HomeMy WebLinkAbout20021140.tiff RESOLUTION
RE: APPROVE EQUIPMENT LEASE/PURCHASE AGREEMENT AND AUTHORIZE CHAIR
TO SIGN - FIRST NATIONAL BANK
WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to
Colorado statute and the Weld County Home Rule Charter, is vested with the authority of
administering the affairs of Weld County, Colorado, and
WHEREAS, the Board has been presented with an Equipment Lease/Purchase
Agreement between the County of Weld, State of Colorado, by and through the Board of
County Commissioners of Weld County, on behalf of the Department of Public Works, and First
National Bank, commencing upon full execution of said Lease Agreement, with further terms
and conditions being as stated in said Lease Agreement, and
WHEREAS, after review, the Board deems it advisable to approve said Lease
Agreement, a copy of which is attached hereto and incorporated herein by reference.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of
Weld County, Colorado, that the Equipment Lease/Purchase Agreement between the County of
Weld, State of Colorado, by and through the Board of County Commissioners of Weld County,
on behalf of the Department of Public Works, and First National Bank be, and hereby is,
approved.
BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized
to sign said Lease Agreement.
The above and foregoing Resolution was, on motion duly made and seconded, adopted
by the following vote on the 1st day of May, A.D., 2002.
BOARD OF COUNTY COMMISSIONERS
WE��TY, COLORADO
ATTEST: K /D�'//� ''''3
h', .. 1/4--a-e4-
?c`J lenn Vaad, Chair
Weld County Clerk to the : rd
1861 .41, 4,A
O CUSED DATE OF SIGNING (AYE)
a-vid E. Lo g, Pro-Tem
Deputy Clerk to the Boar UN.
M. J. eile
VED AS F �1� vi--.---:(
W'lliam H. Jerke
unty Attorne '�I\.Q
s/ Robert D. Masden
Date of signature: i-3
Q 2002-1140
dc, Q 1 po EG0046
EQUIPMENT LEASE/PURCHASE AGREEMENT
This Equipment Lease/Purchase Agreement dated as of May 2 ,2002, is entered
into between First National Bank("Lessor") and the County of Weld ("Lessee"), a body
politic and corporate under the Constitution and laws of the State of Colorado.
WITNESSETH:
WHEREAS, authority exists in the law, and funds have been budgeted,
appropriated and otherwise made available; and
WHEREAS, required approval, clearance and coordination has been
accomplished from and with appropriate agencies, and
WHEREAS, Lessor desires to lease the Equipment, as hereinafter defined, to
Lessee and Lessee desires to lease the Equipment from Lessor subject to the terms and
conditions of and for the purposes set forth in this Equipment Lease/Purchase Agreement,
and
WHEREAS, Lessee is authorized under the Constitution and laws of the State of'
Colorado to enter into this Equipment Lease/Purchase Agreement for the purposes set
forth herein;
NOW THEREFORE, for and in consideration of the premises hereinafter
contained. The parties hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01. Definitions. The following terms will have the meanings indicated
below unless the context requires otherwise.
Commencement Date
"Commencement Date" means the date when the term of this Lease begins and
Lessee obligation to pay rent accrues, which date shall be the date on which the Equipment
is accepted by Lessee as indicated on the Acceptance Certificate attached hereto as
Schedules A, and the Lease Term shall not commence until the Acceptance Certificate has
been executed by Lessee.
Equipment
"Equipment" means the property described in Schedules A and B hereto,which is
the subject of this Lease.
Event of Nonappropriation
"Event of Nonappropriation" means Lessee's failure, for any reason whatsoever, to
appropriate the payments required pursuant to this Lease.
Fiscal Year
"Fiscal Year" means the Lessee's fiscal year, which begins on July 1 and ends June
30 of the following year.
Full Insurable Value
"Full Insurable Value" means, as of the date of determination, the sum of all of
the Amounts Attributable to Principal remaining to be paid by Lessee under this Lease,
assuming renewal for all Renewal Terms, as set forth in Schedule C hereto.
Lease
"Lease" means this Equipment Lease/Purchase Agreement, including all Addenda
and
Schedules A through E attached hereto.
Lease Term
"Lease Term" means the time during which the Lessee leases the Equipment under
this Lease as provided in Section 4.01 hereof, subject to the terms and provisions of
Sections 4.02, 6.01, 6.02 and 6.06 hereof.
Lessee
"Lessee" means the County of Weld, a public body corporate and political
subdivision of the state, legally existing under the laws of the State of Colorado.
Lessor
"Lessor" means First National Bank, a national banking association, with its
principal place of business at 205 W. Oak Street, Fort Collins, CO 80521, acting as lessor
hereunder, or any successors, transferees, or assignees.
Net Proceeds
"Net Proceeds" means the amount remaining from the gross proceeds of any
insurance claim or condemnation award after deducting all expenses (including reasonable
attorney's fees) incurred in connection with the collection of such claim or award.
Option Price
"Option Price" means, as of the date of determination, the amount set forth under
the caption "Option Price" in Schedule C hereto, which Lessee may, at its discretion, pay
Lessor in order to obtain the full right, title, and interest of Lessor in the Equipment.
Rental Payments
"Rental Payments" means the total amounts payable by Lessee pursuant to the
provisions of this Lease during the Lease Term in consideration of the right of Lessee to use
the Equipment during the then current portion of the Lease Term. Rental Payments shall
be payable by Lessee to the Lessor or its assignee in the amounts set forth under the
caption "Total Rental Payment" and at the time during the Lease Term set forth in
Schedule D of this Lease.
Vendor
"Vendor" means the manufacturer of the Equipment, its agents or dealers, or any
other person from whom Lessor or Lessee purchased or is purchasing the Equipment;
provided, however, that neither Lessee nor Lessor shall be deemed to be a "vendor" of the
Equipment for the purposes of this Lease.
ARTICLE II.
COVENANTS OF LESSEE
Section 2.01. Representations, Covenants, and Warranties of Lessee. Lessee
represents, covenants, and warrants for the benefit of Lessor as follows:
1. Lessee is a duly organized and existing body corporate under the
Constitution and laws of the State of Colorado.
2. Lessee will do or cause to be done all things necessary to preserve and keep
in full force and effect its existence as a body corporate of the State.
3. Lessee is authorized under the Constitution and laws of the State of Colorado
to enter into this Lease and the transaction contemplated hereby and to perform all of its
obligations hereunder.
4. Lessee has been duly authorized to execute and deliver this Lease under the
terms and provisions of the resolution, a copy of which is attached hereto as Schedule E,
or by other appropriate official approval, and further represents, covenants, and warrants
that all requirements have been met and procedures have occurred in order to ensure the
enforceability of this Lease in accordance with its terms, and Lessee has complied with
such public bidding requirements as may be applicable to this Lease and the acquisition by
Lessee of the Equipment pursuant hereto.
5. During the Lease Term, the Equipment will be used by Lessee only for the
purpose of performing one or more essential governmental or proprietary functions of
Lessee consistent with the permissible scope of Lessee's authority.
6. During the Lease Term, if and to the extent requested by Lessor, Lessee will
annually provide Lessor with current available financial statements, budgets, proof of
appropriation for the ensuing fiscal year, and such other financial information relating to
the ability of Lessee to continue this Lease as may reasonably be requested by Lessor.
ARTICLE III.
LEASE OF EQUIPMENT
Section 3.01. Demise of Equipment. Lessor hereby demises, leases, and lets to
Lessee, and Lessee rents, leases, and hires from Lessor, the Equipment in accordance with
the provisions of this Lease, to have and to hold for the Lease Term.
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ARTICLE IV.
LEASE TERM
Section 4.01. Duration of the Lease Term. The Lease Term shall commence on the
Commencement Date and shall terminate as provided in Section 4.02 hereof. In the event
that the Lessee shall determine, for any reason, to not exercise its annual right to extend
this Lease, effective on December 31 of any Fiscal Year, the Lessee shall give written notice
to such effect to the Lessor not later than November 30 of such Fiscal Year; provided,
however, that a failure to give such notice shall not constitute a default, nor result in any
liability on the part of the Lessee except as provided in Section 6.07 herein. Lessee has the
unilateral annual right to extend the Lease Term during the period shown on Schedule D
Such extension shall automatically occur upon Lessee's budgeting and appropriating the
Lease payments for the ensuing Fiscal Year.
Section 4.02. Termination of Lease Term. The Lease Term will terminate upon the
earliest of the following events:
1. On June 30 of any year of the Lease in which there is an Event of
Nonappropriation and failure to extend the Lease Term beyond the current year.
2. The exercise by Lessee of the option to purchase Lessor's interest in the
Equipment granted under the provisions of Article XI of this Lease;
3. The termination of this Lease by reason of damage to or the destruction or
condemnation of the Equipment as provided in Section 9.02 hereof;
4. An event of default by Lessee and Lessor's election to terminate this Lease
under Article XIII; or
5. The conveyance of the Equipment to the Lessee upon payment by Lessee of
all Rental Payments required to be paid by Lessee hereunder for the entire maximum
Lease Term.
ARTICLE V.
ENJOYMENT OF EQUIPMENT
Section 5.01. Covenant of Quiet Enjoyment. Lessor hereby covenants to provide
Lessee during the Lease Term with quiet use and enjoyment of the Equipment, and Lessee
shall during the Lease Term peaceably and quietly have and hold and enjoy the
Equipment, without suit, trouble, or hindrance from Lessor, except as expressly set forth in
this Lease.
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Section 5.02. Inspection of Equipment. Lessor shall have the right, at reasonable
times during the business hours and following reasonable notice to Lessee, to enter into and
upon the property of Lessee for the purpose of inspecting the Equipment.
ARTICLE VI.
RENTAL PAYMENTS
Section 6.01. Rental Payments to Constitute Currently Budgeted Expenditures of
Lessee. Lessor and Lessee acknowledge and agree that the Rental Payments and other
amounts hereunder shall constitute current expenditures of Lessee payable in the Fiscal
Years for which funds are appropriated for the payment thereof. Lessee's obligations
under this Lease shall be from year to year only and shall not constitute a multiple-fiscal
year direct or indirect debt or other financial obligation of Lessee or an obligation of Lessee
payable in any Fiscal Year beyond the Fiscal Year for which funds are appropriated for
payment thereof or payable from any funds of Lessee other than funds appropriated for
the payment of current expenditures. Lessee shall be under no obligation whatsoever to
exercise its option to purchase Lessor's interest in the Equipment. No provision of this
Lease shall be construed to pledge or to create a lien on any class or source of Lessee
moneys.
Section 6.02. Payment of Rental Payments; Amount. Lessee shall pay Rental
Payments, exclusively from legally available funds, in lawful money of the United States of
America, to the Lessor, at its principal office (subject to change upon notification from
Lessor) during the Lease Term as hereinafter provided. The Rental Payments during the
Lease Term shall be the amounts in the "Total Rental Payment" column as set forth in
Schedule D attached hereto and made a part hereof, as it may be amended hereunder.
Lessee shall have the option, on any date on which a Rental Payment is due, to make
to an advance Rental Payment. Advance Rental Payments may be made in any amount.
The Remaining Principal Balance, shown in Schedule C hereto, shall be decreased by
any such advance Rental Payments. After each such advance Rental Payment, each
subsequent Rental Payment, including the amounts attributed to principal and interest,
and the Option Price, shall be decreased proportionately. Schedule C shall be amended
as necessary to reflect such decreased Rental Payments and Option Price.
Section 6.03. Interest Component. A portion of each Rental Payment is paid as, and
represents payment of, interest, and Schedule C hereto sets forth the interest component
of each Rental Payment during the Lease Term.
Section 6.04. Rental Payments to be Unconditional. Notwithstanding any dispute
between Lessee and Lessor, any Vendor, or any other person, Lessee shall make all
payments of Rental Payments when due and shall not withhold any Rental Payments
pending final resolution of such dispute nor shall Lessee assert any right of set-off or
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counterclaim against its obligation to make such payments required under this Lease.
Lessee's obligation to make Rental Payments during the Lease Term shall not be abated
through accident or unforeseen circumstances.
Section 6.05. Continuation of Lease by Lessee. Lessee hereby declares its current
need for the Equipment, and further determines and declares its expectation that the
Equipment will (so long as it is subject to the terms hereof) adequately serve the needs for
which it is being acquired throughout the maximum Lease Term of this Lease. Lessee
hereby agrees and determines, based on Lessee's good faith estimate as of the date hereof,
that the Rental Payments hereunder during the maximum Lease Term represent the fair
value of the use of the Equipment; and that the Option Price represents the fair purchase
price of the Equipment at the time of exercise of the purchase option. The Lessee hereby
determines that, to the best of its knowledge, based on Lessee's good faith estimate as of the
date hereof, the Rental Payments do not exceed a reasonable amount.
Section 6.06. Nonappropriation. Lessor and Lessee acknowledge and agree that
Lessee is not obligated under this Lease to make any payments in any Fiscal Year beyond
the Fiscal Year for which funds are appropriated for the payment thereof or to make
payments from any funds of Lessee other than funds appropriated for the payment of
current expenditures. All payment obligations of Lessee under this Lease, including,
without limitation, Lessee's obligation to pay Rental Payments, are from year to year only
and do not constitute a multiple-fiscal year direct or indirect debt or other financial
obligation of Lessee. In the event Lessee does not extend the Lease Term beyond the end of
any Fiscal Year, Lessor shall have all rights and remedies to take possession of the
Equipment and to recover any unpaid Rental Payments budgeted, appropriated, and owed
by Lessee for the then current Fiscal Year.
Section 6.07. Lessor's Right To Perform For Lessee. If Lessee fails to make any
payments required hereunder during the Lease Term, other than Rental Payments, or fails
to perform or comply with any of its covenants or obligations herein contained, Lessor or
its assignee may at its election, following ten (10) days' prior written notice to Lessee of its
intention to do so, make such payment or perform or comply with such covenant or
obligation. Lessor or its assignee performing or complying with such covenants or
obligations, as the case may be, shall be entitled to reimbursement by Lessee for all
reasonable expenses incurred in connection therewith, together with interest thereon at the
rate of eleven percent (11%) per annum, to the extent that amounts therefor have been
previously budgeted and appropriated by Lessee for this Lease and are available for the
payment thereof.
In the event of the return of any of the Equipment, in addition to preparing the
Equipment for shipping and paying the delivery cost, Lessee will also return to Lessor the
maintenance records and other documents relating to such Equipment.
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ARTICLE VII.
TITLE OF EQUIPMENT; LIEN; SECURITY INTEREST; PERSONAL PROPERTY
Section 7.01. Title to the Equipment. During the Term of this Lease and so long as
Lessee is not in default under Article XIII, legal title to the Equipment and any and all
repairs, replacements, substitutions and modifications to it shall be in Lessee. Upon
termination of this Lease pursuant to subsections 1, 3 or 4 of section 4.02, full and
unencumbered legal title to the Equipment shall pass to Lessor, and Lessee shall have no
further interest therein. In such event, Lessee shall execute and deliver to Lessor such
documents as Lessor may request to evidence the passage of legal title to the Equipment to
Lessor and the termination of Lessee's interest therein, and upon request by Lessor shall
deliver possession of the Equipment to Lessor pursuant to Section 11.2. Upon termination
of this Lease through exercise of Lessee's option to purchase pursuant to Article XI or
through payment by Lessee of all Rental Payments and other amounts relating thereto,
Lessor's security or other interest in the Equipment shall terminate, and Lessor shall
execute and deliver to Lessee such documents as Lessee may request to evidence the
termination of Lessor's security or other interest in the Equipment.
Section 7.02. Security Interest. Lessee grants to Lessor a continuing, first priority
security interest under the Uniform Commercial Code in the Equipment, the proceeds
thereof and all repairs, replacements, substitutions and modifications thereto or thereof
made pursuant to Section 8.02, in order to secure Lessee's payment of all Rental Payments
due during the Term of this Lease and the performance of all other obligations herein to be
performed by Lessee. Lessee will join with Lessor in executing such financing statements or
other documents and will perform such acts as Lessor may request to establish and
maintain a valid first lien and perfected security interest in the Equipment. If requested by
Lessor, Lessee shall conspicuously mark the Equipment with appropriate lettering, labels
or tags, and maintain such markings during the Term of this Lease, so as clearly to disclose
Lessor's security interest in the Equipment.
Section 7.03. Liens. During the Term of this Lease, Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge,
encumbrance or claim on or with respect to the Equipment, other than the respective rights
of Lessor and Lessee as herein provided and Permitted Encumbrances. Except as expressly
provided in this Article, Lessee shall promptly, at its own expense, take such action as may
be necessary duly to discharge or remove any such mortgage, pledge, lien, charge,
encumbrance or claim if the same shall arise at any time. Lessee shall reimburse Lessor for
any expense incurred by Lessor in order to discharge or remove any such mortgage,
pledge, lien, charge, encumbrance or claim.
Section 7.04. Personal Property. The Equipment is, and shall at all times be and
remain, personal property notwithstanding that the Equipment or any part thereof may be,
or may hereafter become, in any manner affixed or attached to, or imbedded in, or
permanently resting upon, real property or any buildings thereon or any fixtures, or
attached in any manner to what is permanent as by means of cement, plaster, nails, bolts,
screws or otherwise.
ARTICLE VIII.
MAINTENANCE; MODIFICATION; TAXES;
INSURANCE AND OTHER CHARGES
Section 8.01. Maintenance of Equipment by Lessee. Lessee agrees that at all times
during the Lease Term Lessee will, at Lessee's own cost and expense, maintain, preserve,
and keep the Equipment or cause the Equipment to be maintained, preserved, and kept
with the appurtenances and every part and parcel thereof, in good repair, working order,
and condition, subject to normal wear and tear, and that Lessee will from time to time
make or cause to be made all necessary and property repairs, replacements, and renewals.
Lessor shall have no responsibility in any of these matters or for the making of
improvements or additions to the Equipment.
Section 8.02. Modification or Alteration of Equipment. Lessee shall have the
privilege at its own cost and expense of remodeling or making substitutions, additions,
modifications, or improvements to the Equipment, and the same shall be included under
the terms of this Lease as part of the Equipment and shall be deemed to be part of the
Equipment described in Schedule B hereto; provided, however; that:
1. Such remodeling, substitutions, additions, modifications, or improvements
shall not in any way materially damage the Equipment, nor cause it to be used for purposes
other than those authorized under the constitutional provisions and laws applicable to
Lessee; and
2. The Equipment, upon completion of remodeling, substitutions, additions,
modifications, or improvements made pursuant to this Article VIII shall have a value not
less than the value of the Equipment immediately prior to such remodeling, substitutions,
additions, modifications, or improvements.
Any property for which a substitution or replacement is made pursuant to this
Section 8.02 shall become property of Lessee and may be disposed of by Lessee in any
manner and in the sole discretion of Lessee. Lessor agrees that it will execute any
documents necessary to enable Lessee to dispose of such property. Lessee will not permit
any mechanic's or other lien to remain against the Equipment for labor or materials
furnished in connection with any remodeling, substitutions, additions, modifications,
improvements, repairs, renewals, or replacements so made by Lessee.
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Section 8.03. Taxes. Lessee represents that it is exempt from federal, state, property
and/or local tax assessment, and therefore, taxes shall not be charged to or paid by Lessee
with respect to the Equipment.
Section 8.04. Liability Insurance. Upon ordering any Equipment and prior to
receipt of possession of the Equipment, Lessee shall take such measures as may be
necessary to ensure that any liability for injuries to or death of any person or damage to or
loss of property arising out of or in any way relating to the condition or the operation of the
Equipment or any part thereof, is covered by a blanket or other general liability insurance
policy maintained by Lessee, with a coverage limit of not less than $150,000 per person and
$600,000 per occurrence. The Net Proceeds of all such insurance shall be applied toward
extinguishment or satisfaction of the liability with respect to which any Net Proceeds may
be paid. Lessor shall be named as an "additional named insured" on such policies of
insurance, which shall be maintained in an amount of not less than $2,750,000.
Section 8.05. Property Insurance. Upon receipt of possession of any Equipment,
Lessee shall have and assume the risk of loss with respect thereto. Lessee shall procure and
maintain continuously in effect during the Term of this Lease, all-risk insurance, subject
only to the standard exclusions contained in the policy, in such amount as will be at least
sufficient so that a claim may be made for the full replacement cost of any part of the
Equipment damaged or destroyed and to pay the applicable Option Price of the
Equipment. Such insurance may be provided by a rider to an existing policy or under a
separate policy. Such insurance may be written with customary deductible amounts.
Section 8.06. Worker's Compensation Insurance. If required by Colorado law,
Lessee shall carry worker's compensation insurance covering all employees on, in , near or
about the Equipment, and upon request, shall furnish to Lessor certificates evidencing such
coverage throughout the Term of this Lease.
Section 8.07. Requirements for All Insurance. All insurance policies (or riders)
required by this Article shall be taken out and maintained with responsible insurance
companies organized under the laws of one of the states of the United States and qualified
to do business the Colorado; and shall contain a provision that the insurer shall not cancel
or revise coverage thereunder without giving written notice to the insured parties at least
ten (10) days before the cancellation or revision becomes effective. Each insurance policy or
rider required by this Article shall name Lessor as an additional insured party and loss
payee. Lessee shall deposit with Lessor policies (and riders) evidencing any such insurance
procured by it, or a certificate or certificates of the respective insurers stating that such
insurance is in full force and effect. Before the expiration of any such policy (or rider),
Lessee shall furnish to Lessor evidence that the policy has been renewed or replaced by
another policy conforming to the provision of this Article, unless such insurance is no
longer obtainable in which even Lessee shall notify Lessor of this fact.
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Section 8.08. Self Insurance. Notwithstanding the provision of Sections 8.04
through 8.06, Lessee may elect to meet the requirements of any such section through self-
insurance provided Lessee provides an adequate insurance fund set aside maintained out of
its own funds and provided that Lessee also self-insures similar equipment on a regular
basis.
Section 8.09. Lessee's Negligence. Lessee assumes all risks and liabilities, whether
or not covered by insurance, for loss or damage to any Equipment and for injury to or
death of any person or damage to any property, whether such injury or death be with
respect to agents or employees of Lessee or of the parties, and whether such property
damage be to Lessee's property or the property of others, which is proximately caused by
the negligent conduct of Lessee, its officers, employees and agents.
ARTICLE IX.
DAMAGE, DESTRUCTION AND CONDEMNATION;
APPLICATION OF NET PROCEEDS
Section 9.01. Damage, Destruction, and Condemnation. Unless Lessee shall have
exercised its option to purchase the Equipment by making payment of the Option Price as
provided in Article XI hereof, and if prior to the termination of the Lease Term (a) the
Equipment or any portion thereof is destroyed (in whole or in part) or is damaged by fire
or other casualty, or (b) title to, or the temporary use of, the Equipment or any part thereof
or the estate of Lessee or Lessor in the Equipment or any part thereof shall be taken under
the exercise of the power of eminent domain by any governmental body or by any person,
firm, or corporation acting under governmental authority, the Net Proceeds of any
insurance claim or condemnation award shall be applied, at Lessee's option, to the prompt
replacement, repair, restoration, modification, or improvement of the Equipment, with any
balance of the Net Proceeds remaining after such work has been completed to be paid to
Lessee, or the Net Proceeds shall be paid to Lessor together with such additional amounts
as may be necessary to fully pay to Lessor the then applicable Option Price, to the extent
such additional amounts have been budgeted and appropriated by Lessee and are legally
available for such payment, and upon such payment of the Option Price, the Lease Term
shall terminate and the interest of Lessor in the Equipment shall then be conveyed by
Lessor to Lessee as provided in Article XI of this Lease. The excess of the Net Proceeds over
the then applicable Option Price, if any, shall be retained by Lessee.
Section 9.02. Insufficiency of Net Proceeds. If the Net Proceeds are insufficient to
pay in full the cost of any replacement, repair, restoration, modification, or improvement
referred to in Section 9.01 hereof, Lessee shall either (a) complete the work and pay any
cost in excess of the amount of the Net Proceeds, to the extent such additional amounts have
been budgeted and appropriated by Lessee under the Lease and are legally available for
such payment, and Lessee agrees that if by reason of any such insufficiency of the Net
Proceeds, Lessee shall make any payments pursuant to the provisions of this Section 9.02,
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Lessee shall not be entitled to any reimbursement therefor from Lessor nor shall Lessee be
entitled to any diminution of the amounts payable under Article VI hereof, or(b) Lessee
shall pay to Lessor the amount of the then applicable Option Price, to the extent such
additional amount has been budgeted and appropriated by Lessee under the Lease and is
legally available for such payment, and, upon such payment, the Least Term shall
terminate and the interest of Lessor in the Equipment shall then be conveyed by Lessor to
Lessee as provided in Article XI of this Lease. If, by June 30 of the Fiscal Year in which an
event specified in Section 9.01 hereof occurs (or June 30 of any subsequent Fiscal Year in
which the insufficiency of Net Proceeds to replace, repair, restore, modify or improve the
Equipment becomes apparent) the Board has not budgeted amounts sufficient to proceed
under either clause (a) or (b) of this Section 9.02, an Event of Nonappropriation shall be
deemed to have occurred.
ARTICLE X.
DISCLAIMER OF WARRANTIES;
VENDOR'S WARRANTIES; USE OF THE EQUIPMENT
Section 10.01 Disclaimer of Warranties. LESSOR MAKES NO WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE,
DESIGN, CONDITION, MERCHANTABILITY, OR FITNESS FOR PARTICULAR
PURPOSE OR FITNESS FOR USE OF THE EQUIPMENT, OR WARRANTY WITH
RESPECT THERETO. In no event shall Lessor be liable for any incidental, indirect,
special, or consequential damage in connection with or arising out of this Lease or the
existence, furnishing, functioning, or Lessee's use of any item or products or services
provided for in this Lease.
Section 10.02. Vendor's Warranties. Lessor hereby irrevocably appoints Lessee its
agent and attorney-in-fact during the Lease Term, so long as Lessee shall not be in default
hereunder, to assert from time to time whatever claims and rights including warranties of
the Equipment which Lessor may have against the Vendor of the Equipment. Lessee's sole
remedy for the breach of such warranty, indemnification, or representation shall be against
the Vendor of the Equipment, and not against Lessor, nor shall any such claim have any
effect whatsoever on the rights and obligations of Lessee or Lessor with respect to this
Lease. Lessee expressly acknowledges that Lessor makes, and has made, no representation
or warranties whatsoever as to the existence or availability of any such warranties of the
Vendor of the Equipment.
Section 10.03. Use of the Equipment. Lessee will not install, use, operate, or
maintain the Equipment improperly, carelessly, in violation of any applicable law, or in a
manner contrary to that contemplated by this Lease. Lessee shall provide all permits and
licenses, if any, necessary for the installation and operation of the Equipment, except to the
extent that the failure to obtain such permits or licenses will not have a material adverse
effect on the operation of the Equipment. In addition, Lessee agrees to comply in all
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material respects (including, without limitation, with respect to the use, maintenance, and
operation of each item of the Equipment)with all laws of the State of Colorado and any
other jurisdictions in which its operations involving any item of the Equipment may
extent, and with any legislative, executive, administrative, or judicial body exercising any
power or jurisdiction over the items of the Equipment; provided, however, that Lessee may
contest in good faith the validity or application of any such law or rule in any reasonable
manner which does not, in the opinion of Lessor, adversely affect the estate of Lessor in
and to any of the items of the Equipment or its interest or rights under this Lease.
ARTICLE XI.
OPTION TO PURCHASE
Section 11.01. Option to Purchase. Lessor's estate in the Equipment will be
transferred, conveyed, and assigned to Lessee free and clear of any liens, claims, or
encumbrances created by Lessor, and this Lease shall terminate:
1. On any payment date set forth in Schedule C upon payment by Lessee of the
then applicable Option Price: or
2. If the Lease Term is terminated pursuant to Article IX of this Lease and if
Lessee is not on such date in default pursuant to any term of this Lease and upon payment
to Lessor of the then applicable Option Price.
Section 11.02. Return of Equipment. Upon the expiration or termination of this
Lease, other than pursuant to Section 11.01 hereof or to subsection 4.02(2) or 4.02(5) of
Article IV hereof, the Equipment shall be returned to Lessor in good working order and
repair, subject to normal wear and tear, at a place designated by Lessor within the State of
Colorado. The reasonable cost of delivering the Equipment to Lessor shall be borne by
Lessee.
ARTICLE XII.
ASSIGNMENT, SUBLEASING, IDENTIFICATION
MORTGAGING AND SELLING
Section 12.01 Assignment by Lessor. This Lease, and the right to receive payments from
Lessee hereunder, may be assigned in whole or in part to one or more assignees by Lessor
at any time subsequent to its execution without the necessity of obtaining the consent of
Lessee. Lessor agrees to give notice of assignment to Lessee and upon receipt of such notice
Lessee agrees to make all payments to the assignee designated in the assignment,
notwithstanding any claim, defense, setoff, or counterclaim whatsoever (whether arising
-12-
from a breach of this Lease or otherwise) that Lessee may from time to time have against
Lessor or the assignee.
The parties do not contemplate that this Lease will be assigned by the Lessor, or any
subsequent assignee of the Lessor, for the purpose of obtaining financing by the issuance of
any securities or other obligations. If the Lease is so assigned by the Lessor or any
subsequent assignee of the Lessor, the Lessor or its assignee shall first obtain the
permission of the Lessee,which permission may be withheld at Lessee's sole discretion, and
the Lessor or its assignee shall be responsible for compliance with all applicable Federal
and State securities law.
Section 12.02. Assignment and Subleasing by Lessee. This Lease and the interest of
Lessee in the Equipment may not be assigned or encumbered by Lessee except with the
consent of the Lessor, which consent shall not be unreasonably withheld. The Equipment,
or an interest therein, may be subleased without the consent of the Lessor but subject to the
satisfaction of each of the following conditions:
1. This Lease, and the obligations of Lessee to make Rental Payments
hereunder shall, at all times during the Lease Term, remain obligations of Lessee;
2. Lessee shall,within thirty (30) days after the delivery thereof, furnish or
cause to be furnished to Lessor, a true and complete copy of each sublease;
3. No sublease by Lessee shall cause the Equipment to be used for a purpose
other than the performance of governmental or proprietary function by or on behalf of the
State of Colorado or a political subdivision thereof authorized to perform such function
under the provisions of the Constitution of the State of Colorado Revised Statutes, as
amended; and
4. Lessee must give notice of the location of the Equipment following the
sublease and execute or obtain any additional financing statements required as a result of
the relocation of the Equipment.
ARTICLE XIII.
EVENTS OF DEFAULT AND REMEDIES
Section 13.01. Events of Default Defined. The following shall be "events of
default" under this Lease, and the terms "events of default" and "default" shall mean
whenever they are used in this Lease, any one or more of the following events:
1. Failure by Lessee to pay any Rental Payment or other payment required to
be paid hereunder at the time specified herein for a period of ten (10) days after written
-13-
notice specifying such failure and requesting that it be remedied is given by Lessor to Lessee:
2. Failure by Lessee to observe and perform any covenant,condition or agreement
on its part to be observed or performed, other than as referred to in Section 13.01(1), for a
period of thirty(30)days after written notice specifying such failure and requesting that it be
remedied is given to Lessee by Lessor,unless Lessor shall agree in writing to any extension of
such time prior to its expiration; provided, however, if the failure stated in the notice cannot
be corrected within the applicable period,Lessor will not withhold its consent to an extension
of such time if corrective action is instituted by Lessee within the applicable period and
diligently pursued until the failure is corrected.
The foregoing provisions of this Section 13.01 are subject to the following
limitations: (i) the obligations of Lessee to pay the Rental Payments provided in Section
6.02 hereof shall be subject to the provisions of Section 6.06 hereof with respect to
nonappropriation; and (ii) if by reason of force majeure Lessee is unable in whole or in part
to carry out any agreement on its part herein contained, other than the obligations on the
part of Lessee contained in Article VI hereof, Lessee shall not be deemed in default during
the continuance of such inability. The term "force majeure" as used herein shall mean,
without limitation, the following: acts of God; strikes, lockouts or other industrial
disturbances; acts of public enemies; orders or restraints of any kind of the government of
the United States of America or of the State of Colorado or any of their departments,
agencies or officials, or any civil or military authority; insurrections; riots; landslides;
earthquakes; fires; storms; droughts; floods; explosions; breakage or accident to
machinery, transmission pipes or canals; or any other cause or event not reasonably within
the control of Lessee.
Section 13.02. Remedies on Default. Whenever any event of default referred to in
Section 13.01 hereof shall have happened and be continuing, the Lessor shall have the
right, at its option without any further demand or notice, to take one or any combination of
the following remedial steps:
(a) With or without terminating this Lease, retake possession of and title to the
Equipment and sell, lease or sublease the Equipment for the account of Lessee, holding
Lessee liable for the unpaid Rental Payments through the end of the then current Fiscal
Year; and
(b) Take whatever action at law or in equity may appear necessary or desirable
to enforce its rights as the owner of the Equipment.
(c) Collect all costs incurred by Lessor in enforcing its rights hereunder,
including court costs and reasonable attorneys' fees.
Section 13.03. No Remedy Exclusive. Subject to the provisions of Section 13.02
hereof, no remedy herein conferred upon or reserved to Lessor is intended to be exclusive,
-14-
and every such remedy under this Lease for now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver thereof, but any such right
and power may be exercised from time to time and as often as may be deemed expedient. In
order to entitle Lessor to exercise any remedy reserved to it in this Article XIII, it shall not
be necessary to give any notice, other than such notice as may be required in this Article
XIII.
ARTICLE XIV.
MISCELLANEOUS
Section 14.01. Notices. All notices, certificates or other communications hereunder
shall be sufficiently given and shall be deemed given when delivered or mailed by
registered mail, postage prepaid, to the parties at their respective principal place of
business. For purposes of this Lease, the Lessor's principal place of business is: 205 W. Oak
Street, Fort Collins, CO 80521.
For purposes of this Lease, the Lessee's principal place of business is: 915 10t° Street, P.O.
Box 758, Greeley, CO 80632.
Section 14.02. Binding Effect. This Lease shall inure to the benefit of and shall be
binding upon Lessor and Lessee and their respective successors and assigns.
Section 14.03. Severability. In the event any provision of this Lease other than the
provisions of Article VI regarding the payment of Rental Payments and the Provisions of
this Lease requiring transfer of Lessor's interest in the Equipment to the Lessee as
described in Sections 4.02(2),4.02(5) and 11.01, shall be held invalid or unenforceable by
any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
Section 14.04. Amendments, Changes, and Modifications. This Lease may be
amended by the Lessor and the Lessee, and any such amendment shall be in writing and
executed with the same formalities as this Lease.
Section 14.05. Execution in Counterpart. This Lease may be simultaneously
executed in several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
Section 14.06. Applicable Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Colorado. This lease shall not constitute a waiver
of the Colorado Governmental Immunity Act.
-15-
Section 14.07. Captions. The captions or headings in this Lease are for convenience
only and in no way define, limit, or describe the scope or intent of any provisions or
sections of this Lease.
Section 14.08. General. This Lease is intended as the complete integration of all
understandings between the parties. No prior or contemporaneous addition, deletion or
other amendment hereto shall have any force or effect whatsoever, unless embodied herein
in writing. No subsequent novation, renewal, addition, deletion or other amendment hereto
shall have any force or effect unless embodied in a written contract executed by the parties.
Section 14.09. Special Provisions.
1. It is expressly understood and agreed that the enforcement of the terms and
conditions of this Lease, and all rights of action relating to such enforcement, shall be
strictly reserved to the undersigned parties or their assignees, and nothing contained in this
Lease shall give or allow any claim or right of action whatsoever by any other person not
included in this Lease. It is the express intention of the undersigned parties that any entity
other than the undersigned parties or their assignees receiving services or benefits under
this Lease shall be an incidental beneficiary only.
2. The parties hereby agree that neither has made or authorized any agreement
with respect to the subject matter of this instrument other than expressly set forth herein,
and no oral representation, promise, or consideration different from the terms herein
contained shall be binding on either party, or its agents or employees, hereto. This Lease
embodies all agreements between the parties hereto and there are no promises, terms,
conditions, or obligations referring to the subject matter whereof other than as contained
herein.
3. No portion of this Lease shall be deemed to constitute a waiver of any
immunities the parties or their officers or employees may possess, nor shall any portion of
this Lease be deemed to have created a duty of care which did not previously exist with
respect to any person not a party to this Lease. The parties hereto acknowledge and agree
that no part of this Lease is intended to circumvent or replace such immunities.
-16-
not a party to this Lease. The parties hereto acknowledge and agree that no part of this Lease is
intended to circumvent or replace such immunities.
IN WITNESS WHEREOF. The parties hereto have executed this Agreement on the day
first above written.
[SEAL] LESSOR: First National tank
Attest:
By:
Sherman Harrison, Assistant President
[SEAL] ' _fiats._ LESSEE: County of W ld
Attest: I�,
�aw,� y'
1 Glenn Vaad, Chairman, oard of County
'%���`�� Commissioners of the County of Weld
/ • it
i
pry- o f
BY: . ,.,i . • 1 ' `� , (O5/O/(2004
DEPUTY CLERK TO TRH'!!' '•
-16-
SCHEDULE A
RECEIPT AND ACCEPTANCE CERTIFICATE
FORMING PART OF LEASE BETWEEN FIRST NATIONAL BANK, LESSOR, AND_
County of Weld May 2 , 2002
A. EQUIPMENT
1 New JD 270C-LC Excavator with Kiss Hitch Serial #FF270CX071051
TOTAL EQUIPMENT COST: $176,050.00
EQUIPMENT LOCATION: 1111 H STREET
GREELEY, CO 80632
LESSEE, under the terms of Equipment Lease Agreement and Equipment Lease Schedule above
dated, hereby acknowledges receipt in good condition of all equipment above described and
accepts delivery as of this date. Further, LESSEE agrees that LESSOR has fully and satisfactorily
performed all covenants and conditions to be performed under said Equipment Lease Agreement,
and that LESSEE selected the vendor and equipment so received. Further LESSOR has made no
representations or warranties whatsoever, directly or indirectly, as to fitness for use, applicability,
merchantability, condition, quality, or other wise, of such equipment. LESSEE agrees to pay the
rent provided under the Lease absolutely and unconditionally and specifically waives rights to
make any claim against LESSOR or to interpose or assert any such defense, counterclaim, or set-
off.
LESSEE confirms that they (it) will begin payment as specified in the Equipment Lease Schedule
and/or pursuant to the Interim Funding provisions of said Equipment Lease Agreement.
DATE: May 2, 2002
FIRST NATIONAL BANK COUNTY OF WELD
LESSOR LESSEE
BY: BY: Si
` '
S HARRISON GLENN VA• I,CH• IRMAN
ASSISTANT VICE PRESIDENT BOARD OF COUNTY
COMMISSIONERS OF THE
COUNTY OF WELD
0,5/6//..203.2)
-17-
SCHEDULE B
COLLATERAL LISTING
1 NEW JD 270C-LC EXCAVATOR WITH KISS HITCH
SERIAL #FF270CX071051
-18-
SCHEDULE C
AMORTIZATION SCHEDULE
Date: May 2, 2002
Payment Due Date Total Payment Option Price/Balance
1 05-31-2002 2,761.92 173,847.58
2 06-30-2002 2,761.92 171,657.21
3 07-31-2002 2,761.92 169,478.45
4 08-31-2002 2,761.92 167,292.29
5 09-30-2002 2,761.92 165,080.37
6 10-31-2002 2,761.92 162,879.27
7 11-30-2002 2,761.92 160,652.84
8 12-31-2002 2,761.92 158,436.70
9 01-31-2003 2,761.92 156,213.03
10 02-28-2003 2,761.92 153,930.45
11 03-31-2003 2,761.92 151,691.47
12 04-30-2003 2,761.92 149,428.26
13 05-31-2003 2,761.92 147,173.99
14 06-30-2003 2,761.92 144,895.93
15 07-31-2003 2,761.92 142,626.26
16 08-31-2003 2,761.92 140,348.88
17 09-30-2003 2,761.92 138,048.38
18 10-31-2003 2,761.92 135,755.45
19 11-30-2003 2,761.92 133,439.85
20 12-31-2003 2,761.92 131,131.26
21 01-31-2004 2,761.92 128,813.65
22 02-29-2004 2,761.92 126,459.99
23 03-31-2004 2,761.92 124,126.51
24 04-30-2004 2,761.92 121,771.56
25 05-31-2004 2,761.92 119,422.20
26 06-30-2004 2,761.92 117,051.83
27 07-31-2004 2,761.92 114,686.48
28 08-31-2004 2,761.92 112,313.12
29 09-30-2004 2,761.92 109,919.44
30 10-31-2004 2,761.92 107,529.92
31 11-30-2004 2,761.92 105,120.56
32 12-31-2004 2,761.92 102,714.79
33 01-31-2005 2,761.92 100,301.79
34 02-28-2005 2,761.92 97,847.65
35 03-31-2005 2,761.92 95,418.14
36 04-30-2005 2,761.92 93,000.00
-19-
SCHEDULE D
EQUIPMENT LEASE SCHEDULE
Between FIRST NATIONAL BANK, as LESSOR, and Weld County , as LESSEE. LEASE
1279262 SCHEDULE 50 REFERENCE N/A ._
A. EQUIPMENT LEASED— 1 New JD 270C-LC Excavator with Kiss Hitch
Serial#FF270CX071051
SEE ATTACHED EXHIBIT N/A_AND SCHEDULE B
TOTAL EQUIPMENT COST: $ 176,050.00
EQUIPMENT LOCATION: 1111 H STREET
GREELEY, CO 80632
B. TERM AND PAYMENTS
The term of this lease schedule,with respect to each item of equipment listed herein, receipt
whereof is hereby acknowledged and accepted, is for a term of 3 years commencing on May
2 , 2002. FIRST RENTAL IS DUE ON May 31 , 2002. The term and number of payments are
subject to the annual review of Equipment Lease/Purchase Agreement. Successive rental is due
on each monthly anniversary. Aggregate rentals due $99,429.12 . LESSEE shall pay successive
rental payments as follows:
Rental Payments of 36 @ $2,761.92
A late charge of five percent of the payment amount will be assessed on all lease payments which
are thirty(30) or more days past due.
C. PURCHASE OPTION
Lessee shall have the option to purchase equipment described herein at the end of the lease term
for
$93,000.00 .
This schedule is attached to an made a part of that certain Equipment Lease Agreement dated
May 2 , 2002, between the parties hereto, and all terms and conditions of said Equipment Lease
Agreement are made a part hereof.
DATED: May 2, 2002
FIRST NATIONAL BAN , LESSOR County of Weld, LESSEE
By: By ,r
Sherman Harrison Glenn Vaa , a and of County
Assistant Vice President Commissioners of the County of Weld
(05/o dal)
-20-
SCHEDULE E
May 2, 2002
First National Bank
ATTN: Sherman Harrison
205 West Oak Street
P.O. Box 578
Fort Collins, CO 80522-0578
Re: Equipment Lease-purchase Agreement
Dear Mr. Harrison:
As counsel to the County of Weld ("Lessee"), I have reviewed the Equipment Lease-Purchase
Agreement described above ("Agreement") between the Lessee and First National Bank
("Lessor"), dated as of May 2, 2002, and such other document and records as I have considered
to be relevant for purposes of providing this opinion. Based upon my review, I am of the opinion
that:
1. The Lessee is a corporate and political subdivision of the State of Colorado. Lessee's
obligations under the Agreement constitute an obligation of a political subdivision of the
State.
2. Lessee is authorized and has the power under State law to enter into the Agreement and to
carry out its obligations thereunder in accordance with its terms.
3. The Agreement has been duly authorized, approved, and executed by and on behalf of
Lessee. It is a valid and binding contract of Lessee enforceable in accordance with its
terms, except to the extent limited by state and federal laws affecting remedies and by
bankruptcy, reorganization, or other laws of general application relating to or affecting
the enforcement of creditors' rights.
4. The authorization, approval, and execution of the Agreement and the proceedings of
Lessee relating thereto have been performed in accordance with applicable open meeting
and public bidding laws.
5. To the best of my knowledge, there is no litigation, action, suit, or proceeding pending
before any court, administrative agency, arbitrator, or governmental body against Lessee
that challenges the organization or existence of Lessee; the authority of its officers; the
proper authorization, approval, and execution of the Agreement; the appropriation of
moneys to make payments under the Agreement for the current fiscal year; or the ability
of Lessee otherwise to perform its obligations under the Agreement.
Letter, Harrison
May , 2002
Page 2
This letter is furnished by me as counsel to Lessee and is solely for the benefit of the addressee.
I understand that you are not relying upon me with respect to any opinion concerning treatment,
for state or federal income tax purposes, of the rental and other payments to be made by Lessee
under the Agreement, as to which I express no opinion.
Please feel free to call me at (970) 356-4000, ext. 4390, if you have any questions or if I may be
of other assistance in this matter.
Sincerely,
Bruce T. Barker
Weld County Attorney
pc: Jim Ringenberg
Claud Hanes
Don Warden
Sherman Harrison
amammanama
I� First. Asi;rf6,/I Iier,°Yfet,/p„
Natonal `mall '`ra'Loa„�
UCC FINANCING STATEMENT Small Business laming Group
FOLLOW INSTRUCTIONS(front and back)CAREFULLY Bank
A.NAME 8 PHONE OF CONTACT AT FILER!optional'
•: `ame an• A. 205 West Oak Street
P.O. Box 578
dress)
Loan A Fort Collins,CO 80522-0578
dministration, First National Bank 970.482486i205 W Oak Street D1R Et'r 970-495.52,36
Lnx 970.495.9904
Fort Collins, Colorado 80522 - ---
L
1. DEBTOR'S EXACT FULL LEGAL NAME-insert only one debtor name (la or lb�
THE ABOVE SPACE W FOR FILING OFFICE USE ONLY
)-do not ebbreviate or combine names
la.ORGANIZATION'S NAME
OR COUNTY OF WELD
lb.INDIVIDUAL'S LAST NAME
FIRST NAME
MIDDLE NAME
le.MAILING ADDRESS
SUFFIX
1111 H STREET `I^
Id.TAX ID/: SSN OR EIN GREELEY STATE POSTAL CODE
ADD'L INFO RE le.TYPE OF ORGANIZATION COUNTRY
8A-6000813 ORGANIZATION
If.JURISDICTION OF ORGANIZATION CO 80632 USA
DEBTOR COr•or 1g.ORGANIZATIONAL ID I,if any
2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME!insert only one debtor name(252 or 2b
Colorado
2D.ORGANIZATION'S NAME
)'do not abbreviate or combine names ® NONE
OR
2b.INDIVIDUAL'S LAST NAME
FIRST NAME
2c.MAILING ADDRESS MIDDLE NAME
SUFFIX
CITY
2d.TAX ID F: SSN OR EIN STATE POSTAL CODE
ORD'L INFO RE 2e.TYPE OF ORGANIZATION OF ORGANIZATION COUNTRY
ORGANIZATION 2f.JURISDICTION
DEBTOR
2g.ORGANIZATIONAL ID/,if any
3.SECURED PARTY'S NAME(or NAME of TOTAL ASSIGNEE of ASSIGNOR e secured party name(3a or 36)
3a.ORGANIZATION'S NAME ® NONE
S/P)-Insert orgy on
DR FIRST NATIONAL BANK
3b.INDIVIDUAL'S LAST NAME
FIRST NAME
MIDDLE NAME
30.MAILING ADDRESS
SUFFIX
- 205 WEST OAK STREET CITY
STATE POSTAL CODE
4. FINANCING STATEMENT coven the following collateral. FORT COLLINS
COUNTRY
1 NEW JD 270C-LC EXCAVATOR WITH KISS HITCOH SERIAL 80521 USA
NFF270CX071G51
ALTERNATIVE DESIGNATION Iif applicable):
❑ ERN TIVE DISG LESSEE/LESSOR O CONSIGNEE/CONSIGNOR
ESTA E q CORDS. ZEX k to be fiil[for record!(or recorded)in tM R O BAILEE/BAILOfl
. OPTIONAL FILER REFERENCE DATA EpL C k to REQUEST SREPORT)
❑ SEUEgBWER O AG.LIEN O NON-UCC FILING
If a lioab(sl (ADDITIONAL FEET SEARCH gEPOgT SI n
�' Pm °'1i)❑ M Debtor❑ Debtor 1 ❑ Debtor 2
Bankers Swam',Inc.,St.Cloud,MN Form UCC-1-LAZ 5/30/2001
:BTOR COPY—NATIONAL UCC FINANCING STATEMENT(FORM UCC71 (REV. 07/29/98)
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