HomeMy WebLinkAboutDocumentation_Regular_Tab 04_2/11/2021Agenda Item #5.
Regular Council
STAFF MEMO
Meeting: Regular Council - Feb 11 2021
Staff Contact: Hugh Dunkley, Finance Director Department: Finance
TITLE 72
RESOLUTION NO. 02-21, A RESOLUTION OF THE VILLAGE COUNCIL OF THE VILLAGE OF
TEQUESTA, FLORIDA, AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER
EQUIPMENT LEASE/PURCHASE AGREEMENT WITH TRUIST BANK SPONSORED BY THE
FLORIDA LEAGUE OF CITIES INC; AUTHORIZING THE LEASE PURCHASE FINANCING OF THE
ACQUISITION AND INSTALLATION OF CERTAIN EQUIPMENT HEREIN DESCRIBED;
AUTHORIZING THE EXECUTION OF SUCH OTHER DOCUMENTS AS MAY BE NECESSARY TO
COMPLETE THE TRANSACTIONS CONTEMPLATED HEREBY; AND PROVIDING AN EFFECTIVE
DATE.
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During the Regular Council meeting of December 10, 2020, the Village Council approved the
acquisition of a Pure Storage X20 Storage Array and associated networking hardware under an IT
Solutions Contract with Omnia Partners. The total cost of this purchase will be financed over three
years via the Florida League of Cities Equipment Lease Financing Program. The total amount
financed, $168,389.09, will be financed at an interest rate of 1.67% via a tax-exempt, bank -qualified
lease with Truist Bank (formerly BB&T/Suntrust Banks). Acquiring the above -referenced computer
hardware will enable the Village to spread the cost of the equipment over three fiscal years, thus
minimizing the overall impact on the Village's annual operating budget.
• • •116- • :4 M01-11
Staff recommends approval of the Master Equipment Lease/Purchase Agreement with Truist Bank.
Truist RESOLUTION REVISED 3.16.19 MOE 02-21
Teauesta FL Master agreement
4 TruistLease Supplement without Acquisition Fund MOE
6 Truist Wire Transfer Agreement MOE
Opinion Letter
v.3 Truist Proposal - Tequesta FL -Computer Hardware (00?)
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Agenda Item #5.
RESOLUTION NO.02-21
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, FLORIDA, AUTHORIZING THE
EXECUTION AND DELIVERY OF A MASTER EQUIPMENT
LEASE/PURCHASE AGREEMENT WITH TRUIST BANK
SPONSORED BY THE FLORIDA LEAGUE OF CITIES INC;
AUTHORIZING THE LEASE PURCHASE FINANCING OF THE
ACQUISITION AND INSTALLATION OF CERTAIN
EQUIPMENT HEREIN DESCRIBED; AUTHORIZING THE
EXECUTION OF SUCH OTHER DOCUMENTS AS MAY BE
NECESSARY TO COMPLETE THE TRANSACTIONS
CONTEMPLATED HEREBY; AND PROVIDING AN EFFECTIVE
DATE.
WHEREAS, the Florida League of Cities, Inc. (the "Sponsor") is a Florida not -
profit corporation; and
WHEREAS, the Sponsor has determined that there is substantial need within the
State for a lease -purchase financing program (the "Program") which will provide or
otherwise arrange for the lease -purchase financing of qualifying equipment for
participating local governments; and
WHEREAS, the Sponsor has determined that the public interest will best be
served and can be more advantageously obtained by the Sponsor's administering the
Program; and
WHEREAS, the Village of Tequesta, Florida (the "Lessee") is authorized
pursuant to the hereinafter defined Act to lease, acquire and install personal property,
and to finance the same, in order to minimize the costs of the Lessee's operations; and
WHEREAS, the Lessee desires the Sponsor facilitate the lease -purchase financing
of the Equipment; and
WHEREAS, the Lessee deems it necessary, desirable and in the best financial
interest of the Lessee and its inhabitants that it enter into, a Master Equipment
Lease/Purchase Agreement by and among the Lessee, Truist Bank, (the "Lender") and
the Sponsor (the "Agreement"), subject to the terms and conditions thereof and for the
purposes set forth therein, to provide for the lease and purchase from time to time of
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equipment essential to the governmental, municipal or public purposes or functions of
the Lessee or to the services the Lessee provides its inhabitants; and
WHEREAS, the Lessee has an immediate need for computer hardware
equipment (the "Equipment") for the welfare of its citizens, and it is in the best financial
interest of the Lessee that the Equipment be leased pursuant to the Agreement; and
WHEREAS, obligations of Lessee will be subject to annual appropriation; and
WHEREAS, the Lessee is authorized and empowered by the Act to enter into
transactions such as those contemplated by the Agreement and to fully perform its
obligations thereunder in order to lease purchase the Equipment; and
WHEREAS, the small size of the lease financing, current market conditions and
other circumstances require that the Agreement and the leases of equipment thereunder
be entered into pursuant to a private negotiated transaction rather than offered by
competitive bid; and
WHEREAS, the Lessee now desires to (i) authorize and approve the form of the
Agreement, any exhibits attached thereto, and any other related documents,
(collectively, the "Financing Documents"), (ii) the execution and delivery of the
Financing Documents and (iii) provide additional limited general authority.
NOW THEREFORE BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF TEQUESTA, FLORIDA, AS FOLLOWS:
Section 1. Authority for Resolution. This Resolution is adopted pursuant to
the Constitution of the State of Florida, Chapter 166, Florida Statutes, the charter of the
Lessee, and other applicable provisions of law (collectively, the "Act").
Section 2. Definitions. Capitalized undefined terms used herein shall have
the meanings ascribed thereto in the Agreement.
Section 3. Findings. It is hereby ascertained, determined and declared that:
(a) Pursuant to Article VII, Section 12 of the Constitution of the State
of Florida the Lessee may execute and deliver lease/purchase agreements
payable from legally available sources (including ad valorem taxation) without
approval by a vote of the electors if the Lessee is not legally obligated beyond 12
months.
(b) The Agreement does not legally obligate the Lessee beyond 12
months, because it is subject to annual appropriation in the manner and to the
extent described therein, and the Lessee's obligation under the Agreement
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Agenda Item #5.
constitutes a current expense and shall in no way be construed to be a debt of the
Lessee.
(c) The Lessee deems it a public purpose and deems it necessary,
beneficial and in its best interest to provide for the execution and delivery of the
Financing Documents to finance the lease purchase of the Equipment.
(d) The costs associated with the execution and delivery of the
Agreement shall be deemed to include legal fees and expenses, financial
advisory fees and expenses, and such other expenses as may be necessary or
incidental for the lease -purchase financing herein authorized.
Section 4. Authorization of Lease -Purchase Financing and Financing
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(a) The Lessee is hereby authorized to execute and deliver the
Financing Documents, provided that the aggregate principal amount of all lease
payments shall not to exceed $168,389.09; the term of the Lease shall end on or
before February 18, 2024 and the interest rate component of the lease payments
shall not exceed 1.67%.
(b) Because of the characteristics of the Agreement, prevailing market
conditions, and additional savings to be realized from an expeditious execution
and delivery of the Agreement, it is in the best interest of the Lessee to execute
and deliver the Agreement in a private negotiated transaction. Prior to the
execution and delivery of the Agreement, only to the extent required by the Act,
the Lessee shall receive a Disclosure Letter from the Lender containing the
information required by Section 218.385, Florida Statutes, a form of which is
attached hereto as Exhibit A.
(c) The Financing Documents, substantially in the forms attached
hereto as composite Exhibit B, are hereby approved, with such omissions,
insertions and variations as may be approved on behalf of the Lessee by the
Village Manager, after consultation with the Village Clerk, and the Lessee
Attorney, such approval to be evidenced conclusively by the Village Manager's
execution thereof. The Village Manager and/or Village Mayor is hereby
authorized to execute and deliver the Agreement, substantially in the form
attached hereto as composite Exhibit B, to be attested under seal by the Clerk,
approved as to substance by the Chief Financial Officer, and for the Lessee
Attorney to designate such Financing Documents legal in form and valid as
drawn.
(d) The Lessee hereby designates the Lease as a "qualified tax-exempt
obligation" within the meaning of Section 265(b)(3) of the Code. The Lessee and
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Agenda Item #5.
any subordinate entities of the Lessee and any issuer of "tax-exempt" debt that
issues "on behalf of" the Lessee do not reasonably expect during the current
calendar year to issue more than $10,000,000 of "tax-exempt" obligations
including the tax-exempt Lease, exclusive of any private activity bonds as
defined in Section 141(a) of the Code (other than qualified 501(c) (3) bonds as
defined in Section 145 of the Code).
Section 5. Additional Authorizations; No Personal Liability. The Mayor,
Village Manager, Lessee Attorney, the Clerk, and such other officers, employees and
agents of the Lessee as may be designated by the Lessee, are each designated as agents
of the Lessee and are authorized and empowered, collectively or individually, to take all
action and steps and to execute all instruments, documents and contracts on behalf of
the Lessee that are necessary or desirable in connection with the requirements hereof or
with the execution and delivery of the Financing Documents and which are specifically
authorized or are not inconsistent with the terms and provisions of this Resolution or
any action relating to the transaction contemplated hereunder. Such officers and those
so designated are hereby charged with the responsibility for executing the Financing
Documents and financing the lease purchase of the Equipment.
No covenant, stipulation, obligation or agreement contained in this Resolution or
the Financing Documents shall be deemed to be a covenant, stipulation, obligation or
agreement of any present or future member, agent or employee of the Lessee in his or
her individual capacity, and neither the members of the Village Council nor any person
executing the Financing Documents shall be liable personally on the Agreement or shall
be subject to any personal liability or accountability by reason of the execution and
delivery of the Financing Documents.
Section 6. Prerequisites Performed. The Lessee has performed all acts,
conditions, and things relating to the lease purchase of the Equipment as are required by
the Act.
Section 7. Prior Actions. The prior actions of the Lessee relating to the
transactions contemplated hereunder, as well as all related subject matters and
processes, are hereby ratified and affirmed.
Section 8. Severability. If any provision of this Resolution shall be held or
deemed to be or shall, in fact, be illegal, inoperative or unenforceable in any context, the
same shall not affect any other provision herein or render any other provision (or such
provision in any other context) invalid, inoperative or unenforceable to any extent
whatever.
Section 9. Conflicts. All resolutions of the Lessee or parts thereof in conflict
herewith, if any, are hereby repealed to the extent of such conflict.
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Section 10. Effective Date. This Resolution shall take effect immediately upon
its adoption.
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PASSED AND ADOPTED this day of , 20 .
[SEAL]
ATTEST:
Mayor
Village Clerk
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EXHIBIT A
FORM OF DISCLOSURE LETTER
The undersigned, as purchaser, proposes to negotiate with the Village of Tequesta,
Florida (the "Lessee") for the execution and delivery of the Agreement, as such term is defined
in a resolution adopted by Lessee on , 20 (the "Resolution"). Prior to the execution
and delivery of the Agreement, the following information is hereby furnished to the Lessee:
1. Set forth is an itemized list of the nature and estimated amounts of expenses to
be incurred for services rendered to us (the "Lender") in connection with the execution and
delivery of the Agreement (such fees and expenses to be paid by the Lender):
2. (a) No other fee, bonus or other compensation is estimated to be paid by the
Lender in connection with the execution and delivery of the Agreement to any person not
regularly employed or retained by the Lender (including any "finder" as defined in Section
218.386(1)(a), Florida Statutes), except as specifically enumerated as expenses to be incurred by
the Lender, as set forth in paragraph (1) above.
(b) No person has entered into an understanding with the Lender, or to the
knowledge of the Lender, with the Lessee, for any paid or promised compensation or valuable
consideration, directly or indirectly, expressly or implied, to act solely as an intermediary
between the Lessee and the Lender or to exercise or attempt to exercise any influence to effect
any transaction in the purchase of the Lender.
$0.
3. The amount of the upfront fee or spread expected to be realized by the Lender is
4. The management fee to be charged by the Lender is $0.
5. Truth -in -Bonding Statement:
The Agreement is being executed and delivered to fund the cost of the lease purchase of
the Equipment, as such term is defined in the Resolution.
The Agreement is payable from lawful funds of the Lessee, subject to annual
appropriation, in the manner and to the extent described in the Agreement. Execution and
delivery of the Agreement is estimated to result in a maximum of $58,014.78 of revenues of the
Lessee not being available to finance other services of the Lessee in each year during the life of
the Agreement.
RIM
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6. The name and address of the Lender is as follows:
Truist Bank
5130 Parkway Plaza Blvd.
Charlotte, NC 28217
IN WITNESS WHEREOF, the undersigned has executed this Disclosure Statement on
behalf of the Lender this day of , 20 .
By•
Name:
Title:
"MAN,
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Agenda Item #5.
EXHIBIT B
FORM OF FINANCING DOCUMENTS, INCLUDING
LEASE AGREEMENT
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Master Equipment Lease/Purchase Agreement
This Master Equipment Lease/Purchase Agreement (this "Agreement") dated as of February
18, 2021, and entered into among Truist Bank, a North Carolina banking corporation (the "Lender"),
Florida League of Cities, Inc., a Florida not -for -profit corporation (the "Sponsor") and the Village of
Tequesta, Florida, a municipality existing under the laws of the State of Florida (the "Lessee").
WITNESSETH:
WHEREAS, the Lender has established, and the Sponsor is sponsoring, a Master
Lease/Purchase Program to provide governmental entities in the State of Florida (the "State") with
low-cost, tax-exempt equipment financing alternatives; and
WHEREAS, the Lessee desires to lease and acquire from the Lender 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, the 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 the
Lessee to be sufficient to acquire the Equipment listed in such Lease, which amount shall be not less
than $100,000 per Lease.
"Acquisition Fund" means, with respect to any Lease, the fund established and held by the
Lender 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 the Lessee and the Lender,
pursuant to which an Acquisition Fund is established and administered.
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"Acquisition Period" means, with respect to each Lease, that period stated in such Lease,
commencing on the date of execution thereof and ending not later than three years thereafter, 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, the
Village of Tequesta, Florida Charter 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 this Agreement pursuant to Section
13.07.
"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 the 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 the 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 under the Acquisition Fund Agreement, if any.
"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 the Lender, legal fees, financing costs, motor vehicle registration fees,
recording and filing fees, and other costs necessary to register or record legal title to the Equipment,
subject to the ownership interest retained by the Lender 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 capitalizable delivery charges, installation
charges, taxes and similar capitalizable "soft costs" relating to such Equipment exceed 20% of the
total cost of such Equipment as determined by the Lender.
"Event of Default" means an Event of Default described in Section 12.01.
"Funding Expiration Date" means February 18, 2024, which is three years from date of this
Agreement.
"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
the Lender for deposit and application in accordance with such Lease and the Acquisition Fund
Agreement, if any.
"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 the Lessee in the first paragraph of this Agreement.
"Lender" means (a) the entity referred to as the Lender in the first paragraph of this Agreement
or (b) any assignee or transferee of any right, title or interest of the Lender 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
the Lender 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 the Lessee in effect at such Commencement Date.
"Prime Rate" means the interest rate so denominated and set by Truist Bank of North Carolina
(whether or not such Bank, or any affiliate thereof, is at anytime the counterparty to this Agreement)
as its "Prime Rate", as in effect from time to time.
"Purchase Price" means, with respect to the Equipment listed on a Lease, the amount that the
Lessee is to pay to the Lender 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 the 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-1" hereto.
"Sponsor" means the entity referred to as the Sponsor in the first paragraph of this Agreement.
"State" means the State of Florida.
"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 the Equipment will be acquired
pursuant to the applicable Lease.
ARTICLE II.
Section 2.01. Representations and Covenants of the Lessee. This Section 2.01 sets forth facts
and estimates upon which the Lender and its counsel, and the Sponsor and its counsel, may rely
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regarding the exclusion of the interest portion of the Rental Payments from the gross income of the
Lender, and the facts and estimates upon which the 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.
The Lessee represents, covenants and warrants for the benefit of the Lender and the Sponsor
on the date hereof and as of the Commencement Date of each Lease as follows:
(a) The Lessee is a lawfully constituted Florida Municipal Corporation, 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) The 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
material instrument to which Lessee is a party.
(d) The entering into and performance of this Agreement and each Lease by the
Lessee will not violate any judgment, order, or regulation applicable to the Lessee, and except
as otherwise expressly provided in this Agreement, will not result in the creation of any lien,
charge, security interest, or other encumbrance upon any assets of the Lessee pursuant to any
indenture, mortgage, deed of trust, bank loans, credit agreement or other instrument to
which the Lessee is a party or by which it or its assets may be bound.
(e) There are no actions, suits, proceedings or tax claims pending or, to the
knowledge of the Lessee, threatened against or affecting the 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 the Lessee to perform its obligations under this
Agreement or any Lease.
(f) The 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) The Lessee will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence as a Florida Municipal Corporation within the
meaning of Section 103(c) of the Code.
(i) The 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 the Lessee of the Equipment as provided in each Lease or, in the case of public
bidding requirements regarding this Agreement and each Lease, 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 the Lessee only for the
purpose of performing essential governmental or proprietary functions of the Lessee
permitted under the Act. The 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) The Lessee has kept and throughout the Lease Term shall keep its books and
records in accordance with generally accepted accounting principles and practices
consistently applied and shall deliver to the Lender (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 30 days of the Lessee's acceptance thereof, but in any event
within 270 days of its fiscal year end, (ii) its annual budget for the following fiscal year within
30 days of the adoption of such budget, and (iii) such other financial statements and
information as the Lender may reasonably request. Such statements in clause (i) above shall
be accompanied by an unqualified opinion of the Lessee's auditor. Credit information
relating to the Lessee may be disseminated among the Lender and any of its affiliates and
any of their respective successors and assigns.
(1) The 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. The Lessee's
need for the Equipment is not temporary and the 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 the Lessee's proper and efficient operation.
(m) 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.
(n) No sinking fund is expected to be created by the Lessee with respect to any
Lease or the Rental Payments.
(0) No other governmental obligations, with the exception of the Lessee's CB&A
issued on 1/21/2021 in the amount of 6,890,000.00, of the Lessee are being issued at
substantially the same time and sold pursuant to a common plan of financing which will be
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paid out of (or have substantially the same claim to be paid out of) substantially the same
source of funds as each Lease.
(p) 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.
(q) 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 the 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.
(r) The 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) f the Code.
(s) The 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.
(t) To the best of the knowledge and belief of the Lessee, the expectations of the
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.
(u) The 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 the Lender may reasonably request in order to protect the Lender's interest in the
Equipment and the Lender's rights and benefits under this Lease.
(v) 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 the 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 the Lessee. The Lessee has not entered into any
management or other service contract with respect to the use and operation of the
Equipment.
(w) The Lessee has reviewed and will review Internal Revenue Service Form 8038-
GC or 8038-G to be filed in connection with the execution and delivery of each Lease, and all
M
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of the information contained therein is, and will be, to the best of the Lessee's knowledge,
true and correct, and the Lessee will cause such Form 8038-GC or 8038-G to be filed not later
than 15 days after the execution and delivery of each Lease.
(x) The Lessee reasonably expects that at least 85% of the proceeds of each Lease
will be expended for the governmental purpose of the Lease within three 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 four years or longer.
(y) The Lessee shall not take or permit, or omit to take or cause to be taken, any
action that would cause its obligations under this Agreement to be "arbitrage bonds" or
"private activity bonds" within the meaning of the Code, or otherwise adversely affect the
exclusion from gross income for federal income tax purposes of the designated interest
component of Rental Payments to which such components would otherwise be entitled. If
the Lessee should take or permit, or omit to take or cause to be taken, any such action, the
Lessee shall take or cause to be taken all lawful actions within its power necessary to rescind
or correct such actions or omissions promptly upon having knowledge thereof.
ARTICLE III.
Section 3.01. Lease of Equipment.
Subject to the terms of this Master Lease, the Lender agrees to provide the funds specified as
the "Acquisition Amount" in each Lease to acquire the Equipment. Upon the execution of each
Lease, the Lender demises, leases, transfers and lets to the Lessee, and the Lessee acquires, rents and
leases from the Lender, the Equipment as set forth in such Lease and in accordance with the terms
thereof. The latest date for any funding under this Agreement is the Funding Expiration Date;
provided that within 90 days prior to the then applicable Funding Expiration Date, the Lessee may
request in writing a one-year extension of the Funding Expiration Date, which the Lender may grant
in its sole discretion after its credit review and approval process. The Lessee shall be limited to three
such extensions.
Section 3.02. Continuation of the Lease Term.
The Lease Term for each Lease may be continued, solely at the option of the 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, the Lessee shall be deemed
to have exercised its option to continue each Lease for the next Renewal Term unless the 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.
The 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. The Lessee
affirms that sufficient funds are available for the current fiscal year, and the Lessee reasonably
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Agenda Item #5.
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 the Lessee. Subject to Section 3.03, the Lessee
further intends to make provision for such payments to the extent necessary in each budget or
appropriation request submitted and adopted in accordance with applicable provisions of law.
Section 3.03. Nonappropriation.
(a) The Lessee's officer charged with preparing the Lessee's draft budget as initially
submitted to the governing body of the Lessee for consideration shall include in the initial proposal
for each of the Lessee's annual budgets the amount of all Rental Payments and any estimated
additional payments coming due under each Lease during the fiscal year to which such budget
applies. Notwithstanding such inclusion in a proposed budget, the governing body of the Lessee
may determine not to include such an appropriation in the Lessee's final budget for such fiscal year.
(b) If during the then current Original Term or Renewal Term, sufficient funds are not
appropriated to make Rental Payments required under a Lease for the following fiscal year, the
Lessee shall be deemed to not have renewed such Lease for the following fiscal year and the Lease
shall terminate at the end of the then current Original Term or Renewal Term and Lessee shall not
be obligated to make Rental Payments under such Lease beyond the then current fiscal year for
which funds have been appropriated. Upon the occurrence of such nonappropriation (a
"Nonappropriation Event"), the Lender may request that the Lessee , no later than the end of the
fiscal year for which Rental Payments have been appropriated and at the Lessee's expense, deliver
possession of the Equipment under such Lease to the Lender. If the Lessee fails to deliver possession
of the Equipment to the Lender upon termination of such Lease by reason of a Nonappropriation
Event, the termination shall nevertheless be effective but the Lessee shall be responsible for the
payment of damages in an amount equal to the portion of Rental Payments thereafter coming due
that is attributable to the number of days after the termination during which the Lessee fails to
deliver possession and for any other loss suffered by the Lender as a result of the Lessee's failure to
deliver possession as required. In addition, the Lender may cause proceeds of the Lease and any
earnings thereon held under the Acquisition Fund Agreement, if any, to be applied to the Lessee's
obligations under the Lease and this Agreement. The Lessee shall notify the Lender in writing
within seven days after the failure of the Lessee to appropriate funds sufficient for the payment of
the Rental Payments, but failure to provide such notice shall not operate to extend the Lease Term
or result in any liability to the Lessee. Upon a Nonappropriation Event, the Lender may terminate
the Lease, and may request the Lessee, at the Lessee's expense, to promptly return any or all of the
Equipment to the possession of the Lender at such place within the United States as the Lender shall
specify, and the Lender may thereafter dispose of the Equipment; provided, however, that any
proceeds from the disposition of the property in excess of the sum required to (i) pay any amounts
then due under the Lease which are to consist of the remaining balance after the lease payments,
and (ii) pay the Lender's costs and expenses associated with the disposition of the Equipment
(including attorney fees), shall be paid to the Lessee or such other creditor of the Lessee as may be
entitled thereto, and further provided that no deficiency shall be allowed against the Lessee.
Notwithstanding anything provided herein to contrary, all obligations of Lessee hereunder
are subject to the annual appropriation by Lessee.
Page 83 of 403
Agenda Item #5.
(c) The Lessee acknowledges and agrees that the nonappropriation provisions of this
Agreement are not intended to be used (i) as a substitute for convenience termination nor (ii) to
allow the Lessee to replace the Equipment with other substantially identical or functionally
equivalent property. The Lessee, to the extent permitted by law, agrees not to use the
nonappropriation provisions for any such purpose.
Section 3.04. Substitution.
The 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 the Lender'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 the Lender's Performance Under Any Lease.
(a) As a prerequisite to the performance by the Lender of any of its obligations
pursuant to any Lease, the Lessee shall deliver to the Lender the following:
(i) A fully completed Schedule, executed by the Lessee;
(11) An Acquisition Fund Agreement, executed by the Lessee and
the Lender, unless the Lender pays 100% of the Acquisition Amount directly to the
Lessee for payment to the Vendor or for reimbursement for payments to the Vendor
upon execution of the Lease;
(111) A General Certificate of the Lessee, in substantially the form
attached hereto as "Exhibit C", completed to the satisfaction of the Lender.
(iv) A certified copy of an ordinance, resolution or other official
action of the Lessee's governing body authorizing the execution and delivery of the
Lease and performance by the Lessee of its obligations thereunder.
(V) An opinion of counsel to Lessee in substantially the form
attached hereto as "Exhibit D" respecting the Lease and otherwise satisfactory to the
Lender.
(vi) RESERVE
(VII) A copy of a fully completed and executed tax certificate and
Form 8038-GC or 8038-G.
(Vill) Evidence of insurance as required by Section 7.02 hereof.
(ix) All other closing documents reasonably required by the
Lender, including invoicing information sheets, certificates, notices and similar
instruments, in form satisfactory to the Lender.
in
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Agenda Item #5.
(b) In addition, the performance by the Lender of any of its obligations pursuant
to any Lease shall be subject to (i) no material adverse change in the financial condition of
the Lessee since the date of this Agreement, (ii) no Event of Default having occurred, (iii) no
Nonappropriation Event with respect to any Lease under this Agreement shall have occurred
and (iv) if no Acquisition Fund has been established, the Equipment must be accepted by the
Lessee no later than the funding date.
(c) This Agreement is not a commitment by the Lender to enter into any Lease
not currently in existence, and nothing in this Agreement shall be construed to impose any
obligation upon the Lender to enter into any proposed Lease, it being understood that
whether the Lender enters into any proposed Lease shall be a decision solely within the
Lender's discretion.
(d) Subject to satisfaction of the foregoing, the Lender will pay the Acquisition
Amount for the Equipment described in a Schedule to the Lessee for payment to the Vendor
or to reimburse the Lessee for payments 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, the Lender will deposit the Acquisition Amount for the
Equipment described in the Schedule in the Acquisition Fund.
(e) Lessee will cooperate with the Lender in the Lender's review of any proposed
Lease. Without limiting the foregoing, the Lessee will provide the Lender with any
documentation or information the Lender may request in connection with the Lender'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 the Lessee and other matters
related to the Lessee.
ARTICLE IV.
Section 4.01. Rental Payments.
Subject to Section 3.03, the Lessee shall promptly pay Rental Payments, in lawful money of
the United States of America, to the Lender on the dates and in such amounts as provided in each
Lease. The Lessee shall pay the Lender a charge on any Rental Payment not paid on the date such
payment is due at an annual rate equal to the Prime Rate 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. Rental Payments shall be calculated based on a 360-
day year of twelve 30-day months.
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
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Agenda Item #5.
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 the Lessee. The Lender and
the Lessee understand and intend that the obligation of the Lessee to pay Rental Payments under
each Lease is subject to annual appropriation by the Lessee and shall constitute a current expense
of the 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 the Lessee in contravention of any
applicable constitutional or statutory limitation or requirement concerning the creation of
indebtedness by the Lessee. THE RENTAL PAYMENTS ARE TO BE MADE ONLY FROM THE
LESSEE'S LEGALLY AVAILABLE REVENUES APPROPRIATED ON AN ANNUAL BASIS, AND
NEITHER THE 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 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 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 3.02,
Section 3.03 and Section 4.03, the obligations of the 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 the
Lessee, any defects, malfunctions, breakdowns or infirmities in the equipment or any accident,
condemnation or unforeseen circumstances.
Section 4.05. Tax Covenant. The Lessee agrees that it will not take, or fail to take in a timely
manner, any action that would cause (a) 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 or (b) if applicable, the Lender's obligations under this
Agreement to not be "qualified tax-exempt obligations" for purposes of Section 265(b)(3) of the
Code.. Subject to the 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 the Lessee in fulfilling the above
covenant under the Code have been met.
Section 4.06. Event of Taxability.
(a) "Rate Adjustment Event" means any action by the Internal Revenue Service
(including the delivery of a deficiency notice) or any other federal court or administrative body
determining that (i) the interest component of Rental Payments, or any portion thereof, is includable
in any counterparty's gross income for federal income tax purposes or (ii) if applicable, the Lessee's
obligations under this Agreement are not "qualified tax-exempt obligations" within the meaning of
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Agenda Item #5.
Code Section 265 (a "265 Event"), in any case as a result of any misrepresentation by the Lessee or as
a result of any action the Lessee takes or fails to take.
(b) Upon any Rate Adjustment Event, (i) the unpaid principal portion of the Acquisition
Amount shall continue to be payable on dates and in amounts as set forth in the Leases, but (ii) the
interest components of the Rental Payments shall be recalculated, at an interest rate equal to an
annualized interest rate equal to the Prime Rate plus 2% (200 basis points), to the date (retroactively,,
if need be) determined pursuant to the Rate Adjustment Event to be the date interest became
includable in any counterparty's gross income for federal income tax purposes (in the case of a 265
Event, retroactively to the funding date).
(c) The Lessee shall pay interest at such adjusted rate (subject to credit for interest
previously paid) to each affected counterparty, notwithstanding the fact that any particular
counterparty may not be a counterparty to this Agreement on the date of a Rate Adjustment Event.
The Lessee shall additionally pay to all affected counterparties any interest, penalties or other
charges assessed against or payable by such counterparty and attributable to a Rate Adjustment
Event notwithstanding the prior repayment of the entire Acquisition Amount or any transfer to
another counterparty.
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 the Lender in the manner provided in the
Acquisition Fund Agreement.
Section 4.08. Annual Fees to Sponsor. The Lessee agrees to pay the Sponsor an upfront fee
as described on Exhibit E hereof for providing the lease purchase program represented by this
Agreement. The fee amount will be remitted to the Sponsor on the Commencement Date in
accordance with the closing funds memorandum which will include the Sponsor's wire instructions.
ARTICLE V.
Section 5.01. Delivery, Installation and Acceptance of Equipment.
(a) The Lessee shall order the Equipment, cause the Equipment to be delivered and
installed at the location specified in the Lease, 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, the Lessee shall promptly accept such Equipment and evidence said
acceptance by executing and delivering to the Lender an acceptance certificate in the form attached
hereto as "Exhibit B" (the "Acceptance Certificate").
(b) The Lessee shall deliver to the Lender original invoices and bills of sale (if title to such
Equipment has passed to the Lessee) relating to each item of Equipment accepted by the Lessee.
With respect to Equipment not purchased through an Acquisition Fund, the Lender shall prepare a
Schedule of Property and a Rental Payment Schedule which shall be finalized and executed
simultaneously with the Lessee's execution of the Acceptance Certificate.
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Agenda Item #5.
Section 5.02. Enjoyment of Equipment. The Lender shall provide the Lessee with quiet use
and enjoyment of the Equipment during the Lease Term, and the Lessee shall peaceably and quietly
have, hold and enjoy the Equipment during the Lease Term, without suit, trouble or hindrance from
the Lender, except as otherwise expressly set forth in the related Lease. The Lender shall not
interfere with such quiet use and enjoyment during the Lease Term so long as the Lessee is not in
default under the related Lease.
Section 5.03. Location and Inspection of the Equipment. Once installed, the 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 the Lender's consent, which consent shall not be unreasonably withheld. The
Lender shall have the right at all reasonable times during regular business hours to enter into and
upon the property of the Lessee for the purpose of inspecting the Equipment. The Lessee shall
promptly provide any information about the Equipment or a Lease that may be reasonably
requested by the Lender.
Section 5.04. Use and Maintenance of the Equipment. The 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. The Lessee shall provide all permits
and licenses, if any, necessary for the installation and operation of the Equipment. In addition, the
Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any
legislative, executive, administrative, or judicial body; provided that the 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 the Lender, adversely affect the interest (including the reversionary
interest) of the Lender in and to the Equipment or its interest or rights under the Lease.
The Lessee agrees that it will maintain, preserve, and keep the Equipment in good repair and
working order, in accordance with manufacturer's recommendations. The Lender shall have no
responsibility to maintain, repair or make improvements or additions to the Equipment. If
commercially available, the Lessee will maintain in force a standard maintenance contract with the
manufacturer of the Equipment, and upon request will provide the Lender with a copy of that
contract. Upon the prior written consent of the Lender, which consent shall not be unreasonably
withheld, the Lessee may use another third party maintenance provider provided the maintenance
contract between the 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, the 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 the Lender as provided for herein.
The 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
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 interest of the Lender.
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Agenda Item #5.
Section 5.05. Environmental Warranties and Indemnification. (a) The Lessee warrants and
represents to the Lender that, to the best of the Lessee's knowledge after thorough investigation, the
Equipment is not now and has not ever been used to generate, manufacture, refine, transport, treat,
store, handle, dispose, transfer, produce or process Hazardous Materials.
(b) The Lessee covenants that the Equipment shall be kept free of Hazardous Materials
and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose,
transfer, produce or process Hazardous Materials, except in connection with the normal
maintenance and operation of the Equipment, and the Lessee shall not cause or permit, as a result
of any intentional or unintentional act or omission on the part of the Lessee or any user or lessee, the
release of Hazardous Materials onto the Equipment or suffer the presence of Hazardous Materials
on the Equipment, except in connection with the normal maintenance and operation of the
Equipment.
(c) The Lessee shall comply with, and ensure compliance by all users and lessees with,
all applicable federal, State and local laws, ordinances, rules and regulations with respect to
Hazardous Materials and shall keep the Equipment free and clear of any liens imposed pursuant to
such laws, ordinances, rules and regulations. If the Lessee receives any notices from any
governmental agency or any user or lessee with regard to Hazardous Materials on, from or affecting
the Equipment, the Lessee shall immediately notify the Lender. The Lessee shall conduct and
complete all investigations, studies, sampling and testing and all remedial, removal and other
actions necessary to clean up and remove all Hazardous Materials on, from or affecting the
Equipment in accordance with all applicable federal, State and local laws, ordinances, rules,
regulations and policies and to Lender's satisfaction.
(d) "Hazardous Materials" means any explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related materials, asbestos or any
materials containing asbestos, or any other substance or material as defined by any federal, State or
local environmental law, ordinance, rule or regulation including, without limitation, the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42
U.S.C. sections 9601 et sew.), the Hazardous Materials Transportation Act, as amended (49 U.S.C.
sections 1801 et seq.), the Resource Conservation and Recovery Act, as amended (42 U.S.C. sections
9601 et sew.), and the regulations adopted and publications promulgated pursuant thereto.
(e) To the extent permitted by law, the Lessee shall indemnify and hold the Lesssor
harmless from and against (i) any and all damages, penalties, fines, claims, liens, suits, liabilities,
costs (including clean-up costs), judgments and expenses (including attorneys', consultants' or
experts' fees and expenses) of every kind and nature suffered by or asserted against the Lender as a
direct or indirect result of any warranty or representation made by the Lessee in subsections (a)
through (c) above being false or untrue in any material respect, or (ii) any requirement under any
law, regulation or ordinance, local, State or federal, which requires the elimination or removal of any
hazardous materials, substances, wastes or other environmentally regulated substances by the
Lender or the Lessee or any transferee or assignee the Lender or the Lessee.
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Agenda Item #5.
(f) The Lessee's obligations under this Section shall continue in full force and effect
notwithstanding full payment of the Rental Payments under this Agreement.
(g) Notwithstanding anything in this Agreement to the contrary, Lessee's obligations
under this Section shall be limited to the waiver of Sovereign Immunity as set forth in Sec. 768.28,
Florida Statutes pertaining to per person and per incident limits; additionally, in accordance with
Sec. 768.28 Florida Statutes, prejudgment interest and punitive damages are prohibited. Finally, any
award of attorney's fees shall be limited to a maximum of 25% of the total judgment awarded.
ARTICLE VI.
Section 6.01. Title to the Equipment. The relationship of the parties shall be that of Lender
and lessee. The Lender shall own the Equipment, subject to the leasehold interest of the Lessee.
Where title to certain Equipment must be registered, legal title may be registered in the name of the
Lessee, but in all instances shall be subject to the interest of the Lender therein as contemplated by
this Agreement. During each Lease Term, and so long as the 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 the
Lessee immediately upon its acceptance of each item of Equipment, subject to the ownership interest
of the Lender therein as contemplated by this Agreement, in accordance with the terms and
conditions of the applicable Lease. The 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 a Nonappropriation Event, full and unencumbered legal
title to the Equipment shall be vested in the Lender, and the 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 Nonappropriation Event, the Lessee shall execute and deliver to the Lender such
documents as the Lender may request to evidence the vesting of such legal title to the Lender and
the termination of the Lessee's interest therein, and upon request by the Lender shall deliver
possession of the Equipment to the Lender in accordance with Section 12.02. Upon purchase of the
Equipment under a Lease by the Lessee pursuant to Section 10.01, the Lender's interest in the
Equipment shall terminate, and the Lender shall execute and deliver to the Lessee such documents
as the Lessee may request to evidence the termination of the Lender'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 the Lender,
the Lessee will, at the 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. The Lessee shall
keep the Equipment free of all levies, liens, and encumbrances except those created by each Lease.
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Agenda Item #5.
The parties to this Agreement contemplate that the Equipment will be used for a governmental,
municipal or public purpose or function of the 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, the Lessee shall pay when due all taxes and
governmental charges lawfully assessed or levied against or with respect to such Equipment. The
Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipment.
The 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, the
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 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, the 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.
(a) The Lessee shall, at its own expense, acquire, carry and maintain broad -form
extended coverage property damage insurance with respect to all Equipment in an amount equal to
the actual cash value, including installation costs, of the Equipment. Such property damage
insurance shall include the Lender as a loss payee. The Lessee shall provide evidence of such
coverage to the Lender promptly upon installation of the Equipment. Any Net Proceeds (as defined
in Section 8.01) of the insurance required by this subsection (a) shall be payable as provided in
Section 8.01.
(b) The Lessee shall, at its own expense, acquire, carry and maintain comprehensive
general liability insurance (and auto liability insurance, if applicable) in an amount not less than
$1,000,000 for personal injury or death and $1,000,000 for property damage.
(c) The Lessee shall also maintain workers' compensation insurance issued by a
responsible carrier authorized under State law to insure the Lessee against liability for compensation
under applicable State law as in effect from time to time.
(d) All insurance shall be maintained with generally recognized responsible insurers and
may carry reasonable deductible or risk -retention amounts. All such policies shall be deposited with
the Lender, provided that in lieu of such policies there maybe deposited with the Lender a certificate
or certificates of the respective insurers attesting the fact that the insurance required by this Section
is in full effect. Prior to the expiration of any such policy, the Lessee shall furnish the Lender
evidence satisfactory to the Lender that the policy has been renewed or replaced or is no longer
required by this Agreement.
(e) No Lessee agent or employee shall have the power to adjust or settle any property
damage loss greater than $50,000 with respect to the Equipment, whether or not covered by
insurance, without the Lender's prior written consent.
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Agenda Item #5.
(f) The Lender shall not be responsible for the sufficiency or adequacy of any required
insurance and shall be fully protected in accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss agreed to by the Lender.
(g) The Lessee shall deliver to the Lender annually by December 31 of each year a
certificate stating that the risk coverages required by this Agreement are in effect, and stating the
carriers, policy numbers, coverage limits and deductible or risk -retention amounts for all such
coverages.
Section 7.03. Advances. In the event the Lessee shall fail to keep the Equipment in good
repair and working order, the Lender may, but shall be under no obligation to, maintain and repair
the Equipment and pay the cost thereof. All amounts so advanced by the Lender shall constitute
additional rent for the then current Original Term or Renewal Term and the Lessee covenants and
agrees to pay such amounts so advanced by the Lender with interest thereon from the due date until
paid at an annual rate equal to the Prime Rate or the maximum amount permitted by law, whichever
is less.
ARTICLE VIII.
Section 8.01. Damage, Destruction and Condemnation. Unless the 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, the Lessee and the Lender
will cause the Net Proceeds (as defined herein) 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 the Lessee.
If the 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. The Lessee shall represent, warrant and covenant to the Lender 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 the Lender, and shall provide to the
Lender any and all documents as the Lender may reasonably request in connection with the
replacement, including, but not limited to, documentation in form and substance satisfactory to the
Lender evidencing the Lender's interest in the Replacement Equipment. The Lender and the Lessee
hereby acknowledge and agree that any Replacement Equipment acquired pursuant to this
paragraph shall constitute "Equipment" for purposes of this Agreement and the related Lease. The
Lessee shall complete the documentation of Replacement Equipment on or before the next Rental
Payment date after the occurrence of a casualty event, or be required to exercise the Purchase Option
with respect to the damaged equipment.
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Agenda Item #5.
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 replacement, repair, restoration, modification or improvement referred to in Section
8.01, the 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 the Lender the amount of the then applicable Purchase Price for the Equipment,
and, upon such payment, the applicable Lease Term shall terminate and the Lender's 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 the Lessee. If the Lessee
shall make any payments pursuant to this Section, the Lessee shall not be entitled to any
reimbursement therefor from the Lender nor shall the Lessee be entitled to any diminution of the
amounts payable under Article IV.
ARTICLE IX.
Section 9.01. Disclaimer of Warranties. The Lender 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 the Lender, the Lessee's acquisition of the Equipment shall
be on an "as is" basis. In no event shall the Lender 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 the Lessee's use of any item, product or
service provided for in this Agreement or any Lease.
Section 9.02. Vendor's Warranties. The Lender hereby irrevocably appoints the Lessee its
agent and attorney -in -fact during each Lease Term, so long as the Lessee shall not be in default under
the related Lease, to assert from time to time whatever claims and rights (including without
limitation warranties) relating to the Equipment that the Lender may have against Vendor. The
Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be
against Vendor of the Equipment, and not against the Lender. Any such matter shall not have any
effect whatsoever on the rights and obligations of the Lender with respect to any Lease, including
the right to receive full and timely payments under a Lease. The Lessee expressly acknowledges
M
Page 93 of 403
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that the Lender makes, and has made, no representations or warranties whatsoever as to the
existence or the availability of such warranties by the Lender of the Equipment.
ARTICLE X.
Section 10.01. Purchase Option. The Lessee shall have the option to purchase all of the
Equipment listed in a Lease, upon giving written notice to the Lender 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 and all other amounts then owing under
such Lease plus the then applicable Purchase Price, as set forth in the applicable Schedule,
plus the premium, if any, 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 the Lessee's notice
to the Lender of its exercise of the Purchase Option upon payment in full to the Lender of the
Rental Payments then due and all other amounts then owing under such Lease plus the then
applicable Purchase Price, plus the premium, if any, set forth in the applicable Schedule; 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 the Lender.
ARTICLE XI.
Section IL 01. Assignment by the Lender. The Lender's right, title and interest in and to
Rental Payments and any other amounts payable by the 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 the Lender, without the necessity of obtaining the consent of the 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 the Lender 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 the
Lender 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, the
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
assignment, transfer or conveyance permitted by this Section 11.01 shall be effective until the Lessee
shall have received a written notice of assignment that discloses the name and address of each such
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Agenda Item #5.
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 the
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, the 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.
The 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. The Lessee shall not have the right to and shall
not assert against any assignee any claim, counterclaim or other right the Lessee may have against
the Lender or the Vendor. Assignments in part may include without limitation assignment of all of
the Lender'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
the Lender's interests in the Equipment listed in a single Lease.
Section IL 02. Assignment and Subleasing by the Lessee. None of the Lessee's right, title, and
interest in, to and under any Lease or any portion of the Equipment may be assigned or encumbered
by the Lessee without prior written consent of the Lender.
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 the Lessee to pay any Rental Payment or other payment required
to be paid under any Lease at the time specified herein;
(b) Failure by the 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 the Lessee by the Lender, unless the Lender 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, the Lender will not
unreasonably withhold its consent to an extension of such time if corrective action is
instituted by the Lessee within the applicable period and diligently pursued until the default
is corrected;
(c) Any statement, representation or warranty made by the 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 the Lessee may be obligated as borrower, if such default
consists of (i) the failure to pay any indebtedness of $100,000 or more when due or (ii) the
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Agenda Item #5.
failure to perform any other obligation thereunder that gives the holder of the indebtedness
the right to accelerate the indebtedness if such indebtedness is $100,000 or more.
(e) The Lessee shall (i) apply for or consent to the appointment of a receiver,
trustee, custodian or liquidator of the Lessee, or of all or a substantial part of the assets of the
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 the 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
the Lessee or of all or a substantial part of the assets of the 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) The 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, the Lender 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) The Lender may by notice in writing to the Lessee terminate the Lease,
whereupon all rights of the Lessee to use the Equipment shall cease and terminate;
(b) By written notice to the Lessee, the Lender may demand that the Lessee pay,
as liquidated damages for loss of a bargain and not as a penalty, all unpaid Rental Payments
payable by the Lessee pursuant to such Lease and other amounts payable by the 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, the Lender
may request that the Lessee at the Lessee's expense promptly return any or all of such
Equipment to the possession of the Lender at such place within the United States as the
Lender shall specify. In such event, the Lender shall use its best efforts to sell or lease such
Equipment or, for the account of the Lessee, sublease such Equipment. If the Lessee returns
the Equipment and the Lender sells, leases or otherwise disposes of any or all of the
Equipment, the Lender shall apply the proceeds of such sale, lease or other disposition as
described in Section 12.04. The Lessee shall not be liable for any deficiency after sale, lease
or other disposition of the Equipment. If the Lessee elects not to return the Equipment, the
Lender is entitled to payment of unpaid Rental Payments through the date of the Lender's
request to return the Equipment plus the then applicable Purchase Price, as set forth in the
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applicable Schedule for such Equipment. The exercise of any such remedies respecting any
such Event of Default shall not relieve the Lessee of any other liabilities under any other
Lease or the Equipment listed therein; and
(d) The Lender may take whatever action at law or in equity may appear
necessary or desirable to enforce its rights under such Lease.
Notwithstanding the above listed Events of Default, non -appropriation of any Rental
Payment shall not constitute an Event of Default.
Section 12.03. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Lender 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 the Lender
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 or
an event of non -appropriation under this Agreement shall be applied in the following order of
priority: FIRST, to pay all of the Lender'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 the Lessee, to pay the Lender 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 the Lessee; provided that 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 application of moneys pro rata among the Leases or
Equipment, as the case may be.
ARTICLE XIII.
Section 13.01. No Fees Paid by the Lender. The Lender 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 the
Lender to act as an intermediary between the Lessee and the Lender for the purpose of influencing
any transaction in connection with this Agreement or any Lease.
Section 13.02. The Sponsor Not Liable. The Sponsor's responsibilities under this Agreement
are limited to sponsorship of the Master Lease/Purchase Program and facilitation of communication
between the Lender and the Lessee in connection with the initial execution of this Agreement. The
Sponsor shall have no ongoing responsibilities under this Agreement or with respect to any Lease,
and shall have no liability for actions taken by any party under this Agreement.
Section 13.03. Notices. All notices, certificates or other communications under any Lease
shall be sufficiently given and shall be deemed given when delivered or mailed by certified mail,
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Agenda Item #5.
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 the Lessee.
Section 13.04. Release and Indemnification.
(a) To the extent permitted by law, but only from legally available funds, the
Lessee shall indemnify, protect, hold harmless, save and keep harmless the Lender from and
against any and all liability, obligation, loss, claim, tax and damage whatsoever, regardless of
cause thereof, and all expenses in connection therewith (including, without limitation,
reasonable 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.
(b) Notwithstanding anything in this Agreement to the contrary, Lessee's
obligations under this Section shall be limited to the waiver of Sovereign Immunity as set
forth in Sec. 768.28, Florida Statutes pertaining to per person and per incident limits;
additionally, in accordance with Sec. 768.28 Florida Statutes, prejudgment interest and
punitive damages are prohibited. Finally, any award of attorney's fees shall be limited to a
maximum of 25% of the total judgment awarded.
Section 13.05. Binding Effect. This Agreement and each Lease shall inure to the benefit of
and shall be binding upon the Lender and the Lessee and their respective successors and assigns.
Section 13.06. Severability. In the event any provision of this Agreement or 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 or thereof. Any provisions in this
Agreement or any Lease which are in conflict with any statute, law or applicable rule shall be
deemed omitted, modified or altered to conform thereto.
Section 13.07. Amendments, Changes and Modifications. This Agreement and each Lease may
only be amended by the Lender and the Lessee in writing with written notice to Sponsor containing
a copy of any such amendments.
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Section 13.08. Execution in Counterparts. This Agreement and 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 13.09. Applicable Law; Venue. This Agreement and each Lease shall be governed by
and construed in accordance with the laws of the State. Venue for resolution of disputes shall be
courts of competent jurisdiction in Palm Beach County or the Southern District of Florida as
appropriate.
Section 13.10. 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.
IN WITNESS WHEREOF, the Lender and the Lessee have caused this Agreement to be
executed in their names by their duly authorized representatives as of the date first above written.
Lender: Lessee:
TRUIST BANK VILLAGE OF TEQUESTA, FLORIDA
Title:
Address:
Sponsor:
By:
Title:
Address:
(Seal)
Attest:
By: —
Title:
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Agenda Item #5.
Florida League of Cities, Inc.
ray
Title:
Address:
Master Equipment Lease/Purchase Agreement between the Village of Tequesta, Florida and Truist Bank
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Agenda Item #5.
Page 101 of 403
Agenda Item #5.
Form of Exhibit A
Form of Schedule of Property No.
Re: Master Equipment Lease/Purchase Agreement, dated as of February 18, 2021 among
Truist Bank, as Lender, Florida League of Cities, Inc., as Sponsor and the Village of
Tequesta, Florida, 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 "Agreement").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Agreement.
Quantity Description Serial No. Model No. Location
The equipment will be more particularly described in documentation submitted with
requisitions pursuant to the Acquisition Fund Agreement.
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"-
1. Rental Payments shall commence (i) on the date on which the Equipment listed in this Schedule
is accepted by the Lessee, as indicated in an Acceptance Certificate substantially in the form of
"Exhibit B" to the Agreement or (ii) the date on which sufficient moneys to purchase the Equipment
are deposited for that purpose under the Acquisition Fund Agreement, if any, or made available to
the Lessee, 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). After payment of the applicable
Purchase Price, plus all other amounts then due and owing under the Lease, the Lessee will own the
related Equipment, free and clear of any obligations under the related Lease.
4. Representations, Warranties and Covenants. The Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Agreement are true
and correct as though made on the date of commencement of Rental Payments on this Schedule.
The Lessee further represents and warrants that no material adverse change in the Lessee's financial
condition has occurred since the date of the Agreement.
A-1
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Agenda Item #5.
5. The Lease. The terms and provisions of the Agreement (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. The maximum Lease Term,
subject to annual appropriation, is I months.
[OPTION: IF ACQUISITION FUND AGREEMENT IS USED:
6. Acquisition Amount. The Acquisition Amount for the Equipment described in this
Schedule, to be deposited in the Acquisition Fund designated "Schedule No. Acquisition Fund"
for Contract No. is $
7. Acquisition Period. The Acquisition Period applicable to this Schedule shall end at the
conclusion of the month following the date hereof.]
Dated:
Lender: Lessee:
Truist Bank VILLAGE OF TEQUESTA, FLORIDA
By: By:
Title: Title:
(Seal)
Attest:
By:
Title:
A-2
Page 103 of 403
Agenda Item #5.
Rental
Payment Date
Form of Exhibit A-1
Form of Rental Payment Schedule
Rental Payment Principal
Amount Interest Portion Portion Purchase Price'
(see attached schedule)
[For purposes of this Lease, "taxable rate," with respect to the interest component of Rental
Payments, means an annual rate of interest equal to %.]
* The Purchase Option Commencement Date shall be , 20_ [date of funding]. The
Purchase Price is payable only in whole on a Rental Payment date on or after the Purchase Option
Commencement Date and the Purchase Price payable 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.
In addition to the Purchase Price, a premium of % of the Purchase Price being paid on
the Rental Payment date shall be payable on such Rental Payment date or any date.
Lessee:
VILLAGE OF TEQUESTA, FLORIDA
Printed Name:
Title:
A-3
Page 104 of 403
Agenda Item #5.
Page 105 of 403
Agenda Item #5.
Form of Exhibit B
Form of Acceptance Certificate
Truist Bank
5130 Parkway Plaza Blvd.
Charlotte NC 28217
Re: Schedule of Property No. , dated , to Master Equipment
Lease/Purchase Agreement, dated as of February 18, 2021, among Truist Bank, as
Lender, Florida League of Cities, Inc., as Sponsor and the Village of Tequesta, Florida,
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 the Lender 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. The 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. The 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: _,
[Seal]
Lessee
VILLAGE OF TEQUESTA, FLORIDA
Do
Title:
Page 106 of 403
Agenda Item #5.
Page 107 of 403
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Form of Exhibit C
Form of General Certificate of Lessee
The undersigned, Mayor and Clerk of the Village of Tequesta, Florida (the "Lessee"), do
hereby certify, to the best of our knowledge, as follows:
A. The representations of the Lessee in that certain Master Equipment Lease/Purchase
Agreement dated as of February 18, 2021 and the Schedule(s) thereunder, by and among the Lessee,
Truist Bank, as Lender, and Florida League of Cities, Inc., as Sponsor (collectively, the "Lease") are
true and correct in all material respects as of the date hereof. Any terms not otherwise defined herein
shall have the meanings ascribed thereto in the Lease.
B. The Lessee has performed all obligations to be performed and has satisfied all
conditions on its part to be observed or satisfied under the Lease, Resolution No. duly adopted
by the Lessee on , 20 (the "Resolution"), [and the related Acquisition Fund Agreement],
as of the date hereof.
C. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body that challenges the organization or existence
of the Lessee; the authority of the Lessee or its officers or its employees to enter into the Lease, the
Resolution [and the Acquisition Fund Agreement]; the proper authorization, approval and/or
execution of the Lease, the Resolution[, the Acquisition Fund Agreement] and other documents
contemplated thereby; the appropriation of moneys to make Rental Payments under the Lease for
the current fiscal year of the Lessee; or the ability of the Lessee to otherwise perform its obligations
under the Lease, the Resolution[, the Acquisition Fund Agreement] and the transactions
contemplated thereby and, to the best of my knowledge, no such litigation or actions are threatened.
D. Since September 30, 20_, no material adverse change has occurred in the financial
position or results of operations of the Lessee, and the Lessee has not incurred any material liabilities
other than in the ordinary course of business.
E. The following listed persons are duly elected and acting officials of the Lessee (the
"Officials") in the capacity set forth opposite their respective names below and that the signatures
set opposite thereto are the genuine signatures of such persons:
Name of Official Title Signature
F. The Officials are duly authorized, on behalf of the Lessee, to negotiate, execute and
deliver the Lease [and the Acquisition Fund Agreement], and the Lease [and the Acquisition Fund
C-1
Page 108 of 403
Agenda Item #5.
Agreement] are binding and authorized agreements of the Lessee, enforceable in all respects in
accordance with their terms.
G. The Equipment described in the Lease is essential to the governmental, municipal or
public purposes or functions of the Lessee or to the services the Lessee provides its citizens.
H. The Lessee has an immediate need for, and expects to make immediate use of,
substantially all the Equipment, which need is not temporary or expected to diminish in the
foreseeable future. The Equipment will be used by the Lessee only for the purpose of performing
one or more of the Lessee's governmental or proprietary functions permitted under the Act.
I. The Lessee has appropriated at least $ for Rental Payments under the Lease
coming due between the date hereof and the end of the Lessee's current fiscal year. The 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.
J. The Acquisition Amount and all investment earnings thereon will be used to pay
Equipment Costs, including costs incurred in connection with the execution and delivery of the
Lease. All of such costs will be incurred and expenditures made subsequent to the date hereof,
except for reimbursement to the Lessee for amounts (i) paid not more than 60 days prior to the date
hereof, (ii) representing engineering, design and similar preliminary expenses in an aggregate
amount not exceeding 20% of the Acquisition Amount, or (iii) otherwise in an amount not exceeding
5% percent of the Acquisition Amount. All expenditures to be reimbursed occurred not more than
18 months prior to the date hereof. None of the Equipment was placed in service more than one
year before the date hereof.
K. The Lessee's has designated the Lessee's obligations under the Lease as "qualified
tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code. The aggregate amount of
tax-exempt obligations (other than obligations described in Section 265(b)(3)(C)(ii) of the Code),
including the Lessee's obligations under the Lease, issued and reasonably expected as of the date
hereof to be issued in calendar year 20_ by (i) the Lessee, (ii) all entities on behalf of which the
Lessee issues tax-exempt obligations, and (iii) all governmental units that are "subordinate" to the
Lessee, within the meaning of Section 265(b)(3) of the Code, and (iv) all entities that issue tax-exempt
obligations on behalf of the same such entities, does not exceed $10,000,000. The Lessee has no
reason to believe that the Lessee and such other entities will issue tax-exempt obligations in 20_
in an aggregate amount that will exceed such $10,000,000 limit.
C-2
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Agenda Item #5.
IN WITNESS WHEREOF, we have hereunto set our hands and affixed the official seal of the
Lessee, this I day of
By:
Name:
Title:
(SEAL)
By:
Name:
Title:
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Form of Exhibit D
Form of Opinion of Counsel to the Lessee
Truist Bank
5130 Parkway Plaza
Charlotte, NC 28217
Re: Schedule of Property No. , dated to Master Equipment
Lease/Purchase Agreement, dated as of February 18, 2021, among Truist Bank, as
Lender, Florida League of Cities, Inc., as Sponsor and the Village of Tequesta, Florida,
as Lessee.
Ladies and Gentlemen:
As legal counsel to the Village of Tequesta, Florida (the "Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
February 18, 2021 and Exhibits thereto by and among Truist Bank (the "Lender"), Florida League of
Cities, Inc., as Sponsor and the Lessee (the "Agreement"), and an executed counterpart of Schedule
of Property No. , dated by and between the Lender and the 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 the
Lessee which, among other things, authorize the Lessee to execute the Agreement and the Schedule,
[(c) the Acquisition Fund Agreement dated as of ---/ , by the Lessee and the Lender
(the "Acquisition Fund Agreement")] and (d) 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". All
capitalized terms used herein shall have the same meanings as in the Lease unless otherwise
provided herein.
Based on the foregoing, I am of the following opinions:
1. The Lessee is a [public body corporate and politic, duly
organized/municipality/political subdivision duly created] and existing under the laws of the State,
and [has a substantial amount of the following sovereign powers: (a) the power to tax, (b) the power
of eminent domain, and (c) police power][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
the Lessee under the Agreement will constitute an obligation of the Lessee within the meaning of
Section 103(a) of the Code, notwithstanding Section 103(b) of the Code].
2. The Lessee has the requisite power and authority to lease and acquire the Equipment
and to execute and deliver the Lease [and the Acquisition Fund Agreement], and to perform its
obligations thereunder.
D-1
Page 112 of 403
Agenda Item #5.
3. The Lease [and the Acquisition Fund Agreement] [has/have] been duly authorized,
approved, executed and delivered by and on behalf of the Lessee and the Lease [and the Acquisition
Fund Agreement] [is a /are] valid and binding obligation[s] of the Lessee enforceable in accordance
with [its/their] terms, except to the extent limited by State and Federal laws affecting remedies and
by bankruptcy, reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights.
4. The authorization, approval, execution and delivery of the Lease [and the Acquisition
Fund Agreement] and all other proceedings of the 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. The Lessee has complied with all required public bidding
procedures regarding the Equipment and the transactions contemplated by the Lease.
5. The entry into and performance by Lessee of its obligations under the Lease [and the
Acquisition Fund Agreement] will not (i) violate any judgment, order, law or regulation applicable
to Lessee, or (ii) result in any breach of, constitute a default under or result in the creation of any
lien, charge, security interest or other encumbrance upon any item of the Equipment pursuant to
any indenture, mortgage, deed of trust, bank loan or credit agreement or other instrument (other
than the Lease[, the Acquisition Fund Agreement] or any purchase money security interest retained
by any supplier) to which Lessee is a party.
6. No consent, waiver, authorization or any other action not presently given or taken by
any person, board or body, public or private, is required as of the date hereof for the Lessee to
[enact/adopt] the Resolution described in paragraph 9 hereof [, enter into the Lease or the
Acquisition Fund Agreement] or to perform its obligations thereunder.
7. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body that challenges the organization or existence
of the Lessee; the authority of the Lessee or its officers or its employees to enter into the Lease [and
the Acquisition Fund Agreement]; the proper authorization, approval and/or execution of the
Lease[, the Acquisition Fund Agreement] and other documents contemplated thereby; the
appropriation of moneys to make Rental Payments under the Lease for the current fiscal year of the
Lessee; or the ability of the Lessee to otherwise perform its obligations under the Lease[, the
Acquisition Fund Agreement] and the transactions contemplated thereby and, to the best of my
knowledge, no such litigation or actions are threatened.
8. The equipment financed by the Lease is personal property, and will be used by the
Lessee in compliance with the laws and Constitution of the State, and no portion will be real property
or a "fixture" within the meaning of the Florida Uniform Commercial Code.
9. Resolution No. of the [Board/Commission/Council] of the Lessee was duly and
validly [enacted/adopted] by the [Board/Commission/Council] on , 20_, has not been
amended, supplemented or repealed and remains in full force and effect.
D-2
Page 113 of 403
Agenda Item #5.
The Lender 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,
D-3
Page 114 of 403
Agenda Item #5.
Page 115 of 403
Agenda Item #5.
Form of Exhibit E
Form of Schedule of Fees
$1000 for every first Master Lease executed then $500 for every subsequent lease under that
Master Lease executed hereinafter.
E-1
Page 116 of 403
Agenda Item #5.
Schedule of Property No.1
Re: Master Equipment Lease/Purchase Agreement, dated as of February 18, 2021among
Truist Bank, as Lender, Florida League of Cities, Inc., as Sponsor and Village of
Tequesta, Florida, 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 "Agreement").
2. Equipment. The following items of Equipment are hereby included under this
Schedule of the Agreement.
Quantity Description Serial No. Model No. Location
Computer Hardware Equipment
3. Pavment 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-1.
Rental Payments shall commence on the date on which sufficient moneys to purchase the
Equipment are deposited for that purpose under the Acquisition Fund Agreement, if any, or made
available to the Lessee, 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). After payment of the
applicable Purchase Price, plus all other amounts then due and owing under the Lease, the Lessee
will own the related Equipment, free and clear of any obligations under the related Lease.
4. Representations, Warranties and Covenants. The Lessee hereby represents, warrants
and covenants that its representations, warranties and covenants set forth in the Agreement are true
and correct as though made on the date of commencement of Rental Payments on this Schedule.
The Lessee further represents and warrants that no material adverse change in the Lessee's financial
condition has occurred since the date of the Agreement.
5. The Lease. The terms and provisions of the Agreement (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. The maximum Lease Term,
subject to annual appropriation, is 36 months.
A-1
Page 117 of 403
Agenda Item #5.
Dated: February 18, 2021.
Lender:
Truist Bank
Printed Name:
Title:
Lessee: VILLAGE OF TEQUESTA, FLORIDA
By:
Printed Name:
Title:
(Seal)
Attest:
By:
Printed Name:
Title:
A-2
Page 118 of 403
Agenda Item #5.
Rental
Payment Date
Exhibit A-1
Rental Payment Schedule
Rental Payment
Amount Interest Portion
(see attached schedule)
Principal
Portion Purchase Price*
For purposes of this Lease, "taxable rate," with respect to the interest component of Rental
Payments, means an annual rate of interest equal to 2.12%.
* The Purchase Option Commencement Date shall be February 18, 2021. The Purchase Price is
payable only in whole on any date on or after the Purchase Option Commencement Date and the
Purchase Price payable 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.
In addition to the Purchase Price, a premium of 0% of the Purchase Price shall be payable on any
date.
Lessee:
VILLAGE OF TEQUESTA, FLORIDA
0
Printed Name:
Title:
A-3
Page 119 of 403
Agenda Item #5.
Acceptance Certificate
Truist Bank
5130 Parkway Plaza Blvd
Charlotte, NC 28217
Re: Schedule of Property No. 1, dated February 18, 2021, to Master Equipment
Lease/Purchase Agreement, dated as of February 18, 2021, among Truist Bank, as
Lender, Florida League of Cities, Inc., as Sponsor and the Village of Tequesta,
Florida, 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 the Lender 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. The 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. The 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: February 18, 2021
[Seal]
Lessee
VILLAGE OF TEQUESTA, FLORIDA
90
Title:
Page 120 of 403
Agenda Item #5.
General Certificate of Lessee
The undersigned, Mayor and Clerk of the Village of Tequesta, Florida (the "Lessee"), do
hereby certify, to the best of our knowledge, as follows:
A. The representations of the Lessee in that certain Master Equipment Lease/Purchase
Agreement dated as of February 18, 2021 and the Schedule(s) thereunder, by and among the Lessee,
Truist Bank, as Lender, and Florida League of Cities, Inc., as Sponsor (collectively, the "Lease") are
true and correct in all material respects as of the date hereof. Any terms not otherwise defined
herein shall have the meanings ascribed thereto in the Lease.
B . The Lessee has performed all obligations to be performed and has satisfied all
conditions on its part to be observed or satisfied under the Lease, Resolution No. _ _ duly
adopted by the Lessee on 20 (the "Resolution"), as of the date hereof.
C . There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body that challenges the organization or
existence of the Lessee; the authority of the Lessee or its officers or its employees to enter into the
Lease, the [Ordinance/Resolution]; the proper authorization, approval and/or execution of the
Lease, the [Ordinance/Resolution][, and other documents contemplated thereby; the appropriation
of moneys to make Rental Payments under the Lease for the current fiscal year of the Lessee; or the
ability of the Lessee to otherwise perform its obligations under the Lease, the
[Ordinance/Resolution],, and the transactions contemplated thereby and, to the best of my
knowledge, no such litigation or actions are threatened.
D. Since September 30, 2020, no material adverse change has occurred in the financial
position or results of operations of the Lessee, and the Lessee has not incurred any material
liabilities other than in the ordinary course of business.
E. The following listed persons are duly elected and acting officials of the Lessee (the
"Officials") in the capacity set forth opposite their respective names below and that the signatures
set opposite thereto are the genuine signatures of such persons:
Name of Official Title
Village Manager
Village Mayor
Village Clerk
Signature
F. The Officials are duly authorized, on behalf of the Lessee, to negotiate, execute and
deliver the Lease and the Lease is binding and authorized agreements of the Lessee, enforceable in
all respects in accordance with their terms.
Page 121 of 403
Agenda Item #5.
G . The Equipment described in the Lease is essential to the governmental, municipal or
public purposes or functions of the Lessee or to the services the Lessee provides its citizens.
H. The Lessee has an immediate need for, and expects to make immediate use of,
substantially all the Equipment, which need is not temporary or expected to diminish in the
foreseeable future. The Equipment will be used by the Lessee only for the purpose of performing
one or more of the Lessee's governmental or proprietary functions permitted under the Act.
I. The Acquisition Amount and all investment earnings thereon will be used to pay
Equipment Costs, including costs incurred in connection with the execution and delivery of the
Lease. All of such costs will be incurred and expenditures made subsequent to the date hereof,
except for reimbursement to the Lessee for amounts (i) paid not more than 60 days prior to the date
hereof, (ii) representing engineering, design and similar preliminary expenses in an aggregate
amount not exceeding 20% of the Acquisition Amount, or (iii) otherwise in an amount not
exceeding 5% percent of the Acquisition Amount. All expenditures to be reimbursed occurred not
more than 18 months prior to the date hereof. None of the Equipment was placed in service more
than one year before the date hereof.
J. The Lessee has designated the Lessee's obligations under the Lease as "qualified
tax-exempt obligations" for the purposes of Section 265(b)(3) of the Code. The aggregate amount of
tax-exempt obligations (other than obligations described in Section 265(b)(3)(C)(ii) of the Code),
including the Lessee's obligations under the Lease, issued and reasonably expected as of the date
hereof to be issued in calendar year 2021 by (i) the Lessee, (ii) all entities on behalf of which the
Lessee issues tax-exempt obligations, and (iii) all governmental units that are "subordinate" to the
Lessee, within the meaning of Section 265(b)(3) of the Code, and (iv) all entities that issue
tax-exempt obligations on behalf of the same such entities, does not exceed $10,000,000. The Lessee
has no reason to believe that the Lessee and such other entities will issue tax-exempt obligations in
2021 in an aggregate amount that will exceed such $10,000,000 limit.
Page 122 of 403
Agenda Item #5.
IN WITNESS WHEREOF, we have hereunto set our hands and affixed the official seal of the
Lessee, this _ day of February 2021.
By:
Name:
Title:
(SEAL)
By:
Name:
Title:
Page 123 of 403
Agenda Item #5.
Opinion of Counsel to the Lessee
(To be printed on Attorneys letterhead)
February 18, 2021 [Date of Funding]
Village of Tequesta, Florida
Truist Bank
5130 Parkway Plaza
Charlotte, NC 28217
Re: Schedule of Property No. 1, dated February 18, 2021, to Master Equipment
Lease/Purchase Agreement, dated as of February 18, 2021, among Truist Bank, as
Lender, Florida League of Cities, Inc., as Sponsor and the Village of Tequesta,
Florida, as Lessee.
Ladies and Gentlemen:
As legal counsel to the Village of Tequesta, Florida (the "Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
February 18, 2021and Exhibits thereto by and among Truist Bank (the "Lender"), Florida League of
Cities, Inc., as Sponsor and the Lessee (the "Agreement"), and an executed counterpart of Schedule
of Property No. 1, dated February 18, 2021by and between the Lender and the 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 the
Lessee which, among other things, authorize the Lessee to execute the Agreement and the Schedule,
and (d) 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". All capitalized terms used herein
shall have the same meanings as in the Lease unless otherwise provided herein.
Based on the foregoing, I am of the following opinions:
1. The Lessee is a [public body corporate and politic, duly
organized/municipality/political subdivision duly created] and existing under the laws of the State,
and has a substantial amount of the following sovereign powers: (a) the power to tax, (b) the power
of eminent domain, and (c) police power][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
the Lessee under the Agreement will constitute an obligation of the Lessee within the meaning of
Section 103(a) of the Code, notwithstanding Section 103(b) of the Code].
E-1
Page 124 of 403
Agenda Item #5.
2. The 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 thereunder.
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of the Lessee and the Lease is valid and binding obligations of the Lessee enforceable in
accordance with their terms, except to the extent limited by State and Federal laws affecting
remedies and by bankruptcy, reorganization or other laws of general application relating to or
affecting the enforcement of creditors' rights.
4. The authorization, approval, execution and delivery of the Lease and all other
proceedings of the 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. The Lessee has complied with all required public bidding procedures regarding the
Equipment and the transactions contemplated by the Lease.
5. The entry into and performance by Lessee of its obligations under the Lease will not
(i) violate any judgment, order, law or regulation applicable to Lessee, or (ii) result in any breach of,
constitute a default under or result in the creation of any lien, charge, security interest or other
encumbrance upon any item of the Equipment pursuant to any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument (other than the Lease or any purchase money
security interest retained by any supplier) to which Lessee is a party.
6. No consent, waiver, authorization or any other action not presently given or taken
by any person, board or body, public or private, is required as of the date hereof for the Lessee to
adopt the resolution described in paragraph 9 hereof, enter into the Lease or to perform its
obligations thereunder.
7. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body that challenges the organization or
existence of the Lessee; the authority of the Lessee or its officers or its employees to enter into the
Lease; the proper authorization, approval and/or execution of the Lease, and other documents
contemplated thereby; the appropriation of moneys to make Rental Payments under the Lease for
the current fiscal year of the Lessee; or the ability of the Lessee to otherwise perform its obligations
under the Lease, and the transactions contemplated thereby and, to the best of my knowledge, no
such litigation or actions are threatened.
8. The equipment financed by the Lease is personal property, and will be used by the
Lessee in compliance with the laws and Constitution of the State, and no portion will be real
property or a "fixture" within the meaning of the Florida Uniform Commercial Code.
9. Resolution No. of the Council of the Lessee was duly and validly adopted by the
Council on J 20 , has not been amended, supplemented or repealed and remains in full
force and effect.
D-2
Page 125 of 403
Agenda Item #5.
The Lender 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,
Exhibit E
D-3
Page 126 of 403
Agenda Item #5.
Lease Amount:
A11 amounts
Schedule of Fees
Fee:
WE
Page 127 of 403
Agenda Item #5.
Wire Transfer Agreement
This Wire Transfer Agreement is dated as of February 18, 2021 (this "Agreement") and
is by and between the VILLAGE OF TEQUESTA, FLORIDA, a municipality existing under the
laws of the State of Florida (the "Lessee") and TRUIST BANK ("LENDER").
REC''IT AI N
The Lessee is, simultaneously with the execution and delivery of this Agreement,
executing and delivering (a) a Master Equipment Lease/Purchase Agreement and Lease
Schedule No. 1, dated as of the date hereof (the "Purchase Agreement") among the Lessee, the
Florida League of Cities, Inc . , and LENDER. The purpose of the Purchase Agreement is to
provide for LENDER's advance of $168,389.09 to the Lessee to enable the Lessee to finance
computer hardware equipment, and to pay related financing costs. In partial consideration for
LENDER's entering into the Purchase Agreement, the Lessee has agreed to provide for
financing proceeds to be wired to the LESSEE at closing.
In order to prevent unauthorized or fraudulent wire transfers through cyber fraud and
other means, LENDER and the Lessee hereby agree to the following:
Section 1. Wire Transfer Requirements. In the event a wire transfer is made by
LENDER to disburse funds as contemplated by the Purchase Agreement (a "Disbursement"),
said wire transfer shall be delivered as directed in a written "Disbursement Authorization"
provided to LENDER by a representative of the Lessee, subject to the terms and conditions set
forth herein. For the purposes of this Agreement, a representative of the Lessee shall include
employees and elected and/or appointed officials of the Lessee, bond counsel, the Lessee's legal
counsel, or the Lessee's financial advisor
Section 2. Verification Procedures. Prior to making any Disbursement pursuant to a
Disbursement Authorization not delivered to LENDER in person by a representative of the
Lessee, LENDER shall verify such Disbursement Authorization verbally via telephone
communication with a representative of the Lessee. The Lessee shall ensure that a representative
of the Lessee will provide such verification to LENDER. The Lessee shall not disclose, or allow
to be disclosed, such LENDER verification procedures to any third party unless there is a
legitimate business need to make such disclosure or such disclosure is required by law, and the
Lessee accepts the risk of such third party knowledge of the security procedures. If the Lessee
has reason to believe that a security procedure has been obtained by or disclosed to an
unauthorized person or learns of any unauthorized transfer or of any discrepancy in a transfer
request, then the Lessee shall notify LENDER immediately.
Section 3. Payee Identification. The Lessee is solely responsible for accurately
identifying the wire transfer information contained in the Disbursement Authorization delivered
to LENDER by a representative of the Lessee, including but not limited to the bank name and its
ABA number, beneficiary's account name and account number and beneficiary's physical
address, together with other information requested by LENDER (collectively, "Remittance
Instructions"). If the Remittance Instructions describe a beneficiary inconsistently by name and
1
Page 128 of 403
Agenda Item #5.
account number, the Lessee acknowledges that LENDER may make payment on the basis of the
account number alone, that LENDER is not obligated to detect such errors, and that the Lessee
assumes the risk of any loss resulting therefrom.
Section 4. Duty to Reconcile Written Confirmation. Upon request from a
representative of the Lessee, LENDER shall use its best efforts to send a representative of the
Lessee written confirmation of the Disbursement in the form of a reference number, beneficiary
name and wire amount. A representative of the Lessee shall promptly review and reconcile the
written confirmation of the Disbursement sent by LENDER, and shall report to LENDER in
writing, promptly, but in no event later than ten (10) business days after the date of such written
confirmation, any unauthorized, erroneous, unreceived or improperly executed payment.
LENDER and the Lessee agree that ten (10) business days is a reasonable time for the detection
and reporting to LENDER of such information. After that time, all items on the written
confirmation will be considered correct and the Lessee will be precluded from recovering from
LENDER if such wire transfer identified in the written confirmation was actually made by
LENDER. For the avoidance of doubt, any such writings can be provided electronically.
Section 5. Unauthorized Payments. Notwithstanding any other provision herein, if a
Disbursement has been verified by a representative of the Lessee pursuant to Section 2, it shall
be binding on the Lessee if LENDER acted in good faith in making such Disbursement.
Section 6. Recordation. LENDER may record any telephone conversation between
LENDER and a representative of the Lessee in order to reduce the risk of unauthorized or
erroneous transfers. LENDER may retain such recordings for as long as LENDER may deem
necessary.
Section 7. Indemnification and Hold Harmless. If LENDER complies with the
provisions of this Agreement, the Lessee agrees that LENDER shall not be responsible for any
communication or miscommunication by a representative of the Lessee, and the Lessee further
agrees to indemnify, to the extent allowed by law, LENDER and hold LENDER harmless from
and against any and all losses, claims, expenses, suits, costs or damages, demands or liabilities of
whatever kind or nature, whether now existing or hereafter relating in any way to a wire transfer
made pursuant to the Purchase Agreement or the Acquisition Fund Agreement.
Section 8. Applicable Law. All wire transfer orders are governed by Article 4A of the
Uniform Commercial Code, except as any provisions thereof that may be and are modified by
the terms hereof. If any part of the applicable wire transfer order involves the use of the Fedwire,
the rights and obligations of LENDER and the Lessee regarding that wire transfer order are
governed by Regulation J of the Federal Reserve Board.
2
Page 129 of 403
Agenda Item #5.
IN WITNESS WHEREOF, each of the parties has caused this Wire Transfer
Agreement to be signed and delivered by a duly authorized officer, all as of the date first above
written.
[SEAL]
Attest:
Name:
Title:
VILLAGE OF TEQUESTA, FLORIDA
Name:
Title:
TRUIST BANK
By:
Name:
Title:
WIRE TRANSFER AGREEMENT, DATED AS OF FEBRUARY 18, 2021
3
Page 130 of 403
Agenda Item #5.
Opinion of Counsel to the Lessee
(To be printed on Attorneys letterhead)
February 18, 2021 [Date of Funding]
Village of Tequesta, Florida
Truist Bank
5130 Parkway Plaza
Charlotte, NC 28217
Re: Schedule of Property No. 1, dated February 18, 2021, to Master Equipment
Lease/Purchase Agreement, dated as of February 18, 2021, among Truist Bank, as
Lender, Florida League of Cities, Inc., as Sponsor and the Village of Tequesta, Florida,
as Lessee.
Ladies and Gentlemen:
As legal counsel to the Village of Tequesta, Florida (the "Lessee"), I have examined (a) an
executed counterpart of a certain Master Equipment Lease/Purchase Agreement, dated as of
February 18, 2021and Exhibits thereto by and among Truist Bank (the "Lender"), Florida League of
Cities, Inc., as Sponsor and the Lessee (the "Agreement"), and an executed counterpart of Schedule
of Property No. 1, dated February 18, 2021by and between the Lender and the 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 the
Lessee which, among other things, authorize the Lessee to execute the Agreement and the Schedule,
and (d) 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". All capitalized terms used herein shall
have the same meanings as in the Lease unless otherwise provided herein.
Based on the foregoing, I am of the following opinions:
1. The Lessee is a [public body corporate and politic, duly
organized/municipality/political subdivision duly created] and existing under the laws of the State,
and has a substantial amount of the following sovereign powers: (a) the power to tax, (b) the power
of eminent domain, and (c) police power][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
the Lessee under the Agreement will constitute an obligation of the Lessee within the meaning of
Section 103(a) of the Code, notwithstanding Section 103(b) of the Code].
E-1
Page 131 of 403
Agenda Item #5.
2. The 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 thereunder.
3. The Lease has been duly authorized, approved, executed and delivered by and on
behalf of the Lessee and the Lease is valid and binding obligations of the Lessee enforceable in
accordance with their terms, except to the extent limited by State and Federal laws affecting remedies
and by bankruptcy, reorganization or other laws of general application relating to or affecting the
enforcement of creditors' rights.
4. The authorization, approval, execution and delivery of the Lease and all other
proceedings of the 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. The Lessee has complied with all required public bidding procedures regarding the
Equipment and the transactions contemplated by the Lease.
5. The entry into and performance by Lessee of its obligations under the Lease will not
(i) violate any judgment, order, law or regulation applicable to Lessee, or (ii) result in any breach of,
constitute a default under or result in the creation of any lien, charge, security interest or other
encumbrance upon any item of the Equipment pursuant to any indenture, mortgage, deed of trust,
bank loan or credit agreement or other instrument (other than the Lease or any purchase money
security interest retained by any supplier) to which Lessee is a party.
6. No consent, waiver, authorization or any other action not presently given or taken by
any person, board or body, public or private, is required as of the date hereof for the Lessee to adopt
the resolution described in paragraph 9 hereof, enter into the Lease or to perform its obligations
thereunder.
7. There is no litigation, action, suit or proceeding pending or before any court,
administrative agency, arbitrator or governmental body that challenges the organization or existence
of the Lessee; the authority of the Lessee or its officers or its employees to enter into the Lease; the
proper authorization, approval and/or execution of the Lease, and other documents contemplated
thereby; the appropriation of moneys to make Rental Payments under the Lease for the current fiscal
year of the Lessee; or the ability of the Lessee to otherwise perform its obligations under the Lease,
and the transactions contemplated thereby and, to the best of my knowledge, no such litigation or
actions are threatened.
8. The equipment financed by the Lease is personal property, and will be used by the
Lessee in compliance with the laws and Constitution of the State, and no portion will be real property
or a "fixture" within the meaning of the Florida Uniform Commercial Code.
9. Resolution No. of the Council of the Lessee was duly and validly adopted by the
Council on , 20_, has not been amended, supplemented or repealed and remains in full
force and effect.
D-2
Page 132 of 403
Agenda Item #5.
The Lender 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,
D-3
Page 133 of 403
Agenda Item #5.
B]13&T
Branch Banking & Trust Company
Governmental Finance
5130 Parkway Plaza Boulevard
Charlotte, North Carolina 28217
Phone (704) 954-1700
Fax (704) 954-1799
December 1, 2020
Mr. Rodney Walton
Florida League of Cities
Dear Mr. Walton:
Truist Bank ("Lender") is pleased to offer this proposal for the financing requested by the Village of Tequesta,
FL ("Borrower").
PROJECT: Computer Hardware
AMOUNT: $168,389.09 includes ($1000 FLC fee)
TERM: 3 years
INTEREST RATE: 1.67%
TAX STATUS: Tax Exempt — Bank Qualified
PAYMENTS: Interest: Annual
Principal: Annual
INTEREST RATE
CALCULATION: 30/360
SECURITY: Computer Hardware
PREPAYMENT
TERMS: Prepayable in whole at any time without penalty
RATE
EXPIRATION: January 22, 2021
DOCUMENTATION/
LEGAL REVIEW
FEE: N/A
FUNDING: Proceeds will be deposited into an account held at Lender pending disbursement
unless equipment is delivered prior to closing.
DOCUMENTATION: Lender proposes to use its standard form financing contracts and related documents
for this installment financing. We shall provide a sample of those documents to
you should Lender be the successful proposer.
Page 134 of 403
Agenda Item #5.
The financing documents shall include provisions that will outline appropriate
changes to be implemented in the event that this transaction is determined to be
taxable or non -bank qualified in accordance with the Internal Revenue Service
Code. All documentation must be deemed appropriate by Lender before closing.
REPORTING
REQUIREMENTS: Lender will require financial statements to be delivered within 270 days after the
conclusion of each fiscal year-end throughout the term of the financing.
Lender shall have the right to cancel this offer by notifying the Borrower of its election to do so (whether this
offer has previously been accepted by the Borrower) if at any time prior to the closing there is a material
adverse change in the Borrower's financial condition, if we discover adverse circumstances of which we are
currently unaware, if we are unable to agree on acceptable documentation with the Borrower or if there is a
change in law (or proposed change in law) that changes the economic effect of this financing to Lender.
Costs of counsel for the Borrower and any other costs will be the responsibility of the Borrower.
The stated interest rate assumes that the Borrower expects to borrow no more than $10,000,000 in the current
calendar year and that the financing will qualify as qualified tax-exempt financing under the Internal Revenue
Code. Lender reserves the right to terminate this bid or to negotiate a mutually acceptable interest rate if the
financing is not qualified tax-exempt financing.
We appreciate the opportunity to offer this financing proposal. Please call me at (803) 251-1328 with your
questions and comments. We look forward to hearing from you.
Sincerely,
Truist Bank
Andrew G. Smith
Senior Vice President
Page 135 of 403