HomeMy WebLinkAboutResolution 93-01
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RESOLUTION NO. 93-
A RESOLUTION OF THE CITY OF OCOEE, FLORIDA APPROVING AN
EQUIPMENT LEASE/PURCHASE AGREEMENT AND DESIGNATING IT AS
A QUALIFIED TAX-EXEMPT OBLIGATION
RESOLVED, that this city enter into a certain Florida
'Equipment Lease-Purchase Agreement with FORD MOTOR CREDIT COMPANY
(hereinafter called "Lessor") in substantially the form attached
hereto and by this reference made a part hereof (the "Equipment
Lease") and that this City lease equipment from Lessor pursuant to
the terms of such Equipment Lease; and that the Mayor and the city
Clerk of this City be and hereby are authorized and directed in the
name and on behalf of this City to execute the Equipment Lease with
Lessor in substantially the form presented at this meeting, with
such changes therein and additions thereto as shall be approved by
such officers who execute the same, and such execution shall be
conclusive evidence that each such document so executed has been
authorized and approved by this vote.
FURTHER RESOLVED, that the City commission of the city of
Ocoee, Florida finds that a true and very real need exists for the
acquisition of the Equipment described in the Equipment Lease and
that such acquisition is in the best interests of the City of
Ocoee.
FURTHER RESOLVED, that the City Commission of the City of
Ocoee, Florida finds that the City of Ocoee has taken the necessary
steps, including compliance with any applicable legal bidding
requirements, under applicable law to arrange for the acquisition
of such equipment.
FURTHER RESOLVED, that the obligations of the City under
the Equipment Lease be hereby designated, pursuant to Section
265 (b) (3) (D) of the Internal Revenue Code of 1986, as amended
(hereinafter called the "Code"), as comprising a portion of the
$10,000,000.00 in aggregate issues which may be designated as
"Qualified Tax-Exempt Obligations" eligible for the exception to
the general rule of the Code which provides for a total
disallowance of a deduction for interest expense allocable to the
carrying of tax-exempt obligations.
FURTHER RESOLVED, that the Mayor and the City Clerk of
this City be and hereby are authorized to execute and deliver such
other instruments and take such other actions as they shall deem
necessary and desirable for the purpose of carrying out these
resolutions and consummating the transactions contemplated by the
Equipment Lease.
FURTHER RESOLVED, that the foregoing resolutions shall
remain in full force and effect until written notice of their
amendment or rescission shall have been received by Lessor and that
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receipt of such notice shall not affect any action taken by Lessor
prior thereto.
FURTHER RESOLVED, that the Clerk of this City be and
hereby is authorized and directed to certify to the Lessor the
foregoing resolutions and that the provisions thereof are in
conformity with the Charter of this city.
PASSED AND ADOPTED this ~ day of ~~NUA~Y
APPROVED:
7: 7;::' Z:A ,J)
S. Scott Vandergrift,~~r
, 1993.
Clerk
(SEAL)
By:
LvJ2~
City Attorney
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON J' PII'Il U 1\ Q. Y .5 , 1993
UNDER AGENDA ITEM NO. u..n.. .
C:IWP51 IDOCSIOCOEIEQUIPLSE,RES: 12/29/92IGINNYE: PER:gc
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FORD MOTOR CREDIT COMPANY
FLORIDA EQUIPMENT LEASE-PURCHASE AGREEMENT
WITH CITY OF OCOEE. FLORIDA
Proposed Revisions to Form of Opinion of Counsel
(1) ADD AT THE END OF PARAGRAPH (iii):
"... to the best of our knowledge and belief; provided,
however, that we render no opinion as to effect,
validity, and enforceability of the following provisions
of the Lease: (a) the provisions of Paragraph 8 of the
Lease which purport to vest title to the Equipment in
Lessee, (b) the provisions of Paragraph 17 of the Lease
which purport to grant a right to create a security
interest in the Equipment, and (c) the provisions of
Paragraph 19 of the Lease which purport to grant (1) a
right to take immediate possession of and remove the
Equipment, and (2) a right to recover damages without
first attempting to sell or lease the Equipment to a
third party in a commercially reasonable manner."
(2) ADD UNDERLINED PORTION TO THE MIDDLE OF PARAGRAPH (iv):
"... to perform its obligations under the Lease and to
the best of our knowledqe and belief Lessee is not in
default under any material obligation..."
C:IWP51 IDOCSIOCOEIFORDi 12/29/92iGINNYE I PER:gc
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FORD UOTOR. CREDIT COMPANY
F'WRlDA EQUIPHElft LEASE-PURCHASE AGREEM.EN1'
Lease No.
L~see: Sample Only
Les~or agrees to tease to Lesse~ and Less~e A9re~ to l~ase
frOlll Ldsor the Equipn!!l"'t dncribed in any Senedul!? ^ !~rn-I or
hereafter at1:tJeh~ hereto ("equi~ntlt) in eeCelrQMce with the
following tetmS and conditions of this lI~:lse'PurchDse ^gre~o-.rlt
~casc:U).
.1. TOJe. This Leese ~i II ~com! effective \..pQn the eMcU-
tion hereof by Lessor. Th~ term of this L~as~ will c~e on
the date the Equipnerlt is accepted pursuant to Sect jet, 3 her'e-
under ard, IJ1les$ earlier UNIlfr'lated as expressly providM for
In thIs Lease, will contlNJe IJ1til the eJlpir3ticn date (the
ItExpi rati 0l'1 Oatelt) set forth In SchedJle ^ attached h~r~to (the
"Lease Term")
2. RENT. Lessee 8grees to pay to Lessor or its assignee the
Lease P3yrT1llnU, i~luding the interest portion, equal to the
amolJlts specified in Schedule A. The Leat;~ paymentg wi II be
payable with(l(.lt notice or demand at the offie~ of L~~or (or
such other place as LesMr or Its MslgntfJ "ny frem time to
time ~signate in IoIriting),and will COIIrnetlCI" <In dl" fir~t l.!":.~~
P3y1l'ent Date liS set forth in Schedule ^ 8m thereltfter on the
subsequent dat~ ~~t forth In Seh~ule ^. /lny P'l}'~ts re.:eived
later thao ten (10) dlJ)"$ frl:lQ the dve date wi.ll b<>er inter!!st at
the highest lawful rete from the due date, Except as specifi-
cally provided in Section 6 hereof; the obligation of less~ to
make the Lease Payments hereunder end perform alloT its other
Obligations heretrder will be absolute and U'lConditicrlOl in.!lll
events an:f will not be swject to any ",etoH, defense, counter'
claIm, or reccupment for any reason whatsoever including, with-
out limitation, any faIlure of the Equipment to be delivered or
installed, any defects, malfu~tions, breakdowns or infirmities
In the Equrpnent or any tlCciOent, eondelm3tion or unfores~n
cirCl.lllStances. \.essee reasonably bel ieYl(!s that (1.I1cis Can be
obtained sufficient to make 1111 Leas\!' Payments dIJrfng the LlJase
Tenn and hereby covenants that it will do all things lawfully
within its po~r to obtain, snaintain end prl')~rly rP.qUest a,xi
pursue fl.l'lds frem whfch the Lease paymc:nts Il1o')' be fIl8de, incl~wj.
109 rooJd09 pt"ovlslons for sueh pa)'Tllents to the e)(tent necessary
in each budget subnitted for the purpose of obtainins fu-.dlt1g,
l.l'lng its bona fide best efforts to have ,uell portion of the
budget approved and ~xhaut;ting all ~Yallable 8dninistr8tive
reviews erd appeElls in the event sut:h pQrtion of the bu:lget is
not approved. It i~ l@$~ee'~ intent to MAke lp.~sp. pa~nt~ f~r
the full Lease Term if fUlds are l<:gelly Bvailable therefor and
in that regard Lessee represents that the use of the Eq\lipl1ent
Is essential to its proper, efficient and l!Conemle o~rMiOl'.
l.essor and Less~ understMd MId Int~ th:lt the obl Igat iOIl of
Lessee to pay Lease Payments heret.r1der shell constitute a CUr-
rent e~e of LlJ!ssee and shall oat in any W>.'lY be construed to
be il debt of Lessee In contravention of any 8f:l'licable consti tu-
tioNll or statutory limitation or tequiretnP.nt coneeming the
creation of lnr:lebted1~s by L~see, nor shall 3T\ythlng conttlioed
herein constitute e pledge of the seneral tax reve,ues, f~ or
monies of Lessee.
3. DEliVERY Nlf) ActEPTAlCCE. Lesset!, or I f lessee so
requests, Lessor, wi tl cau~e th@ Equlpnent to be del ivered to
Lessee at the loostion apecified in Schedul~ A (ltEqulpllil1'lt LocI.!-
tion"). LeSSH will ~y all transportl'ltioo and other costs, if
any, Ineurr~ in co..,.,~tIQl' with thl! delivery and installation
Of.lqvipnent. Lessee will 8cc~t the Equipnent as soon as
It bettn delivered nnd is cperational. Lessee witt evidence
its 8ccepta~e of the EqJipnent by executing and dellve:ring to
l.essor I Delivery and Acceptance Certific~te (In the form provi-
ded by Lessor) within three days of delivery of the Equipment,
4. DISCLAIMER Of UARRAHTIES. LessH aeknowledges atld agr~s
that the Equipment is 01 a size, design end capacity sel~ted by
July 1992.florida Pr~vious edi tiOl'l$ /!TOy HOT l:le used
lessor: Ford Motor Credit Compa~
P. O. Box 1739
Dearborn, Hi 48121-1739
L~see, that Lessor is nei ther a manufacturer nor a vendor c
such ~lif:lMnt, that LE$$O~ LEASeS AND LEssee TAKES THE EQtJIPMEN
AND EACH PART THEREOF "AS-IS" AND tHAT LESSOR HAS Nor IW>E, AN
DOES NOT HEREBY MAKE, ANY REPRESENTATiON, WARRANTY, OR COVENANT
EXPRESS OR IMPllm, WITH RESPECT TO tHe MERCHANTASiLlTY, COHO I
TION, OUAllTY, DURABILITY, DEStGN, OPERATION, fITNESS FOR use, 0
SlJIT^BllIrY OF Tile EQUIPMENT IN ANY RESPECT WHATSOEVER eft I
cOt/HEeTlON \/1 TH OR F~ TIlE PURPOSES AND USES OF LEssee, Oil AS T
THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DiSCOVER
ABLE, OR AS TO THE ASSENCE OF AHY INFRINGEJo1ENT OF ANY PATENT
TRADEMARK ~ COPYRIGHT, OR AS TO ANY OBLIGATION BASED OK STRle
LIABILITY IN TORT OR ANY OTHER REPRESENTATION, WARRANTY, OR COVEN
ANT OF ANY KINO OR CHARACTER, EXPRESS OR IMPLIED, UlTH RESPEC
THERETO, IT SEING AGREED THAT ALL RISKS INCIDENT THERETO ARE TO 81
BORNE BY lESSEE AND LESSOR SHALL NOT BE OBLIGATEO OR LIASLE FOI
ACTUAL, INCIDENTAL, CONSEOUENTlAL, OR OTHER OAMAGES OF OR TI
LESSEe O~ ANY OTHER PERSON OR ENTITY ARlSl~G OUT OF OR IN CONNEC
T ION WITH THE use OR I'ERFORMANce OF THE EQUIPMENT AND TtlE MAIN,
TENANCE THEREOF. lessor hereby assigns to Lessee during tho l@asl
Term, so long 8S no Event of Oef~ult h~s occurred hereunder and i!
continuing. all manufacturer', IoIl1rrantie" if any, expressed 01
itrpl ied with resP'X=t to the Equipnent, and Lessor 8uthori!@!
Les~ee to obtain the custaTlary servlet1s furnished In CClr'lN!!Ctior
\.lith such warrantiu at l~ssee's ellpe'1se. Lessee's sot~ rerned)
for the breach ot nny such lllI.lNJfl.teturer' s warranty shall bE
against th~ manufacturer of the Equi~nt. and not a9ai~t lessor.
Lessee expressly ltcknowledges that lessor makes, and has made, nc
represent lit iOM or loI<lrr1>nt i ell whatsoever as to the exl sUnee or
the llvaitabit ity of such \oIarranties of the manufacturer of the
Equipnent.
5. ItETURH OF EOUlf'f4alT. Unless Lessee shall have exercised
its p.lrchase eptlOt'l as provided in Section 20 hereof, upon the
el<piration or earl leI" tennination of this Lease pursuant to the
tertlS hereof, Lessee shatl, at Its sote expense but at Lessor's
opt Ion, return the Equi pnent to lessor packed for shipntnt in
accor~nce with manufa~turer's specifications and freisht prepaid
and insured to any location in the continental United State!!
designated by ltssor.
6. I/OM-APPRQ)IUATIat Of FUNO~; NOtl.SUSSTITUTICJf_ Notwithstanj.
ing anything contained In this Lease to the contrary. in the ev~t
no fLnds or insuffieient f\~ arll a~ropriated and buclgeted or
are otherwise unavailable by .my lnean$ whatsoever in any fiscal
period for Lease Pilyments due l.I1der this L~ase, L~$$ee will Im-
m€di~fely notify lessor or its ~ssig~ in writing of such occur-
rence and this lease shall tenninate on the last day of the fiscal
period for ~{ch appropriations have been r~~ived or mad~ without
penalty or cx~nse to Ltssee, except liS to (i) the portions of
lease Pa~ts herein agreed upon for which funds shall have been
aPl'ro"ri~ted and b..odgcted or are otherwise available and (ii)
Lessee'S other obligations and liabilities ~r this Leese relst-
i~ to, or aeerulng or arising prior to, such termination. In the
event of 5uch te~inat ion, lessee agreeS to peaeeably surrender
poss~ssion of the Equipment to Le$sor or its assignee on the date
ofsueh termination in the lOOlY'Ier set forth in Section 5 hereof
and Lessor will have all legal and equitable rights and remedies
to t3ke possession of the Equipment. Notwithstanding the forego.
ing, Lessee agree~ (i) that it will not cane~l this Lease and this
Lease shall not terminat~ under the provf~ions elf this Section if
any flZlds tlre al:Proprioted to it, or b)' it, for the acquisItion,
retention or operation of the Equipment or other equipneot or
services performing fl,rlctions simi lar to the flJlctlons of tile
Equipment for the fiscal period in which such te~ination would
have otherwise occurred or for the next succeeding fiscal period,
<lnd (ii) that it will not during the Lease: Term give priority in
the apptication of funds to any oth~r functionally similar equip-
ment or to gervices performing functions similar to the functions
of the Equipnent. This s~c:ti~ wltl not be COf\1t!,ued so il~ to
permit l~M~ t,o tenl1inate this lease in order to I"lfChIlS'!,
lta$~, rent or otherwise acquire the use of any other ~ui~nt
er ,ervice9 perforllllhg /vnetions simi lar to th" f,flctlon<: of the
Equipnent, and, if this ll.!o~1.! teNnINltes pu"'lU~nt to t;hit; ~~-
tion, lc:l.$c<l ogrc~ tn:lt dJring the fiscsl f"'!riod IJ1'tOOdl:lU~ly
followi/"19 the fiscal period 1M which such terminotion ocelli'S it
wi II not so purchase, lease, rent or otherwise aCl'JUlrl.! the LISe
of any su~ other ~ipment or services.
7. REJ"tlESE:lHATlOtfS. C(IVgI.NlTS Nt) WMP_lVlTIES. l':'\lZI?" ,-"'pre-
sents, covenants Md warrllnts IS of tile dl)te hereof arrl at lilll
times wring the Lease Term that: (i) lessee Is a state rJr a
fully constituted political subdivision thereof, or its ~liga-
. her~r constitute obligations issued on ~half ~f a
e or e political subdivision thereof, such that .my Int..r.
est derfved ~r this ll?ase will qualify for exemption from
Federal income taxes under section 103 of thp- Internal Revenue
Cod~ of 19S6, as:mended (the "Code"), end that it will dl) or
cause to be done all things n~ess8ry to preserve and k~p in
full force and effect (a) its existence ard (b) thi~ L",at;e;
(It) the execution, delivery ard performance by the L~!lS~ of
this It'ilse and all clocutP.!'Its I!X~euted In Cont~t Ion herewi th,
including, without limitation, Schedule A her~to ~ the Oeliv'
ery am Acceptance Certificate referr~ to in Section 3 hp.r'l?Of
(the lean together with all such doc:unents shall be collP.Ctive-
ly referred to herein 85 the "lease Oocunenh") have been duly
authorized by all necessary ectlon on the pert of the Lessee;
(Iii) the Lease Oocunel1t!l each co~titute 8 l@gal, V;.'llld ~l1d
binding obligation of the L'!S$ee enforceable in eer.ordallce with
their r~~etlve ttrJll";; (Iv) no gov~rf1llt'flt31 orders, permj!;.
,ions, cQn$!!flt" approval!! or authorl!atior~ art! requlrtd to ~
obtained 11m no registrations or de-claratioll.'I l!n~ reql,/ir~ to
be filed In comectlonwlth the e..'tecution Md delivery of the
lellse Doc:unents; (v) Lessee has sufficient appropriations or
other flJ"ld& avaftabl~ to ~y all ll!ast! Payfllll'nts 13M other
nrrolJ"lts ~e hertunder for the c:urrent fi scol pericd; (vi) the
use of the Equipnent by leuee Is eM~tlal to and wilt be
limited to the performence by Lessee of one or IOOre QoverrJ11'?nt'll
flJ"lctlons of Lessee censistent with the ~rmissible sc:cpe of
Lessee', avthority; ('Iii) no portion of the Equipntll'lt \<Iill be
used directly or tndir~tly in any trade or business carried on
by any person other than Lessee; and (vi i i) no portion of the
EqJiprnent will be ust'd by an org<mi;z:ation described in section
501 (c) (3) of the Cod~ and (Ix) this Lease does not c~stitwte
an arbitrage Obllgatial within th~ meaning of ~eetfon 148 of the
Code and Is not federally guaranteed within the mesning of
section 149(b) of the C~. lesse~ ahall delIver to lessor nn
opinion of Lessee's counsel in form 8M substance 8S set forth
in the fonn of opinion of counsel attaeh~ hereto or otherwise
acceptable to lessor, dated the date of 8cc~t~nee of the E~ip.
ment fXJr$uant to Section 3 hereof. In the eV<<lt that a question
. arIses as to Ltcsea's ~lIf1catlon ag a political sl.bdivisiol'\,
lessee agrees to e~ecute 8 power of attorney 8uthori!lt~ l@ssor
to moko application to the tnternal R~enue Servlcl! for a letter
ruling with res~c:t to the iS$ve.
8. TITLE TO l!Cl1rPMS:fIT. Upon act;eptance of the I!qui pnent by
Lessee herel.l'lCler, title to th-e Equlpnent loll II vest In Less~
,l.bject to Lessor'S rights \.I'lder this Le~se; provided, hOHever,
that (i) in the event of termination of thi, Lease pur~~nt to
Section 6 hereof, (ii) upon the occurrence of an Event of
DcfilUl t heretrtder, and 8!1 long 8S su::n Event of Defaul tis
continuing, or (i II) in the event that the ~rchase opt i on ha,
not been exercised prior to the Expirlltion Dllte, title will
immediately vest in lessor or its 8ssignee without any scti~l by
Lessee and Lessee shall immediately surrender ross~s$ion ~f the
equipment to Lesaor or Its assignee In the mon~r set forth in
Section 5 hereof.
. USE; ~PAtR$. Lessee will use the Equipment in a careful
me r for the use contefl'9lated by th~ lI\'ll/'lJfacturer of the
EquIpment. lH~e shall cooply Nlth all laws, ordinances, in-
surance pol icies end regulations relating to th~ possession,
use, o~ration or maintenonce of the Equi~t. Le$see, at It~
expens~, wi II keep th~ Equfpnent In good worKing order end.
July 199Z-Florlda Previous editions may NOT be used
rep,'lir and furnish all parts, mechanisms and devic~ requirt<
therefor.
10. AlTERA TlOOS. LesSf>e wi II not make any al terati ons, addi
t ions or improvf!foonts to the Equipnent \.II th~t lessor's priol
wri tten consent unless such al terat Ions, additioos or inprovement!
may be readi I y removed \.Ii thout dalllage to the Equi~t.
11. lCJU.T1CJii U/~ECTla.l. The Equipnent wi II not be remoVE!(
frcm or, if the Eq.Jipnent consists of rolling stock, its permanenl
bMe will not be chl\n9~ frOlll the Equipnent location without
les~or'$ prior wdtten con!\ent which will not be unreasonabl)
withheld. Lessor will be entitled to enter upon the Equipnent
Locat ion or elsewhere c1Jring reasonable business hours to inspect
the Equipment or observe it, use and operation.
12. LIEMS AHD TAXES. Lessee $hal I k.eep the Equipnent fr~ and
cle~r of all levies, liens and encumbrances exc!pt those created
under eh is lease. leSs~ slla II pay, wnen dve, all charges and
taxes (local, state and federal) which may now or h~r~after be
Impos~ upon the ownership, leasing, r~ntal, sale, purch~se,
possession or use of the Equipment, excluding however, all taxes
on or ffie3Sured by l.e$$or's income. If Lessee fails to pay said
charges, or tllXes -nen due, Les$or may, but ~ not, pay ,aid
charges or taxeS and, In such event, less~ shall relmburs~ Lessor
therefor on demand, with Interest at the msxi~~ rate permitted by
law from the date of such paYment by lessor to the date of reim-
bursement by Lesse-e.
13. RIs( Of lOSS; D~i DESTRUCTION_ Lessee assumes all risk
of loss of or damage to the Equipment from any cause whatsoever,
ard no such loss of or damage to the Equipment nor defect th~r~ln
nor IJnfi tll!~SS or obsolesc~ne~ thereof ~al I relIeve lessee of the
obligation to make Lease Payments or to perform any other obliga-
tion urder this Lease, In the ~vent of damage to eny item of
Eq~Ipment, Lessee will immediately place the same in good r~air
with the proc:~ of any insurance recovery applied to the cost of
such rep.:lir. If Lessor determines that lIny item of Equi;:ment Is
lost, stolen, destroyed or damaged beyond repair, Lessee, at the
option of lessor, will either (a) replace the same with like
equipment in good repair, or (b) on the next leas~ Payment Date,
pay Lessor: (i) all amounts then owed by Lessee to Les,or under
this lease, including th~ lease Pa~nt due on such date, and (If)
an amount equal to the applicable Concluding Pa~nt s~t forth In
Sch~'Jle A opposi te such Lease Payment Oate. In the event that
lessee is obligated to make such ~1yment pursuant to subparagroph
(b) above with respect to less than all of th~ Equipment, Lessor
will provide lessee with the pro rata amount of the lease Payment
ancl the Concll.l:!ing Payment to be made by Lessee with respect to
the Equipment which has suffered the event of loss.
14. Pt:Rsaw. PRtl'lORlY. The Equipment is am will remllin per-
sonal property and will not be deemed to be aft ixed or attached to
real estate or any I::oildlng thereon. If reqvested by lessor,
Lessee will, ~t lessee's expense, furnish a waiver of any interest
in the Equlpnent from any party having an interest in any su::h
real estate or building.
15. INSOAAHc:. Lessee, wit l, at iu expense, lnaintain at all
tirM$ dJring the Lease Term, fire and extended coverage, pLblic
liability ar~ property damage insur~nce with respect to the Equip-
ment in such alllOU'1u, (overing such risks, ~nd with such insurers
as shall be satisfactory to Lessor, or, with lessor's prior writ"
ten consent, may self-Insure against any or all such risks. In no
event will th~ insur~nce limits be less than the amount of th~
then applicable Concluding Paym@nt with respect to such Equipment
or, in the case of public liability and property damage insurance,
in the BIllOUnts of $100,000/$300,000 bodily injury lillbil ity and
S50,OOO property damage insurance sufficient to meet the require-
ments of section 324.021(9)(b) of the Florida Sututes (or any
successor statute). Each i~urance policy wIll name Lessee as an
insur~ ~nd lessor or its anigns a, an additional insured, and
will contain a clause r~uiring the insurer to give lessor or its
assigns at least thirty (30) ~ys prior "'ritten notice of IIny
alteration in the terms of such policy or the cancellation there-
of. The proceeds of :my such policies will be payable to l~see
ancl lessor or its assigns as their interests may Ilppellr. Up:ln
OCT 27 '92 12:37
F R (1 f'l C (11'11'1 LI 1(1 I:; -1'1 U t j I C I R H Lll 1
F'H(,E . Ct 1 C1
occ~tr.nc:e of the E'iuirment end LpOrl eaeh insurance rer~Ha I
date, less~ wltl delfv~1' to l~$or tl certificate !'vldef"':'ing
such insurBnCe. In the event thllt LeSllee 11M t.!1'!!'l pprmi tttd to
ael f- insure, lesa~ will furni gh Lessor wi th 8 letter or cer-
tificate to such r:ff8Ct. In the event of any lou, dalM<]!!,
injury or accident invotvin; the Equipment, Lessee will promptly
provide Lessor with writt~ notice ther~I end ~ke av~il&ble to
LeGGor all info~tion end d\)eunontatlon relating tl'1er(tro l}nd
shall permit Lessor to pGrticipate ar~ co~~r8te with LeS5ee in
mak ing any claim for Insurance in res~t thereQf.
16. LeSSE:'S NEGLlaCC. I.essee essunes all risl:~ er'.d 1 ie-
.'t;es, ,,"ether or not c:o~ril!'d by i~urance, for los:<l or
ge to any EqJipnent ard for injury or death of any pt'r!'Ctl or
ge to any property, whet!,e,. such injury Of' death ~ wi th
respec:t to agents or enployees of Lessee or to th i rd part I a',
ard wnether such prop!!rty danall" to ~ l~s~'tl prl'lp'"rfy or to"
property of others, which is proxilMt@ly celriled by the rll'!gl19~t
eonciJct of Ll'!ss~, Its l'I1flcer~, eJl)loy~"!s t>r 3gtnts. l.f..,r.~
hereby as,umes responsibility for and agrees to r~imbursp. ll'lssor
for all Ilabll1tles, obli98tions, loss~, dMl1lges, pefll:llti~,
cIa illlS, ectiOflS, cosU and @XperlS~ (Inc:l wing rl'lMonabll'! att/lr-
ney's fees) of whatsoever kind ard Mture, I~ed en. irr.urr~d
by or asserted agaInst l~ssor th3t In any way relat~ to or arise
01Jt of a claim, suit or proceeding based in wh?le or in p.o:lrt
upon the neglIgent cond\JCtof tl':Ssee, its officers, ~lo'l'ep.s or
agents, to the maximum extent permitted by law.
11. ~ICNMENT. ~ithout lessor's prior written c:ons~nt,
Lessee will not either (i) auign, transfer, pledge, h)'pQthe-
catl!, grant errt sl!Curity InUrKt tn or otherwise dispose of
this lease 01" the Etpipm!!f1t or any Intefe!!lt in this lease or
the Equfpment or (ii) sublet or lend the Equipment or permit it
to be used by anyone other than L@S$" Of' Less~'s etlployees.
Les,or may assign its rights, title and interest in and to thi,
lease, the Equlpncnt and any docunents ~eeuted with r~ptc:t to
this Leese ardlor grant or assign a security interest in this
Lease and the E~ipnent, in whole or in pllrt, am Less~e's
rights wi II be subordinated thereto. Any svc:h ass igne~ shall
have IIll of the rishts of Lessor urder this Lease. Subject f:o
the lor~9oing, thltl Leas@ inures to the benefit of and is bind'
I t19 t.pon the sUccessors end aU I gns of the part I u herNo.
Lessee covenants and agr~ not to assert ~9:\inst the lIssigl~':
any claims or defenses by way of abatement setoff, counterclaim,
rl!Ccupnerlt 01' the like IoIhich Lessee may have 8;sit1$t Lessor.
Upon assignment o( Lessor's interests herein, Lessor will c:ause
wrltun notic:e of suc:h auignmnt to be sent to L"s~ which
wit I be sufficient if it disclO$l!$the 11~ of the assig~l'! ~J)d
address to which further paylMnts her-etnder- should b@ !M~. 110
furt!,er action will be required by Lessor or by Lesse9 to evi-
Qalce thl! asaiWf'1llE!Ot, but LesS" will acknowledge such Mslgn-
lnents in writ ing if so request~. Lnsee shall retain ",II
notices of assignnant and minta!n a book-~try record (8S
f'.ferred to in Section 21) which identifies each owner of L~.
$or's interest In the lease. Upon Lessee'& r~elpt of ~rittp.n
notice of Lessor's assignment of all or any part of its Interest
in the Lease, Lessee agrees to attorn to and reeogni%e any such
assignee as the owner of Lessor's inuiest in this Lease, and
Lessee shall thereafter JIllke Sl,:eh P'yments, Including without
I imItation such Lease PaymenU, as are irdicated in the notic:e
of essig~nt, to such assignee.
18. EVEHT DF DEFAULT_The tel'1ll "Event of Odaul t," :IS used
herein, Meana t!,e occurrencl! 01 any one or more of the follow.
i ng events: (I) Less" falls to mke any lease P3yTMnt (or any
other pa~t) as it bel:anea duo in accordanc:e with the terms
of this Lease, and any such failure continues for ten (10) days
.1 the due date th!!reof; (if) less" falls to perform or
e any other covenont, condition, or agreement to ~ per-
f or ob$erve<l by it heretroder end such fai lure is not c;ured
within t~nty (20) days after written notice thereof by Lessor;
(Iii) the discovery by Lessor that any state1fent, represeota-
tion, Or warranty made by Lessee in this Leas!! Of' in any writing
ever delivered by Le.s~ pursuant hereto or in conneetien here-
with was false, misle~ding, or erroneous in any m$terial
respect; (iv) lessee b<<:anes Insolvent, or is 1.I'1lble to pay its
debts 8S they become due, or makes an assignment for thl! benefit
July 1m-Florida Previouo editions may HOT be uSl!d
of creditors, applies 01' consents to the appoint~nt of a receiv
er, trustee, cor~crv3tor or liquidator of Lesse~ or of lIrry of it
"'~sats. or It pet ition for rei iel i,. fi led by Lessee urder an
c:lnkruptey, insolvency, reorgElnization or similar laws, or
petition in, or a proceeding under, any bankruptcy, insolvency
reorganbation or similar laws is fi led or instituted agains
Lessee and is not dismissed or fully stayed within twenty (20
doys ofter the filing 01' institution thereof; (v) Less~ fails t
make any payment when due or fail s to perform or observe an
cC'v<:nant, condition, or agreement to be perfo~ by it \rlder an'
other agreanent or obligation with Lessor 01' an affiliate 0
lessor and ony llppl icable grace p<!!riod or notice with res~
theretc shall have elapsed or been given; or (vi) an attach~nt
levy or I!xl!cutiCt'l Is thr~ot~ed or levied Upon or against thl
Equl~nt.
19. REMEOIES. Upon the occurrene@ of an Ev@nt of Default, ~
a~ 10119 tIS such Event of Default f~ CCt'ltiruing, Lessor my, 31
its option, exercise any or~ or IOOre of thG followit1g remedies:
(I) by wriUf:n notice to Lessee, declare an a~tJ1t equal to all
8l11O'-'lts then due I.I1der the Lea$e, and all remaining l@ase Paymentl
dlX! during th~ fisctll year of less~ in IIllch th~ defaul t occ:url
to be inmediately due erd payable, whereupon the SIIIOO shall bec~
inmedilltely due and payable; (ii) by written notice to lessee,
qlJ~st Lessee to (and LesSP.e agrees that it will), at lessee'l
e~ense, promptly return the Equipment to Lessor in the manner sel
forth in s~tlon 5 herf:of, 'or Lessor, at its option, mey enter
upon the premi ses idlere the Equi pment is located ard talcI'! ill'lTledi'
ate posMsslon of and remove the !lame; (iii) $~ll or tease tht
Equipment or sublease it lor the account of Lessee, holding lessee
liabl~ lor all lctlse PlIyments and other paymants due to the effect
tlve date of suc:h salling, leasing or suble.!lsing erd for the dif.
ference between the purchase price, rental nnd oth@r a~tJ1ts paie
by th~ purc:haser, lessee or sublessee pursuant to such sale, lease
or sublease and the emountS otherwise payable by Lessee hereunder;
ard (iv) exercise any other rl9ht, remedy 01" privil~e whidl tray
be avai labte to it tn:k>r applicable laws of the state where the
Equipnent is then located or any other awl ic.able law or prOCH<l
by approprfate court ac:tion to enforce the terms of this Lease or
to recover damages for the breach of this Lease or to rescind this
lease os to any or all of the Equipment. In addition, Lessee will
rtmaln I fable for all covenants and fndellniries under this Lease
em for all legal f~s Brei other costs and expenses, including
court costs, incurred by Lessor with respect to the enforcement of
any of the r~edi!!s listed llbove or any other rl'!fr'edy available to
LeSSOr" .
2t). PlJRCHASI: a:'TIOH_ Upon thirty (30) days prior writtl'ln notfce
from l~ssec to lessor, Itnd provided that there is no Event of
Default, or an I!vent wIlieh with notice or laps~ of time, or both,
e~Jld become an Event of Default, then ~~isting, lessee will hav~
the right to purchas!! the Equipment on any ~ease payment date set
forth in Schedule A hereto by paying to lessor, on such date, the
Lease Payment then due togeth~r with the coneluding Payment amount
set forth in Schedule A cpposite such date. Upon satisfaction by
LesseE! of such p.Jrchase c;onditions, lessor will transfer any and
all of its right, title and interest in the Equipment to Lessee as
is, without warranty, express or i/!plied, except Lessor will
warrant that the Equipment is free and clear of any liens created
by lessor.
21. TAX ASSUMPTla(; COVEIWtTS. The parties 8SSune that Lessor
can exclude from Federal gross Income the interest portion of each
le~s" payment set forth in Schedule A under the column captioned
"Interest Portion."
Lessee covenants that it wi II (i) regi 'tel' thf s Luse and
transfers thereof in aeeordanelt with section 149(a) of the Code
and the regulations ther~er, (ii) timely file I statement with
respect to this Lease in the rt:ClUired (orm in sccol'danc:e with
s~cion 149(e) 01 che Code, <iii) not permit the property financed
by thi, Lease to be direc:tly 01' Indirectly used for e prIvate
busine!!!! use within the rneoning of section 141 of the Code, (iv)
not take any action which re$ults, directly or ind;tec:tly. in th~
interest portion of any Lease Pa)llll!l"lt not being exeltrlable from
Federal gross income pursuant to section 103 of the Code and witl
take any reasonable action necessary to prevent such result, and
(v) not toke any action which results fn this lesse bec:oming, and
OCT 27 '92 12:38
F ROt'! (Or'II'1 L 11 [113 -f'IUtl I ( I F'AL U 1
F'AI3E . (11 1
. will toke arry reasonabla acHon to prtlvmt this lei'J~~ frQlfl
becanif'li (a) IlI1 arbitrage oblfgatlon within the ~t!rlif'g of
scction 148 of tho Cede or (b) federally 9\ler3nt~ wi th If) th@
IMllnlng of section 14~ of the Code. Notwith!tan:Jing tha eArl i,r
termination or expir"tion of thla lea.<;e, the Qbl Igstlofls prevj.
ded for in thIs Scctlen 21 $hall &urvl"'l! /;ucl1 etlrl ier t..rl1lina-
tlon or expIration.
22. ~lC!S. All notlcl!6 to be given U"lder this lease shel t
be made In wrlti", end meiled by certlfl@d mall, return receipt
requested, to tho othttr party at i t5 ed:kess set forth herein
or at su:h addreu as th9 party !MY provide in writing fr1;lfll
. to CllM. Any ~l.I:h notice shall be deemed to hllve b~n
ived five days subsequent to mil Ing.
2.3. SEcTION 1fE'j)I~. All $~etlo" h..1ldh"lg~ tmt"Infl<'l ht<:r"ln
are for thl! convenl enee of refer~ only Ilf1d ere not intended
to define or lImIt the scope of Any prevIsion of this Lease.
2'.. OOVERHING lAW. This Leage shall be c:~trut!d in Accordenc
with, and governed by, the lawS of the stat~ of the fquipner
Locat ion.
25. DELl\'ER't OF RELATED DOC:t.tEMTS_ Lessee wi II u~eute ~
provide, as req\lE!sted bl' loessor, such other doc~U end infor
mat ion $9 are re<'lson:'1bly n~t.ssary with respect to the tranuc
tion contemplated by this Lease.
26. ENTIRE A~eaE"T; ,-,^IVER. 'The lellse OOCUlll!nt$ canst i tilt
the entire agre~t betw~n the partle$ with respect to the leas
of the Equipment, and this Lease shall not be modified, amend~
al tered, or changed ~cept wi th the written consent of L~$ee an
Les~Qr. Any provisIon of tMs leMe fotnd to be pt"ohlblted by II
sho'lll be ineffective to the extent of such prohibition wlthou
inv~lld3ting the remainder of this Lease. The waiver by Lessor 0
any breech by Le:!;:!;~ of any ter'M, covenant or concH t i on flerl!<l
shall not operate 9S 8 waiver Qf any subsequent bre&ch thereof.
, 1992
LESSEE: Sample Only
IN WITNESS WHEREOF, the perties have exe<:uted thi~ .AlIreeml!!nt aa of the _ day of
lESSOR: Ford Motor Credit C~ny
By: ,
Title:
S8/1'Ple Onl Y
By:
K. A. Carlson
Title: Busln~ss Project Manager
OPINION Of COUNSEL
With r~~t to that eertain EqJipnent lellse."'uref!ll~e Agreement ("lease") dated _' 1992 by ard between lessor anc
Les~e, I 8Ill of the opinion that: <I) Lessee is a tllJt eXe!lpt entl ty under Sf?l:tlon 103 of the Internal Rev"!!'lUl! Code of 19136, 8!
~1 (il) the execlJt:ion, detiv~ry and perfotmanc~ by les!'lee of the Lease have been duty authorized by ell necessary ection on th{
part of Lessee; <Iii) the le8$e cQn$tltutes e legal, valid m-d hindlng obligation of L~ss~~ ~rofot"l':tabl~ In accordance with Its t~rm:!
and aU statements contained in the Leese and all related imtrunenh at'! true; (Iv) there are no suft:!;, pt'oceedfnga or Investfgatfon$
pending or, to my knowledg@, threat~ a;afn~t or affecting l~SS~, 3t l~w or in equity, or before or by any governmental or adminis'
trative agency or instrunentetity whic:h, if edversely determined, kould have a Illaterial adverse eff~t on the transaction contelTplatl!C
In the leese or the ability of Le"el! to perfoNn Its obligaticns ~r the Lease end Lessee is not in default under any IIlateri.l
obligation for the payment of borro~ money, for the deferred purcha~e price of property or for the p~nt of any rent und@r An~
lea$e agreement which I!lther indf...fdJally or In the aggregate would have the same such effect; an:f (v) all required p.Jblic bidding
proc:ed.lres regarding the award of the LeMe have been follC'>Wed by less~ and no goverMlental ord~rs, ~Nnissions, consents, approvals
or IIUthoriutions are required to be cbt81ned and no registrations or declarations Ire required to be filed in c:omection with the
execution and delivery of the Lea.e.
S<'lnple Only
Attorney for Lessee
.
July 1992-FLoridlt Previous editions II'BY NOf be uaefJ
.
.
OCT 27 '92 12:39
F P (1 1'1 C (1 1'1 r'l U l [II':; - 11 WJ I C I PAUl 1
PA'3E.012
AMENDMENT
The certain Equipment lease-Purchase Agreement by and between Ford Notor Credit
Company ("Lessor") and ("Lessee"), dated as of
19_ {the "lease"} ;s hereby amended as follows:
A. lessee has not issued, and reasonably anticipates that it and
its subordinate entities will not issue, tax-exempt obligations
(including this Agreement) in the amount of more than
$10,000,000 during the clIn'ent calendar year; hereby designates
this Agreement as a "qual ified tax-exempt obligation" within
the meaning of Section 265(b)(3) of the Internal Revenue Code
of 1986, as amended, ("Code"); and agrees that 1t and its
subordinate entities will not designate more than $10,000,000
of their obligations as "qualified tax-exempt obligations"
during the current calendar year.
B. The parties assume and intend that this Agreement will qualify
as a "qualified tax-exempt obligation" within the meaning of
Section 265(b}(3){B) of the Code. In the event that Lessor,
its assignees or sub-assignees either (i) receive notice from
the Internal Revenue Service; or (i1) reasonably determines,
based on an opinion of independent tax counsel selected by
Lessor and approved by Lessee, which approval lessee shall not
unreasonably withhold; that the otherwise applicable exception
set forth in Section 265(b){3) of the Code is not available,
then lessee shall pay lessor, its assignees or sub-assignees,
as the case may be, within thirty {30} days after receiving
notice from Lessor of such determination, the amount which,
w1th respect t~ rental payments previously paid, will restore
the after-tax yield on the transaction evidenced by this
Agreement to that which would have been had such exception
been available, and pay as additional rent on succeeding rent
payment due dates such amount as will maintain such after-tax
yield.
Except as amended hereby, the Lease shall otherwise remain unchanged and in full
force and effect.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day of t 19_
LESSEE:
lESSOR: Ford Motor Credit Company
\~
BY:0-rY~~ i
O~'
Title:
\.,e...----
By .0 C? ,r"" ~ '\.~
-d O~ ~ /
Title:
UCI C:( ''::I;:: lC:::.;I';:I
t ~ U 1'1 C 1_' 1'1 r'l L r~ LII., - 1'1 U r1 1 ,_ 1 t-' H L II 1
t-'HI.:iC . IJ l:j
SCHEDULE A - EQUIPMENT LEASE-PURCHASE AGREEMENT
Lease No.
Page 1
This Equip~ent Schedule dated as of, is being executed by Ford Motor
Credit Company ("Lessor"), and .
("Lessee"), as a supplement to, and is hereby attached to and
.de a part of that certain Equipment Lease-Purchase Agreement dated as of
"Lease"), between Lessor and Lessee.
Lessor hereby leases to Lessee under and pursuant to the Lease, and Lessee hereby
accepts and leases from Lessor under and pursuant to the Lease, subject to and upon the
terms and conditions set forth in the Lease and upon the terms set forth belo~, the
following items of Equipment:
I I I
/ QUANTITY I DESCRIPTION (MANUFACTURER, HODEL AND SERIAL NO.) I ,.
I I I
I I I
/ / I
I I I
I I Serial Nos.: I
I / I
/ / I
I I I
/ / I
I I I
I / I
I / /
I. /, " _ I
/EQUIPMENT LOCATION:
SUPPLIER
I
/
/
Initial Term:
Months
Commencement Date:
Periodic Rent: Consecutive Payments of S' each (including
interest), followed by one final payment of $ plus any and all
other payments due under this Lease-Purchase Agreement. The Periodic
Rent PeymentD aleo includQ any QPp1i~Qble $alea/u3e tax due and payable
on the Lease Payment Dates, set forth in Schedule At Page 2.
EXECUTED as of the date first herein set forth.
LESSEE:
· ~V
BY, ~..~)or"'i( "1
o~. .
LESSOR: FORD MOTOR CREDIT COMPANY
"
BY:
/
I
I
I
/
I
I
I
I
I
I
I
I
I
I
I
/
I
I
OCT ,..,... '92 12:40 F RI:JI'I C(II'll'l UWI3 -r'lU~l I C [ PAL It 1 F'A(3E . 014
Cor
Scbed1.l1e 11 Page 2
Payment Scbedule Lease Humber: 0
L.a.. Lealie
payment PaYlllenl: Lease Iat.erese. principal concluding
.umber Date Payment ~ort1on Por:t1Qn Payment.
1 1 / 1 /1992 $0.00 $0.00 $0.00 $0.00
2 2 / 1 /1992 0.00 0.00 0.00 0.00
. 3 3 / 1 /1992 0.00 0.00 0.00 0.00
<< << / 1 /1992 O.QO 0.00 0.00 0.00
5 5 / 1 /1992 0.00 0.00 0.00 0.00
6 6 / 1 /1992 0.00 0.00 0.00 0.00
7 7 / 1 /1992 0.00 0.00 0.00 0.00
8 8 / 1 /1992 0.00 0.00 0.00 0.00
9 9 / 1 /1992 0.00 0.00 0.00 0.00
10 10 / 1 /1992 0.00 0.00 0.00 0.00
11 11 / 1 /1992 0.00 0.00 0.00 0.00
12 12 / 1 /1992 0.00 0.00 0.00 0.00
13 1 / 1 /lU) 0.00 0.00 0.00 0.00
14 2 I 1 /1993 0.00 0.00 0.00 0.00
15 3 I 1 /1993 0.00 0.00 0.00 0.00
16 << / 1 11993 0.00 0.00 0.00 0.00
17 5 / 1 /1993 0.00 0.00 0.00 0.00
18 6 / 1 11993 0.00 0.00 0.00 0.00
19 7 / 1 /1993 0.00 0.00 0.00 0.00
20 8 / 1 /1993 0.00 0.00 0.00 0.00
21 9 / 1 /1993 0.00 0.00 0.00 0.00
22 10 / 1 /1993 0.00 0.00 0.00 0.00
23 11 I 1 /1993 0.00 0.00 0.00 0.00
;14 12 I 1 /1993 0.00 0.00 0.00 0.00
2S 1 / 1 /1994 0.00 0.00 0.00 0.00
26 2 / 1 /1994 0.00 0.00 0.00 0.00
27 3 I 1 11994 0.00 0.00 0.00 0.00
28 .( / 1 /1994 0.00 0.00 0.00 0.00
29 5 / 1 1199t 0.00 0.00 0.00 0.00
30 6 1 1 /1994 0.00 0.00 0.00 0.00
n 7 1 1 11994 0.00 0.00 0.00 0.00
32 8 I 1 ./1994. 0.00 0.00 0.00 0.00
33 9 / 1 /1994 0.00 0.00 0.00 0.00
34 10 / 1 /1994 0.00 ' 0.00 0.00 0.00
35 11 / 1 /1994 0.00 0.00 0.00 0.00
36 12 / 1 /1994 0.00 0.00 0.00 1.00
TOTALS 0.00 0.00 0.00
.
OCT 27 '92 12:40
F PO f'l C 1:lf'11'1 L II DG - r'lU~'l I C I PAL 111
PAr:3E.OI5
LESSOR~ FORD MOTOR CREDIT COHPANY
P. O. Box 1739
Oearborn, MI 48121
DELIVERY AND ACCEPTANCE CERTIFICATE
411it'e undersigned Lessee hereby acknowledges receipt of the Equipment descdbedbelo;{
~Equipmenttt) as fully installed and in good working condition; and Lessee hereby
accepts the Equipment after full insp~ction thereof as satisfactory for all purposes of
the Equipment Lease-Purchase Agreement ("Leasen) executed by Lessee and Lessor. \
I
LEASE I
NUMBER I
I
I
_I
I
PURCHASE I
DATE I
I
I
I
I
PURCHASE I
ORDER NO. I
I
I
I
I
I LEASE
I DATB
I
,I,
scaEDULE A
DATE
I I
I DELIVERY I
I NUMBER I
I I
I 1 I
I I
EQUIPMEtrr INFORMATION
I I I I
I QUANTITY I DESCRIPTION (MANUFACTURER, MODEL AND SERIAL NO.) I SUPPLIER I
I I I I
I I I I
I I I I
I I Serial Nos.! I I
I I I I
I I I I
I I I I
I I I I
I I I I
I I I I
I '1 I I
I I I I
I I I I
LESSEE:
BY:
",<V
5<"
~ -0:TITLE)" -\
DA ACCEV-C-
.
'.
** TOTAL PAGE.01S **