OF LESSEE, THE STATE OF
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FLORIDA OR ANY POLITICAL SUBDIVISION THEREOF ARE PLEDGED FOR
PAYMENT OF SUCH SUMS DUE UNDER A LEASE.
Section 4.04. Rental Payments to be Unconditional. Except as provided in Section 3.03,
the obligations of Lessee to make Rental Payments and to perform and observe the other
covenants and agreements contained in each Lease shall be absolute and unconditional in all
events without abatement, diminution, deduction, set-off or defense, for any reason, including
without limitation any failure of the Equipment, after it has been accepted by lessee, any defects,
malfunctions, breakdowns or infirmities in the equipment or any accident, condemnation or
unforeseen circumstances.
Section 4.05. Tax Covenant. Lessee agrees that it will not take, or fail to take in a timely
manner, any action that would cause the interest component of Rental Payments to be or to
become ineligible for the exclusion from gross income of the owner or owners thereof for federal
income tax purposes, including, without limitation, the calculation and payment of any rebate
required to preserve such exclusion. Subject to Lessee's right to terminate the Lease as provided
herein, the foregoing covenant shall remain in effect until the date on which all obligations of
Lessee in fulfilling the above covenant under the Code have been met.
Section 4.06. Event of Taxability. Upon the occurrence of an Event of Taxability, the
interest component shall be at a Taxable Rate retroactive to the date as of which the interest
component is determined by the Internal Revenue Service to be includible in the gross income of
the owner or owners thereof for federal income tax purposes, and Lessee will pay such additional
amount as will result in the owner receiving the interest component at the Taxable Rate
identified in the related Lease.
For purposes of this Section, "Event of Taxability" means a determination that the
interest component is includible for federal income tax purposes in the gross income of the
owner thereof due to Lessee's action or failure to take any action.
Section 4.07. Mandatory Prepayment. If the Lease Proceeds are deposited into an
Acquisition Fund, any funds remaining in the Acquisition Fund on or after the Acquisition
Period and not applied to Equipment Costs, shall be applied by Lessor on the next Rental
Payment date, pro rata to the prepayment of the principal component of the outstanding Rental
Payments due under the applicable Schedule.
ARTICLE V
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Leases, and pay any and all delivery and installation
costs and other Equipment Costs in connection therewith. When the Equipment listed in any
Lease has been delivered and installed, Lessee shall promptly accept such Equipment and
evidence said acceptance by executing and delivering to Lessor an acceptance certificate in the
form attached hereto as Exhibit B.
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(b) Lessee shall deliver to Lessor original invoices and bills of sale (if title to such
Equipment has passed to Lessee) relating to each item of Equipment accepted by Lessee. With
respect to Equipment not purchased through an Acquisition Fund, Lessor shall, upon receipt of
an Acceptance Certificate from Lessee, prepare a Schedule of Property and Rental Payment
Schedule. Lessee shall execute and deliver such Schedules to Lessor within 5 business days of
receipt.
Section 5.02. Enjoyment of Equipment. Lessor shall provide Lessee with quiet use and
enjoyment of the Equipment during the Lease Term, and Lessee shall peaceably and quietly
have, hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance
from Lessor, except as otherwise expressly set forth in the related Lease. Lessor shall not
interfere with such quiet use and enjoyment during the Lease Term so long as Lessee is not in
default under the related Lease.
Section 5.03. Location and Inspection of the Equipment. Once installed, Lessee will not
move any item of the Equipment from the location specified for it in the Lease on which such
item is listed without Lessor's consent, which consent shall not be unreasonably withheld.
Lessor shall have the right at all reasonable times during regular business hours to enter into and
upon the property of Lessee for the purpose of inspecting the Equipment. Lessee shall promptly
provide any information about the Equipment or a Lease that may be reasonably requested by
Lessor.
Section 5.04. Use and Maintenance of the Equipment. Lessee will not install, use,
operate, or maintain the Equipment improperly, carelessly, in violation of any applicable law or
in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits
and licenses, if any, necessary for the installation and operation of the Equipment. In addition,
Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any
legislative, executive, administrative, or judicial body; provided that Lessee may contest in good
faith the validity or application of any such law, regulation or ruling in any reasonable manner
that does not, in the opinion of Lessor, adversely affect the interest (including the reversionary
interest) of Lessor in and to the Equipment or its interest or rights under the Lease.
Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in accordance with manufacturer's recommendations. Lessor shall have no
responsibility to maintain, repair or make improvements or additions to the Equipment. If
commercially available, Lessee will maintain in force a standard maintenance contract with the
manufacturer of the Equipment, and upon request will provide Lessor with a copy of that
contract. Upon the prior written consent of Lessor, which consent shall not be unreasonably
withheld, Lessee may use another third party maintenance provider provided the maintenance
contract between Lessee and such third party requires the third party to maintain the Equipment
at the manufacturer's then current release, revision and engineering change levels, including
hardware, software enhancements and microcode levels. In all cases, Lessee agrees to pay any
costs necessary for the manufacturer to re-certify the Equipment as eligible for manufacturer's
maintenance upon the return of the Equipment to Lessor as provided for herein.
Lessee shall not alter any item of Equipment or install any accessory, equipment or
device on an item of Equipment if that would impair any applicable warranty, the originally
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intended function or the value of that Equipment. All repairs, parts, accessories, equipment and
devices furnished, affixed to or installed on any Equipment, excluding temporary replacements,
shall thereupon become subject to the security interest of Lessor.
ARTICLE VI
Section 6.01. Title to the Equipment. During each Lease Term, and so long as Lessee is
not in default under Article XII hereof, all right, title and interest in and to each item of the
Equipment shall be vested in Lessee immediately upon its acceptance of each item of
Equipment, subject to the terms and conditions of the applicable Lease. Lessee shall at all times
protect and defend, at its own cost and expense, its title in and to the Equipment from and against
all claims, liens and legal processes of its creditors, and keep all Equipment free and clear of all
such claims, liens and processes. Upon the occurrence of an Event of Default or upon
termination of a Lease pursuant to Section 3.03 hereof, full and unencumbered legal title to the
Equipment shall pass to Lessor, and Lessee shall have no further interest therein except as
provided in Section 12.02(c). In addition, upon the occurrence of such an Event of Default or
such termination, Lessee shall execute and deliver to Lessor such documents as Lessor may
request to evidence the passage of such legal title to Lessor and the termination of Lessee's
interest therein, and upon request by Lessor shall deliver possession of the Equipment to Lessor
in accordance with Section 12.02. Upon purchase of the Equipment under a Lease by Lessee
pursuant to Section 10.01, Lessor's interest in the Equipment shall terminate, and Lessor shall
execute and deliver to Lessee such documents as Lessee may request to evidence the termination
of Lessor's interest in Equipment subject to the related Lease.
Section 6.02. Personal Property. The Equipment is and will remain personal property
and will not be deemed to be affixed to or a part of the real estate on which it may be situated,
notwithstanding that the Equipment or any part thereof may be or hereafter become in any
manner physically affixed or attached to real estate or any building thereon. Upon the request of
Lessor, Lessee will, at Lessee's expense, furnish a waiver of any interest in the Equipment from
any party having an interest in any such real estate or building.
ARTICLE VII
Section 7.01. Liens, Taxes, Other Governmental Charges and Utility Charges. Lessee
shall keep the Equipment free of all levies, liens, and encumbrances except those created by each
Lease. The parties to this Agreement contemplate that the Equipment will be used for a
governmental, municipal or public purpose or function of Lessee and that the Equipment will
therefore be exempt from all property taxes. If the use, possession or acquisition of any
Equipment is nevertheless determined to be subject to taxation, Lessee shall pay when due all
taxes and governmental charges lawfully assessed or levied against or with respect to such
Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of
the Equipment. Lessee shall pay such taxes or charges as the same may become due; provided
that, with respect to any such taxes or charges that may lawfully be paid in installments over a
period of years, Lessee shall be obligated to pay only such installments as accrue during each
Lease Term. In the event that the installation of any component of any item of Equipment could
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be deemed to require a performance and payment bond under Section 255.05, Florida Statutes, or
be deemed subject to the mechanic's lien provisions of Chapter 713, Florida Statutes, or any
successor statute to each, as they may be amended from time to time, Lessee shall require such
bonds, post such notices and do all other things provided for under such laws in order to keep the
Equipment free of and exempt from all liens.
Section 7.02. Insurance. Lessee shall during each Lease Term maintain or cause to be
maint~ined (a) casualty damage insurance naming Lessor and its assigns as additional insured
and loss payee and insuring the Equipment against loss or damage by fire and all other risks
covered by the standard extended coverage endorsement then in use in the State, and any other
risks reasonably required by Lessor, in an amount at least equal to the then applicable Purchase
Price of the Equipment; (b) liability insurance of no less than one million per occurrence that
protects Lessor from liability in all events from Lessor's lease use of the equipment in form and
amount satisfactory to Lessor; and (c) worker's compensation coverage as required by the laws
of the State; provided that, with Lessor's prior written consent, Lessee may self-insure against
the risks described in clause (a through c). Lessee shall furnish to Lessor evidence of such
insurance or self-insurance coverage throughout each Lease Term. Lessee shall not cancel or
modify such insurance or self-insurance coverage in any way that would affect the interests of
Lessor without first giving written notice thereof to Lessor at least 30 days in advance of such
cancellation or modification. All insurance policies required by this Section 7.02 shall be taken
out and maintained with responsible insurance companies qualified to do business in the State
and shall contain a provision that the insurer shall not cancel or revise coverage thereunder
without giving written notice to the insured parties at least 30 days before the cancellation or
revision becomes effective.
Section 7.03. Advances. In the event Lessee shall fail to keep the Equipment in good
repair and working order, Lessor may, but shall be under no obligation to, maintain and repair
the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute
additional rent for the then current Original Term or Renewal Term and Lessee covenants and
agrees to pay such amounts so advanced by Lessor with interest thereon from the due date until
paid at the rate of 16% per annum or the maximum amount permitted by law, whichever is less.
ARTICLE VIII
Section 8.01. Damage, Destruction and Condemnation. Unless Lessee shall have
exercised its option to purchase the Equipment by making payment of the Purchase Price as
provided in the related Lease, if, prior to the termination of the applicable Lease Term, (a) the
Equipment or any portion thereof is destroyed, in whole or in part, or is damaged by fire or other
casualty or (b) title to, or the temporary use of, the Equipment or any part thereof shall be taken
under the exercise or threat of the power of eminent domain by any governmental body or by any
person, firm or corporation acting pursuant to governmental authority, Lessee and Lessor will
cause the Net Proceeds of any insurance claim or condemnation award or sale under threat of
condemnation to be applied to the prompt replacement, repair, restoration, modification or
improvement of the Equipment. Any balance of the Net Proceeds remaining after such work has
been completed shall be paid to Lessee.
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If Lessee elects to replace any item of the Equipment (the "Replaced Equipment")
pursuant to this Section, the replacement equipment (the "Replacement Equipment") shall be of
similar type, utility and condition to the Replaced Equipment and shall be of equal or greater
value than the Replaced Equipment. Lessee shall represent, warrant and covenant to Lessor that
each item of Replacement Equipment is free and clear of all claims, liens, security interests and
encumbrances, excepting only those liens created by or through Lessor, and shall provide to
Lessor any and all documents as Lessor may reasonably request in connection with the
replacement, including, but not limited to, documentation in form and substance satisfactory to
Lessor evidencing Lessor's security interest in the Replacement Equipment. Lessor and Lessee
hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this
paragraph shall constitute "Equipment" for purposes of this Master Equipment Lease and the
related Lease. Lessee shall complete the documentation of Replacement Equipment on or before
the next Rent Payment date after the occurrence of a casualty event, or be required to exercise
the Purchase Option with respect to the damaged equipment.
For purposes of this Article, the term "Net Proceeds" shall mean the amount remaining
from the gross proceeds of any insurance claim or condemnation award or sale under threat of
condemnation after deducting all expenses, including attorneys' fees, incurred in the collection
thereof.
Section 8.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to pay in
full the cost of any repair, restoration, modification or improvement referred to in Section 8.01,
Lessee shall either (a) complete such replacement, repair, restoration, modification or
improvement and pay any costs thereof in excess of the amount of the Net Proceeds, or (b) pay
or cause to be paid to Lessor the amount ofthe then applicable Purchase Price for the Equipment,
and, upon such payment, the applicable Lease Term shall terminate and Lessor's security interest
in the Equipment shall terminate as provided in Article VI hereof. The amount of the Net
Proceeds, if any, remaining after completing such repair, restoration, modification or
improvement or after purchasing such Equipment and such other Equipment shall be retained by
Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled
to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the
amounts payable under Article IV.
ARTICLE IX
Section 9.01. Disclaimer of Warranties. Lessor makes no warranty or representation,
either express or implied, as to the value, design, condition, merchantability or fitness for
particular purpose or fitness for use of the Equipment, or any other warranty or representation,
express or implied, with respect thereto and, as to Lessor, Lessee's acquisition of the Equipment
shall be on an "as is" Basis. In no event shall Lessor be liable for any incidental, indirect, special
or consequential damage in connection with or arising out of this Agreement, any Lease, the
Equipment or the existence, furnishing, functioning or Lessee's use of any item, product or
service provided for in this Agreement or any Lease.
Section 9.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its agent
and attorney-in-fact during each Lease Term, so long as Lessee shall not be in default under the
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related Lease, to assert from time to time whatever claims and rights (including without
limitation warranties) relating to the Equipment that Lessor may have against Vendor. Lessee's
sole remedy for the breach of such warranty, indemnification or representation shall be against
Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effect
whatsoever on the rights and obligations of Lessor with respect to any Lease, including the right
to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor
makes, and has made, no representations or warranties whatsoever as to the existence or the
availability of such warranties by Lessor of the Equipment.
ARTICLE X
Section 10.01. Purchase Option. Lessee shall have the option to purchase all of the
Equipment listed in a Lease, upon giving written notice to Lessor at least 30, but not more than
120, days before the date of purchase, at the following times and upon the following terms:
(a) From and after the date specified in the related Schedule (the "Purchase Option
Commencement Date"), on the Rental Payment dates specified in each Lease, upon payment in
full of the Rental Payments then due under such Lease plus the then applicable Purchase Price,
and any prepayment premium on the unpaid balance as set forth in the applicable Schedule; or
(b) In the event of substantial damage to or destruction or condemnation of
substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to
Lessor of its exercise of the Purchase Option upon payment in full to Lessor of the Rental
Payments then due under such Lease plus the then applicable Purchase Price; or
(c) Upon the expiration of the Lease Term, upon payment in full of all Rental
Payments then due and all other amounts then owing under the Lease, and the payment of $1.00
to Lessor.
ARTICLE XI
Section 11.01. Assignment by Lessor. Lessor's right, title and interest in and to Rental
Payments and any other amounts payable by Lessee under any and all of the Leases, and all
proceeds therefrom may be assigned and reassigned in whole or in part to one or more assignees
or subassignees by Lessor, without the necessity of obtaining the consent of Lessee; provided,
however, that any such assignment, transfer or conveyance to a trustee for the benefit of owners
of certificates of participation shall be made in a manner that conforms to any applicable State
law. Nothing in this Section 11.01 shall be construed, however, to prevent Lessor from
executing any such assignment, transfer or conveyance that does not involve funding through the
use of certificates of participation within the meaning of applicable State law, including any such
assignment, transfer or conveyance as part of a multiple asset pool to a partnership or trust,
interests in which are offered and sold in a private placement or limited offering only to investors
whom Lessor reasonably believes are qualified institutional buyers or accredited investors within
the meaning of the applicable federal securities law; provided further, however, that in any event,
Lessee shall not be required to make Rental Payments, to send notices or to otherwise deal with
respect to matters arising under a Lease with or to more than one individual or entity. No
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assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until
Lessee shall have received a written notice of assignment that discloses the name and address of
each such assignee; provided, however, that if such assignment is made to a bank or trust
company as trustee or paying agent for owners of certificates of participation, trust certificates or
partnership interests with respect to the Rental Payments payable under a Lease, it shall
thereafter be sufficient that Lessee receives notice of the name and address of the bank or trust
company as trustee or paying agent. During the term of each Lease, Lessee shall keep, or cause
to be kept, a complete and accurate record of all such assignments in form necessary to comply
with Section 149 of the Code. Lessee shall retain all such notices as a register of all assignees
and shall make all payments to the assignee or assignees designated in such register. Lessee
shall not have the right to and shall not assert against any assignee any claim, counterclaim or
other right Lessee may have against Lessor or the Vendor. Assignments in part may include
without limitation assignment of all of Lessor's rights in, to and under the Lease related to the
Equipment listed in a particular Lease. The option granted in this Section may be separately
exercised from time to time with respect to the Equipment listed in each Lease, but such option
does not permit the assignment of less than all of Lessor's interests in the Equipment listed in a
single Lease.
Section 11.02. Assignment and Subleasing by Lessee. None of Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or
encumbered by Lessee without prior written consent of Lessor.
ARTICLE XII
Section 12.01. Events of Default Defined. Any of the following events shall constitute an
"Event of Default" under a Lease, subject to Section 3.03:
(a) Failure by Lessee to pay any Rental Payment or other payment required to be paid
under any Lease at the time specified herein;
(b) Failure by Lessee to observe and perform any covenant, condition or agreement
on its part to be observed or performed, other than as referred to in subparagraph (a) above, for a
period of 30 days after written notice specifying such failure and requesting that it be remedied is
given to Lessee by Lessor, unless Lessor shall agree in writing to an extension of such time prior
to its expiration; provided that, if the failure stated in the notice cannot be corrected within the
applicable period, Lessor will not unreasonably withhold its consent to an extension of such time
if corrective action is instituted by Lessee within the applicable period and diligently pursued
until the default is corrected;
(c) Any statement, representation or warranty made by Lessee in or pursuant to any
Lease or its execution, delivery or performance shall prove to have been false, incorrect,
misleading, or breached in any material respect on the date when made;
(d) Any default occurs under any other agreement for borrowing money or receiving
credit under which Lessee may be obligated as borrower, if such default consists of (i) the failure
to pay any indebtedness when due or (ii) the failure to perform any other obligation thereunder
and gives the holder of the indebtedness the right to accelerate the indebtedness;
#347725v4 (Florida Lease Template)
16
(e) Lessee shall (i) apply for or consent to the appointment of a receiver, trustee,
custodian or liquidator of Lessee, or of all or a substantial part of the assets of Lessee, (ii) be
unable, fail or admit in writing its inability generally to pay its debts as they become due,
(iii) make a general assignment for the benefit of creditors, (iv) have an order for relief entered
against it under applicable federal bankruptcy law, or (v) file a voluntary petition in bankruptcy
or a petition or an answer seeking reorganization or an arrangement with creditors or taking
advantage of any insolvency law or any answer admitting the material allegations of a petition
filed against Lessee in any bankruptcy, reorganization or insolvency proceeding;
(f) An order, judgment or decree shall be entered by any court of competent
jurisdiction, approving a petition or appointing a receiver, trustee, custodian or liquidator or
Lessee or of all or a substantial part of the assets of Lessee, in each case without its application,
approval or consent, and such order, judgment or decree shall continue unstayed and in effect for
any period of 30 consecutive days; or
(g) Lessee shall consolidate, merge or otherwise combine with any other entity, or
sell, lease or dispose of all or a substantial portion of its assets.
Section 12.02. Remedies on Default. Whenever any Event of Default exists, Lessor shall
have the right, at its sole option without any further demand or notice, to take one or any
combination of the following remedial steps:
(a) Lessor may by notice in writing to Lessee terminate the Lease, whereupon all
rights of Lessee to use the Equipment shall cease and terminate;
(b) By written notice to Lessee, Lessor may demand that Lessee pay, as liquidated
damages for loss of a bargain and not as a penalty, all unpaid Rental Payments payable by Lessee
pursuant to such Lease and other amounts payable by Lessee under such Lease to the end of the
then current Original Term or Renewal Term;
(c) With or without terminating the Lease Term under such Lease, Lessor may
request that Lessee at Lessee's expense promptly return any or all of such Equipment to the
possession of Lessor at such place within the United States as Lessor shall specify. In such
event, Lessor shall use its best efforts to sell or lease such Equipment or, for the account of
Lessee, sublease such Equipment. If Lessee returns the Equipment and Lessor sells, leases or
otherwise disposes of any or all of the Equipment, Lessor shall apply the proceeds of such sale,
lease or other disposition in the following order of priority: FIRST, to pay all of Lessor's costs,
charges and expenses incurred in taking, holding, repairing, selling, leasing or otherwise
disposing of Equipment, then SECOND, to the extent not previously paid by Lessee, to pay
Lessor all Rental Payments under the applicable Lease through the termination date, then
THIRD, to pay the Purchase Price applicable as of the end of the then current Original Term or
Renewal Term, as set forth in the Schedule for such Equipment, then FOURTH to pay any
remainder to Lessee. Lessee shall not be liable for any deficiency after sale, lease or other
disposition of the Equipment. If Lessee elects not to return the Equipment, Lessor is entitled to
payment of unpaid Rental Payments through the date of Lessor's request to return the Equipment
plus the then applicable Purchase Price, as set forth in the applicable Schedule for such
#347725v4 (Florida Lease Template)
17
Equipment. The exercise of any such remedies respecting any such Event of Default shall not
relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and
(d) Lessor may take whatever action at law or in equity may appear necessary or
desirable to enforce its rights under such Lease.
Section 12.03. 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 a Lease now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair any
such right or power or shall be construed to be a waiver thereof, but any such right or power may
be exercised from time to time and as often as may be deemed expedient. In order to entitle
Lessor to exercise any remedy reserved to it in this Article it shall not be necessary to give any
notice other than such notice as may be required in this Article.
Section 12.04. Application of Moneys. Any net proceeds from the exercise of any
remedy under this Agreement, including the application specified in Section 12.02(b) (after
deducting all expenses of Lessor in exercising such remedies including without limitation all
expenses of taking possession, storing, reconditioning and selling or leasing Equipment and all
brokerage, auctioneer's or attorney's fees), shall be applied as follows:
(a) If such remedy is exercised solely with respect to a single Lease, Equipment listed
in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other
amounts related to such Lease or such Equipment.
(b) If such remedy is exercised with respect to more than one Lease, Equipment listed
in more than one Lease or rights under more than one Lease, then to amounts due pursuant to
such Leases pro rata.
ARTICLE XIII
Section 13.01. No Fees Paid by Lessor. Lessor hereby certifies that it has not paid or has
not promised to pay, directly or indirectly, a fee to any person not regularly employed by Lessor
to act as an intermediary between Lessee and Lessor for the purpose of influencing any
transaction in connection with this Agreement or any Lease.
Section 13.02. Notices. All notices, certificates or other communications under any
Lease shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, or delivered by overnight courier, or sent by facsimile
transmission (with electronic confirmation) to the parties hereto at the addresses immediately
after the signatures to this Agreement (or at such other address as either party hereto shall
designate in writing to the other for notices to such party) and to any assignee at its address as it
appears on the registration books maintained by Lessee.
Section 13.03. Release and Indemnification. To the extent permitted by law, but only
from legally available funds, Lessee shall indemnify, protect, hold harmless, save and keep
harmless Lessor from and against any and all liability, obligation, loss, claim, tax and damage
#347725v4 (Florida Lease Template)
18
whatsoever, regardless of cause thereof, and all expenses in connection therewith (including,
without limitation, counsel fees and expenses, penalties connected therewith imposed on interest
received) arising out of or as a result of (a) the entering into of this Agreement or any Lease,
(b) the ownership of any item of the Equipment, (c) the ordering, acquisition, use, operation,
condition, purchase, delivery, rejection, storage or return of any item of the Equipment, (d) any
accident in connection with the operation, use, condition, possession, storage or return of any
item of the Equipment resulting in damage to property or injury to or death to any person, and/or
( e) the breach of any covenant in a Lease or any material misrepresentation contained in a Lease.
The indemnification arising under this paragraph shall continue in full force and effect
notwithstanding the full payment of all obligations under all Leases or the termination of the
Lease Term under all Leases for any reason. The Lessee's liability hereunder, as a governmental
entity, is limited to the amounts set forth in Florida Statutes section 768.28 to the extent such
section governs Lessee's liability.
Section 13.04. Binding Effect. Each Lease shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 13.05. Severability. In the event any provision of any Lease shall be held invalid
or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof. Any provisions in this Lease which are in
conflict with any statute, law or applicable rule shall be deemed omitted, modified or altered to
conform thereto.
Section 13.06. Amendments, Changes and Modifications. Each Lease may only be
amended by Lessor and Lessee in writing.
Section 13.07. Execution in Counterparts. Each Lease 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 instrument.
Section 13.08. Applicable Law. Each Lease shall be governed by and construed III
accordance with the laws of the State.
Section 13.09. Captions. The captions or headings in this Agreement and in each Lease
are for convenience only and in no way define, limit or describe the scope or intent of any
provisions or sections of this Agreement or any Lease.
#347725v4 (Florida Lease Template)
19
IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in
their names by their duly authorized representatives as ofthe date first above written.
LESSOR:
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
LESSEE:
City of Delray Beach, FL
100 N.W. 1 st Avenue
Delray Beach, FL 33444
By
By
Title
Title
(Seal)
Attest:
By
Title
#347725v4 (Florida Lease Template)
20
SCHEDULE OF PROPERTY No. 001
Re: Master Equipment Lease/Purchase Agreement, dated as of December 29,
2005, between Banc of America Leasing & Capital, LLC, as Lessor, and
City of Delray Beach, FL, as Lessee
1. Defined Terms. All terms used herein have the meanings ascribed to them in the
above-referenced Master Equipment Lease/Purchase Agreement (the "Master Equipment
Lease").
2. Equipment. The following items of Equipment are hereby included under this
Schedule ofthe Master Equipment Lease.
Quantity
Description
Serial No.
Model No.
Location
See Exhibit A attached hereto and made a part hereof.
3. Payment Schedule.
(a) Rental Payments. The Rental Payments shall be in such amounts and
payable on such dates as set forth in the Rental Payment Schedule attached to this Schedule as
Exhibit A-I. Rental Payments shall commence on the date on which the Equipment listed in this
Schedule is accepted by Lessee, as indicated in an Acceptance Certificate substantially in the
form of Exhibit B to the Master Equipment Lease or the date on which sufficient moneys to
purchase the Equipment are deposited for that purpose with an Acquisition Fund Custodian,
whichever is earlier.
(b) Purchase Price Schedule. The Purchase Price on each Rental Payment
date for the Equipment listed in this Schedule shall be the amount set forth for such Rental
Payment date in the "Purchase Price" column of the Rental Payment Schedule attached to this
Schedule. The Purchase Price is in addition to all Rental Payments then due under this Schedule
(including the Rental Payment shown on the same line in the Rental Payment Schedule).
4. Representa!ions. Warranties and Covenants. Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Master
Equipment Lease are true and correct as though made on the date of commencement of Rental
Payments on this Schedule. Lessee further represents and warrants that no material adverse
change in Lessee's financial condition has occurred since the date of the Master Equipment
Lease.
5. The Lease. The terms and provisions of the Master Equipment Lease (other than
to the extent that they relate solely to other Schedules or Equipment listed on other Schedules)
are hereby incorporated into this Schedule by reference and made a part hereof.
#347725v4 (Florida Lease Template)
A-I
6. Acquisition Amount. The Acquisition Amount for the Equipment described in
this Schedule to be paid to the Vendor is $317,112.74.
Dated:
LESSOR:
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
LESSEE:
City of Delray Beach, FL
100 N.W. 1st Avenue
Delray Beach, FL 33444
By
Title
By
Title Mayor
(Seal)
Approved as to legal sufficiency and form on
Behalf of the City
Attest:
By
Title City Clerk
#347725v4 (Florida Lease Template)
A-2
Exhibit A
to Schedule of Property No. 001 to
Master Equipment Lease/Purchase Agreement, dated as December 29,2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City ofDelray Beach, FL, as Lessee
Qffi
Descrivtion
Cost
LOCATION: DELRA Y BEACH POLICE DEPARTMENT, 300 W. ATLANTIC AVE., DELRA Y BEACH, FL 33444
1
1
1
1
1
2
CATALYST 2950,2410/100 w/ 2GBIC SLOTS, ENHANCED IMAGE
CISCO POWER CORD AC, 110v
CANOGA PERKINS EDGEACCESS 1030E ENCLOSURE FOR ONE 2u MODULE
1000 BASE TX TO 1000 BASE SX (850NM MULTIMODE)
SC-SC FIBER JUMPERS (DUPLEx/MULTI-MODE,PVC) 3 METER
PATCH CORD CA T5E GRAY, 7 FOOT STRAIGHT THRU
PROJECT MGT/INST ALUST AGING/CONFIGURA TION/ETC.
FREIGHT
LABOR
DISCOUNT
$2,495.00
$0.00
$367.00
$2,144.59
$39.68
$6.82
$0.00
$27.16
$603.64
($2.081.60)
$3,602.29
$2,495.00
$0.00
$367.00
$2,144.59
$39.68
$6.82
$0.00
$27.16
$603.64
($2.081.60)
$3,602.29
$326.00
1
1
1
1
1
2
CAT AL YST 2950,24 10/100 w/ 2GBIC SLOTS, ENHANCED IMAGE
CISCO POWER CORD AC, 11 Ov
CANOGA PERKINS EDGEACCESS 1 030E ENCLOSURE FOR ONE 2u MODULE
1000 BASE TX TO 1000 BASE SX (850NM MULTIMODE)
SC-SC FIBER JUMPERS (DUPLEx/MUL TI-MODE,PVC) 3 METER
PATCH CORD CA T5E GRAY, 7 FOOT STRAIGHT THRU
PROJECT MGT/INSTALUST AGING/CONFIGURATION/ETC.
FREIGHT
LABOR
DISCOUNT
1
DATACARE 8x5x4 ONSITE SBD PARTS
32
10
1
2
1
1
1
1
16
8
1
8 ADVANCED CALL CENTER SERVICES TO PREMIUM NETWORK SERVICES
ACD AGENT ISM UPGRADE ADVANCED CALL CN1R TO PREM NTWRK SERVICE
SDIIOCHPACKAGE
8 ITG ISDN TRUNK ISM
IP- TRUNK 32 PORT PACKAGE (SUCCESSION 3.0 SYSTEMS)
OTM I.X ENHANCED, 250 SETS EXPANSION
01M BILLING ENHANCED, 250 RU
01M, ADDITIONAL CLIENT FOR ONE (1) PC
INSTALL COMMON EQUIPMENT !12 HOUR PREMIUM (OT)
INSTALL MISC EQUIPMENT - !12 HOUR
PREMISE VISIT
FREIGHT
LABOR
DISCOUNT
$17,216.00
$590.00
$3,100.00
$2,256.00
$5,970.00
$1,500.00
$1,947.00
$500.00
$0.00
$0.00
$0.00
$35.02
$2,694.41
($13.965.98)
$21,842.45
215
2
2
1
2
8
32
64
REUSED WIRING CHARGES
KEN1ROX csu Tl D4/ESF/B8zs SA PACKAGE
T-l/DSLCPE PROTECTOR
ON2000 RM/FM EXT RUN TIME 1900VA UPS w/ SOFTWARE
BATT. PACKONXBC-417
PROTECTOR co/2500 ANALOG 6AP
INSTALLMISC EQUlPMENT- !l2HOUR
INSTALL COMMON EQUIPMENT !12 HOUR PREMIUM (OT)
$0.00
$3,199.54
$127.38
$3,548.33
$1,793.66
$176.80
$0.00
$0.00
I
I
I
I
6
I
I
I
I
2
I
36
144
I
I
I
I
30
I
2
I
I
2
I
4
12
I
3
2
2
I
I
26
8
I
I
I
I
I
I
I
I
I
COMPETITIVE ADVANTAGE DISCOUNT
CALLPILOT 20 I I BASE SYSTEM PACKAGE - RELEASE 3
CALLPILOT 2.0 FOR MI INTEGRATION SW
CALLPIWT NEW SYSTEM ORDER CODE
CALLPIWT 20 I I BASE HW PACKAGE FOR OPT II C
CALLPILOT 2 VOICE CHANNELS
CALLPILOT 20 I I EXTERNAL SCSI TAPE DRNE KIT
CALLPILOT CD ROM DRNE
CALLPILOT EXTERNAL MODEM KIT
PWR CORD NEMA 1-15p TO IEC320 c7 6.0FT BLACK
CALLPILOT MULTIMEDIA MAILBOXES wi VOICE-200 USERS
CALLPILOT MULTIMEDIA MAILBOXES wi VOICE-50 USERS
MERIDIAN M3904 PROFESSIONAL, RELEASE 3, CHARCOAL
MERIDIAN M3903 ENHANCED RELEASE 3, CHARCOAL
CONSOLE/CARD-SPECIAL PKG
MERIDIAN INTEGRATED RAN (REL 3) MEDIUM OPTION
AUDIO CABLE
PC MAINT. CABLE
RAN CON ISM
IP-TRUNK 32 PORT PACKAGE (SUCCESSION 3.0 SYSTEMS)
8 ITG ISDN TRUNK ISM
OPTION Ilc CABINET SYSTEM SOFTWARE
57 -BARS-BASIC AL TERNA TIVE ROUTE SELECTION
OPTION llCTMDlPACKAGE 1.5MB
UNIVERSAL TRUNK CARD
ANALOG LINE CARD wi MSG WAITING
DIGITAL LINE CARD (DLC)
OPTION Ilc MAIN CABINET AC
AC POWER CORD - NA NEMA 5-15p 125v 13A 10FT
OPTION llc EXPANSION CABINET AC
OPTION Ilc -30 FOOT EXPANSION KIT
30FT DUAL PORT FIBER DAUGHTERBOARD
sDIIocHPACKAGE
8 (DIGITAL) ADV NETWORK SERVICEGITAL USER ISM
8 (ANAWG) ADV NETWORK SERV ANAWG USER ISM
CWCK CONTROLLER CARD
CABINET SYSTEM AMP-300
COMPETITIVE ADV ANT AGE MPR051 00
NORTEL PBX REMOTE MONITORING PACKAGE
BST PRI TRACKING CODE
CLASS MODEM CARD (XCMC)
8 ADVANCED NETWORK SERVICES CLASS USER ISM
PREMISE VISIT
FREIGHT CHARGES
LABOR
DISCOUNT
10
12003, M3903/4/5 WALLMNTKIT, CHARCOAL
FREIGHT
LO~A TION: LAKEVIEW GOLF CLUB, 1200 DOVER ROAD, DELRA Y BEACH, FL 33445
30
NEW 2006 CLUB CAR DS GASOLINE GOLF CARTS W/ CANOPY, CANOPY KIT STRUTS
SiN'S: AG0611605939, AG0611605940, AG0611605941, AG0611605942, AG0611605943,
AG0611605944,AG0611605945,AG0611605946,AG0611605947,AGO611605948,
AG061 1605949, AG0611605950, AG061 1605951, AG061 1605952, AG 0611605953,
AG0611605954,AG0611605955,AG0611605956,AG0611605957,AG0611605958,
AG0611605959, AG0611605960, AG0611605961, AGO 6 I 1605962, AG06 11605963,
AG0611605964,AG0611605965,AG0611605966,AG0611605967,AG0611605968
NUMBER DECAL 2 EA BLK/GOLD INS
30
($40,326.64)
$9,000.00
$0.00
$0.00
$0.00
$21,000.00
$2,352.00
$700.00
$300.00
$20.00
$12,000.00
$2,000.00
$19,800.00
$48,240.00
$5,000.00
$5,400.00
$45.00
$80.00
$8,580.00
$5,970.00
$2,256.00
$1,746.00
$0.00
$6,100.00
$2,710.00
$10,600.00
$31,800.00
$1,859.00
$75.00
$2,574.00
$714.00
$1,600.00
$3,100.00
$15,808.00
$4,864.00
$1,000.00
($13,754.00)
($2.12)
$4,050.00
$0.00
$4,000.00
$752.00
$0.00
$1,987.09
$30,753.99
($53,529.82)
$170,069.21
$100.00
$30.50
$130.50
$104,304.00
$288.00
30
30
30
30
30
30
BUCKET KIT - DRIVER SIDE
BUCKET KIT - P ASS SIDE
RAKE HOLDER INST
COMMODITY SURCHARGE DS GAS
CLUB CAR TRUCK-FREIGHT CHARGES
FUEL SURCHARGE NEW CAR
CREDIT
INFO HOLDER HARD STYLE, SET 10
$1,026.00
$1,026.00
$396.00
$1,530.00
$1,950.00
$624.00
($17,457.00)
$666.00
$94,353.00
6
30
NEW 2006 CLUB CAR DS GASOLINE GOLF CARTS wi CANOPY, CANOPY KIT STRUTS
SiN'S: AG0611605969, AG0611605970, AG0611605971, AG0611605972, AG0611605973,
AG0611605974,AG0611605975,AG0611605976,AG0611605977,AG0611605978,
AG061 1605979, AG0611605980, AG0611605981, AG061 1605982, AG 0611605983,
AG061 1605984, AG0611605985, AG0611605986, AG0611605987, AGO 611605988,
AG0611605989,AG0611605990,AG0611605991,AG0611605992,AG0611605993,
AG0611605994,AG0611605995,AG0611605996,AG0611605997,AG0611605998
NUMBER DECAL 2 EA BLKlGOLD INS
BUCKET KIT - DRIVER SIDE
BUCKET KIT - PASS SIDE
RAKE HOLDER INST
COMMODITY SURCHARGE DS GAS
CLUB CAR TRUCK-FREIGHT CHARGES
FUEL SURCHARGE NEW CAR
CREDIT
CREDIT
$104,304.00
30
30
30
30
30
30
30
$288.00
$1,026.00
$1,026.00
$396.00
$1,530.00
$1,950.00
$624.00
($17,457.00)
($70.500.00)
$23,187.00
TOTAL:
$317,112.74
EXHIBIT A-l
RENTAL PAYMENT SCHEDULE
Rental Rental Interest Principal Purchase
Payment Payment
Date Amount Portion Portion Price*
01/10/06 0.00 0.00 0.00 317,112.74
02/10/06 7,105.07 954.30 6,150.77 310,961.97
03/10/06 7,105.07 935.79 6,169.28 304,792.70
04/10/06 7,105.07 917.23 6,187.84 298,604.86
05/10/06 7,105.07 898.60 6,206.46 292,398.39
06/10/06 7,105.07 879.93 6,225.14 286,173.25
07/10/06 7,105.07 861.19 6,243.87 279,929.38
08/1 0/06 7,105.07 842.40 6,262.66 273,666.71
09/1 0/06 7,105.07 823.56 6,281.51 267,385.20
10/1 0/06 7,105.07 804.65 6,300.41 261,084.79
11/10/06 7,105.07 785.69 6,319.37 254,765.42
12/10/06 7,105.07 766.68 6,338.39 248,427.02
01/10/07 7,105.07 747.60 6,357.47 242,069.56
02/1 0/07 7,105.07 728.47 6,376.60 235,692.96
03/10/07 7,105.07 709.28 6,395.79 229,297.17
04/10/07 7,105.07 690.03 6,415.03 222,882.14
05/1 0/07 7,105.07 670.73 6,434.34 216,447.80
06/1 0/07 7,105.07 651.37 6,453.70 209,994.10
07/10/07 7,105.07 631.94 6,473.12 203,520.98
08/10/07 7,105.07 612.46 6,492.60 197,028.37
09/10/07 7,105.07 592.93 6,512.14 190,516.23
10/10/07 7,105.07 573.33 6,531.74 183,984.49
11/10/07 7,105.07 553.67 6,551.40 177,433.10
12/10/07 7,105.07 533.96 6,571.11 170,861.99
01/10/08 7,105.07 514.18 6,590.89 164,271.10
02/10/08 7,105.07 494.35 6,610.72 157,660.38
03/10/08 7,105.07 474.45 6,630.61 151,029.77
04/1 0/08 7,105.07 454.50 6,650.57 144,379.20
05/1 0/08 7,105.07 434.49 6,670.58 137,708.62
06/1 0/08 7,105.07 414.41 6,690.66 131,017.97
07/10/08 7,105.07 394.28 6,710.79 124,307.18
08/10/08 7,105.07 374.08 6,730.98 117,576.19
09/10/08 7,105.07 353.83 6,751.24 110,824.95
10/10/08 7,105.07 333.51 6,771.56 104,053.39
11/1 0/08 7,105.07 313.13 6,791.94 97,261.46
12/10/08 7,105.07 292.69 6,812.37 90,449.08
01/10/09 7,105.07 272.19 6,832.88 83,616.21
#347725v4 (Florida Lease Template)
A-l-l
02/1 0/09 7,105.07 251.63 6,853.44 76,762.77
03/1 0/09 7,105.07 231.01 6,874.06 69,888.71
04/10/09 7,105.07 210.32 6,894.75 62,993.96
05/10/09 7,105.07 189.57 6,915.50 56,078.46
06/1 0/09 7,105.07 168.76 6,936.31 49,142.15
07/10/09 7,105.07 147.89 6,957.18 42,184.97
08/10/09 7,105.07 126.95 6,978.12 35,206.85
09110/09 7,105.07 105.95 6,999.12 28,207.73
10/10/09 7,105.07 84.89 7,020.18 21,187.55
11/1 0/09 7,105.07 63.76 7,041.31 14,146.25
12/10/09 7,105.07 42.57 7,062.50 7,083.75
01110/10 7,105.07 21.32 7,083.75 0.00
TOTAL 341,043.25 23,930.51 317,112.74
*The Purchase Option Commencement Date shall be January 10, 2006. The Purchase Price
payable (i) on any Rental Payment date is the amount equal to the aggregate principal portion of
the remaining Rental Payments after payment of the Rental Payment payable on such Rental
Payment date, and (ii) on any date other than a Rental Payment date is the amount equal to the
aggregate principal portion of the remaining Rental Payments plus an amount equal to the
interest portion of such Rental Payments accrued thereon to such date, without such prepayment
premium or penalty.
For purposes of this Lease, 'Taxable Rate," with respect to the interest component of
Rental Payments, means an annual rate of interest equal to 5.6335%.
Lessee:
City of Delray Beach, FL
By
Title
After payment of the applicable Purchase Price, Lessee will own the related Equipment, free and
clear of any obligations under the related Lease.
#347725v4 (Florida Lease Template)
A-1-2
ACCEPTANCE CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Schedule of Property No. 001, dated , to Master
Equipment Lease/Purchase Agreement, dated as of December 29,2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City of
Delray Beach, FL, as Lessee
Ladies and Gentlemen:
In accordance with the Master Equipment Lease/Purchase Agreement (the "Agreement"),
the undersigned Lessee hereby certifies and represents to, and agrees with Lessor as follows:
1. All of the Equipment (as such term is defined in the Agreement) listed in the
above-referenced Schedule of Property (the "Schedule") has been delivered, installed and
accepted on the date hereof.
2. Lessee has conducted such inspection and/or testing of the Equipment listed in the
Schedule as it deems necessary and appropriate and hereby acknowledges that it accepts the
Equipment for all purposes.
3. Lessee is currently maintaining the insurance coverage required by Section 7.02
of the Agreement.
4. No event or condition that constitutes, or with notice or lapse of time, or both,
would constitute, an Event of Default (as defined in the Agreement) exists at the date hereof.
Date:
LESSEE:
City of Delray Beach, FL
By
Title
(Seal)
#347725v4 (Florida Lease Template)
B-1
CLERKCERTIFICATE
The undersigned, a duly elected and acting Clerk/Secretary of City of Delray Beach, FL
("Lessee") certifies as follows:
A. The following listed persons are duly elected and acting officials of Lessee (the
"Officials") in the capacity set forth opposite their respective names below and that the facsimile
signatures are true and correct as of the date hereof;
B. The Officials are duly authorized, on behalf of Lessee, to negotiate, execute and
deliver the Master Equipment Lease/Purchase Agreement dated as of December 29,2005 and the
Schedule(s) thereunder and all future Schedule(s) (the "Agreements") by and between City of
Delray Beach and Banc of America Leasing & Capital, LLC and these Agreements are binding
and authorized Agreements of Lessee, enforceable in all respects in accordance with their terms.
Name of Official
Title
Signature
Jeff PerJman
Mayor
Dated
By
Title City Clerk
(The signer of this Certificate cannot be listed above as authorized to execute the Agreements.)
#347725v4 (Florida Lease Template)
C-l
[IT' DF DElAA' IEA[H
CITY ATTORNEY'S OFFICE
200 NW 1st AVENUE' DELRAY BEACH, FLORIDA 33444
TELEPHONE: 561/243-7090 . FACSIMILE: 56] /278-4755
DELRAY BEACH
~
All-America City
, III I!
1993
2001
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy.. 4th Floor
Tucker, GA 30084
Re: Schedule of Property No. 001. dated , to Master
Equipment Lease/Purchase Agreement, dated as of December 29.2005,
between Banc of America Leasing & Capital, LLC, as Lessor, and City of
Delray Beach, FL, as Lessee
Ladies and Gentlemen:
As legal counsel to City of Delray Beach, FL ("Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
December 29,2005, and Exhibits thereto by and between Banc of America Leasing & Capital,
LLC ("Lessor") and Lessee (the "Agreement"), and an executed counterpart of Schedule of
Property No. 001, dated , by and between Lessor and Lessee (the
"Schedule"), which, among other things, provides for the lease of certain property listed in the
Schedule (the "Equipment"), (b) an executed counterpart of the ordinances or resolutions of
Lessee which, among other things, authorize Lessee to execute the Agreement and the Schedule
and (c) such other opinions, documents and matters of law as I have deemed necessary in
connection with the following opinions. The Schedule and the terms and provisions of the
Agreement incorporated therein by reference together with the Rental Payment Schedule
attached to the Schedule are herein referred to collectively as the "Lease".
Based on the foregoing, I am of the following opinions:
1. Lessee is a public body corporate and politic. duly organized/municipality duly
created and existing under the laws of the State, and is a political subdivision of a state within the
meaning of Section 103(c) of the Internal Revenue Code of 1986, as amended (the "Code"), and
the obligations of Lessee under the Agreement will constitute an obligation of Lessee within the
meaning of Section 103(a) of the Code, notwithstanding Section 103(b) of the Code;
2. Lessee has the requisite power and authority to lease and acquire the Equipment
and to execute and deliver the Lease and to perform its obligations under the Lease;
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of Lessee and the Lease is a valid and binding obligation of Lessee enforceable in
accordance with its terms;
4. To the best of my knowledge, the authorization, approval. execution and delivery
of the Lease and all other proceedings of Lessee relating to the transactions contemplated thereby
have been performed in accordance with all open meeting laws, public bidding laws and all other
applicable state or federal laws;
..
5. There is no proceeding pending or threatened in any court or before any
governmental authority or arbitration board or tribunal that, if adversely determined, would
adversely affect the transactions contemplated by the Lease or the security interest of Lessor or
its assigns, as the case may be, in the Equipment thereunder; and
6. The portion of rentals designated as and constituting interest paid by Lessee and
received by Lessor is excluded from Lessor's gross income for federal income tax purposes
under Section 103 of the Code; and such interest is not a specific item for purposes of the federal
individual or corporate alternative minimum taxes.
All capitalized terms herein shall have the same meanings as in the Lease unless
otherwise provided herein. Lessor and its successors and assigns, and any counsel rendering an
opinion on the tax -exempt status of the interest components of the Rental Payments, are entitled
to rely on this opinion.
Yours truly,
ESSENTIAL USE/SOURCE OF FUNDS CERTIFICATE
Banc of America Leasing & Capital, LLC
2059 Northlake Pkwy., 4th Floor
Tucker, GA 30084
Re: Master Equipment Lease/Purchase Agreement dated December 29,2005,
Schedule of Property No. 001 dated
This certificate confirms and affIrms that the Equipment described in the Agreement
referenced above is essential to the governmental, municipal or public purposes or functions of
Lessee or to the services Lessee provides its citizens. Further, Lessee has an immediate need for,
and expects to make immediate use of, substantially all such Equipment, which need is not
temporary or expected to diminish in the foreseeable future. Such Equipment will be used by
Lessee only for the purpose of performing one or more of Lessee's governmental or proprietary
functions permitted under the Act (as defined in the Agreement referenced above).
Lessee expects and anticipates adequate funds to be available for all future payments or
rent due after the current budgetary period, subject to annual appropriation.
City of Delray Beach, FL
By
Name
Title
#347725v4 (Florida Lease Template)
E-1
Form 8038-G
Information Return for Tax-Exempt Governmental Obligations
~ Under Internal Revenue Code section 149(e)
~ See separate Instructions.
Caution: If the issue price is under $100,000. use Form 8038-GC.
Authorit If Amended Return, check here ~ 0
2 Issuer's employer identification number
59 : 6000308
Room/suite 4 Report number
3
(Rev. November 2000)
OMB No. 1545-0720
1
Issuer's name
City of Delray Beach, Fl
Number and street (or P.O. box if mail is not delivered to street address)
100 N.W. 1st Avenue
3
5 City. town, or post office. state, and ZIP code
Delray Beach, Fl 33444
7 Name of issue
Master Equipment lease/Purchase Agreement dtd 12/29/05 - Schedule of Property No.1
6 Date of issue
01/10/06
8 CUSIP number
n/a
9 Name and title of officer or legal representative whom the IRS may call for more information 10 Telephone number of officer or legal representative
Rebecca O'Connor, Treasurer ( 561 ) 243-7120
e of Issue (check a licable box(es) and enter the issue rice) See instructions and attach schedule
11 Education 11
12 Health and hospital 12
13 Transportation. 13
14 Public safety. 14
15 Environment (including sewage bonds) 15
16 Housing. 16
17 Utilities 17
18 18 317,112.74
19 ~ 0
20
(e) Stated redemption
price at maturity
(d) Weighted
average maturity
(e) Yield
2.090
underwriters' discount)
ears
3.6112 %
o
317,112.74
o
317,112.74
22
23
24
25
26
27
28
29
30
Proceeds used for accrued interest . . . . .
Issue price of entire issue (enter amount from line 21, column (b)). .
Proceeds used for bond issuance costs (including underwriters' discount)
Proceeds used for credit enhancement .
Proceeds allocated to reasonably required reserve or replacement fund
Proceeds used to currently refund prior issues
Proceeds used to advance refund prior issues
Total (add lines 24 through 28). . . . .
Nonrefundin roceeds of the issue (subtract line 29 from line 23 and enter amount here). .
Descri tion of Refunded Bonds (Com lete this art ani for refundin bonds.)
Enter the remaining weighted average maturity of the bonds to be currently refunded . ~
Enter the remaining weighted average maturity of the bonds to be advance refunded . ~
Enter the last date on which the refunded bonds will be called . . ~
Enter the date(s) the refunded bonds were issued ~
Miscellaneous
Enter the amount of the state volume cap allocated to the issue under section 141 (b)(5)
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions)
Enter the final maturity date of the guaranteed investment contract ~
Pooled financings: a Proceeds of this issue that are to be used to make loans to other governmental units 37a 0
If this issue is a loan made from the proceeds of another tax-exempt issue, check box ~ 0 and enter the name of the
issuer ~ and the date of the issue ~
If the issuer has designated the issue under section 265(b)(3)(B)(i)(III) (small issuer exception), check box ~ 0
If the issuer has elected to pay a penalty in lieu of arbitrage rebate. check box ~ 0
If the issuer has identified a hed e, check box ....... ~ 0
Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements. and to the best of my knowledge
and belief, they are true, correct, and complete.
24
25
26
27
28
31
32
33
34
n/a
n/a
n/a
n/a
years
years
o
o
35
36a
b
37
b
38
39
40
Sign
Here
~ Signature of issuer's authorized representative
~ Type or print name and title
Cat. No. 637735 Form 8038-G (Rev. 11-2000)
Date
F or Paperwork Reduction Act Notice, see page 2 of the Instructions.
*
<6L
AGENDA ITEM NUMBER:
AGENDA REQUEST
Date: 12/29/05
Request to be placed on:
Consent Agenda
Special Agenda
Workshop Agenda
When:
1/3/06
Description of agenda item: Approve Resolution# 3-06 authorizing the execution and
delivery of a master lease agreement with Banc of America Leasing LLC; authorizing
a lease of telephone equipment and golf carts; authorizing the execution of such other documents
as may be necessary to complete the transactions contemplated.
ORDINANCE/RESOLUTION REQUIRED:
Draft of Resolution Attached:
x
X
YES
YES
NO
NO
Recommendation: Recommend the approval of Resolution# 3-06.
-~~
~. ~
" "
Determination of Consistency with Comprehensive Plan:
Department Head Signature:
City Attorney Review/Recommendation (if applicable):
Budget Director Review
(required on all items involving expenditure of funds):
Funding available: n/a
Yes
No
Funding alternatives (if applicable):
Account Number:
Account Description:
Account Balance:
City Manager Review:
Approved for Agenda:
&
1101
No
Hold Until:
Agenda Coordinator Review:
Received:
Action:
Approved:
Disapproved:
P.O. #