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MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT This Master Equipment Lease/Purchase Agreement dated as of Dev. ?>, '2.001, and entered into between Dell Marketing, L.P., its successors and assigns ("Lessor"), and Sample Lessee, a body corporate and politic existing under the laws of the State of Florida ("Lessee"). 1. Al!reement. Lessee agrees to lease from Lessor certain "Equipment" as described in each Equipment Schedule (Exhibit A), which together with a Rental Payment Schedule (Exhibit A-I) constitute a "Schedule", subject to thc tenns and conditions of and for the purposes set forth in each Lease. Ilems of equipment may be added to the Equipment from time to time by execution of additional Schedules by the parties hereto and as otheJWise provided herein. Each Schedule and the tenns and provisions of this Agreement (which includes all exhibits hereto, together with any amendments and modifications pursuant thereto) which are incorporated by reference into such Schedule shall constitute a separate and independent lease and installment purchase of the Equipment therein described and are referred to herein as a "Lease". 2. Term. The "Commencement Date" for each Lease is the date when interest commences to accrue under such Lease which date shall be the earlier of (i) the date on which the Equipment listed in such Lease is accepted by Lessee in the manner described in Section II, or (ii) the date on which sufficient monies to purchase the Equipment listed in such Lease are deposited for that purpose with an escrow agent. or (iii) the date sufficient monies are set aside for acquisition of Equipment as evidenced in Exhibit D. if applicable. The "Lease Tenn" for each Lease means the Original Tenn and all Renewal Tenns therein provided and for this Agreement means the period from the date hereof until this Agreement is tenninated. The "Original Term" means the period from the Commencement Date for each Lease until the end of Lessee's fiscal year or biennium (as the case may be) (the "Fiscal Period") in effect at such Commencement Date. The "Renewal Tenn" for each Lease is each term having a duration that is coextensive with the Fiscal Period. . 3. ReDresentatlons and Covenants of Lessee. Lessee represents, covenants and warrants for the benefit of Lessor on the date hereof and as of the Commencement Date of each Lease as follows: (a) Lessee is a public body corporate and politic duly organized and existing under the constitution and laws of the State with full power and authority under the constitution and laws of the state where the Lessee is located ("State") to enter into this Agreement and each Lease and the transactions contemplated hereby and to perfonn all of its obligations hereunder and under each Lease; (b) Lesse~ 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 and held in accordance with State law, or by other appropriate official approval, and all requirements have been met and procedures have occurred to ensure the validity and enforceability of this Agreement and each Lease; (c) Lessee will do or cause to be done all things necessa~ to preserve and keep in full f~rce and effect its existence as a body corporate and politic;' (d) Lessee has complied with such public bidding requirements as may be applicable to this Agreement and each Lease and the acquisition by Lessee of the Equipment as provided in each Lease; (e) during the Lease Tenn, the Equipment will be used by Lessee solely and exclusively for the purpose of perfonning essential governmental or proprietary functions of Lessee consistent with the pennissible scope of Lessee's authority; (f) Lessee will annually provide Lessor with current financial statements, budgets, proof of appropriation for the ensuing Fiscal Period, and such other financial information relating to the ability of Lessee to continue each Lease as may be requested by Lessor; and (g) 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. 4. Tax and Arbitral!e ReDresentations. Lessee hereby represents as follows: (a) the estimated total costs of the Equipment listed in each Schedule will not be less than the total principal portion of the Rental Payments listed in such Rental Payment Schedule; (b) the Equipment listed in each Schedule has been ordered or is expected to be ordered within 6 months of the Commencement Date, and all amounts deposited in escrow to pay for the Equipment, and interest earnings, will be expended on costs of the Equipment and the financing within 3 years of Commencement Date; (c) no proceeds of any Lease will be used to reimburse Lessee for expenditures made more than 60 days prior to the Commencement Date or, if earlier, more than 60 days prior to any official action taken to evidence an intent to finance; (d) Lessee has not created or established, and does not expect to create or establish, any sinking fund or similar fund (i) that is reasonably expected to be used to pay the Rental Payments, or (ii) that may be used solely to prevent a default in the payment of the Rental Payments; (e) the Equipment listed in each Schedule has not been and is not expected to be sold or otheJWise disposed of by Lessee, either in whole or in part, prior to the last maturity of Rental Payments; (I) Lessee will comply with all applicable provisions of the Internal Revenue Code of 1986, as amended ("Code"), including without limitation Sections 103 and 148 thereof, and the applicable regulations of the Treasury Department to maintain the exclusion of the interest components of Rental Payments from gross income for purposes of federal income taxation; and (g) Lessee intends that each Lease not constitute a "true" lease for federal income tax purposes. 5. Lease of EqulDment. Upon the execution of each Lease. Lessor demises, leases, transfers, and lets to Lessee, and Lessee acquires, rents, leases and hires from Lessor, the Equipment in accordance with the tenns thereof The Lease Term for each Lease may be continued, solely at the option of Lessee, at the end of the Original Tenn or any RenewJal Tenn for the next succeeding Renewal Tenn up to the maximum Lease Tenn set forth in such Lease. At the end of the Original Term and at the end of each Renewal Term the Lease Tenn shall be automatically extended upon the successive appropriation by Lessee's governing body of amounts sufficient to pay Rental Payments and other amounts payable under the related Lease during the next succeeding Fiscal Period until all Rental Payments payable under such Lease have been paid in full, unless Lessee shall have tenninated such Lease pursuant to Section 7 or Section 22. The tenns and conditions during any Renewal Tenn 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. 6.!=on.Jinul!.tionofl:ea~!;..Tcr!!!. Lesset'currentlyintends, subje(,tto SectiQn7, to 'coiitiiiuethe Lease Ternio(each Lease tliroughthe Original term-and all Renewal Tenns and to pay the Rental Payments thereunder. Lessee reasonably believes that legally available funds in an amount sufficient to make all Rental Payments during the maximum Lease Tenn of each Lease can be obtained. Lessee currently intends to do all things lawfully within its power to obtain and maintain funds from which the Rental Payments may be made, including making provision for such payments to the extent necessary in each budget or appropriation request submitted and adopted in accordance with applicable provisions of law. Notwithstanding the foregoing, the decision whether or not to budget and appropriate funds or to extend the applicable Schedule for any Renewal Term is within the discretion of the governing body of Lessee_ 7. NonaDDroDrlation. Lessee is obligated only to pay such Rental Payments under each Lease as may lawfully be made from funds budgeted and appropriated for that purpose. Should Lessee fail to budget, appropriate or otheJWise make available funds to pay Rental Payments under any Lease following the then current Original Term or Renewal Term, such Lease or Leases shall be deemed terminated at the end of the then current Original Term or Renewal Tenn. Lessee agrees to deliver notice to Lessor of such tennination at least 30 days prior to the end of the then current Original Tenn or Renewal Term, but failure to give such notice shall not extend the term beyond such Original Tenn or Renewal Term. If any Lease is tenninated in accordance with this Section, Lessee agrees to peaceably deliver the Equipment to Lessor at the location(s) to be specified by Lessor. 8. Conditions to Lessor's Performance. This Agreement is not a commitment by Lessor to enter into any Lease not currently in existence, and nothing in this Agreement shall be construed to impose any obligation upon Lessor to enter into any proposed Lease, it being understood that whether Lessor enters into any proposed Lease shall be a decision solely within Lessor's discretion. Lessee will cooperate with Lessor in Lessor's review of any proposed Lease. Lessee understands that Lessor requires certain documentation and infonnation necessary to enter into any Lease and Lessee agrees to provide Lessor with any documentation or infonnation Lessor may request in connection with Lessor's review of any proposed Lease. Such documentation may include, without limitation, documentation concerning the Equipment and its contemplated use and location and documentation or infonnation concerning the financial status of Lessee and other mailers related to Lessee. 9. Rental Payments. Lessee shall promptly pay "Rental Payments" as described in Exhibit A-I to each Lease, exclusively from legally available funds, to Lessor on the dates and in such amounts as provided in each Lease. Lessee shall pay Lessor a charge on any Rental Payment not paid on the date such payment is due at the rate of 12% per annum or the maximum rate pennitted by law, whichever is less, from such date until paid. Rental Payments consist of principal and interest portions. Lessor and Lessee understand and iI/tend that the obligation of Lessee to pay Relllal Payments under each Lease shaJ/ constitute a ClInel/! expense of Lessee and shaJ/ not in any way be construed to be a debt of Lessee il/ contravel/tion of any applicable constitutional or statutory limitation or requiremel/t concerning the creation of indebtedness by Lessee, nor shaJ/ anything contained herein or in a Lease constitute a pledge of the general tax revenues, fUnds or monies of Lessee. 10. RENTAL PAYMENTS TO BE UNCONDITIONAL. EXCEPT AS PROVIDED IN SECTION 7, THE OBLIGATIONS OF LESSEE TO MAKE RENTAL PAYMENTS AND TO PERFORM AND OBSERVE THE OTHER COVENANTS AND AGREEMENTS CONTAINED IN EACH LEASE SHALL BE ABSOLUTE AND UNCONDITIONAL IN ALL EVENTS WITHOUT ABATEMENT, DIMINUTION, DEDUCTION, SET-OFF OR DEFENSE, FOR ANY REASON, INCLUDING WITHOUT LIMITATION ANY FAILURE OF THE EQUIPMENT TO BE DELIVERED OR INSTALLED, ANY DEFECTS, MALFUNCTIONS, BREAKDOWNS OR INFIRMITIES IN THE EQUIPMENT OR ANY ACCIDENT, CONDEMNATION OR UNFORESEEN CIRCUMSTANCES. 11. Dellverv: Installation: AcceDtance. Lessee shall order the Equipment, cause the Equipment to be delivered and installed at the location specified in each Lease and pay any and all delivery and installation costs in connection therewith. When the Equipment listed in any Lease has been delivered and installed, Lessee shall immediately accept such Equipment and evidence said acceptance by executing and delivering to Lessor an Acceptance Certificate (Exhibit B). In the event that Lessee has not provided Lessor with the requisite Acceptance Certificate within thirty (30) days from receipt of the Equipment, the Equipment shall be deemed accepted by Lessee and the lease tenn shall commence. Lessor shall provide Lessee with quiet use and enjoyment of the Equipment during the Lease Term. 12. Location: InsDection. Once installed, no item of the Equipment will be moved from the location specified for it in the Lease on which such item is listed without Lessor's consent, which consent shall not be unreasonably withheld_ Lessor shall have the right at all reasonable times during regular business hours to enter into and upon the property of Lessee for the purpose of inspecting the Equipment. 13. Use: Maintenance. Lessee will not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or in a manner contrary to that contemplated by the related Lease. Lessee shall provide all permits and licenses, if any, necessary for the installation and operation of the Equipment. In addition, Lessee agrees to comply in all respects with all applicable laws, regulations and rulings of any legislative, executive, administrative or judicial body. Lessee agrees that it will, at Lessee's own cost and expense, maintain, preserve and keep the Equipment in good repair and working order. Lessee will enter into a maintenance contract for the Equipment that is acceptable to Lessor. 14. Title. Upon acceptance of the Equipment under a Lease by Lessee, title to the Equipment shall vest in Lessee subject to Lessor's rights under the Lease; provided that title shall thereafter immediately and without any action by Lessee vest in Lessor, and Lessee shall immediately surrender possession of the Equipment to Lessor, upon (a) any tennination of the applicable Lease other than termination pursuant to Section 22 or (b) the occurrence of an Event of Default. Transfer of title to Lessor pursuant to this Section shall occur automatically without the necessity of any bill of sale, certificate of title or other instrument of conveyance. Lessee shall, nevertheless. execute and deliver any such instruments as Lessor may request to evidence such transfer. 15. Securltv Interest. To secure the payment of all of Lessee's obligations under each Lease, upon the execution of such Lease, Lessee grants to Lessor a security interest constituting a first and exclusive lien on the Equipment applicable to such Lease and on all proceeds therefrom. Lessee agrees to execute such additional documents, in fonn satisfactory to Lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest in the Equipment. 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. 16. Liens, Taxes. Other Governmental ChImes and UtlIltv Charl!es. Lessee shall keep the Equipment free of all levies, liens and encumbrances except those created by each Lease. The parties to this Agreement contemplate that the Equipment will be used for governmental or proprietary .purposes of Lessee and that the Equipment will therefore be exempt from all property taxes. If the use, possession or acquisition of any Equipment is nevertheless detennined to be subject to taxation, Lessee shall pay when due all taxes and governmental charges lawfully assessed or levied against or with respect to such Equipment. Lessee shall pay all utility and other charges incurred in the use and maintenance of the Equipmen,t. Lessee shall pay, such taxes or charges as the same may become due. _IJ._ InsurallQ. AUlsO!Vnex!'e!1st:,.Le$sce);hllILduringeachle~seT"",nmaintoin (a). .1 casualty insurance insuring the Equipment against loss or damage by fire and all other risks covered by the standard extended coverage endorsement then in use in the State and any other risks reasonably required by Lessor, in an amount at least equal to the then applicable "Purchase Price" of the Equipment as described in Exhibit A-I of each Lease; (b) liability insurance that protects Lessee from liability in all events in fonn and amount satisfactory to Lessor; and (c) workers' compensation coverage as required by the laws of the State; provided that, with Lessor's l'rior written consent, Lessee may self-insure against the risks described in clauses (a) and (b). Lessee shall furnish to Lessor evidence of such insurance or self-insurance coverage throughout each Lease Tenn. Lessee shall not materially modify or cancel such insurance or self-insurance coverage without first giving written notice thereof to Lessor at least 10 days in advance of such cancellation or modification. All such insurance described in clauses (a) and (b) above shall contain a provision naming Lessor as a loss payee and additional insured. 18. Advances. In the event Lessee shall fail to keep the Equipment in good repair and working order, Lessor may, but shall be under no obligation to, maintain and repair the Equipment and pay the cost thereof. All amounts so advanced by Lessor shall constitute additional rent for the then current Original Tenn or Renewal Term and Lessee agrees to pay such amounts so advanced by Lessor with interest thereon from the advance date until paid at the rate of 12% per annum or the maximum rate permitted by law, whichever is less. 19. Damal!e. Destruction and Condemnation. If (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, finn or cOflloration acting pursuant to governmental authority, Lessee and Lessor will cause the Net Proceeds to be applied 10 the prompt replacement, repair. restoration, modification or improvement of the Equipment to substantially the same condition as existed prior to the event causing such damage, destruction, or condcmnation, unless lessee shall have exercised its option to purchase the Equipment pursuant to Section 22. Any balance of the Net Proceeds remaining aller such work has been completed shall be paid to Lessee. For pUflloses of this Section, the tenn "Net Proceeds" shall mean (y) the amount of insurance proceeds received by Lessee for replacing, repairing, restoring, modifying, or improving damaged or destroyed Equipment, or (z) the amount remaining from the gross proceeds of any condemnation award or sale under Ihreat of condemnation aller deducting all expenses, including attorneys' fees, incurred in the collection thereof. If the Net Proceeds are insufficient to pay in full the cost of any replacement. repair, restoration, modi fication or improvement referred to herein, Lessee shall either (a) complete such replacement, repair, restoralion. modification or improvement and pay I any costs thereof in excess of the amount of the Net Proceeds, or (b) pursuant to Section 22 purchase Lessor's intcrest in the Equipment and in any other Equipment listed in the same Lease. The amount of the Net Proceeds, if any, remaining after completing such repll!cement, repair, restoration, modification or improvement or after purchasing lessor's interest in the Equipment and such other Equipment shall be retained by Lessee. If Lessee shall make any payments pursuant to this Section, Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be entitled to any diminution of the amounts payable under Section 9.D1SCLAIMER OF WARRANTIES. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR WARRANTY WITH RESPECT THERETO WHETHER EXPRESS OR IMPLIED, AND LESSEE ACCEPTS SUCH EQUIPMENT AS IS AND WITH ALL FAULTS. IN NO EVENT SHALL LESSOR BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE IN CONNECTION WITH OR ARISING OUT OF ANY LEASE OR THE EXISTENCE, FURNISHING, fUNCTIONING OR LESSEE'S USE OF ANY ITEM, PRODUCT OR SERVICE PROVIDED FOR IN ANY LEASE. 21. Vendor's Warranties. Lessor hereby irrevocably appoinls Lessee as its agent and attorney-in-fact during each Lease Tenn, so long as Lessee shall nol be in default under the related Lease, to assert from time to time whatever claims and rights (including without limitation warranties) relating 10 the Equipment thaI Lessor may have against Vendor. The tenn "Vendor" means any supplier or manufacturer of the Equipment as well as the agents or dealers of the manufacturer or supplier from whom Lessor purchased or is purchasing such Equipment. Lessee's sole remedy for the breach of such warranty, indemnification or representation shall be against Vendor of the Equipment, and not against Lessor. Any such matter shall not have any effecl whatsoever on the rights or obligations of Lessor with respect to any Lease, including the right to receive full and timely payments under a Lease. Lessee expressly acknowledges that Lessor makes, and has made, no representations or warranties whatsoever as to Ihe existence or the availability of such warranties by Vendor of the Equipment 22. Purchase Ootion. Lessee shall have the option to purchase Lessor's interest in all of the Equipment listed in any Lease, upon giving written notice to Lessor at least 60 days before the date of purchase, at the following times and upon the following tenns: (a) on the Rental Payment dates specified in each Lease, upon payment in full of Ihe Rental Payments then due under such Lease plus the then applicable Purchase Price as referenced in Exhibit A-I; or (b) in the event of substantial damage to or destruction or condemnation of substantially all of the Equipment listed in a Lease, on the day specified in Lessee's notice to Lessor of its exercise of the purchase option upon payment in full to Lessor of the Rental Payments then due under such Lease plus Ihe then applicable Purchase Price plus accrued interest from the immediately preceding Rental Payment date 10 such purchase date. 23. Assll!nment. Lessor's right, title and interest in and to this Agreement andlor some or all Leases, including Rental Payments and any other amounts payable by Lessee thereunder and all proceeds therefrom, may be assigned and reassigned 10 one or more assignees or subassignees by Lessor without the necessityof obtaining the consent of Lessee. Lessee agrees to execute all documents that may be reasonably requested by Lessor or any assignee 10 protect its interests and property assigned pursuant to this Section. Lessee shall not have the right to and shall not assert against any assignee any claim, counterclaim or other right Lessee may have against Lessor or Vendor. Assignments may include without limitation assignment of all of Lessor's security interest in and to the Equipment listed in a particular Lease and all rights in, to and under the Lease related to such Equipmc;nt. Lessee hereby agrees that Lessor may, without notice to Lessee, sell, dispose of, or assign this Agreement or any particular Lease or Leases through a pool, trust, limited partnership, or other similar entity, whereby one or more interests are created in this Agreement or in a Lease or Leases, or in the Equipment listed in or the Rental Payments under a particular Lease or Leases. None of Lessee's right, title and interest in, to and under any Lease or any portion of the Equipment listed in each Lease may be assigned, subleased, or encumbered by Lessee for any reason without obtaining prior wrillen consent of Lessor. 24. Events of Ddault. Any of the following events shall constitute an "Event of Default" under a Lease: (a) failure by Lessee to pay any Rental Payment or other payment required to be paid under a Lease at the time specified therein; (b) failure by Lessee to observe and perfonn any covenant, condition or agreement on its part to be observed or perfonned. other than as referred to in subparagraph (a) above, for a period of 30 days aller wrillen notice specifying such failure and requesting that it be remedied is given to Lessee by Lessor: (c) any statement, representation or warranty made by Lessee in or pursuant to any Lease shall prove to have been false, incorrect, misleading or breached in any material respect on the date when made; or (d) Lessee institutes any proceedings under any bankruptcy, insolvency, reorganization or similar law or a receiver or similar official is appointed for Lessee or any of its property. 25. Remedies on Default. Whenever any Event of Default exists, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: (a) by wrillen notice to Lessee, Lessor may declare all Rental Payments payable by Lessee pursuant to such Lease and other amounts payable by Lessee under such Lease to the end of the then current Original Tenn or Renewal Tenn to be immediately due and payable; (b) with or without tenninating the Lease Tenn under such Lease, Lessor may enter the premises where the Equipment listed in such Lease is located and retake possession of such Equipment or require Lessee at Lessee's expense to promptly return any or all of such Equipment to the possession of Lessor at such place within the United States as Lessor shall specify, and sell or lease such Equipment or, for the account of Lessee, sublease such Equipment, continuing to hold Lessee liable for the difference between (i) the Rental Payments payable by Lessee pursuant to such Lease and other amounts related to such Lease of the Equipment listed therein that are payable by Lessee to the end of the then current Original Tenn or Renewal Tenn, as the case may be, and (ii) the net proceeds of any such sale, leasing or subleasing (after deducting all expenses of Lessor in exercising its remedies under such Lease, including without limitation all expenses of taking possession, storing, reconditioning and selling or leasing such Equipment and all brokerage, auctioneer's and allorney's fees), subject, however, to the provisions of Section 7 hereof. The exercise of any such remedies in respect of any such Event of Default shall not relieve Lessee of any other liabilities under any other Lease or the Equipment listed therein; and (c) Lessor may take whatever action at law or in equity may appear necessary or desirable to enforce its rights under such Lease or as a secured party in any or all of the Equipment. Any net proceeds from Ihe exercise of any remedy under a Lease (after deducting all costs and expenses referenced in the Section) shall be applied as follows: (i) if such remedy is exercised solely with respect to a single Lease, Equipment listed in such Lease or rights thereunder, then to amounts due pursuant to such Lease and other amounts related to such Lease or such Equipment; or (ii) if such remedy is exercised with respect to more than one Lease. Equipment listed in more than one Lease or rights under more than one Lease, then to amounts due pursuant to such Leases pro-rata. 26. No Remedv Exclusive. No remedy herein conferred upon or reserved to Lessor is intended to be exclusive and every such remedy shall be cumulative and shall be in addition to every other remedy given under a Lease now or herealler existing at law or in equity. 27. Notices. All notices or other communications under any Lease shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage prepaid, to the parties hereto at the addresses listed below (or at such other address as either party hereto shall designate in writing to the other for notices to such party), or to any assignee at its address as it appears on the registration books maintained by Lessee. 28. Release and Indemnlficallon. To the extent pennilled by State law, and subject to Section 7, Lessee shall indemnify, release, protect, hold harmless, save and keep hannless Lessor 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, allorney's fees and expenses, penalties connected therewith imposed on interest received) arising out of or as result of (a) entering into any Lease, (b) the ownership of any item of Equipment, (c) the ordering, acquisition, use,operation, condition, purchase, delivery, rejection, storage or return of any item of Equipment, (d) any accident in connection with the operation, use, condition, possession, storage or return of any item of Equipment resulting in damage to property or injury to or death to any person, and/or (e) the breach of any covenant or any material representation contained in a Lease. The indemnification arising under this Section shall continue in full force and effect notwithstanding the full payment of all obligations under all Leases or the tennination of the Lease Tenn under all Leases for any reason. 29. Miscellaneous Provisions. Each Lease shall inure to the benefit of and shall be binding upon Lessor and Lessee and their respective successors and assigns. References herein to "Lessor" shall be deemed to include each of its assignees and subsequent assignees from and after the effective date of each assignment as pennitted by Section 23. In the event any provision of any Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision thereof. Each Lease may be amended by mutual written consent of Lessor and Lessee. Each Lease may be simultaneously executed in several countefllarts, each of which shall be an original and all of which shall constitute but one and the same instrument. 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. This Agreement and each Lease shall be governed by and construed in accordance with the laws of the State. For the sake of clarity, please distinguish between the terms and conditions that apply to the leasing transaction (as stated in this Agreement) and the terms and conditions that grallt you ...arranty rights in connection with the manufacture and sale of the leased equipment (as stated in Dell's Service Agreementfor Dell products). The leasing rights and obligations provided in this Agreement, and in each lease schedule, are not affected by the oral statements or representations of an)' manufacturer's sales force. To the extent permitted by la..., manufacturer's warranties in connection with'leased equipment pass through to you by the terms of this Agreemeiit:-c-,~-~--.-cc . ~ --' -- c~__ ._c____._'.. "- .-,~- '_0_ .___..u__~_c__~_ IN WITNESS WHEREOF, Lessor and Lessee have caused this Agreement to be executed in their names by their duly authorized representatives as of the date first above written. (LESSOR) Dell Marketing, L.P. One Dell Way B~ Nal Y vONt-tf :, Title'i? SL6 FINPNC6 (LESSEE) City of Clearwater 112 South Osceola Ave_ Clearwater, FL 33756 By Attest By Name Name Title Title City of Clearwater 112 South Osceola Avenue Clearwater, Fl 33756 Re: Dell Marketing, L.P. Master Equipment lease/Purchase Agreement Countersigned: CITYO@~FLORIDA WilliartfB. Horne II City Manager ~_.~ Brian J. AUngsY' Mayor-Commissioner Approved as to form: Attest: ~c~Hafm/!~ IL ~ Assistant City Attorney Amendment No, 1 (the "Amendment") to Master Equipment Lease Purchase Agreement dated December 3,2001 ("Agreement") by and between Dell Marketing, L.P. ("Lessor") and City of Clearwater ("Lessee") This Amendment is entered into as of December 3,2001 by and between Lessor and Lessee for the purpose of amending the above referenced Agreement. Lessor and Lessee hereby agree to amend the Agreement as follows: 1. In paragraph 4, subsection (c), append the phrase "resulting from this agreement" after the word "Lease", 2, In Paragraph 8, revise the second sentence to read "Lessee will cooperate with Lessor in Lessor's review of any proposed lease associated with this Agreement", 3. In the third sentence of paragraph 8, insert the phrase "associated with this Agreement" after the phrase "necessary to enter into any Lease", 4. ADD TO the below Section the following: Section 9. Rental Pavrnents. Payments will come from sources other than ad valorem taxes. 5, In the first sentence of Paragraph 12, Location and Inspection, replace the word "Location" with the word "City", 6. In the second sentence of paragraph 12 insert the phrase ", and with reasonable written notice," after the phrase "during regular business hours", 7. In paragraph 13, replace the last sentence with "For all equipment leased under this agreement, Lessee will enter into a Manufacturer warranty for a term no less than the term of the Lease. 8. DELETE the following Section in its entirety: Section 15. Securitv Interest. To secure the payment of all of Lessee's obligations under each Lease, upon the execution of such Lease, Lessee grants to Lessor a security interest constituting a first and exclusive lien on the Equipment applicable to such Lease and on all proceeds therefrom. Lessee agrees to execute such additional documents, in fonn satisfactOl)' to Lessor, which Lessor deems necessary or appropriate to establish and maintain its security interest in the Equipment. 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. 9, In paragraph 16, sentence 3 append the phrase "during the lease term" to the end of the sentence, 10. In Paragraph 23, after Sentence 1, insert the following: "Lessor shall provide timely written notification to Lessee of any such assignment. " 11. In Section 24, subsection (b) replace "30 days" with "45 days", 12. In Section 25, revise first sentence to read: "Whenever any Event of Default exists, Lessor shall provide written notice to Lessee of the specific default. Lessee shall have a period of 30 days to cure such default. If such Default remains uncured for 30 days, Lessor shall have the right, at its sole option without any further demand or notice, to take one or any combination of the following remedial steps: All other terms and conditions of the Agreement remain unchanged and in full force and effect. IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the date first written above. LESSOR: Dell Marketing, L.P. LESSEE: City of Clearwater BY:~D7wLLC- fr{~ Title: I. P. SLG rJ N AN-U? By: Title: FL City of Clearwater 112 South Osceola Avenue Clearwater, Fl 33756 Re: Dell Marketing, L.P. Master Equipment lease/Purchase Agreement Countersigned: WATER, FLORIDA Approved as to form: Attest: 9!::;-Ha~l~ Assistant City Attorney ~~ J1-v- ~~ n ia E.~Gbudeau -'. lerk ./- ASSET DISPOSITION RIDER TO MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT DATED AS OF December 3, 2001 THIS ASSET DISPOSITION RIDER (this "Agreement") is entered into as of the Third day of December, 2001 by and among Dell Marketing, L.P. ("Lessor"), GATX Technology Services Corporation ("GA TX") and Clearwater, City of Florida ("Lessee"). WITNESSETH WHEREAS, Lessor entered into that certain Master Equipment Lease/Purchase Agreement dated as of December 3, 2001 with Lessee pursuant to which Lessor leased to Lessee equipment (the "Equipment") as more particularly described therein (the "Lease"), WHEREAS, pursuant to the Lease, Lessee has the right to purchase the Equipment or return it to Lessor upon the occurrence of certain events as more particularly described therein. WHEREAS, Lessee desires to enter into this Agreement to facilitate the planned disposition of the Equipment. NOW, THEREFORE, in consideration of the foregoing and the mutual promises contained herein, and such other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Disposition of the Equipment. Pursuant to certain other agreements entered into by and between Lessor and GATX, Lessor has agreed to assign and GATX has agreed to assume all of Lessor's obligations, duties, rights, title and interests to the Lease and the Equipment after all scheduled Rental Payments (as defined in the Lease) payable under the Lease have been paid in full or upon damage, destruction or condemnation of the Equipment as described in paragraph 19 of the Lease (the "Triggering Events"), After the occurrence of a Triggering Event, Lessee shall have the following options for disposition of the Equipment each of which are more fully described below: (a) return the Equipment to GA TX; (b) extend the Lease; or (c) purchase the Equipment from GA TX . 2, Return the Equipment. Provided that (i) Lessor has received full payment of all scheduled Rental Payments (ii) Lessee is not otherwise in default under the Lease, and (iii) and Lessee gives GA TX at least 60 days written notice, Lessee may, in its discretion, decide to return all, and no less than all, the Equipment to GA TX, If Lessee so chooses it shall, at its own expense, assemble, pack, ship, and deliver to GA TX at such place as GA TX shall designate within the continental United States, the Equipment, in good order and repair, ordinary wear and tear excepted. The risk of loss and all costs and expenses incurred in connection with or as . a result of returning the Equipment shall be the responsibility of Lessee. Upon acceptance by GA TX, Lessee shall have no further responsibility or liability with respect to the Equipment except for damage thereto, 3. Extend the Lease. Provided that Lessor has received full payment of all scheduled Rental Payments, Lessee may decide to extend the Lease for a term and at a rental rate as may be mutually agreed upon by Lessee and GA TX. If all the Equipment is not returned or purchased from GA TX pursuant to this Agreement, the term of the Lease shall be automatically extended for an additional Renewal Term on the same terms and at the same rental amount, as the then concluded lease term, pro rated on a monthly basis, Provided, however, Lessee may thereafter terminate the Lease upon 60 days prior written notice during any Renewal Term, provided no Event of Default exists and all the Equipment is returned to GA TX on or prior to the terminations effective date, 4. Purchase the Equipment. Provided that Lessor has received full payment of all scheduled Rental Payments, Lessee may, in its discretion, decide to purchase the Equipment from GA TX upon the terms and conditions set forth in the Lease, as amended herein, 5, Amendments to the Lease. To facilitate the planned disposition of the Equipment, the Lease must be modified and amended, Lessor and Lessee hereby agree the Lease is modified as follows: (a) In section 5, entitled Lease of Equipment, delete the phrase ''until all Rental Payments payable under such Lease have been paid if full"; (b) In section 14, entitled Title, in the first sentence delete the phrase "and Lessee shall immediately surrender possession of the Equipment to Lessor" and add the phrase "the earlier of (a) the expiration of the Rental Payment Schedule," immediately after the word "upon", Subsection "(a)" shall now be subsection "(b)" and "(b)" shall now be subsection "(c)". A new second sentence shall be added which reads: "Upon any termination as set forth in subsection (b) or (c) above, Lessee shall immediately surrender possession of the Equipment to Lessor free and clear of any security interest, lien or other encumbrance not created by Lessor." The phrase "and thereafter Lessee shall have no further interest therein" shall be added at the end of the new third sentence; ( c) In section 17, entitled Insurance, change "10 day" advance notice to "30 days"; (d) In section 19, entitled Damage, Destruction and Condemnation, the first sentence beginning after the words "governmental authority" shall read as follows: "Lessee and Lessor will cause the Net Proceeds to be applied to either (i) repair, restore, modify, or improve the Equipment to the same or better condition or (ii) replace the affected Equipment with like or better replacement equipment, acceptable to Lessor, of identical make, model, configuration, capacity and condition, in good repair, free and clear of all liens, claims, and encumbrances," In the next to last sentence, after "after purchasing Lessor's interest in the Equipment and such other Equipment" add "as provided for in Section 22"; (e) In section 22, entitled Purchase Option, the entire paragraph shall be deleted and replaced with the following: "At the end of the Rental Payment Schedule or during any Renewal Term thereafter, provided no Event of Default then exists and provided Lessee gives Lessor 60 days prior written notice, or upon damage or destruction of the Equipment as provided in Section 19 above, Lessee shall have the option to purchase Lessor's interest in all, but not less than all, of the Equipment listed in such lease at its then in place, in use fair market value plus payment in full of all Rental Payments then due."; (t) In Section 23, insert the following sentence at the end of the first paragraph: "Any Assignee of Lessor shall have all of the rights of Lessor hereunder unless expressly agreed in writing." (g) In section 24, entitled Events of Default, the following shall be added: "(e) Lessee attempts to sell, assign, transfer, encumber, dispose of, sublet or lend any of the Equipment without the prior written consent of Lessor."; and (h) The following new section 30 shall be inserted: "30, Software. Lessee and Lessor acknowledge that the Equipment may contain or include a description of certain software (usually application software) in which Lessor and Lessee may have no ownership or other proprietary rights. Where required by the software owner, manufacturer or distributor, Lessee shall enter into a license or other agreement for the use of such software, Any software agreement shall be separate and distinct from this Agreement and any Schedule, and Lessor shall not have any obligations thereunder, but shall have the right to require Lessee to terminate Lessee's use of all operating software, and application software leased hereunder, if any, if a nonappropriation or an Event of Default shall occur and shall be continuing hereunder. To the extent that the Equipment contains any operating system software, such shall be considered as part of the Equipment hardware, In the event rent specified in a Schedule includes an amount attributable to the financing by Lessor of Lessee's fee for use of software, Lessee agrees that such amount shall be deemed rent and subject to all the provisions of this Agreement. Lessee shall return to Lessor all original copies of any operating software together with any application software that was bundled therewith, that is part of any outstanding schedule and is legally transferable, in whatever media form received (in addition to discontinuing the use thereof and destroying all backup copies thereof). Lessee agrees that failure to return all such items will impair the value of the software and that Lessee may be charged for the losses resulting therefrom, " 6. Inspection Rights. GA TX shall have the right to contact Lessee 60 days prior to the final scheduled Rental Payment being due by Lessee to arrange for an inspection, after reasonable written notice, of the Equipment during regular business hours and Lessee agrees to grant GA TX access to enter into and upon the property of Lessee where the Equipment is located to perform such inspection. 7, Nonappropriation or Event of Default. In the event the Lease is terminated as a result of nonappropriation pursuant to section 7 of the Lease or an Event of Default pursuant to section 24 of the Lease, this Agreement shall terminate and be of no further force or effect. Notwithstanding the foregoing, in such event the Lease shall remain in full force and effect such that Lessor shall have all remedies available therein, at law and in equity. 8. Waivers. No delay on the part of any party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof. No waiver on the part of any party of any right, power, or privilege, nor any single or partial exercise of any such right, power, or privilege, shall preclude any further exercise thereof or the exercise of any other such right, power, or privilege. 9. Binding Effect: Assignment. Lessor and GATX may assign and reassign its right, title and interest in and to this Agreement to one or more assignees or sub assignees without the necessity of obtaining the consent of Lessee; provided that any. such assignment shall not be effective until Lessee has received written notice, signed by the assignor, of the name and address of the assignee. None of Lessee's right, title and interest in and to this Agreement may be assigned, subleased or encumbered without obtaining the prior written consent of GA TX and Lessor. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. 10. Interpretation and Severability. The provisions of this Agreement shall, where possible, be interpreted in a manner necessary to sustain their legality and enforceability, and for that purpose the provisions of this Agreement shall be read as if they cover only the specific situation to which they are being applied. The unenforceability of any provision of this Agreement in a specific situation shall not affect the enforceability of that provision in other situations or of other provisions of this Agreement. 11. Governing Law, This Agreement shall be construed under and in accordance with the laws of the state where the Lessee is located without giving effect to choice oflaw principles. 12, Entire Agreement: Amendment. This Agreement (together with any Exhibits hereto and any other documents executed by the parties in connection herewith) sets forth the entire agreement and understanding of the parties related to the subject matter hereof, Except as expressly stated herein, this Agreement does not amend or alter the Lease in any way. Capitalized terms not otherwise defined herein shall have the meanings set forth in the Lease, This Agreement may be amended, modified or terminated only by a written instrument signed by duly authorized representatives of the parties to this Agreement. 13. Headings. Headings in this Agreement are for convenience of reference only and shall in no way affect interpretation. 14, Counterparts, This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as indicated by the signature of their authorized representative below. Lessor: Dell Marketing, L.P. Lessee: Clearwater, City of Florida By: ~/1lL C:ncg.-u Title: ~. :, Lb h /'J-f1NLt; Date: M LOO j By: Title: Date: GATX: GATX Technology Services Corporation By: Title: Date: City of Clearwater 112 South Osceola Avenue Clearwater, Fl 33756 Re: Dell Marketing, L.P. Master Equipment lease/Purchase Agreement S' J~./~V nan . Aung Mayor-Commissioner ---. CITYO~ORIDA - William S. Horne II City Manager Cou ntersig ned: Approved as to form: Attest: ~a~ ssistant City Attorney ADDITIONAL PROVISIONS TO THE ASSET DISPOSITION RIDER TO MASTER EQUIPMENT LEASE/PURCHASE AGREEMENT DATED AS OF December 3, 2001 Lessor and Lessee agree to additional provisions pertaining to this transaction as follows: 1, Paragraph 2 of the Asset Disposition Rider, Return the Equipment will be replaced by the following: Return the Equipment. Provided that (i) Lessor has received full payment of all scheduled Rental Payments (ii) Lessee is not otherwise in default under the Lease, and (iii) and Lessee gives GA TX at least 60 days written notice, Lessee may, in its discretion, decide to return all, and no less than all, the Equipment to GA TX. If Lessee so chooses it shall, arrange with GA TX a mutually agreeable day and time within 3 business days of said notice, whereby GA TX will pick up and return the equipment at its own expense, Lessee, at its own expense, will assemble and stage the equipment at a single location and at a pick up point near a loading dock or other specified shipping and receiving location. The pick up may not involve stairs or "long carries" as defined by the shipping company, Lessee will remain responsible for the Equipment to be in good order and repair, ordinary wear and tear excepted, The risk of loss and all costs and expenses incurred in connection with or as a result of returning the Equipment shall be the responsibility of GA TX. 2, Lessee will be relieved from the responsibility of returning Equipment operation manuals for all Equipment so long as, for each unique model, six copies are received. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as indicated by the signature of authorized representative below. Lessor: Dell Marketing, L.P. Lessee: Clearwater, City of Florida By: ~~C.~tJ-U Title: .~ ~G ~JrJfl1J lE Date: ~IOO f By: Title: Date: GATX: GATX Technology Services Corporation By: Title: Date: City of Clearwater 112 South Osceola Avenue Clearwater, Fl 33756 Re: Dell Marketing, L.P. Master Equipment lease/Purchase Agreement Countersigned: By: ~Wi' B. Horne II V City Manager Attest: Approved as to form: "" ~e/~ e C. Hayman Assistant City Attorney CITY OF CLEARWATER POST OFFICE Box 4748, CLEARWATER, FLORIDA 33758-4748 MUNICIPAL SERVICES BUILDING, 100 SOUTH MYRTIE AVENUE, CLEARWATER, FLORIDA 33756 TELEPHONE (727) 562-4650 FAX (727) 562-4659 FINANCE DEPARTMENT RiSK MANAGEMENT DMSION November 13,2001 To: Dell Marketing LP Please accept this letter as certification the City of Clearwater is insured (or self-insured) for insurance coverage as shown below. The Clearwater Gas System is a Department of the City of Clearwater. The City has been approved by the State of Florida as a self-insured municipal government. The state audit number for the city as a self-insured Florida municipality is 9173. This certification is issued as a matter of information only, and confers no rights upon the holder. The City's major insurance coverages and limits are as follows: 1. Auto Liability, General Liability, Police Professional Liability, and Public Officials Liability: Self- Insured Level: $100,000 per Person/$200,000 per Occurrence self-insured retention with statutory limits per Section 768.28 Florida Statutes. Excess Insurance: Laver One $5,000,000 with The North River Insurance Company with self-insured retention of $500,000 for the policy period 10/01/01-10/01/02. Layer Two $2,000,000 with The North River Insurance Company in excess of $5,000,000 for the policy period 11/06/01-10/01/01. 2. Workers' Compensation: Statutory coverage per Occurrence with self-insured retention of $500,000 Excess Insurance via The North River Insurance Company for the policy period 10/01/01-10/01/02. 3, Buildings, Contents, and Personal Property: $236,548,112 less $500,000 self-insured retention per occurrence for the policy period 10/01/01-10/01/02. 4. Emergency Medical Services (EMS) specific coverage as follows: · EMS Medical, Professional Liability, and Commercial General Liability: $1,000,000 per Occurrence limit/$l,OOO,OOO Aggregate with certain Underwriters at Lloyd's of London subject to a deductible of $2,500 each claim, for the policy period 1 % 1/0 1-1 % 1/02. · Commercial Automobile Liability: $500,000 per occurrence Combined Single Limit with Royal Indemnity Insurance Company for the policy period 1 % 1/0 1-1 % 1/02. · EMS Umbrella Liability: $1,000,000 per Occurrence limit in excess of the Total Underlying Limits of EMS coverage shown in (4) above with nG Insurance Company for the policy period 10/01/01-10/01/02. BRIAN}. AUNGST, MAYOR-COMMISSIONER ED HART, VICE MAYOR-COMMISSIONER WHITNEY GRAY COMMISSIONER Horr HAMILTON, COMMISSIONER * BIIl.}ONSON: COMMISSIONER "EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION EMPLOYER"