HomeMy WebLinkAbout810647.tiff RESOLUTION
RE: AUTHORIZATION FOR CHAIRMAN TO SIGN NECESSARY DOCUMENTS AND
ENTER INTO A LEASE/PURCHASE AGREEMENT CONCERNING THE PUR-
CHASE OF KOM-STAR
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, Weld County desires to purchase the following
equipment for use in its Data Processing Center:
Kodak Kom-Star Microimage Processor
Bruning Duplicator
Kodak 16mm Conversion Kit
WHEREAS, Kodak and Bruning is the only provider of such
equipment, and
WHEREAS, the Board of County Commissioners deems it advisable
to purchase the above stated equipment and to authorize the Chair-
man of the Board to sign all necessary documents concerning said
purchase and to enter into a lease/purchase agreement.
NOW, THEREFORE, BE IT RESOLVED by the Board of County Commis-
sioners of Weld County, Colorado that the Chairman of the Board be,
and hereby is, authorized to sign all necessary documents and to
enter into a lease/purchase agreement concerning the purchase of
the above stated equipment.
The above and foregoing Resolution was, on motion duly made
and seconded, adopted by the following vote on the 27th day of
May, A.D. , 1981.
BOARD OF COUNTY COMMISSIONERS
ATTEST: Jll h h WE COY;pCILORA
Weld County Clerk and Recorder (Aye)
an C k to the Bo rd cTc Carlson Chai
B : \ d✓/�r (Aye)
puty County Clerk Norman Carlson, Pro-Tem
APP OVED AS TO FORM: ABSENT DATE SIGNED (Aye)
C. W. Kirby
O<
County Attorney (A e)
J n T. Martin
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8104147
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�� fE DATE PRESENTED: JUNE 1, 1981
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Merit Leasing Corporation of Colorado
FINANCING PROPOSAL
Weld County, Colorado
Kodak/Bruning
Microfiche Equipment
Suite 516 • Colorado Club Building • 4155 East Jewell Avenue • Denver, Colorado 80222 • (303) 759-9863
, • •
I Merit Leasing Corporation of Colorado
May 14, 1981
Mr. Don Warden,
Director of Finance and Administration
Weld County
P.O. Box 758
Greeley, Colorado 80631
Dear Mr. Warden:
Thank you for taking time to speak with us about the financing package for the
following equipment which Weld County is purchasing from Kodak and Bruning:
Equipment Cost
Kodak Kom-Star Microimage Processor $82,039.00
Bruning Duplicator +10,500.00
Sub-Total $92,539.00
Kodak 16mm Conversion Kit ('Bleeper") + 7,276.00
Grand Total $99,815.00
Merit Financial Corporation (formerly Merit Leasing Corporation of Colorado)
would be pleased to finance these purchases. You may choose either a
repayment schedule that would fully amortize this obligation in three (3) years at
11.95% or one that would retire the balance in five (5) years at 11.25%.
Depending upon whether or not the county ordered the optional "Bleeper", the
payments would be as follows:
Option Monthly Payments
3 Years 5 Years
Without "Bleeper" $3,041. 13 $2,004.78
With "Bleeper" 3,280.24 2,162.41
The essential elements of the official contract we will sign will be as follows:
• Transaction: Lease-purchase.
• Down Payment: None. However, the first regular monthly payment is due
at time of contract closing.
• Final Payment: No special "balloon" payment required. Obligation is fully
retired when the County makes the final payment - either on the regular
scheduled date or on the accelerated early date. Full equity passes to the
County upon final payment. Title to the equipment, however, is passed
immediately upon contract closing.
Suite 516 • Colorado Club Building • 4155 East Jewell Avenue • Denver, Colorado 80222 • (303) 759-9863
• Early payoff: At its sole option, the County may retire this obligation in
full on any payment anniversary date by adding remaining principal balance
to principal and interest then due. No additional interest or penalty
charges would be assessed for this privilege.
• Non appropriation: The County has the privilege of cancelling the contract
at the beginning of any fiscal period and owing nothing else, should needs
change. This cancellation privilege means that this transaction need not be
carried on the County's books as long-term debt (for the full amount of the
balance), but merely as a current expense obligation (for the current year's
payment). If exercised, such a cancellation has no adverse credit impact
upon the County; it is merely a termination, not a default, of the contract.
Obviously, however, if the County exercises this option, the contract
restricts the County from replacing this equipment from another source for
the balance of the contract period. Also, full ownership of the equipment
would revert to Merit Financial Corporation in the event of contract
termination.
• Escrow account: At time of contract closing, entire principal balance will
be placed into an interest-bearing escrow account pending delivery of
equipment. Escrow account will be kept at Denver National Bank, which
manages other accounts for us. Investments in the account will be made at
the direction of the County (in accordance with§ 24-75-601, et seq., C.R.S.
1973) and the County will receive all earnings from the escrow account,
after deduction for normal account maintenance costs. Disbursements
from the escrow account will be jointly endorsed by County (acting on its
own behalf) and by Merit Financial Corporation (acting on behalf of the
investor for this transaction).
• Bond counsel: Merit Financial Corporation assumes responsibility for all
attorneys' fees, including the cost of a tax-exemption opinion from a
certified independent bond counsel.
• Fees: None. All costs to County are relected in the terms outlined above.
We welcome this opportunity to quote our services to you and look forward to
your acceptan of this offer. This offer is valid through May 28, 1981.
Sincerely,;,
R. e" e
• e Preside , Ma eting
Merit Fina cial Corporaion
(formerly Merit Leasing Corporation of Colorado)
Ap oved: i c), )
Ali eArl
n Warden D e
Director of Finance and Administration
Weld County
RMC/khb �' SA
Ch ck Carlson, hairman
Board of County Commissioners
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LEASE PURCHASE AGREEMENT
THIS LEASE PURCHASE AGREEMENT dated as of June 15 , 1981 (the .
Lease) , is by and between MERIT FINANCIAL CORPORATION, a corpora-
tion duly organized and existing under the laws of the State of
Colorado as Lessor ("Lessor" ) whose address is 4155 E. Jewell
Avenue, Suite .516, Denver , Colorado 80222 and WELD COUNTY, a
political subdivision of the State of Colorado as Lessee ("Lessee" )
whose mailing address is P. O. Box 758, Greeley, Colorado 80631.
W I T N E S S E T H:
WHEREAS, Lessee is authorized by law to acquire such items of
personal property as are needed to carry out its governmental and
proprietary functions , and to acquire such personal property by
entering into lease with option to purchase agreements; and
WHEREAS, Lessee has determined that it is necessary for it to
acquire under this Lease certain items of personal property
described herein as Equipment; and
WHEREAS, Lessor is willing to provide monies for the acquisi-
tion of such items of Equipment when delivered to and accepted by
Lessee , and to lease them to Lessee pursuant to this Lease;
NOW THEREFORE, in the joint and mutual exercise of their
powers , and in consideration of the mutual covenants herein
contained , the parties hereto recite and agree as follows:
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1 .1 . Definitions. Unless the context otherwise
requires , the terms defined in this Section shall , for all purposes
of this Lease and Exhibits attached hereto have the meanings herein
specified .
Commencement Date: The first day of the calendar month in
which the agreement is signed , in this case the 1st day of June ,
1981 .
Contractor : Each of the manufacturers or vendors from whom
Lessee (or Lessor at Lessee's request) has ordered or will order or
with whom Lessee (or Lessor at Lessee ' s request) has contracted or
will contract for the manufacture , delivery and/or installation of
the Equipment .
Equipment : The personal property described in the
attached Exhibit A which is being leased with option to purchase by
Lessee pursuant to this Lease.
Equipment Cost: With respect to the Equipment , the contract
price to be paid to the Contractor therefor upon delivery in
accordance with the purchase order or contract therefor , and any
additional amount due the Contractor by reason of any change orders
thereto approved by Lessee .
Interest: The portion of any Rental Payment designated as and
comprising interest as shown in the attached Exhibit B.
Net Proceeds : Any insurance proceeds or condemnation award,
paid with respect to the Equipment , remaining after payment there-
from of all expenses incurred in the collection thereof .
Original Term: The period from the Commencement Date until
the end of the fiscal year of Lessee in effect at the Commencement
Date .
r .
P - . I P - - _
Payment Date: The date upon which any Rental Payment is due
and payable as provided in Exhibit B.
Permitted Encumbrances : As of any particular time: (i) liens
for taxes and assessments not then delinquent , or which Lessee may ,
pursuant to provisions of Section 7. 3 hereof , permit to remain
unpaid, (ii) this Lease and amendments hereto, (iii) Lessor ' s
interest in the Equipment, and (iv) any mechanic' s, laborer ' s,
materialmen' s , supplier 's , or vendor ' s lien or right not filed or
perfected in the manner prescribed by law, other than any lien
arising through a Contractor or which Lessee may , pursuant to
Section 8. 5 hereof, permit to remain unpaid.
Principal: The portion of any Rental Payment designated as
principal in the attached Exhibit B.
Purchase Option Price : With respect to the Equipment , as of
any Payment Date , with amount so designated and set forth opposite
such date in the attached Exhibit C.
Renewal Terms : The optional terms of one year ' s duration or
less for which this Lease may be renewed by Lessee , each of which
shall commence at the end of the Original Term or a prior Renewal
Term and continue for a period of twelve months or such lesser
period within which all of the Rental Payments specified in the
attached Exhibit B will have been paid , and which shall be fixed by
Lessor and shown on Exhibit B as provided in Section 4.1 .
Rental Payment: The payment due from Lessee to Lessor on each
Payment Date for which this Lease in in effect, as shown on Exhibit
B.
State: The State of Colorado.
State and Federal Laws : The Constitution and any law of the
State and any charter , ordinance , rule or regulation of any agency
or political subdivision of the State; and any law of the United
States , and any rule or regulation of any federal agency.
Term of this Lease or Lease Term: The Original Term and all
Renewal Terms for which this Lease is renewed by Lessee in
accordance with Article IV.
Section 1 . 2 Exhibits.
The following Exhibits are attached to and by reference made a
part of this Lease:
Exhibit A: A description of the Equipment being leased by
Lessee pursuant to this Lease, including the serial number thereof
which shall be inserted when available.
Exhibit B : A schedule to be completed by Lessor as provided
in Section 4.1 , indicating the date upon which the Original Term
and each Renewal Term shall commence , the date and amount of each
Rental Payment coming due during the Lease Term and the amount of
each Rental Payment comprising principal and interest .
Exhibit C: A schedule showing as of each Payment Date the
price at which Lessee may exercise its option to purchase Lessor 's
interest in the Equipment in accordance with Article X.
Exhibit D: A Certificate of Warrant of Lessee appointing an
authorized agent for purposes of executing Certificates of
Acceptance indicating that the Equipment has been delivered and
and has been accepted by Lessee, the date on which Rental Payments
shown in Exhibit B shall commence , that Lessee has sufficient
monies available to pay all Rental Payments coming due during the
Original Term, and certifying the absence of litigation .
Exhibit E : An opinion of counsel to Lessee as to the organi-
zation , nature and powers of Lessee; the validity , execution and
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delivery of this Lease and various related documents; the absence
of litigation; and related matters .
Exhibit F : Certificates of Acceptance of Lessee to be executed
by Lessee or its authorized agent upon receipt of all or part of the
Equipment.
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ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Section 2.1 . Representations , Covenants and Warranties of
Lessee. Lessee represents , covenants and warrants as follows:
(a) Lessee is a municipal corporation and political sub-
division of the State, duly organized and existing under the
Constitution and laws of the State.
(b) Lessee is authorized under the Constitution and laws
of the State to enter into this Lease and the transactions
contemplated hereby, and to perform all of its obligations
hereunder .
(c) The officer of Lessee executing this Lease has been
duly authorized to execute and deliver this Lease under the
terms and provisions of a resolution of Lessee ' s governing
body, or by other appropriate official approval.
(d) Lessee has complied with all open meetings laws , all
public bidding laws and all other State and Federal laws
requirements applicable to this Lease and the acquisition of
the Equipment by Lessee.
(e) Lessee shall not pledge , mortgage or assign this
Lease , or its duties and obligations hereunder to any other
person, firm or corporation except as provided under the terms
of this Lease .
(f) The Equipment shall be used during the Term of the
Lease only to carry out the governmental or proprietary pur-
poses of Lessee.
(g ) Upon delivery and installation of the Equipment ,
Lessee shall provide to Lessor a completed and executed copy
of the Certificate of Acceptance attached hereto as Exhibit D
and a completed and executed opinion of legal counsel in the
form attached hereto as Exhibit E.
Section 2. 2. Representations , Covenants and Warranties of
Lessor . Lessor represents, covenants and warrants as follows:
(a) Lessor is a corporation duly organized, existing and
in good standing under and by virtue of the laws of the State
of Colorado, and is duly qualified and in good standing as a
corporation authorized to transact business in the State; has
power to enter into this Lease; is possessed of full power to
own and hold real and personal property, and to lease the
same; and has duly authorized the execution and delivery of
this Lease .
(b) Neither the execution and delivery of this Lease,
nor the fulfillment of or compliance with the terms and condi-
tions thereof , nor the consummation of the transactions
contemplated thereby, conflicts with or results in a breach of
the terms, conditions or provisions of any restriction or any
agreement or instrument to which Lessor is now a party or by
which Lessor is bound, constitutes a default under any of the
foregoing , or results in the creation or imposition of any
lien, charge or encumbrance whatsoever upon any of the
property or assets of Lessor , or upon the Equipment except
Permitted Encumbrances .
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r
ARTICLE III
LEASE OF EQUIPMENT
Section 3.1 . Lease. Lessor hereby leases the Equipment to
Lessee , and Lessee hereby leases the Equipment from Lessor , upon
the terms and conditions set forth in this Lease.
Section 3. 2. Possession and Enjoyment. Lessor hereby cove-
nants to provide Lessee during the Term of this Lease with the
quiet use and enjoyment of the Equipment , and Lessee shall during
the Term of the Lease 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. Lessor will , at the
request of Lessee and at Lessee' s cost, join in any legal action in
which Lessee asserts its right to such possession and enjoyment to
the extent Lessor lawfully may do so.
Section 3. 3. Lessor Access to Equipment. The Lessee agrees
that Lessor shall have the right at all reasonable times to examine
and inspect the Equipment . Lessee further agrees that Lessor shall
have such rights of access to the Equipment as may be reasonably
necessary to cause the proper maintenance of the Equipment in the
event of failure by Lessee to perform its obligations hereunder .
Section 3. 4. Delivery of Equipment.
(i ) Notwithstanding any statement in this agreement
which might be construed to imply that Lessor has an immediate
duty to cause the Equipment to be promptly or immediately
delivered to Lessee , the parties mutually acknowledge that no
such duty exists inasmuch as all or part of the equipment is
being specially ordered by Lessor for the benefit of Lessee .
However , both parties assume the obligation to make every
effort to expedite delivery and acceptance of the Equipment .
(ii) The parties acknowledge that it is necessary to
execute this agreement and cause commitment of funds as of
this date in order to assure the manufacture and delivery of
the equipment.
(iii ) In the event all or part of the Equipment is
not delivered to Lessee within ninety (90) days of the signing
of this agreement , Lessee's duties to make payment of the
interest component of the Rental Payments , as described in
Exhibit B, shall be promptly suspended to the extent that the
interest component of such Rental Payments is attributable to
such undelivered Equipment until all or part of such Equipment
is delivered to and accepted by Lessee. The interest
component of such Rental Payments due thereafter shall be pro-
rated to accurately reflect the period of time after such
ninety (90) day period during which all or part of the Equip-
ment was available to Lessee for its use .
•
Section 3. 5. Location of Funds Until Equipment Purchase.
Within seven (7) days after the signing of this agreement by Lessor
and Lessee, Lessor shall cause funds sufficient to purchase the
Equipment to be placed in an account in the names of Lessor and
Lessee jointly, in a duly chartered bank of Lessor ' s choice , the
principal of which shall be withdrawn only to cause payment to be
made for Equipment actually delivered to and accepted by Lessee , as
evidenced by an appropriately executed Certificate of Delivery
(Exhibit F) . Interest on such account , if any, shall be the
exclusive property of Lessee .
Section 3. 6. Duty to Execute Certificates of Delivery. It
shall be Lessee's duty to promptly execute Certificates of Delivery
(Exhibit F) upon receipt and acceptance of all or part of the
Equipment by Lessee and Lessee shall not withhold acceptance of all
or part of the Equipment for any cause that would be insufficient
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to entitle Lessor to reject delivery of all or part of the Equip
ment , pursuant to Section 4-2-601 , et seq. , C. R. S. 1973 , also known
as Section 2-601 , et seq. , of the Uniform Commercial Code .
Further , Lessee shall have the duty to act with respect to all
Equipment in a manner that preserves all of Lessor ' s rights under
the Uniform Commercial Code. In the event Lessee fails to perform
any of the duties set forth in this section, Lessee shall be deemed
to be in default of this agreement and indebted to Lessor for all
losses incurred by Lessor as a consequence of such failure,
including reasonable attorney's fees .
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ARTICLE IV
TERM OF LEASE
Section 4.1 . Lease Term. This Lease shall be in effect for
an Original Term, and for one or more Renewal Terms for which it is
renewed by Lessee . Not less than sixty (60) days before the end of
the Original Term or any Renewal Term for which this Lease is
renewed, Lessee may give to Lessor written notice of its intention
to renew this Lease for the next Renewal Term; provided that
failure to give such notice by such date shall not terminate this
Lease at the end of the then current term if Lessee notifies Lessor
of its intention to renew and appropriates monies for the payment
of the Rental Payments due in such Renewal Term, prior to the end of
the then current term. Upon determination of the Commencement
Date, Lessor shall insert on Exhibit B the period of the Original
Term and each Renewal Term and the Payment Dates of the Rental
Payments coming due therein. The terms and conditions of this
Lease to be in effect during each Renewal Term shall be the same as
the terms and conditions in effect during the Original Term, except
that the Rental Payments shall be as set forth in Exhibit B.
Section 4. 2. Intent to Continue Lease Term; Appropriations.
Lessee presently intends to continue the Term of this Lease through
the Original Term and all Renewal Terms and to pay all Rental Pay-
ments specified in Exhibit B with respect thereto. Lessee reason-
ably believes that monies in an amount sufficient to make all such
Rental Payments can legally be provided and made available for this
purpose. Lessee covenants and agrees that, prior to the commence-
ment of the Original Term and each Renewal Term for which this
Lease is renewed, it will lawfully provide and appropriate monies
sufficient to pay the Rental Payments coming due in such Terms when
due as shown in Exhibit B.
Section 4. 3. Effect of Nonrenewal. Upon failure of Lessee
to renew this Lease for all Renewal Terms specified in Exhibit B,
Lessee shall not be responsible for the payment of any additional
Rental Payments due with respect to succeeding Renewal Terms , but
if Lessee has not delivered possession of the Equipment to Lessor
in accordance with Section 12. 3 and conveyed to Lessor or released
its interest in the Equipment within ten (10) days after the expir-
ation of the Lease , the nonrenewal shall nevertheless be effective ,
but Lessee shall be responsible for the payment of damages in an
amount equal to the amount of the Rental Payments thereafter coming
due under Exhibit B which are attributable to the number of days
after such ten (10) day period during which Lessee fails to take
such actions and for any other loss suffered by Lessor as a result
of Lessee' s failure to take such actions as required .
Section 4. 4. Nonsubstitution. If this Lease is not renewed
for all Renewal Terms specified in Exhibit B, Lessee agrees not to
purchase, lease or rent personal property capable of performing
functions similar to those capable of being performed by the Equip-
ment , and agrees not to permit functions similar to those capable
of being performed through the use of the Equipment to be performed
by its own employees or by any agency, person or entity affiliated
with or hired by Lessee , for a period of one year; provided , how-
ever , that these restrictions shall not be applicable in the event
the Equipment shall be sold , released or otherwise disposed of by
Lessor and the amount received from such disposition, less all
costs of such sale or disposition, is sufficient to pay the then
applicable Purchase Option Price as set forth in Exhibit C; or if
the application of these restrictions would affect the validity of
this Lease.
Section 4. 5. Termination of Lease Term. The Term of this
Lease will terminate upon the occurrence of the first of the
following events :
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(a) the expiration of the Original Term or any Renewal
Term and the failure, of Lessee to renew this Lease for the
next Renewal Term in accordance with Section 4.1;
(b) the exercise by Lessee of its option to purchase
Lessor ' s interest in the Equipment pursuant to Article X;
(c) a default by Lessee and Lessor ' s election to termi-
nate this Lease pursuant to Article XII ; or
(d) the payment by Lessee of all Rental Payments author-
ized or required to be paid by Lessee hereunder .
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ARTICLE V
RENTAL PAYMENTS
Section 5.1 . Rental Payments. Except as otherwise
described in Section 3. 4 hereof, Lessee agrees to pay Rental
Payments beginning on the Commencement Date and thereafter during
the Term of the Lease , in the amounts and on the dates specified in
Exhibit B. All Rental Payments shall be paid to Lessor at its
offices at the address specified in the first paragraph of this
Lease, or to such..other person or entity and at such other places as
Lessor may from time to time designate by written notice to Lessee .
Lessee shall pay the Rental Payments exclusively from monies
legally available therefor , in lawful money of the United States of
America to Lessor , or, in the event of assignment of the right to
receive Rental Payments by Lessor , to its assignee .
Section 5. 2. Current Expense. The obligations of Lessee
under this Lease , including its obligation to pay the Rental
Payments due with respect to the Equipment , shall not constitute an
indebtedness of Lessee within the meaning of the Constitution and
laws of the State. Nothing herein shall constitute a pledge by
Lessee of any taxes or other monies , other than monies lawfully
appropriated from time to time by Lessee in its annual budget and
the proceeds or Net Proceeds of the Equipment , to the payment of
any Rental Payment or other amount coming due hereunder .
Section 5. 3. Interest Component. A portion of each Rental
Payment is paid as and represents the payment of interest. Exhibit
B sets forth the interest component of each Rental Payment during
the Lease Term.
Section 5. 4. Rental Payments to be Unconditional. The obli-
gations of Lessee to make Rental Payments or any other payments
required hereunder and to perform and observe the other covenants
and agreements contained herein shall be absolute and unconditional
in all events except as expressly provided under this Lease. Not-
withstanding any dispute between Lessee and Lessor or any other
person, Lessee shall make all Rental Payments and other payments
required hereunder 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 counterclaim against its obligation
to make such payments required under this Lease. Lessee' s obli-
gation to make Rental Payments during the Original Term or any
Renewal Term for which this Lease is renewed shall not be abated
through accident or unforeseen circumstances. However , nothing
herein shall be construed to release Lessor from the performance of
its obligations hereunder; and if Lessor should fail to perform any
such obligation, Lessee may institute such legal action against
Lessor as Lessee may deem necessary to compel the performance of
such obligation or to recover damages therefor .
Section 5. 5. Payments Deemed Made When Deposited in United
States Mail. For purposes of this agreement, Lessee shall be
deemed to have made payment on the date payment is placed in the
United States mail, in an envelope addressed to Lessor at its
offices at the address specified in the first paragraph of this
Lease or to such other person or entity and at such other places as
Lessor may from time to time designate by written notice to Lessee,
with sufficient postage to cause the delivery thereof and , if
payment is made by check, such check is covered by sufficient
funds .
Section 5. 6. Late Payment. Notwithstanding Lessor ' s powers
to declare a default of this agreement , in the event Lessee fails
to make any Rental Payment or other payment required herein within
seven (7) days after the due date thereof , Lessee shall be assessed
a late payment charge of twenty-four percent (24%) annual interest,
compounding daily , on the amount due for such payment dating from
due date thereof , the payment of which shall accompany the next
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Rental Payment when due. No notice of any kind shall be required to
enable Lessor to assess such late payment charge .
Section 5. 7. No Obligation to Invoice. Lessor is under no
obligation to provide invoices to Lessee for any payment due here-
under , except that Lessor shall invoice Lessee for any late payment
charges assessed Lessee under authority of 5. 6 above .
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•
ARTICLE VI
INSURANCE AND INDEMNIFICATION
Section 6.1 . Liability Insurance. Upon receipt of posses-
sion of the Equipment, Lessee shall take such measures as may be
necessary to insure 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. The Net Proceeds
of all such insurance shall be applied toward extinguishment or
satisfaction of the liability with respect to which the insurance
proceeds may be paid .
Section 6. 2. Property Insurance. Upon receipt of possess-
ion of the Equipment, Lessee shall have and assume the risk of loss
with respect thereto, and shall procure and maintain continuously
in effect during the Term of the Lease, all-risk insurance ,
(including flood and earthquake coverage) , 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 thereof damaged or destroyed and to
pay the applicable Purchase Option Price of the Equipment . Such
insurance may be provided by a rider to an existing policy or under
a separate policy. In time of war in which the United States of
America is a belligerent, Lessee shall procure and maintain contin-
uously in effect such insurance as may be available from the United
States of America , to the extent of the full insurable value of the
Equipment and insuring against loss thereof or damage thereto from
the risks and hazards of war , if such insurance is then generally
obtainable by owners of similar Equipment in the State. Such
insurance may be written with customary deductible amounts. The
Net Proceeds of insurance required by this Section shall be applied
to the prompt repair , restoration , modification or improvement of
the Equipment by Lessee.
Section 6. 3. Worker ' s Compensation Insurance. If required
by State 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 the Lease.
Section 6. 4. 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 in the State; 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; and shall
name Lessee and Lessor as insured parties . 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 confirming to the provisions of this
Article , unless such insurance is no longer obtainable in which
event Lessee shall notify Lessor of this fact .
Section 6. 5. Indemnification. Lessee assumes all risks and
liabilities , whether or not covered by insurance , for loss or
damage to the Equipment and for injury to or death of any person or
damage to any property, in any manner arising out of or incident to
the possession, use, operation, condition or storage of the Equip-
ment by Lessee , whether such injury or death be with respect to
agents or employees of Lessee or of third parties , and whether such
property damage be to Lessee's property or the property of others .
Lessee hereby assumes responsibility for and agrees to indemnify,
-11-
protect , save and keep harmless Lessor from and against any and all
liabilities , obligations , losses , damages , penalties , claims ,
actions , costs and expenses (including reasonable attorney' s fees)
of whatsoever kind and nature, imposed on, incurred by or asserted
against Lessor that in any way relate to or arise out of the
possession, use , operation, condition or storage of the Equipment ,
unless caused by Lessor or its agents , to the maximum extent
permitted by law.
Section 6. 6. Damage to or Destruction of Equipment. If
after delivery of the Equipment to Lessee all or any part of the
Equipment is lost, stolen, destroyed or damaged beyond repair ,
Lessee shall replace the same at Lessee's sole cost and expense
within sixty (60) days after such event and such replacement shall
be substituted in this Lease by appropriate endorsement and Lessee
shall take any and all actions necessary for assuring Lessor ' s
first priority security interest therein pursuant to the provisions
of Section 8. 2 hereof . Nothing in this paragraph shall be
construed to abate Lessee's obligations to continue making its
monthly Rental Payments as required herein. If Lessee fails or
refuses to replace the Equipment within the required period, Lessor
may, at its option, declare the applicable Purchase Option Price of
the Equipment set forth in Exhibit C immediately due and payable ,
and Lessee shall be obligated to pay the same. On such payment ,
this Lease shall terminate and Lessee thereupon shall become
entitled to the Equipment AS IS, WITHOUT WARRANTIES , EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE, except that the Equipment shall not be subject
to any lien or encumbrance created by or arising through Lessor .
-12
ARTICLE VII
OTHER OBLIGATIONS OF LESSEE
Section 7.1 . Use; Permits. Lessee shall exercise due care
in the installation, use , operation and maintenance of the Equip-
ment , and shall not install, use or operate the Equipment
improperly , carelessly, in violation of any State or Federal law or
for a purpose or in a manner contrary to that contemplated by this
Lease. Lessee shall obtain all permits and licenses necessary for
the installation, operation, possession and use of the Equipment .
Lessee shall comply with all State and Federal law applicable to
the installation, use, possession and operation of the Equipment ,
and if compliance with any such State and Federal law requires
changes or additions to be made to the Equipment , such changes or
additions shall be made by Lessee at its expense .
Section 7. 2. Maintenance of Equipment by Lessee. Lessee
shall , at its own expense , maintain, preserve and keep the Equip-
ment in good repair, working order and condition, and shall from
time to time make all repairs and replacements necessary to keep
the Equipment in such condition. Lessor shall have no responsi-
bility for any of these repairs or replacements.
Section 7. 3. Taxes , Other Governmental Charges and Utility
Charges. Except as expressly limited by this Section, Lessee shall
pay all taxes and other charge of any kind which are at any time
lawfully assessed or levied against or with respect to the Equip-
ment or any part thereof , or which become due during the Term of
this Lease , with respect thereto or the . Rental Payments whether
assessed against Lessee or Lessor . Lessee shall also pay when due
all gas , water , steam, electricity , heat , power , telephone , and
other charges incurred in the operation, maintenance , use,
occupancy and upkeep of the Equipment, and all special assessments
and charges lawfully made by any governmental body for public
improvements that may be secured by a lien on the Equipment;
provided that with respect to special assessments or other govern-
mental charges that may lawfully be paid in installments over a
period of years , Lessee shall be obligated to pay only such
installments as are required to be paid during the Term of this
Lease as and when the same become due . Lessee shall not be required
to pay any federal , state or local income , inheritance , estate ,
succession, transfer , gift, franchise, gross receipts, profit,
excess profit , capital stock , corporate, or other similar tax
payable by Lessor , its successors or assigns , unless such tax is
made in lieu of or as a substitute for any tax , assessment or charge
which is the obligation of Lessee under this Section.
Lessee may , at its own expense and in its own name , in good
faith contest any such taxes , assessments , utility and other
charges and , in the event of any such contest, may permit the
taxes , assessments or other charges so contested to remain unpaid
during the period of such contest and any appeal therefrom unless
Lessor shall notify Lessee that , in the opinion of Independent
Counsel, by nonpayment of any such items the interest of Lessor in
the Equipment will be materially endangered or the Equipment or any
part thereof will be subject to loss or forfeiture , in which event
Lessee shall promptly pay such taxes , assessments or char4es or
provide Lessor with full secuirty against any loss which may result
from nonpayment , in form satisfactory to Lessor .
Section 7. 4. Advances. If Lessee shall fail to perform any
of its obligations under this Article, Lessor may, but shall not be
obligated to, take such action as may be necessary to cure such
failure , including the advancement of money, and Lessee shall be
obligated to repay all such advances on demand, with interest at
the rate of twenty-four percent (24%) from the date of the advance
to the date of repayment .
-13-
ARTICLE VIII
TITLE
Section 8.1 . Title. During the Term of this Lease, and so
long as Lessee is not in default under Article XII, legal title to
the Equipment and any and all repairs, replacements , additions ,
modifications and improvements to it shall be in Lessee . Upon
termination of this Lease for any of the reasons specified in
Section 4. 5, Clauses (a) and (c) , full and unencumbered legal title
to the Equipment, shall pass to Lessor., and Lessee shall have no
further interest therein. 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 in accordance with Section
12. 3.
Section 8. 2. Security Interest. Lessor shall have and
retain a security interest under the Uniform Commercial Code in the
Equipment , the proceeds thereof and all repairs , replacements ,
additions , modifications and improvements thereto or thereof in
order to secure Lessee' s payment of all Rental Payments due during.
the Term of the Lease and the performance of all other obligations
herein to be performed by Lessee . Lessee shall join with Lessor in
executing such financing statements or other documents and shall
perform such acts as Lessor may request to establish and maintain a
valid 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 the Lease, so as clearly to disclose Lessor ' s security
interest in the Equipment .
Section 8. 3. Liens. 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 Section 7. 3 and this Article , Lessee shall
promptly, at its own expense, take such action as may be duly
necessary 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 8. 4. Installation of Lessee ' s Equipment. Lessee
may at any time and from time to time, in its sole discretion and at
its own expense, install other items of equipment in or upon the
Equipment , which items shall be identified by tags or other symbols
affixed thereto as property of Lessee. All such items so identi-
fied shall remain the sole property of Lessee, in which Lessor
shall have no interest , and may be modified or removed by Lessee at
any time provided that Lessee shall repair and restore any and all
damage to the Equipment resulting from the installation, modifica-
tion or removal of any such items. Nothing in this Lease shall
prevent Lessee from purchasing items to be installed pursuant to
this Section under a conditional sale or lease with option to
purchase contract , or subject to a vendor ' s lien or security agree-
ment, as security for the unpaid portion of the purchase price
thereof , provided that no such lien or security interest shall
attach to any part of the Equipment.
Section 8. 5. Modification of Equipment. Lessee shall, at
its own expense , have the right to remodel the Equipment and to
make additions , modifications and improvements thereto. All such
additions , modifications and improvements shall thereafter
comprise part of the Equipment and be subject to the provisions of
this Lease. Such additions , modifications and improvements shall
not in any way damage the Equipment nor cause it to be used for
-14-
purposes other than those authorized under the provisions of State
and Federal law or those contemplated by this Lease; and the Equip-
ment , upon completion of any additions , modifications and improve-
ments made pursuant to this Section, shall be of a value which is
not less than the value of the Equipment immediately prior to the
making of such additions , modifications and improvements. Any pro-
perty for which a substitution or replacement is made pursuant to
this Section may be disposed of by Lessee in such manner and on such
terms as are determined by Lessee . Lessee shall not permit any
mechanic's or other lien to be established or remain against the
Equipment for labor or materials furnished in connection with any
additions , modifications or improvements made by Lessee pursuant to
this Section; provided that if any such lien is established and
Lessee shall first notify. Lessor of Lessee' s intention to do so ,
Lessee may in good faith contest any lien filed or established
against the Equipment , and in such event may permit the items so
contested to remain undischarged and unsatisfied during the period
of such contest and any appeal therefrom unless Lessor shall notify
Lessee that , in the opinion of Independent Counsel , by nonpayment
of such item the interest of Lessor in the Equipment will be
materially endangered or the Equipment or any part thereof will be
subject to loss or forfeiture , in which event Lessee shall promptly
pay and cause to be satisfied and discharged all such unpaid items
or provide Lessor with full security against any such loss or for-
feiture, in form satisfactory to Lessor . Lessor shall cooperate
fully with Lessee in any such contest , upon the request and at the
expense of Lessee.
Section 8. 6. 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 hereafter become in any
manner affixed or attached to or embedded in or permanently rested
upon real property or any building thereon or attached in any
manner to what is permanent by means of cement, plaster , nails ,
bolts , screws or otherwise.
-15-
ARTICLE IX
WARRANTIES
Section 9.1 . Selection of Equipment. The Equipment and the
Contractor have been selected by Lessee , and Lessor shall have no
responsibility in connection with the selection of the Equipment ,
its suitability for the use intended by Lessee , the acceptance by
the Contractor or its sales representative of the order submitted,
or any delay or failure by the Contractor or its sales representa-
tive to manufacture, deliver or install the Equipment. Lessee
authorizes Lessor to add the serial number of the Equipment to
Exhibit A when available.
Section 9. 2. Installation and Maintenance of Equipment.
Lessor shall have no obligation to install , erect , test , inspect,
service or maintain the Equipment under any circumstances , but such
actions shall be the obligation of Lessee or the Contractor .
Section 9. 3. Contractor ' s Warranties. Lessor hereby
assigns to Lessee for and during the Term of this Lease , all of its
interest in all Contractor ' s warranties and guarantees , express or
implied , issued on or applicable to the Equipment , and Lessor
hereby authorizes Lessee to obtain the customary services furnished
in connection with such warranties and guarantees at Lessee' s
expense.
Section 9. 4. Patent Infringement. Lessor hereby assigns to
Lessee for and during the Term of this Lease all of its interest in
patent indemnity protection provided by any Contractor with respect
to the Equipment. Such assignment of patent indemnity protection
by Lessor to Lessee shall constitute the entire liability of Lessor
for any patent infringement by Equipment furnished pursuant to this
Lease.
Section 9. 5. Disclaimer of Warranties. THE EQUIPMENT IS
DELIVERED AS IS , AND LESSOR MAKES NO WARRANTY OR REPRESENTATION,
EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS
FOR THE USE CONTEMPLATED BY LESSEE OF THE EQUIPMENT, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT.
-16-
ARTICLE X
OPTION TO PURCHASE
Section 10.1 . When Available. Lessee shall have the option
to purchase Lessor' s interest in the Equipment on any Payment Date
for the then applicable Purchase Option Price set forth in Exhibit
C, but only if Lessee is not in default under this Lease , and only
in the manner provided in this Article.
Section 10. 2. Exercise of Option. Lessee shall give notice
to Lessor of its intention to exercise its option not less than
thirty (30) days prior to the Payment Date on which the option is to
be exercised and shall deposit with Lessor on the date of exercise
an amount equal to all Rental Payments and any other amounts then
due or past due and the applicable Purchase Option Price set forth
in Exhibit C. The closing shall be on the Payment Date on which the
option is to be exercised at the Office of Lessor .
Section 10. 3. Release of Lessor ' s Interest. Upon exercise of
the Purchase Option by Lessee, Lessor shall convey to Lessee or
release its interest in the Equipment by delivering to Lessee such
documents as may be necessary for this purpose.
•
-17-
ARTICLE XI
ASSIGNMENT, SUBLEASING , MORTGAGING AND SELLING
Section 11.1 . Assignment by Lessor . All of Lessor ' s right ,
title and interest in and to this Lease and the Equipment may be
assigned and reassigned in whole or in part to one or more
assignees or subassignees by Lessor at any time , without consent of
Lessee .
Section 11 . 2. Restriction on Mortgage or Sale of Equipment by
Lessee. Except ,as provided in Section 11. 2, Lessee shall not
mortgage , sell, assign, transfer or convey the Equipment or any
portion thereof during the Term of this Lease , or remove the same
from its boundaries without the written consent of Lessor;
provided , however , that temporary use of the Equipment by Lessee
outside of its boundaries shall be permitted if such use is for
official and lawful purposes and within the normal course of
Lessee' s governmental and proprietary functions.
-18-
ARTICLE XII
EVENTS OF DEFAULT AND REMEDIES
Section 12.1 . 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, with repect to the Equipment, any one or more of the follow-
ing events:
(i) Failure by Lessee to pay any Rental Payment or other
payment required to be paid under this Lease at the time
specified herein and the continuation of said failure for a
period of seven (7) days after telephonic or telegraphic
notice given by Lessor that the payment referred to in such
notice has not been received , such telephonic or telegraphic
notice to be subsequently confirmed in writing , or after
written notice.
(ii) Failure by Lessee to observe and perform any coven-
ant , condition or agreement on its part to be observed or
performed, other than as referred to in Clause (i) of this
Section, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied has
been given to Lessee by Lessor , unless Lessor shall agree in
writing to an 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
unreasonably withhold its consent to an extension of such time
if corrective action is instituted by Lessee within the appli-
cable period and diligently pursued until the default is
corrected.
(iii) The filing by Lessee of a voluntary petition in
bankruptcy , or failure by Lessee promptly to file any execu-
tion, garnishment or attachment of such consequence as would
impair the ability of Lessee to carry on its governmental or
proprietary function or adjudication of Lessee as a bankrupt ,
or assignment by Lessee for the benefit of creditors , or the
entry by Lessee into an agreement of composition with
creditors, or the approval by a court of competent jurisdic-
tion of a petition applicable to Lessee in any proceedings
instituted under the provisions of the Federal Bankruptcy
Statute, as amended, or under any similar acts which may here-
after be enacted.
The provisions of this Section 12.1 and Section 12. 2 are subject to
the following limitation: if by reason of force majeure Lessee is
unable in whole or in part to carry out its obligations under this
Lease with respect to the Equipment, other than its obligation to
pav Rental Payments with respect thereto which shall be paid when
due notwithstanding the provisions of this paragraph, Lessee shall
not be deemed in default during the continuance of such inability.
The term "force majeure" as used herein shall mean, without limi-
tation , the following: acts of God; strikes , . lockouts or other
labor disturbances; acts of public enemies , orders or restraints of
any kind of the government of the United States of America or the
State or their respective 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
and not resulting from its negligence. Lessee agrees , however , to
remedy with all reasonable dispatch the cause or causes preventing
Lessee from carrying out its obligations under this Lease; provided
that settlement of strikes, lockouts and other labor disturbances
shall be entirely within the discretion of Lessee and Lessee shall
not be required to make settlement of strikes , lockouts and other
labor disturbances by acceding to the demands of the opposing party
-19-
or parties when such course is in the judgment of Lessee unfavor-
able to Lessee .
Section 12. 2. Remedies on Default. whenever any event of
default referred to in Section 12 .1 hereof shall have happened and
be continued with respect to the Equipment , Lessor shall have the
right , at its option and without any further demand or notice , to
take one or any combination of the following remedial steps:
(i ) Lessor may terminate this Lease and declare all
Rental Payments due or to become due during the Original Term
or the Renewal Term of the Lease in effect when the default
occurs to be immediately due and payable by Lessee , whereupon
such Rental Payments shall be immediately due and payable.
(ii) Lessor , with or without terminating this Lease, may
repossess the Equipment by giving Lessee written notice to
deliver the Equipment to Lessor, whereupon Lessee shall do so
in the manner provided in Section 12. 3; or in the event Lessee
fails to do so within ten (10) days after receipt of such
notice, Lessor may enter upon Lessee's premises where the
Equipment is kept and take possession of the Equipment and
charge Lessee for costs incurred in respossessing the Equip-
ment , including reasonable attorney' s fees . Lessee hereby
expressly waives any damages occasioned by such repossession.
If the Equipment or any portion of it has been destroyed or
damaged beyond repair , Lessee shall pay the applicable
Purchase Option Price of the Equipment, as set forth in
Exhibit C (less credit for Net Proceeds) , to the Lessor.
Notwithstanding the fact that Lessor has taken possession of
the Equipment, Lessee shall continue to be responsible for the
Rental Payments due during the Original Term or the Renewal
Term of the Lease then in effect. If the Lease has not been
terminated, Lessor shall return the Equipment to Lessee at the
Lessee' s expense when the event of default is cured .
(iii) If Lessor terminates this Lease and takes
possession of the Equipment, Lessor shall within thirty (30)
days thereafter use its best efforts to sell the Equipment or
any portion thereof in a commercially reasonable manner at
public or private sale in accordance with applicable State
laws , or to lease the Equipment for the remainder of the
Original Term or the Renewal Term of the Lease then in effect .
Lessor shall apply the proceeds of such sale or lease to pay
the following items in the following order: (a) all costs
incurred in securing possession of the Equipment; (b) all
costs incurred in completing the sale or lease; and (c) the
balance of any Rental Payments owed by Lessee during the
Original Term or the Renewal Term of the Lease then in effect .
Any sale or lease proceeds remaining after the requirements of
Clauses (a) , (b) and (c) have been met , and any lease proceeds
relating to a period after the Lease Term then in effect , may
be retained by Lessor .
(iv) If the proceeds of sale or lease of the Equipment
are not sufficient to pay the balance of any Rental Payments
owed by Lessee during the Original Term or the Renewal Term of
the Lease then in effect, Lessor may take any other remedy
available at law or in equity to require Lessee to perform any
of its obligations hereunder , including the delivery of the
Equipment , the payment of the Purchase Option Price if appli-
cable , or the payment of the balance of any Rental Payments
owed by Lessee during the Original Term or the Renewal Term of
the Lease then in effect .
Section 12. 3. Return of Equipment. Upon the expiration or
termination of this Lease prior to the payment of all Rental
Payments in accordance with Exhibit B, Lessee shall return the
Equipment to Lessor in the condition , repair , appearance and
working order required in Section 7. 2, in the following manner as
may be specified by Lessor: (i) by delivering the Equipment at
-20-
Lessee ' s cost and expense to such place within the State as Lessor
shall specify; or (ii) by loading such portions of the Equipment as
are considered movable at Lessee' s cost and expense, on board such
carrier as Lessor shall reasonably specify and shipping the same ,
freight prepaid, to the place reasonably specified by Lessor . If
Lessee refuses to return the Equipment in the manner designated ,
Lessor may repossess the Equipment and charge to Lessee the costs
of such repossession or pursue any remedy described in Section
12. 2.
Section 12. 4. No Remedy Exclusive. No remedy conferred upon
or reserved to Lessor by this Article or elsewhere herein is
intended to be exclusive and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this
Lease. 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 by Lessor or its assignee.
-21-
ARTICLE XIII
ADMINISTRATIVE PROVISIONS
Section 13.1 . Notices. All notices , certificates , legal
opinions or other communications hereunder shall be sufficiently
given and shall be deemed given when delivered or deposited in the
United States mail in registered form with postage fully prepaid to
the addresses specified on the first page hereof; provided that
Lessor and Lessee, by notice given hereunder , may designate
different addresses to which subsequent notices , certificates ,
legal opinions or other communications will be sent .
Section 13. 2. Financial Information. During the Term of the
Lease, Lessee annually will provide Lessor with current 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 be requested by Lessor or
its assignee.
Section 13. 3. 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 13. 4. Severability. In the event any provision of
this Lease shall be held invalid or unenforceable by any court of
competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof .
Section 13. 5. Amendments , Changes and Modifications. This
Lease may be amended or any of its terms modified only by written
document duly authorized, executed and delivered by Lessor and
Lessee.
Section 13. 6. 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 , Articles , Sections
or Clauses of this Lease.
Section 13.7. Further Assurances and Corrective Instruments.
Lessor and Lessee agree that they will , from time to time , execute ,
acknowledge and deliver , or cause to be executed , acknowledged and
delivered , such supplements hereto and such further instruments as
may reasonably be required for correcting any inadequate or an
incorrect description of the Equipment hereby leased or intended so
to be , for indicating the Commencement Date and the Original Term
and all Renewal Terms of this Lease , and for carrying out the
expressed intention of this Lease.
Section 13. 8. Execution in Counterparts. 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 13. 9. Applicable Law. This Lease shall be governed
by and construed in accordance with the laws of the State of
Colorado .
Section 13.10. Signs. Lessor shall be entitled, but not
required , to affix to Equipment markings or signs no bigger than
two inches by four inches crediting Lessor with the financing of
the Equipment .
Section 13.11 Indemnity. In the event Lessor is named a
party defendant in legal or equitable action of any sort arising
from or in consequence of this agreement, brought by any party
other than Lessee, Lessee shall defend Lessor therein and shall
indemnify Lessor and hold Lessor harmless against any and all judg-
ments or decrees which might be entered against Lessor as a
consequence thereof .
-22-
f
THIS PAGE INTENTIONALLY LEFT BLANK
-23-
IN WITNESS WHEREOF, Lessor has caused this Lease to be
executed in its corporate name by its duly authorized officers and
sealed with its corporate seal; and Lessee has caused this Lease to
be executed in its name by its duly authorized officers and sealed
with its corporate seal , as of the date first above written.
MERIT FINANCIAL CORPORATION, LESSOR
By:
•
Title,;
(-SEAL)
ATTEST:
By:
Title: /
WELD COUNTY, LESSEE
Title: ( 4/Ait1 id �oNi Q 644/140/1M
SEAL)
ATTEST:
o �J eZ
Title:
•
-24-
EXHIBIT A
EQUIPMENT
The Equipment which is the subject of the attached Lease with
Option to Purchase Agreement is as follows:
Quantity Description Serial Number
1 Kodak Kom-Star Microimage Processor
1 Bruning Duplicator
zp,
•
ds
„7f
4 •
is« -25-
EXHIBIT B
SCHEDULE OF RENTAL PAYMENTS
Lessee: Weld County, Colorado
Commencement Date: June 1, 1981
Number and Frequency of Payments: Sixty (60) in advance
First Payment Due: June 15, 1981
Final Payment Due: May 1, 1986
Original Term: June 15, 1981 through December 31, 1981
Renewal Terms: January 1, 1982 through December 31, 1982
January 1, 1983 through December 31, 1983
January 1, 1984 through December 31, 1984
January 1, 1985 through December 31, 1985
January 1, 1986 through December 31, 1986
Amortization Schedule
Principal: $92,539.00
Interest: 11.25% per annum
Term: Sixty (60) months
Payments: Monthly, in advance.
Payment Payment Remaining
Number Amount Interest Principal Balance
1 $2,004.70 -0- $2,004.78 $90,534.22
2 2,004.78 $ 848.76 1,156.02 89,378.20
3 2,004.78 837.92 1,166.86 88,211.34
4 2,004.78 826.98 1,177.80 87.033.54
5 2,004.78 815.94 1,188.84 85,844.70
6 2,004.78 804.79 1,199.99 84,644.71
7 2,004.78 793.54 1,211.24 83,433.47
8 2,004.78 891.15 1,784.84 70,226.89
9 2,004.78 770.73 1,234.05 80,976.83
10 2,004.78 759.16 1,245.62 79,731.21
11 2,004.78 747.48 1,257.30 78,473.91
12 2,004.78 735.69 1,269.09 77,204.82
13 2,004.78 723.80 1,280.98 75,923.84
14 2,004.78 711.79 1,292.99 74,630.85
15 2,004.78 699.66 1,305.12 73,325.73
16 2,004.78 687.43 1,317.35 72,008.38
17 2,004.78 675.08 1,329.70 70,678.68
18 2,004.78 662.61 1,342.17 69,336.51
19 2,004.78 . 650.03 1,354.75 67,981.76
20 2,004.78 637.33 1,367.45 66,614.31
21 2,004.78 624.51 1,380.27 65,234.04
22 2,004.78 611.57 1,393.21 63,840.83
23 2,004.78 598.51 1,406.27 82,434.56
24 2,004.78 585.32 1,419.46 61,015.10
•
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•
25 2,004.78 572.02 1,432.76 59,582.34
26 2,004.78 558.58 1,446.2O 58,136.14
27 2,004.78 545.03 1,459.75 56,676.39
28 2,004.78 531.34 1,473.44 55,202.95
29 2,004.78 517.53 1,487.25 53,715.70
30 2,004.78 503.58 1,501.20 52,214.50
31 2,004.78 489.51 1,515.27 50,699.23
32 2,004.78 475.31 1,529.47 49,169.76
33 2,004.78 460.97 1,543.81 47,625.95
34 2,004.78 446.49 1,558.29 46,067.66
35 2,004.78 431.88 1,572.90 44,494.76
36 2,.004.78 417.14 1,587.64 42,907.12
37 2,004.78 • 402.25 1,602.53 41,304.59
38 2,004.78 387.23 1,617.55 39,687.04
39 2,004.78 372.07 1,632.71 38,054.33
40 2,004.78 356.76 1,648.02 36,406.31
41 2,004.78 341.31 1,663.47 34,742.84
42 2,004.78 325.71 1,679.07 33,063.77
43 2,004.78 ' 309.97 1,694.81 31,368.96
44 2,004.78 294.08 1,710.70 29,658.26
45 2,004.78 278.05 1,726.73 27,931.53
46 2,004.78 261.86 1,742.92 26,188.61
47 2,004.78 245.52 1,759.26 24,429.35
48 2,004.78 229.03 1,775.75 22,653.60
49 2,004.78 212.38 1,792.40 20,861.20
50 2,004.78 195.57 1,809.21 19,051.99
51 2,004.78 178.61 1,826.17 17,225.82
52 2,004.78 161.49 ' 1,843.29 15,382.53
53 2,004.78 144.21 1,860.57 13,521.96
54 2,004.78 126.77 1,878.01 11,643.95
55 2,004.78 109.16 1,895.62 9,748.33
56 2,004.78 91.39 1,913.39 7,834.94
57 2,004.78 73.45 1,931.33 5,903.61
58 2,004.78 55.35 1,949.43 3,954.18
59 2,004.78 37.07 1,967.71 1,986.47
60 2,005.09 18.62 1,986.47 -0-
•
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EXHIBIT C
SCHEDULE OF PURCHASE OPTION PRICE
After Payment Number Purchase Option Price
12 $77, 204. 82
24 61,015.10
36 . 42,907.12
48 22, 653. 60
60 -0-•
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•
•
•
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EXHIBIT D
CERTIFICATE OF WARRANT AND APPOINTMENT OF AUTHORIZED AGENT
We, the undersi ed, hereb certify t we are the duly
qualified and acting 44/41/4/coAt1J, and Ar io/dt9 of
Weld County, (Lessee) ; and, with respect to he Lease with Option
to Purchase Agreement dated June 15, 1981 (the Lease) , by and
between Lessee and Merit Financial Corporation (Lessor) , that:
1. That Rpbert H. Rhinesmith is an authorized agent of Weld
County for the limited purpose of certifying that the Equipment
described in the Lease has been delivered to and accepted by Lessee
and that the sample signature of such agent set forth below is his
true and lawful signature and may be relied upon as a sample for
purposes of comparison by any persons or entities.
2. The Rental Payments provided for in Exhibit B to the
Lease shall commence and be due and payable on. June 15, 1981 , and
the first day of each month thereafter during the Term of the
Lease.
3. Lessee has sufficient monies available to pay all Rental
Payments required to be paid under the Lease during the current
fiscal year of Lessee, such monies have been properly budgeted and
appropriated for this purpose in accordance with State law, and
such monies will be applied in payment of all Rental Payments due
and payable during such current fiscal year .
4. Lessee has obtained from a reputable insurance company
qualified to do business in the State property insurance sufficient
to pay the full replacement cost of any part of the Equipment
damaged or destroyed or the applicable Purchase Option Price of the
Equipment, and public liability insurance under a blanket or other
general liability insurance policy maintained by Lessee covering
any liability for injuries to or death of any person or damage to or .
loss of any proeprty arising out of or relating to the condition of
operation of the Equipment. (Lessee also has obtained Worker' s
Compensation Insurance , as required by State law, covering all
employees on, in, near or about the Equipment.)
5. There is no litigation, action, suit or proceeding
pending or before any court, administrative agency , arbitrator or
governmental body, that challenges the organization or existence of
Lessee; the authority of its officers; the proper authorization,
approval and execution of the Lease or other documents contemplated
thereby; the appropriation of monies to make Rental Payments under
the Lease for the current fiscal year ; or the ability of Lessee
otherwise to perform its obligations under the Lease and the trans-
actions contemplated thereby.
Dated: June 15, 1981.
WELD COUNTY, LESSEE SAMPLE
SIGNATURE OF AGENT•gy `_� _ Robert H. Rhinesmith
Title:
And:411444—, 0
1444 U
STitle: �������
-29-
OFFICE OF COUNTY ATTORNEY
f 4,4 PHONE(303) 35E-4000, EXi. 385
P.O. BOX 1948
GREELEY, COLORADO 80832
111k
COLORADO
June 15, 1981
Merit Financial Corporation
Suite 516
4155 East Jewell Avenue RE: Lease with Option to Purchase
Denver, Colorado 80222 Agreement dated as of June 15,
1981, by and between Merit
Financial Corporation (Lessor)
and Weld County (Lessee)
Lessee: Weld County
P. O. Box 758
Greeley, Colorado 80631
Lessor: Merit Financial Corporation
Suite 516
4155 East Jewell Avenue
Denver, Colorado 80222
Gentlemen:
I have acted as counsel to Lessee with respect to the Lease with
Option to Purchase Agreement described above (the Lease) and various
related matters, and in this capacity have reviewed a duplicate
original or certified copy of the Lease. I also have examined
various other documents, including a Uniform Commercial Code
Financing Statement (UCC-1) executed by Lessee as debtor and Lessor
as secured party, evidencing Lessor 's interest in the Equipment
(as the term is defined in the Lease) ; and Certificate of Acceptance
to be executed by Lessee as equipment is received.
Based upon the examination of these and such other documents as
I deem relevant, it is my opinion that:
1. Lessee is a county and political subdivision of
the State, duly organized, existing and operating
under the Constitution and laws of the State.
•
Page 2
June 15, 1981
2. Lessee is authorized and has power under State law
to enter into the Lease, and to carry out its ,obli-
gations thereunder and the transactions contemplated
thereby, and to execute and deliver the Financing
Statement described above.
' 3. The Lease and the other documents described above
have been duly authorized, approved and executed
by and on behalf of Lessee, and the Lease 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 reme-
dies 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
Lease and all other proceedings of Lessee relating
to the transactions contemplated thereby have been
performed in accordance with all open meeting laws,
public bidding laws and all other applicable State
and Federal laws.
5. Lessee has sufficient moneys available to make all
rental payments required to be paid under the Lease
during the current fiscal year of Lessee, and such
moneys have been properly budgeted and appropriated
for this purpose in accordance with State Law.
6. There is no litigation, action, suit or proceeding
pending or before any court, administrative agency,
arbitrator or governmental body, that challenges
the organization or existence of Lessee; the
authority of the organization or existence of Lessee;
the authority of its officers; the proper authoriza-
tion, approval and execution of the Lease and the
other documents described above; the appropriation
moneys to make Rental Payments under the Lease for
the current fiscal years; or the ability of Lessee
otherwise to perform its obligations under the
Lease and the transactions contemplated thereby.
Very ruly ours,
O
Thomas 0. David
Weld County Attorney
sks
EXHIBIT F-1
CERTIFICATE OF ACCEPTANCE
The undersigned hereby certifies that he is duly qualified to
act on behalf of Weld County, State of Colorado , with respect to.
the Lease With Option to Purchase Agreement dated June 15, 1981 by
and between Weld County and the Merit Financial Corporation. He
further certifies that the following equipment has been delivered
to and accepted by Lessee:
Quantity Description Serial Number
•
1 Kodak Kom-Star Microimage Processor 701
Dated the atday of Aktr a5/ , 191.
B Y� r gifivrrr»vw«,�1�1.
•
Ro ert H. R inesmith,Authorized Agent
-32
r �
EXHIBIT F-2
CERTIFICATE OF ACCEPTANCE
The undersigned hereby certifies that he is duly qualified to
act on behalf of Weld County, State of Colorado, with respect to
the Lease with Option to Purchase Agreement dated June 15, 1981 by
and between Weld County and the Merit Financial Corporation. He
further certifies that the following equipment has been delivered
to and accepted by Lessee:
Quantity • Description Serial Number
1 Bruning Duplicator /9/
Dated the 2.1/ day of A{t6-ufr I 192/
By:
Ro ert H. Rhinesmith, Aut orized Agent
•
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Hello