HomeMy WebLinkAboutSkylake State Bank -1999 01 26
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OFFICERS' CERTIFICATE
AND INCUMBENCY CERTIFICATE OF LESSEE
We, th~ undersigned officers of the CITY OF WINTER SPRINGS, FLORIADA (the
"Lessee"), in connection with the execution of the Master Lease-Purchase Agreement dated as of
[click here and insert date] (the "Lease"), between the Lessee and SKYLAKE STATE BANK,(the
"Lessor"), DO HEREBY CERTIFY:
(1) Paul P. Partyka is the duly elected and acting Mayor of the Lessee, and Margo M.
Hopkins is the duly appointed, qualified and acting Clerk of the Lessee.
(2) Each of the above persons has duly filed his or her oath of office and such of them
as are required by law to file bonds or undertakings have duly filed such bonds or undertakings in
the amount and manner required by law.
(3) The undersigned Clerk and Mayor duly executed and attested the Lease.
(4) . Those Officers who executed the Lease were and are the duly chosen, qualified and
acting officers authorized to execute the Lease. The signatures that appear on this certificate are the
authentic signatures of the Clerk and the Mayor, each of whom is duly authorized to execute and
deliver the Lease and any and all documents and certificates required in connection therewith or
necessary or appropriate to carry out the intent thereof.
(5) The Lessee has sufficient moneys available to pay all rental payments owing under
the Lease (the "Lease Payments") coming due during the current budget year of the Lessee, such
moneys having been properly budgeted and appropriated for that purpose or shall be properly
budgeted and appropriated in accordance with the laws of the State of Florida (the "State"); such
moneys will be applied in payment of all Lease Payments due and payable during such current
budget year; the Lessee expects and anticipates adequate funds to be available, budgeted and
appropriated in future years, to make all future Lease Payments throughout the maximum term of
the Lease.
(6) The lease of the Equipment (as defined in the Lease) is essential to the governmental
functions of the Lessee, and the Lessee has an immediate need for the Equipment, which is not
temporary or expected to diminish during the maximum term of the Lease.
(7) The Equipment will be used by the Lessee for the purpose of performing one or more
of the Lessee's governmental functions consistent with the permissible scope of the Lessee's
authority.
(8) The Lessee has obtained, or will obtain as the Equipment is acquired, from a
reputable insurance company, qualified to do business in the State, insurance with respect to all risks
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required to be covered thereby pursuant to the Lease; or the Lessee has or shall self-insure with the
prior written consent from the Lessor as provided in the Lease.
(9) The interest rate establishing the interest portion of the Lease Payments, on the first
date such interest begins to accrue, does not exceed a rate of interest permitted by Section 215.84,
Florida Statutes (1995).
(10) This Section 10 sets forth facts and estimates upon which the Lessor and its counsel
may rely in reaching an opinion regarding the exclusion of the interest portion of the Lease Payments
from the gross income of the Lessor, and the facts and estimates upon which the Lessee bases its
reasonable expectation that the obligation to make Lease Payments pursuant to the Lease
(hereinafter, the "Lease Obligation") does not create an arbitrage bond under Section 148 of the
Internal Revenue Code of 1986, as amended (the "Code"), and applicable Treasury Regulations:
(a) The Lessee has not accumulated nor does it expect to accumulate amounts of
money in a fund to payor to be held as security for the payment of principal of or interest on the
Lease Obligation.
(b) No portion of the proceeds of the Lease Obligation will be used as a substitute
for other funds which were otherwise to be used for the same purposes and which funds will be used
to acquire directly or indirectly obligations producing a yield in excess of the yield on the Lease
Obligation. '
(c) There are no other obligations of the Lessee which (i) are being issued within
15 days prior to or after the date ofthe Lease Obligation, (ii) are sold pursuant to a common plan of
financing together with the Lease Obligation, and (iii) will be paid out of substantialiy the same
source of funds (or will have substantially the same claim to be paid out of substantially the same
source of funds) as the Lease Obligation.
(d) The Lessor has agreed to purchase the Lease Obligation for the outstanding
principal amount thereof. No fee will be paid to any person acting as an underwriter for the Lease
Obligation.
(e) The Lease does not create a "hedge bond" as defined in Section 149(g) of the
Code, in that at least 85 percent of the proceeds of the Lease Obligation will be expended to carry
out the governmental purpose of the issue within three years from the date of issuance of the Lease,
and not more than 50 percent of the proceeds will be invested in nonpurpose investments (as defined
in Section 148(f)(6)(A) of the Code) having a substantially guaranteed yield of four years or more.
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(f) The Equipment has pot been and is not expected to be sold or otherwise
disposed of in whole or in part prior to the expiration of the maximum lease ternl.
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(g) The proceeds of the Lease Obligation will be deposited into an Equipment
Acquisition Fund created by Lessee. The proceeds of the Lease Obligation, together with the
investment earnings thereon, will be used to pay the cost of the equipment from the vendors thereof
(the "Project"). It is reasonably expected that (i) at least 85% of the proceeds of the Lease Obligation
will be allocated to expenditures on the Project by the end of three years from the date of issuance
thereof, (ii) within 6 months of the issuance date of the Lease Obligation, the Lessee will incur a
substantial binding obligation to a third party to expend at least 5% of the proceeds thereof on the
Project, and (iii) completion of the Project and the allocation of the proceeds to expenditures with
respect to the Project will proceed with due diligence.
(h) The Lessee expects that (i) less than 10% of the proceeds of the Lease
Obligation will be used for any private business use as defined in Section 141 ofthe Code, and (ii)
less than 5% of the proceeds of the Lease obligation will be used for private business use which is
not related to a governmental use of the proceeds, or which is a disproportionate related business use
within the meaning of Section 141 of the Code. It is understood that such limitation will not apply
unless more than 10% (with respect to clause (i)) or more than 5% (with respect to clause (ii)) of the
Lease Obligation is directly or indirectly (including under the terms of any underlying arrangement)
secured by any interest in (1) property used or to be used for a private business use, or (2) payments
in respect of such property, or are to be derived from payments (whether or not to the Lessee) in
respect of such property, or borrowed money, used or to be used for a private business use, as
provided in Section 141 of the Code.
(11) No approval, consent or authorization of any governmental or public agency not
already obtained is required in connection with the Lessee's participation in the transactions
contemplated by the Lease, or the performance of its obligations thereunder.
(12) The Lessee has, in the Resolution, designated the Lease Obligation as a "qualified
tax-exempt obligation" within the provisions of Section 265 of the Internal Revenue Code of 1986.
The Lessee does not reasonably anticipate issuing more than $10,000,000 of tax-exempt obligations
(including those obligations of any entities controlled by the Lessee), including the obligation to
lease the Equipment pursuant to the Lease-Purchase Agreement, during the current calendar year.
(13 ) To the best knowledge and belief of the undersigned officers, there are no other facts,
estimates or circumstances that would materially change the conclusions and representations set
forth in this certificate and the expectations hereinabove set forth are reasonable.
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1998
WITNESS our hands and the seal of the Lessee this [click here and insert day and month],
: I!
. (SEAL)
ATTEST:
B~A'~~-~
Margo M. Hop~kins, City Clerk
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CITY OF WINTER SPRINGS, FLORIDA
(Lessee)
By:
By:
PauIP.Partyka,Mayor
~ fl.Or I ~ -=>
/ ~ ~ /
./ R~nald McLemore, City anager
4
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EXHIBIT B TO
MASTER LEASE-PURCHASE AGREEMENT
RENTAL PAYMENT AMORTIZATION SCHEDULE
SEE ATTACHED SCHEDULE
This Rental Payment Amortization Schedule is delivered pursuant to Section 2 of the Master Lease-
Purchase Agreement dated as of January 26,1999 between SKYLAKE STATE BANK, as Lessor,
and the CITY OF WINTER SPRINGS, FLORIDA, as Lessee.
Dated this January 26, 1999.
LESSOR:
LESSEE:
CITYOF WINTER SPRINGS, FLORIDA
By' CJ.
SKYLAKESTATEBANK
By:
Denise Beauchamp
Its: Senior Vice President
Paul p, Partyka'
Its: Mayor
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01/19/1999 16:45
40724\33329
DENISE BEAUCHAMP
PAGE El4
..' J.. ..j. ,. ,..
01/19/1999 Page 1
Winter Springs
---------... "... ..----.----..-.-..-.,. .... ....~,-_.-.._.._,-_...._- -,-
Compound Period .......: Semiannual
Nominal Annual Rate ... :
Effeotive Annual Rate " :
Periodic Rate .............. :
Daily Rate...................:
4.120 %
4.162 %
2.0600 %
0.01129 %
CASH FLOW DATA
-"--""" ...----.--...... .--.--- .......-......---...... -..-.-----...-.... -, -.--.--.--..... . _.__._~_...- -.----....-.-..
Event Start Date
----.-.... .-. ... . ..----..-. .._------_... ...
1 Loan 01/2611999
2 Payment 07/26/1999
Amount Number Period End Date
.._..-_.---.._-....- ..------...-.. -"--- ~. ......-.-.....---.-
134,568.00
15,028.06
1
10 Semiannual 01126/2004
AMORTIZATION SCHEDULE - Normal Amortization
Date .... ..~}'_~e~L___,.... Interest . .____Pril1~~p~___. Balance
----.--.- ...----.. ..---.---....... "---'1...__...
Loan 01/26/1999 134,568.00
1 07126/1999 15,028.06 2,772.10 12.255.98 122.312.04
1.999 Totals 15,028.06 2,772.10 12.255.96
2 01/26/2000 15,028.06 2,519.63 12,508.43 109.803.61
3 07/26/2000 15,028.06 2,261.95 12,766.11 97,037,50
2000 Totals 30,056.12 4,781.58 25,274.54
4 01/26/2001 15,028.06 ',998.97 13,029.09 84,008.41
5 07/26/2001 15,028.06 1,730.57 13,297.'49 70.710.92
.2001 Totals 30,056.12 3,729.54 26.326.58
6 01/26/2002 15,028.06' 1 ,456.64 13,571.42 57,139.50
7 07/26/2002 15,028.06 1,177.07 13,850.99 43,288.51
2002 Totals 30,056.12 2.633.71 27,422.41
8 01/26/2003 15,028.06 891,74 14,136.32 29,152.19
9 07/2612003 15.028.06 600.54 14,427.52 14,724.67
2003 Totals 30.056.12 1,492.28 28,563.84
10 01/26/2004 15,028.06 303.39 14,724.67 0.00
2004 Totals 15,028.06 303,39 14,724.67
Grand Totals 150,280.60 15,712.60 134,568.00
MASTER LEASE-PURCHASE AGREEMENT
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THIS MASTER LEASE-PURCHASE AGREEMENT, dated as of January 26, 1999
(together with all supplements, annexes, exhibits and schedules hereto hereinafter referred to as the
"Lease"), between SKYLAKE ST ATE BANK (hereinafter called, together with any successors and
assigns "Lessor") and CITY OF WINTER SPRINGS, FLORIDA(hereinafter called "Lessee").
WITNESSETH:
Section 1.
REPRESENTATIONS AND WARRANTIES OF LESSEE.
Lessee hereby represents and warrants to Lessor that on the date hereof and at all times
during the Term (as defined in Section 3 below) hereof:
(a) Lessee is a political subdivision, municipal corporation or public body
corporate and politic of the State of Florida (the "State"), duly organized and existing under the
Constitution and laws ofthe State.
(b) Lessee is authorized under the Constitution and laws of the State to enter into
this Lease and the transactions contemplated hereby, and to perform all of its obligations hereunder.
(c) Lessee has duly authorized and approved the execution and delivery of this
Lease and all other documents related to the transactions contemplated hereby, and this Lease
constitutes a legal, valid and binding obligation of the Lessee, enforceable against the Lessee in
accordance with the terms hereof except as limited by applicable bankruptcy laws or other laws
affecting the enforcement of creditors rights generally.
(d) Each officer or representative of Lessee executing this Lease has been duly
authorized to execute and deliver this Lease and related documents under the terms and provisions
of a resolution of Lessee's governing body, or by other appropriate official action.
(e) Lessee has complied with all open meeting laws, all public bidding laws and
all other State and Federal laws applicable to this Lease, and has obtained all approvals necessary
for the execution, delivery and performance of this Lease and the transactions contemplated hereby.
(f) Neither the execution and delivery hereof, nor the fulfillment of, or
compliance with, the terms and conditions hereof, nor the consummation of the transaction
contemplated hereby, will conflict with, constitute a breach of, or default under, the Constitution and
laws of the State, or the rules of procedure'of the Lessee or any indenture, agreement or other
instrument to which the Lessee is a party or by which it is bound, or any constitutional or statutory
provision, or order, rule regulation, decree or ordinance of any court, government or governmental
body to which the Lessee or any of its other properties are subject.
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(g) There is no action, suit, proceeding, inquiry or investigation, at law or in
equity, before or by any court, regulatory agency, public board or body pending or, to the best of the
Lessee's knowledge, threatened against the Lessee, wherein an unfavorable ruling or filing would
adversely affect the validity or enforceability of this Lease or any other instrument contemplated for
use in consummating the transactions contemplated hereby, or the exclusion of the portion of the
Rent Payments (as defined in Section 3 below) representing interest from gross income for purposes
of federal income taxation, or would materially and adversely affect any of the transactions
contemplated by this Lease.
(h) The Equipment (as defined in Section 2 hereof) at all times will be used by
the Lessee for the purpose of performing a public function and the acquisition of the Equipment by
the Lessee shall be necessary, useful or appropriate to one or more governmental purposes of the
Lessee.
Section 2.
LEASING.
(a) Subject to the terms and conditions set forth below, Lessor agrees to lease to
Lessee, and Lessee agrees to lease from Lessor, the Equipment described in the Equipment
Schedules delivered from time to time as described below, including all repairs, replacements,
substitutions and modifications to the same (the "Equipment").
(b) The Lessor may from time to time, at the request of Lessee, provide funds to
acquire Equipment from the manufacturer or supplier thereof ("Supplier") for lease hereunder. The
obligation of Lessor to lease Equipment hereunder shall be subject to the representations and
warranties of Lessee contained herein being true and accurate throughout the term hereof and further
conditioned on receipt by Lessor of each of the following documents in form and substance
satisfactory to Lessor:
(1) an Equipment Schedule describing such Equipment executed by
Lessor and Lessee in the form attached as Exhibit A hereto (the "Equipment Schedule");
(2) an Amortization Schedule setting forth the Rent payable 'Yith respect
to such Equipment in the form attached as Exhibit B hereto (the "Amortization Schedule");
(3) a Schedule of Terms setting forth additional terms applicable to the
lease of such Equipment executed by Lessor and Lessee (the "Schedule of Terms");
(4) copies of insurance policies or, at Lessor's option, such other evidence
of insurance which complies with the requirements of Section 11;
(5) bills of sale, titles or other appropriate evidence of ownership or
invoices for amounts due;
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(6) an opinion of counsel for Lessee;
(7) a copy of Internal Revenue Service Form 8038 G or 8038 GC (as
applicable) completed and executed by Lessee;
(8) an Officers' Certificate of Lessee; ,
(9) a duly adopted resolution or evidence of other appropriate action of
Lessee approving the acquisition of such Equipment; ,
(10) executed and completed Form 2003/2004 of the Division of Bond
Finance of the State of Florida;
(11) a Certificate of Acceptance in the form attached as Exhibit C hereto;
and
(12) such other documents as Lessor may reasonably request.
All references herein to the Equipment Schedule, Amortization Schedule or the Schedule of
Terms for Equipment is a reference to such schedule as it was executed in connection with the lease
of such item of Equipment.
(c) Lessor hereby appoints Lessee its agent for purchase, inspection and
acceptance of the Equipment from the manufacturer or supplier. Subject to the above-stated
conditions, upon execution by Lessee of a Certificate of Acceptance in the form provided by Lessor,
the Equipment described thereon shall be deemed to have been delivered to, and irrevocably
accepted by, Lessee for lease hereunder.
Section 3.
TERM, RENT AND PAYMENT.
(a) The rent ("Rent") payable hereunder with respect to all Equipment set forth
on an Equipment Schedule shall commence on the date set forth in the corresponding Schedule of
Terms (the "Commencement Date"). The term ("Term") of this Lease with respect to such
Equipment shall commence on the Commencement Date and shall terminate upon the occurrence
of the first of the following events:
(1) the exercise by Lessee of its option to purchase Lessor's interest in
such Equipment pursuarit to Section 18 hereof;
(2) the payment by Lessee of all Rent and other amounts required to be
paid by Lessee hereunder with respect to such Equipment;
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(3) upon the occurrence of an Event of Non appropriation (as that term is
defined in subsection (c) hereof} with respect to any Equipment, the last day of the
Budgetary Period set forth in the Schedule of Terms for which an appropriation has been
made, subj ect to Lessor's election to not terminate this Lease with respect to Equipment for
which an appropriation has been made;
(4) an Event of Default by Lessee and'Lessor's election to terminate this
Lease pursuant to Section 20 hereof; or
(5) payment of all monies owed pursuant to a Casualty Occurrence with
respect to such Equipment under Section 10 hereof.
(b) Rent shall be paid to Lessor at its address noted in the Schedule of Terms,
except as otherwise directed by Lessor. Payments of Rent shall be in the amount, payable at such
intervals and shall be due in accordance with the provisions of the Amortization Schedule and
Schedule of Terms. (Each payment of Rent is hereinafter referred to as a "Rent Payment".) Lessor
may change the location to which the Rent Payments are to be paid by noting such change on any
invoice to Lessee or by sending Lessee notice in writing of such change. A portion of each Rent
Payment is paid as, and represents, interest as reflected on the Amortization Schedule.
The obligation of the Lessee to pay the amounts required herein shall constitute a current
expense of the Lessee and shall not in any way be construed to be a debt' of the Lessee in
contravention of any applicable constitutional, statutory or charter limitations or requirements
concerning the creation of indebtedness of the Lessee. THE PAYMENTS DUE UNDER THIS
LEASE ARE TO BE MADE ONLY FROM THE LESSEE'S LEGALLY APPROPRIATED
FUNDS ON AN ANNUAL BASIS, AND NEITHER THE LESSEE, THE STATE OF FLORIDA,
NOR ANY POLITICAL SUBDIVISION OR AGENCY THEREOF SHALL BE OBLIGATED TO
PAY ANY SUMS DUE HEREUNDER FROM THE COMPELLED LEVY OF AD VALOREM
OR OTHER TAXES EXCEPT FROM THOSE FUNDS LEGALLY APPROPRIATED BY THE
LESSEE ON AN ANNUAL BASIS, AND NEITHER THE FULL FAITH AND CREDIT NOR
THE TAXING POWER OF THE LESSEE, THE STATE OF FLORIDA OR ANY POLITICAL
SUBDIVISION OR AGENCY THEREOF ARE PLEDGED FOR PAYMENT OF SUCH SUMS
DUE UNDER THIS LEASE. This Lease and the indebtedne'ss evidenced hereby shall not
constitute a lien upon the Equipment, or any part thereof, or on any other property owned by
or within the jurisdictional limits of Lessee.
(c) Lessee shall have the right to terminate its obligation to make Rent Payments
with respect to any Equipment at the end of any Budgetary Period,(as that term is defined in the
Schedule of Terms), in the manner and subject to the terms of this subsection (c), if Lessee's
governing body does not appropriate money sufficient to pay the Rent Payments and reasonable
estimated expenses hereunder coming due for the next Budgetary Period with respect to such
Equipment (such termination hereinafter an "Event of Non appropriation"). Upon the occurrence of
an Event ofNonappropriation, Lessee shall not be responsible for the payment of any Rent Payments
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with respect to such Equipment coming due during any subsequent Budgetary Period. Upon the
occurrence of an Event of Non appropriation as provided in this subsection, this Lease shall terminate
and Lessee covenants to surrender and deliver possession of the Equipment to Lessor in accordance
with the provisions of Section 12. Provided, however, that Lessor may elect to continue to lease
hereunder any Equipment for which an appropriation has been made.
Section 4.
TAXES.
Lessee shall report and pay promptly from legally available revenues all other taxes, fees and
assessments due, imposed, assessed or levied against the Equipment (or the purchase, ownership,
delivery, leasing, possession, use, or operation thereof), this Lease (or any rentals or receipts
hereunder), or Lessor or Lessee in connection with this Lease, by any foreign, federal, state or local
government or taxing authority, including, without limitation, all license and registration fees, and
all sales, use, personal property, excise, gross receipts, franchise, stamp or other taxes, imposts,
duties and charges, together with any penalties, fines or interest thereon (all hereinafter called
"Taxes"). Lessee shall reimburse Lessor upon receipt of written request for reimbursement for any
Taxes charged to or assessed against Lessor, and on request of Lessor, submit to Lessor written
evidence of Lessee's payment of Taxes. Lessee shall have no liability for taxes imposed by the
United States of America or any State or political subdivision thereof which are on or measured by
the net income of Lessor.
Section 5.
FINANCIAL INFORMATION; REPORTS.
Lessee will provide Lessor with (i) audited financial statements (including, without
limitation, a balance sheet, a statement of revenues, expenditures and change'in fund balance) within
210 days after the end of each Budget Year, (ii) a copy of its annual budget within 45 days after
approval by Lessee, and (iii) such other financial information as requested in writing by Lessor.
Lessee will also provide Lessor with the following in writing within the time periods specified: (a)
notice of tax or other lien which attaches to Equipment within ten (10) days of Lessee's obtaining
knowledge of such attachment and such additional information with respect to the tax or lien
promptly upon request of Lessor; (b) notice to Lessor of the relocation of the base-location of the
Equipment outside of the jurisdictional limits of Lessee, ten (10) days prior to any relocation;
(c) copies of the insurance policies or other evidence of insurance required by the terms hereof,
promptly upon request by Lessor; (d) copies of all information, logs, documents and records
regarding or in respect to the Equipment and its use, maintenance and/or condition, within ten (10)
days of such request; (e) a certificate of the authorized officer of Lessee stating that he has reviewed
the activities of Lessee and that, to the best of his knowledge, there exists no default (as described
in Section 20) or event which with notice or lapse of time (or both) would become such a default;
(f) copies of any manufacturer's warranties, promptly upon request; (g) evidence of Lessee's
compliance with maintenance provisions of Section 8 hereof upon request of Lessor; (h) notice of
any anticipated occurrence of ail Event of Noilappropriation, if practical, thirty (30) days prior to
such occurrence; (i) notice of alJ. occurrence of an Event cifNonappropriation within five (5) days
of such occurrence; (j) proof of appropriation for the ensuing Budgetary Period in a form acceptable
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to Lessor upon request; and (k) any other documents or reports required by any addenda hereto or
reasonably requested by Lessor.
Section 6.
TITLE AND QUIET ENJOYMENT.
(a) Legal title to the Equipment shall, for the convenience of both parties, be
titled in the Lessee. Lessee covenants to promptly return the Ecjuipment to Lessor as provided in
Section 12 upon the occurrence of an Event of Non appropriation, or upon the occurrence of an Event
of Default and Lessor's election to terminate this Lease pursuant to Section 20 hereof. Title to the
Equipment shall vest absolutely with Lessee upon payment of all Rent Payments due hereunder.
(b) So long as Lessee is not in default under this Lease, Lessor covenants and
agrees that it will not interfere with Lessee's quiet enjoyment of the Equipment subject to, and in
accordance with, the provisions hereof.
Section 7.
DELIVERY, REGISTRATION, USE AND OPERATION.
(a)
The Equipment shall be delivered directly from the Supplier to Lessee.
(b) Lessee, at its own cost and expense, shall cause title of the Equipment to be
placed in the name of Lessee by appropriate documentation.
(c) The possession, use and operation of the Equipment shall be at the sole risk
and expense of Lessee. Lessee agrees that the Equipment will be used and operated in a manner that
does not modify or impair any existing warranties on the Equipment or any part thereof. Lessee will
operate the Equipment solely for governmental use.
Section 8.
MAINTENANCE.
(a) Lessee agrees that the Equipment will be maintained in compliance with any
andall statutes, laws, ordinances, regulations and standards or directives issued by any governmental
agency applicable to the maintenance thereof, and in a manner that does not modify or impair any
existing warranties on the Equipment or any part thereof.
(b) Lessee shall maintain, inspect, service, repair, overhaul and test the
Equipment so as to keep the Equipment in as good operating condition as when delivered to Lessee
hereunder, ordinary wear and tear excepted.
(c) Lessee agreesto notify Lessor in writing thirty (30) days prior to making any
material change in the configuration, appearance and coloring of the Equipment from that in effect
at the time the Equipment is accepted by Lessee hereunder, and in the event of such change or
modification' of configuration, coloring or appearance, to restore, upon request of Lessor, the
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Equipment to the configuration, coloring or appearance in effect on the Commencement Date or, at
Lessor's option, to pay to Lessor an amount equal to the reasonable cost of such restoration.
(d) Lessee shall be entitled from time to time during the Term of this Lease to
acquire and install on the Equipment at Lessee's expense, any additional accessory, device or
equipment as Lessee may desire (each such accessory, device or equipment, an "Addition"), but only
so long as such Addition does not alter or impair the originally intended function or use of the
Equipment, and can be readily removed by Lessee prior to the return of the Equipment. Lessee shall
repair all damage to the Equipment resulting from the installation or removal of any Addition so as
to restore the Equipment to its condition prior to installation, ordinary wear and tear excepted.
( e) Any alteration or modification (each an "Alteration") with respect to the
Equipment that may at any time during the term of this Lease be required to comply with any
applicable law or any governmental rule or regulation shall be made at the expense of Lessee. Any
repair made by Lessee of or upon the Equipment or replacement parts installed thereon in the course
of repairing or maintaining the Equipment, or any Alteration required by law or any governmental
rule or regulation, shall be deemed an accession and shall become a part of the Equipment.
(f) Except as permitted under this Section 8, Lessee will not modify the
Equipment or affix or remove any accessory to the Equipment leased hereunder without Lessor's
consent.
Section 9.
LIENS, SUBLEASE AND ASSIGNMENT.
(a) Lessee shall not sell, transfer, assign or encumber the Equipment or Lessor's
rights under this Lease and shall not sublet or part with possession of the Equipment or any part
thereof. Lessee shall keep the Equipment and any part thereof free and clear of all liens and
encumbrances other than those which result from (i) the respective rights of Lessor and Lessee as
herein provided; (ii) liens arising from the acts of Lessor; (iii) liens for taxes not yet due; and (iv)
inchoate materialmen's, mechanics', workmen's, repairmen's, employees' or other like liens arising
in the ordinary course of business of Lessee-for sums not yet delinquent or being contested in good
faith (and for the payment of which adequate assurances in Lessor's judgment have been provided
Lessor).
(b) All of Lessor's right, title and/or interest in and to this Lease, the Rent
Payments and other amounts due hereunder and the Equipment may be assigned and reassigned in
whole or in part to one or more assignees or subassignees at any time, without the consent of Lessee.
No such assignment shall be effective as against Le~see unless and ,until the Lessor or assignor, as
the case may be, shall have filed with Lessee a copy or written notice thereof identifying the
assignee. All Rent Payments due hereunder shall b~ paid to Lessor at the address set forth herein
or at the direction of Lessor or assignee designated in the most recent notice of assignment filed with
Lessee, such other address as Lessor or assignee directs. Upon such assignment, Lessee shall
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provide notice thereof to all insurers and shall cause the insurance policies as required by Section
11 hereof to be modified to protect the assignees.
(c) This Lease shall inure to the benefit of and shall be binding upon the Lessor
and the Lessee and their respective successors and permitted assigns.
Section 10. LOSS, DAMAGE AND STIPULATED LOSS VALUE.
Lessee hereby assumes and shall bear the entire risk of any loss, theft, confiscation,
expropriation, requisition, damage to, or destruction of, the Equipment, or any part thereof from any
cause whatsoever. Lessee shall promptly and fully notify Lessor in writing if Equipment shall be
or become worn out, lost, stolen, confiscated, expropriated, requisitioned, destroyed, irreparably
damaged or permanently rendered unfit for use from any cause whatsoever (such occurrences being
hereinafter called "Casualty Occurrences"). In the event that, in the opinion of Lessor, a Casualty
Occurrence has occurred which affects only a portion of an item of the Equipment, then Lessee, at
its own cost and expense, shall replace such portion with a replacement part acceptable to Lessor.
In the event that, in the opinion of Lessor, a Casualty Occurrence has occurred in respect to an item
of Equipment in its entirety, on the Rent Payment date next succeeding a Casualty Occurrence (the
"Payment Date"), Lessee shall pay Lessor the sum of (i) an amount equal to the portion of the
Prepayment Price applicable to the affected Equipment for the time period of the Casualty
Occurrence; and (ii) all Rent Payments and other amounts which are due or accrued hereunder as of
the Payment Date. Upon payment of all sums due hereunder, the Term of this Lease as to the item
of Equipment shall terminate, and Lessee shall be entitled to retain possession of such Equipment.
Section 11. INSURANCE.
Lessee agrees to keep the Equipment insured, at its own expense, with such companies and
on such terms acceptable to Lessor, in such amounts and for such risks as is customary for
equipment of the nature and type of the Equipment and as may be reasonably requested by the
Lessor. The insurance shall (i) name Lessor as additional insured and shall have a loss payable
clause in favor of Lessor, as its interest may appear, irrespective of any breach of warranty or other
act or omission of Lessee; (ii) shall not be subject to any co-insurance clause; and (iii) shall provide
that it may not be altered or cancelled by the insurer until after thirty (30) days written notice to
Lessor. Any expense of Lessor in adjusting or collecting insurance shall be borne by Lessee. Lessee
shall not make adjustments with insurers except (a) with respect to claims from damage to an item
of Equipment where the repair costs do not exceed ten percent (10%) of such item's fair market
value, or (b) with Lessor's written consent. Lessor may, at its option, apply proceeds of insurance,
in whole or in part, to repair or replace the damaged or lost item of Equipment or any portion thereof,
or to satisfy any obligation of Lessee to Lessor hereunder. In addition to property and liability
insurance referenced above, if required by State law, Lessee shall carry workmen's compensation
insurance covering all employees on, in, near or about the Equipment, and upon request shall furnish
to Lessor certificates evidencing such coverage. Upon prior written consent of Lessor, Lessee may
OR103198;1
8
self-insure for some or all of the above-referenced public liability, property, and casualty damage
risks.
If Lessee is covered under a program of self insurance, Lessee shall provide Lessor with a
letter from its insuring authority certifying to the existence of a continuing self-insurance program '
which meets the requirements of applicable law. In such event, Lessee shall provide a minimum of
ten (10) days written notice to Lessor of any material change or cancellation of said self insurance
program. In the event that such self-insurance program is unavailable or terminated, Lessee agrees
to procure and maintain with a carrier authorized to do business in Florida and acceptable to Lessor,
which acceptance shall not be unreasonably withheld, all insurance required hereby, including fire,
theft, and extended coverage insurance on the Equipment, insuring the full insurable value against
risk ofloss or damage and providing for a minimum of ten (10) days written notice of material
change or cancellation to Lessor. Lessee shall provide Lessor with copies of certificates of the
insurance carrier or carriers evidencing such insurance coverage.
Section 12. RETURN OF EQUIPMENT.
(a) Upon termination of this Lease due to an Event of Nonappropriation, or due
to an Event of Default and Lessor's election to terminate this Lease (subject to Lessor's election to
continue this Lease with respect to Equipment for which no Event of Nonappropriation has
occurred), Lessee covenants to promptly return all Equipment leased hereunder to Lessor together
with all logs, manuals and data, including without limitation, inspection, modification and overhaul
records required to be maintained with respect hereto under this Lease or under the manufacturer's
recommended maintenance program. Upon return of the Equipment, Lessee shall, upon request, .
assign to Lessor its rights under any manufacturer's maintenance service contract or extended
warranty for the returned Equipment or any part thereof. All expenses for return of such Equipment
and delivery of the aforementioned logs, manuals and data shall be borne by Lessee. The Equipment
shall be returned in the condition in which the Equipment is requireq to be maintained pursuant to
Section 8 hereof, but with all logos or other identifying marks of Lessee removed.
(b) Upon return of the Equipment, Lessor shall arrange for the inspection of same
within thirty (30) days of return to determine if such Equipment has been maintained and returned
in accordance with the provisions hereof. Lessee shall be responsible for the reasonable cost of such
inspection and shall pay Lessor such amount as additional Rent within ten (10) days of demand for
same. In the event that the results of such inspection indicate that such Equipment, or any part
thereof, has not been maintained or returned in accordance with the provisions hereof, Lessee shall
pay to Lessor within ten (10) days of demand, as liquidated damages, the estimated cost ("Estimated
Cost") of servicing or repairing such Equipment, or part. The Estimated Cost shall be determined
by Lessor by obtaining two quotes for such service or repair work and taking the average of same.
Lessee shall bear the cost, if any, incurred by Lessor in obtaining such quotes.
(c) In the event of return of Equipment to Lessor pursuant to (a) above, Lessor
shall use its best efforts to sell all or part of the Equipment upon such tenns as Lessor in its
reasonable judgment deems prudent. Lessor shall apply the net proceeds of such sale in the
OR103198;1
9
following manner: (i) firstly, to reimburse Lessor for all costs associated with the removing,
holding, repairing and selling of Equipment; (ii) secondly, to reimburse Lessor for Lessee's
remaining obligations under the Lease including, but not limited to, the applicable Prepayment Price;
and (iii) lastly, any amounts remaining thereafter shall be remitted to Lessee.
(d) All of Lessor's rights contained in this Section shall survive the expiration or
other termination of this Lease.
Section 13. INTEREST RATE SUBJECT TO ADJUSTMENT.
In setting the interest rate used in calculating the interest component of the Rental Payments
set forth in the Amortization Schedule, the Lessor has taken into consideration: (a) the then current
Maximum Corporate Income Tax Rate, as established in Section 11 of the Internal Revenue Code
of 1986, as amended (the "Code"), (b) the treatment of this Lease as a "qualified tax-exempt
obligation" under Section 265 of the Code, and (c) other factors which affect tax yield to the Lessor.
Should therebe future changes in the Code or related regulations which affect the after-tax yield to
financial institutions such as Lessor, the Lessor may adjust the interest rate in order to maintain the
same after-tax yield as in effect on the date hereof.
In the event a Determination of Taxability (as defined below) occurs, the interest rate used
in calculating the interest component of the Rental Payments shall be adjusted from such date of
change to the Prime Rate, and thereafter adjusted from time to time with any change in the Prime
Rate, such adjustment to be effective on the day any such change in the Prime Rate is announced by
Lessor. "Prime Rate" as used in this Section shall mean the interest rate announced by Lessor, from
time to time, as the Prime Rate (which interest rate is only a bench mark, is purely discretionary and
is not necessarily the best or lowest interest rate charged borrowing customers of Lessor).
As utilized in this Section, the term "Determination of Taxability" shall mean any
determination, decision or decree by the Commissioner of Internal Revenue or any District Director
of Internal Revenue, as such officers are identified by the Code, or any court of competent
jurisdiction, or an opinion of counsel experienced in tax matters that the Interest component payable
under this Lease is includable in the gross income (as defined in Section 61 of the Code) of the
Lessor as a result of the occurrence of a Taxable Event (herein defined). A Determination of
Taxability shall be deemed to have occurred on the first to occur of the following:
(a) on that date when the Lessee files any statement, supplemental statement or
other tax schedule, return or document which discloses that a Taxable Event (hereinafter defined)
shall have occurred;
(b) on that date when the Lessee or the Lessor shall be advised by said
,Commissioner of Internal Revenue or any such District Director of Internal Revenue that, based
upon (i) filings of the Lessee, (ii) any review or audit of the Lessee, or (iii) upon any ground
whatsoever, a Taxable Event shall have occurred; or
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,~.:
,
0,'
(c) on that date (i) when the Lessee shall receive notice from the Lessor that the
Internal Revenue Service has assessed as includable in the gross income (as defined in Section 61
of the Code) of the Lessor the interest component due to the occurrence of a Taxable Event; or
(ii) when the Lessee shall be advised by said Commissioner or any such District Director of Internal
Revenue that the interest component is includable in the gross income of the Lessor due to the
occurrence of a Taxable Event; or (iii) when the Lessee shall receive an opinion of counsel
experienced in tax matters that the interest component is includable in gross income due to the
occurrence of a Taxable Event.
As utilized in this Section, the term "Taxable Event" shall mean that event which shall cause
the interest component of the Rent paid or payable under this Lease to become includable for federal
income tax purposes in the gross income of the Lessor as a consequence of any act, omission or
event whatsoever, other than an act, omission or event caused by the Lessor, and regardless of
whether the same was within or beyond the control of the Lessee. A Taxable Event shall be deemed
to have occurred as of the earliest date on which it is alleged that interest became so includable.
Provided, however, that if the Lessee shall elect to contest such allegation and such contest results
in a final or4er or judgment of a court or administrative body of competent jurisdiction to the effect
that a Taxable Event has not occurred and the time for any appeal of such order orjudgment has
expired, then no Taxable Event shall be deemed to have occurred and interest rate adjustments
theretofore paid shall be refunded by the Lessor.
Section 14. PERSONAL PROPERTY.
The Equipment shall at all times be and remain, personal property notwithstanding that the
Equipment or any part thereof may now be, or hereafter become, in any manner affixed or attached
to, or embedded in, or permanently resting upon, real property or any building thereon, or attached
in any manner to what is permanent as by means of cement, plaster, nails, bolts, screws, or
otherwise. If, notwithstanding the intention of the parties and the provisions of this Section 14, any
person acquires or claims to have acquired any rights in the Equipment or any portion thereof by
reason of such Equipment's being affixed to real property and such person seeks in any manner to
interfere with the continued quiet enjoyment of the Equipment by Lessee as contemplated by this
, Lease, Lessee shall immediately notify Lessor in writing of such fact and shall seek diligently to
remove the basis for any such interference. Unless the basis for such interference is waived or
removed to the satisfaction of Lessor within thirty (30) days from the date it is asserted, Lessee, upon
written request from Lessor, shall within ten (10) days after such request pay to Lessor an amount
equal to the sum of (i) an amount equal to the Prepayment Price applicable to the time period ofthe
interference; and (ii) all Rent Payments and other amounts which are due or accrued hereunder.
Upon such payment the Lease of such Equipment shall terminate and all of Lessor's title to and
rights in such Equipment shall become the property of Lessee.
OR103198; 1
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Section 15. NET LEASE; NO SET-OFF, ETC.
This Lease is a net lease. Subject to the provisions of Section 3 subsection (c) hereof,
Lessee's obligation to pay Rent and other amounts due hereunder shall be absolute and
unconditional. Lessee shall not be entitled to any abatement or reduction of, or set-off against, said
Rent or other amounts, including, without limitation, those arising or allegedly arising out of claims
or disputes (present or future, alleged or actual, and including Claims arising out of strict tort or
negligence of Lessor) of Lessee against or with the manufacturer or vendor of the Equipment, any
supplier of labor or materials in connection therewith, or any other person. Nor shall this Lease
terminate or the obligations of Lessee be affected by reason of any defect in or damage to, or loss
of possession, use or destruction of, the Equipment, from whatsoever cause or breach of warranties
of the manufacturer or seller of the Equipment. Subject to the provisions of Section 3 subsection
(c), it is the intention of the parties that Rent Payments and other amounts due hereunder shall
continue to be payable in all events in the manner and at the times set forth herein, unless the
obligation to do so shall have been terminated pursuant to the express terms hereof.
Section 16. INDEMNIFICATION.
(a) Lessee hereby agrees to the extent permitted by law to indemnify, save and
keep harmless Lessor, its agents, employees, successors and assigns from and against any and all
10sses, damages, penalties, injuries, claims, actions and suits, of whatsoever kind and nature, in
contract or tort, whether caused by the active or passive negligence of Lessor or otherwise, and
including, but not limited to, Lessor's strict liability in tort, arising out of (i) the selection,
manufacture, purchase, acceptance or rejection of Equipment, the ownership of Equipment by Lessee
during the Term of this Lease, and the delivery, lease, possession, maintenance, use, condition,
retum or operation of the Equipment (including, without limitation, latent and other defects, whether
or not discoverable by Lessor or Lessee and any claim for patent, trademark or copyright
infringement), or (ii) the condition of the Equipment sold or disposed of after use by Lessee, any
sublessee or employees of Lessee. Lessee shall, upon request, defend any actions based on, or
arising out of, any of the foregoing.
(b) All of Lessor's rights, privileges and indemnities contained in this Section
shall survive the expiration or other termination of this Lease and the rights, privileges and
indemnities contained herein are expressly made for the benefit of, and shall be enforceable by
Lessor, its successors and assigns.
Section 17. DISCLAIMER.
OR103198;1 12
LESSEE ACKNOWLEDGES THAT IT SHALL SELECT THE EQUIPMENT WITHOUT
ANY ASSISTANCE FROM LESSOR, ITS AGENTS OR EMPLOYEES AND THAT LESSEE
LEASES THE EQUIPMENT IN AN "AS IS" CONDITION. LESSOR DOES NOT MAKE, HAS
NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HA VB MADE, ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT
TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY 'AS TO CONDITION, DESIGN,
COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP,
MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, SAFETY,
PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE. All such risks, as
between Lessor and Lessee, are to be borne by Lessee. Without limiting the foregoing, Lessor shall
have no responsibility or liability to Lessee or any other person with respect to any of the following
(except at such times as Lessor is in possession of the Equipment), regardless of any negligence of
Lessor (i) any liability, loss or damage caused or alleged to be caused directly or indirectly by the
Equipment, any inadequacy thereof, any deficiency or defect (latent or otherwise) therein, or any
other circumstance in connection therewith; (ii) the use, operation or performance of the Equipment
or any risks relating thereto; (iii) any interruption of service, loss of business or anticipated profits
or consequential damages; or (iv) the delivery, operation, servicing, maintenance, repair,
improvement or replacement of the Equipment. If, and so long as, no default exists under this Lease,
Lessee sha,ll be, and hereby is, authorized during the Term to assert and enforce, at Lessee's sole cost
and expense, from time to time, in the name of and for the account of Lessor and/or Lessee, as their
interests may appear, whatever claims and rights Lessor may have against any Supplier of the
Equipment.
Section 18. PURCHASE OPTION.
(a) Provided that no Event of Default has occurred and is continuing hereunder,
Lessee shall have the option to purchase all of Lessor's right and/or interest in and to the Equipment
on any Rent Payment Date (the "Purchase Date") for the applicable Prepayment Price as set forth
in the Amortization Schedule. The sale of the Lessor's interest in and to the Equipment to Lessee
shall be on a AS IS, WHERE IS basis, without any recourse or warranty whatsoever as against
Lessor.
(b) Lessee shall give notice to Lessor of its intention to exercise its option not
less than sixty (60) days prior to the Rent Payment Date on which the option is to be exercised and
shall remit to Lessor on such date an amount equal to the sum of (i) the Prepayment Price; and (ii)
all Rent Payments and other amounts due or accrued through and including the Purchase Date.
Section 19. MUTUAL COVENANT REGARDING TAX-EXEMPT STATUS.
OR103198;1 13
The Lessee and the Lessor mutually covenant that neither will take any action nor omit to
take any action with respect to this Lease, the Equipment leased hereunder, or any funds of the
Lessee if such action or omission (i) would cause the interest component of the Rent to lose its
exclusion from gross income for federal income tax purposes under Section 103 of the Internal
Revenue Code of 1986, as amended (the "Code") and applicable regulations, or (ii) would cause such
interest component of the Rent to lose its exclusion (if any) from alternative minimum taxable
income as defined in Section 55(b)(2) of the Code except to the 'extent such interest is required to
be included in the adjusted net book income and adjusted current earnings adjustments applicable
to corporations under Section 56 of the Code in calculating corporate alternative minimum taxable
income, or (iii) would subject the Lessee to any penalties under Section 148 of the Code. Subject
to the Lessee's right to terminate this Lease as provided herein, the foregoing covenant shall remain
in full force and effect, notwithstanding the payment in full of the Rent, until the date on which all
obligations of the Lessee in fulfilling the above covenant have been met.
OR103198;1
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Section 20. EVENTS OF DEFAULT.
The term "Event of Default", wherever used herein, shall mean any of the following events,
whatever the reason for such Event of Default and whether it shall be voluntary or involuntary, or
come about or be effected by operation of law, or be pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or regulation or any administrative or
governmental body: (a) Lessee shall fail to make any payment of-Rent when the same shall become
. due; or (b) Lessee shall fail to keep in full force and effect insurance required under this Lease; or
(c) Lessee shall or shall attempt to (except as expressly permitted by the provisions of this Lease)
remove, sell, transfer, encumber, part with possession of, assign or sublet the Equipment, or any part
thereof, use the Equipment for an illegal purpose, or permit the same to occur; or (d) Lessee shall
breach its covenant to return the Equipment upon an Event of Non appropriation, or upon an Event
of Default and Lessor's election to terminate this Lease; or (e) Lessee shall fail to perform or observe
any covenant, condition or agreement not included within (a), (b), (c) or (d) above which is required
to be performed or observed by it under this Lease or any agreement, document or certificate
delivered by Lessee in connection herewith, and such failure shall continue for twenty (20) days after
written notice thereof from Lessor to Lessee (or, if such default cannot be corrected within twenty
(20) days, shall have failed to initiate and diligently pursue appropriate corrective action); or (f) any
representation or warranty made by Lessee in this Lease or any agreement, document or certificate
delivered by Lessee in connection herewith or pursuant hereto shall prove to have been incorrect in
any material respect when any such representation or warranty was made or given (or, if a continuing
representation or warranty, at any material time); or (g) Lessee shall generally fail to pay its debts
as they become due or shall file a voluntary petition in bankruptcy; or (h) a petition is filed against
Lessee in a proceeding under applicable bankruptcy laws or other insolvency laws (other than any
law which does not provide for or permit any readjustment or alteration of Lessee's obligations
hereunder in each case), as now or hereafter in effect, and is not withdrawn or dismissed within
ninety (90) days thereafter, or if, under the provisions of any law (other than any law which does not
provide for or permit any readjustment or alteration of Lessee's obligations hereunder in each case)
providing for reorganization or liquidation of legal entities which may apply to Lessee; or (i) any
court of competent jurisdiction shall assume jurisdiction, custody or control of Lessee or of any
substantial part of its property and such jurisdiction, custody or control shall remain in force
unrelinquished, unstayed or unterminated for a period of sixty (60) days; or (j) Lessee becomes
insolvent.
Section 21. REMEDIES.
OR103198;1 15
Whenever any Event of Default referred to in Section 20 hereof shall have happened and be
continuing with respect to the Equipment, Lessor shall have the right, at its option and without any
further demand or notice, and with or without terminating this Lease, to declare all Rent Payments
due or to become due during the Fiscal Year in effect when the default occurs to be immediately due
and payable by Lessee, whereupon such Rental Payments shall be immediately due and payable.
If the Event of Default is Lessee's breach of its covenant to return the Equipment, Lessor shall be
entitled to liquidated damages equal to the Rent Payments for the Equipment pro-rated on a daily
basis for each day the Equipment is retained. Any judgment for damages shall be payable solely
from legally available funds of the Lessee, and Lessor shall not have the power to require levies of
ad valorem taxes in the future to pay Rent Payments.
The remedies provided to Lessor herein shall be the sole and exclusive remedies exercisable
by Lessor in an Event of a Default by Lessee hereunder. Lessor shall in no event have the right to
involuntarily dispossess Lessee of the Equipment or title thereto. Lessor and Lessee do not intend
to create a security interest in any Equipment.
No delay or omission to exercise any right or remedy accruing hereunder shall impair any
such right or remedy or shall be construed to be a waiver thereof, but any such right and remedy 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 Lease it shall not be necessary to give any notice, other
than such notice as may be required in this Lease.
In the event any agreement contained in this Lease should be breached by either party hereto,
and thereafter such breach should be waived by the other party hereto, such waiver shall be limited
to the particular breach so waived and shall not be deemed to waive any other breach hereunder.
In the event that there is an Event of Default and the nondefaulting party should employ
attorneys and/or incur other expenses for the collection of moneys or the enforcement of
performance or observance of any obligation or agreement on the part of the nondefaulting party
herein contained, the defaulting party agrees that it will on demand therefor pay to the nondefaulting
party the reasonable fee of such attorneys and/or such reasonable expenses so incurred by the
nondefaulting party.
Section 22. ESCROW AGREEMENT; TRUST FUND.
To the extent approved by Lessor and Lessee, sums advanced by Lessor for the acquisition
of Equipment may be funded through use of an escrow agent. All aspects of any such arrangement
shall be subject to the prior approval of Lessor including, but not byway oflimitation, selection of
the escrow agent and the procedures for disbursements. Lessee agrees that any such escrow agent
may be an affiliate of Lessor, provided that only the customary escrow fees are charged by such
affiliate. All costs incurred in connection with any such escrow shall be paid by Lessee.
OR103198;1
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"
For the initial funding hereunder as reflected in the Schedule of Terms dated January 26,
1999, and for future fundings, if approved by Lessor and Lessee, Lessor shall deposit funds with
Lessee to be applied by Lessee to acquire Equipment. Such funds shall be held by Lessee in a
segregated account at a financial institution or trust company and applied to acquire Equipment upon
delivery to Lessor of those items required by Sections 2(b)(l), (4), (5), (9), (11) and (12) hereof.
Any balance remaining in such fund after the date which is two (2) years after the deposit of funds
therein shall be applied to pay scheduled Rent Payments until fully expended.
Section 23. EXECUTION AND LAWS GOVERNING VENUE.
This Lease and each of the exhibits hereto shall be binding only when accepted by the Lessor
at its Orlando, Florida office and shall be construed and governed by the Laws of the State of
Florida. As part of the consideration for the Lessor's executing this Lease, Lessee agrees that all
actions or proceedings arising directly or indirectly from this Lease shall be litigated only in courts
having its situs within Orange County, Florida, and Lessee hereby consents to the jurisdiction of that
court and waives any rights to the selection of venue.
Section 24. MISCELLANEOUS.
(a) Any cancellation or termination by Lessor, pursuant to the provisions ofthis
Lease, any exhibit, supplement or amendment hereto, or the release of the Equipment hereunder,
shall not release Lessee from any then outstanding obligations to Lessor hereunder. All exhibits,
certificates, consents and other attendant documents referenced herein are incorporated herein by
reference.
(b) Time is of the essence. Lessor's failure at any time to require strict
performance by Lessee of any of the provisions hereof shall not waive or diminish Lessor's right
thereafter to demand strict compliance therewith.
(c) All notices, certificates or other communications hereunder shall be in writing
and deemed given when delivered or mailed by certified or registered mail, postage prepaid, to the
respective addresses set forth in-the Schedule of Terms. The Lessee and the Lessor may designate
by written notice any further or different addresses to which subsequent notices, certificates or other
communication shall be sent.
, (d)' If the date for making ally payment or the last day for performance of any act
or the exercising of any right, as provided in this Lease, shall be a legal holiday, or a day on which
banking institutions in the city in which the principal office of the Lessor or the assignee of the
Lessor is located are authorized by law to remain closed, such payment may be made, or act
performed, or right exercised on the next succeedipg day not <!. legal holiday or a day on which such
banking institutions are authorized by law to remain closed, with the same force and effect as if done
on the date otherwise specified herein.
OR103198; 1
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( e) In the event that any provision of the Lease (other than the requirement of
(i) the Lessee to make Rent Payments; (ii) the Lessor to provide quiet enjoyment of the Equipment;
and (iii) the Lessee to convey the Equipment to the Lessor under the conditions set forth herein) shall
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.
(f) This Lease may be executed simultaneously in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.
(g) The substantive law, but not the choice of law rules, of the State of Florida,
and rules and regulations issued pursuant thereto, shall be applied in the interpretation and
enforcement hereof.
(h) The captions and headings herein are for convenience only and in no way
define, limit or describe the scope or intent of any provisions or sections of this Lease.
(i) The signatories affirm that to their knowledge, no employee of the Lessee has
any personal or beneficial interest whatsoever in the acquisition of the Equipment.
U) This Lease constitutes the entire agreement of the parties with respect to the
subject matter hereof. NO V ARIA TION OR MODIFICATION OF THIS LEASE, OR ANY
WAIVER OF ANY OF ITS PROVISIONS OF CONDITIONS, SHALL BE VALID UNLESS IN
WRITING AND SIGNED' BY AN AUTHORIZED REPRESENTATIVE OF EACH OF THE
. PARTIES HERETO. Any such waiver" consent, modification or change shall be effective only in
the specific instance and for the specific purpose given. There are no understandings, agreements,
representations or warranties, express or implied, not stated hereunder. No variation or modification
of this Lease, or waiver of any of its provisions or conditions shall be valid after assignment by
either party unless approved by assignee.
OR103198; 1
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-f;'
. ~'~':
. f
IN WITNESS WHEREOF, Lessee and Lessor have caused this Lease to be executed by
their duly authorized representatives as of the date first above written.
LESSOR:
SKYLAKESTATEBANK
By:
Denise Beauchamp
Its: Senior Vice President
LESSEE:
CITY OF WINTER SPRINGS, FLORIDA
By:
Q
Its:
ATTESTED:
B~4.~il~
Margo M. Hop ms, CIty Clerk
(SEAL)
OR10319B; 1
19