Loading...
HomeMy WebLinkAboutMUNICIPAL LEASING ASSOCIATES. INC.AUG-29-1996 08:18 MLA MSCO e18 e7e 9706 P.03 G. ----------------------------------------------- Payment Schedule: Payable quarterly in - advan ce. #96-112-AF PMT # Due Date (1}Rent (2)Purr-hase - ------------------------ To To ------------------------------------------------ Option Principal 1 2 09/04/96 12/04/96 $75,109.52 750109.52 $1,222,144.50 ---- ------------------- $75,109.52 58t134.38 -Interest $0.00 3 4 03/04/97 75,109.52 1t1611747.85 58,923 56 16,975.14 16,185.96 5 06/04/97 75,109.52 1t100l531.33 59t723:44 15,386.08 6 09/04/97 12/04/97 75,109-52 75,109.52 1,038,483.78 975,593.94 60,534.19 14,575.33 7 03/04/98 75,109.52 911,850.37 61,355.94 -62t188.85 13,753-58 12,920.67 8 9 06/04/98 09/04/98 75,109.52 75j1.09.52 847,241.49 781,755.53 63,033.06 12,076.46 10 12/04/98 75,109.52 715,380.60 63,888.74 64,756.03 11,220.78 10,353.49 11 12 03/04/99 06/04/99 75j109.52 75,109.52 648,104.63 579,915,39 65,635.09 9,474.43 13 09/04/99 75,109.52 510,800.48 66f526.09 67t429.18 8,583.43 7,680,34 14 15 12/04/99 03/04/2000 75f109.52 75,109.52 440,747.33 369,743.22 68r344.53 6,764.99 16 17 06/04/2000 09/04/2000 75,109.52 75,109.52 297,775.22 69,272.31 70,212.68 5,837.21 4,896.84 18 12/04/2000 75,109.52 224,830.26 150,895.08 71,165.81 72F131.89 3,943.71 19 20 03/04/2001 06/04/2001 75,109.52 75r109-52 75,956.22 73,111.08 2,977.63 1,998.44 0.00 74,103.63 1f005.89 ------------------------------------------------------------------------- TOTALS: $1,502,190.40 $1,325,580.00 $176,610.40 -------------------------------------------------------------------- (1) Refer 'to the paragraph in the Lease eTltitlpd "Release of - Liens."---- (2) Refer to the paragraphs in the Lease entitled "Purchase Option" and "Release of Liens.tv Purchase options are in addition to the rental Payment due on the same date. Approved and agreed to: MUNICIPAL LEASING ASSOCIATES,INC. By Title (,-[-R OF Date- 62 2 CITY OF SANTA,ANA By UT IRFCTOR51 ' FINANCE Title FINANCE MAN4,r-17MVv Date TOTAL P.03 JUL-i7-1996 08:14 MLAI MSCO 818 B78 9'7O6 P.02 CERTIFICATE OF LESSEE The undersigned, duly authorized representative of CITY OF SANTA ANA (I'Lesees") as lessee under that Lease with Option to Purchase #96-112-AF dated as of July 1, 1996 ("Lease") with Municipal Leasing Associates, Inc. as lessor, hereby certifies as follows: 1. I hold the position noted below and have been duly authorized to execute and deliver, on behalf of Lessee, the Lease and related documents pursuant to a resolution adopted by Lessee's governing body, an original or certified copy or wnicn is attached hereto. ROD R. COLOMA Name of Authorized Representative (Print cr Type) EMCUTIVE DiRgCTOZ,-FIN"CE & MANAGEMEENT SE VTCFS Title (Print or Type) .•` 2. Lessee has complied with all agreements and covenants and satisfied all conditions contemplated by the Lease on its part to be performed or sati.stied on or before the date hereof. 3. The representations, warranties and covenants of Lessee containOd in the Lease are true and correct in all material respects as of the date hereof, as if made can this date. 4. No litigation is pending or, to the best of my knowledge, threatened (either in state or Federal courts) (a) to restrain or enjoin the, issuance and delivery of the Lease or the collection Of revenues to be used to meet Lessee's obligations under the Loaser (b) in any way contesting or aff'eot.ing the authority for the execution or delivery of the Lease,, or the validity of the Lease; (c) in any way contesting the eXi.stence or powers of Lessee, as Such existence or Powers in any way relate to the issuance of the Lease or Lesseelis obligations under the Lease, or (d) could materially adversely affect the financial position of Lessee. 5. The Property being leased pursuant to the Lease 15 essential to the function of Lessee and is immediately noeded by Lessee. Such need is neither temporary nor expected to diminish during the Leas: term, The Property is expected to be used by Lessee for a period in excess of the Lease term. 6_ The scheduled Rental Payments for the Property do not exceed the fair rental value of the Property., The meaning of tine capit4liZed terms in this -Certificate are the same as ;-4tg1101 AedR, tk�e Lease. presentative 8 Seoxtary/Cl tk of Le see Date: TOTAL P.B2 LEASE WITH OPTION TO PURCHASE #96-112-AF This LEASE WITH OPTION TO PURCHASE dated July 1, 1996 ("Lease") is by and between MUNICIPAL LEASING ASSOCIATES, INC., ("Corporation") a corporation duly organized and operating under the laws of the state of California as lessor and CITY OF SANTA ANA, a political body duly organized and existing- under the laws of the State of California ("Lessee") as lessee. RECITALS: WHEREAS, Lessee deems it essential to acquire the property described herein for its own public purposes; and WHEREAS, it is intended that this Lease be treated as a tax-exempt obligation of Lessee for federal income tax purposes; and WHEREAS, Lessee and Corporation agree to mutually cooperate now and hereafter, to the extent possible, in order to sustain the intent of this Lease and the bargain of both parties hereto.. WITNESSETH: NOW, THEREFORE in consideration of the mutual covenants hereinafter set forth, the parties hereto agree as follows: SECTION 1. Lease. Corporation hereby leases to Lessee, and Lessee hereby leases and hires from Corporation all property (the "Property") described in the schedule or schedules (collectively, the "Schedule") executed by the parties concurrently herewith and hereafter and made a part hereof. Hereinafter, reference to Corporation means Corporation and Corporation's assigns for those rights, interests and obligations that may be assigned by Corporation. SECTION 2. Term. The term of this Lease respecting each item of Property commences on the Property acceptance date and terminates on the final Rental Payment date or earlier if the Lessee exercises its option to purchase the Property prior to the final Rental Payment date unless the term of this Lease is extended as provided in this Section. If on the scheduled date of termination of this Lease the Rental Payments shall not be fully paid, or provision therefor made, or if such Rental Payments shall have been abated at any time and for'any reason, then the term of this Lease shall be extended until the date upon which all such Rental Payments shall be fully paid, except that the term of this Lease shall in no event extend beyond the date that corresponds to the end of the useful life of the Property. SECTION 3A. Re resentations and Warranties of Lessee. The Lessee represents and warrants to Corporation that: (a) Lessee is a political subdivision, duly organized and existing under the Constitution and laws of the State of California with authority to enter into this Lease and to perform all of its obligations hereunder, (b) Lessee's governing body has duly authorized the execution and delivery of this Lease and further represents and warrants that all requirements have been met and procedures followed to ensure its enforceability. (c) The execution, delivery and performance of this Lease do not and will not result in any breach of or constitute a default under any indenture, mortgage, contract, agreement or instrument to which Lessee is a party by which it or its property is bound. (d) There is no pending or, to the knowledge of Lessee, threatened action or proceeding before any court or administrative agency which will materially adversely affect the ability of Lessee to perform its obligations under this Lease. (e) The Property being leased is essential to Lessee in the performance of its governmental functions and its estimated useful life to the Lessee exceeds the term of this Lease. SECTION 3B. Covenants of Lessee. Lessee covenants to Corporation that: (a) Throughout the term of this Lease, the Property shall be used for performing one or more governmental functions consistent with the permissible scope of Lessee's authority and shall not be used in a trade or business of any person or entity that may be construed as a "private business use" under the Internal Revenue Code. (b) Lessee shall take necessary steps to comply with any and all federal laws and regulations relative to preserving the tax-exempt status of this Lease. (c) Lessee covenants to take such action as may be necessary to include all rental payments in its annual budget, and annually to appropriate an amount necessary to make such rental payments. During the term of this Lease, Lessee will furnish to Corporation. if so requested, copies of each proposed budget of Lessee within thirty (30) days after it is filed and of each final budget of the Lessee within thirty (30) days after it is printed. The covenants on the part of Lessee shall be deemed and construed to be duties imposed by law and it shall be the duty of each and every public official of Lessee to take such action and do such things as are required by law in the performance of the official duty of such officials to enable Lessee to carry out and perform the covenants and agreements in this Lease agreed to be carried out and performed by Lessee. SECTION 4. Representations and Warranties of Car oration. Corporation represents and warrants to Lessee that: (a) Corporation is duly organized, validly existing and in good standing under the laws of the State of California, with full corporate power and authority to lease and own real and personal property. ig (b) Corporation has full power, authority and legal right to enter into and perform its obligations under this Lease and the execution, delivery and performance of this Lease have been duly authorized by all necessary corporate actions on the part of Corporation and do not require any further approvals or consents. (c) The execution, delivery and performance of this Lease do not and will not result in any breach of or constitute a default under any indenture, mortgage, contract, agreement or instrument to which Corporation is a party by which it or its property is bound. (d) There is no pending or, to the knowledge of Corporation, threatened action or proceeding before any court or administrative agency which will materially adversely affect the ability of Corporation to perform its obligations under this Lease. SECTION 5. Property Ac uisition• Financing. Corporation hereby appoints Lessee as its purchasing agent to acquire the Property leased hereunder and Lessee hereby accepts said appointment (hereinafter, the "Agency"). The Agency is limited to i) negotiation of terms, conditions and acquisition cost of acquiring the Property from suppliers and contractors (collectively, the "Supplier") selected by Lessee; ii) to the inspection and acceptance of the Property upon its delivery and installation; and iii) to the exercise of any rights or remedies with respect to Property warranties or guarantees. All warranties and guarantees, either express or implied, that inure to Corporation by virtue of the Agency are hereby passed through to Lessee to prosecute at Lessee's sole discretion. The costs associated with the acquisition and installation of the Property including appurtenant work and related expenses are set forth in the Schedule. Corporation and Lessee agree that, in order to ensure that moneys sufficient to pay all costs will be available for this purpose when required, Corporation shall cause to be deposited with Lessee the "Financing Amount" designated on the Schedule. The date said Financing Amount is initially deposited with Lessee is defined as the Lease Issuance Date. The deposit will be made to a custodial account in the name of Lessee and held in custody by Corporation or a custodial agent (the "Acquisition Account"). Disbursements from the Acquisition Account shall be subject to Lessee's express written authority. Any moneys that remain in the Acquisition Account (including future earnings thereon) after completing the disbursements for Property costs shall be credited towards the principal component of succeeding Rental Payments. Upon final disbursement from the Acquisition Account that shall occur no later than two years from the Lease Issuance Date, the Acquisition Account shall be closed. SECTION 6. Lease Proceeds. The Financing Amount deposited to the Acquisition Account may be invested in interest bearing instruments pursuant to written direction and authority given by Lessee or its designated agent. Permitted investments are those specified in Section 53601 and 53635 of the State of California Government Code. Principal and interest earnings from each investment will be deposited directly 3 to the Acquisition Account. The Financing Amount plus earnings thereon shall constitute the Lease Proceeds available for acquiring the Property (the "Lease Proceeds"). Corporation shall not be held liable or responsible for any loss of Lease Proceeds resulting from any investment or the sale of any investment authorized by Lessee or its designated agents. In the event the Lease Proceeds are not sufficient to pay for the Property. due to insufficient investment earnings or an increase in such costs subsequent to the Lease Issuance Date, Lessee shall deposit additional moneys in the Acquisition Account sufficient to pay the remaining Property costs. Failure by Lessee to deposit the additional moneys will constitute a default under the Lease. SECTION 7. Rental Payments. LESSEE SHALL PAY CORPORATION RENTAL PAYMENTS (the "Rental Payments") IN THE AMOUNTS AND AT THE TIMES SET FORTH IN THE SCHEDULE, AT THE OFFICE OF CORPORATION OR TO SUCH OTHER PERSON OR AT SUCH OTHER PLACE AS CORPORATION MAY FROM TIME TO TIME DESIGNATE IN WRITING. Should Lessee fail to pay any part of the Rental Payments herein reserved within fifteen (15) days from the due date thereof, Lessee shall upon Corporation's written request, pay interest on such delinquent payment from the date said payment was due until paid at the rate of twelve percent (12%) per annum or the maximum legal rate, whatever is less. Lessee shall pay Rental Payments exclusively from legally available funds, in lawful money of the United States of America to the Corporation. The obligation of Lessee to pay Rental Payments hereunder shall constitute a current expense of Lessee and shall not in any way be construed to be a debt of Lessee in contravention of any applicable constitutional or statutory limitations or requirements concerning the creation of indebtedness by Lessee, nor shall anything contained herein constitute a pledge of the general tax revenues of Lessee. Except as specifically provided in Section 8, the obligation to pay Rental Payments will be absolute and unconditional in all events, and will not be subject to set --off, defense, abatement, reduction, counterclaim, or recoupment for any reason whatsoever. The periodic Rental Payments paid by Lessee shall be conclusive as to its fair value for the possession, use and/or occupancy of the Property. SECTION 8. Rental Abatement. Rental Payments due hereunder with respect to the Property shall be subject to abatement during any period in which, by reason of material damage to or destruction of the Property there is substantial interference with the use and right of possession by Lessee of the Property or any substantial portion thereof. For each potential incident of substantial interference, decisions to be made on i) whether or not abatement shall apply; ii) the date upon which abatement shall commence; iii) the applicable portion of Rental Payments to be abated and; iv) the concluding date of the particular abatement shall all be subject to determinations by the Lessee in concert with the provider of the insurance issued pursuant to Section 20 herein. The amount of rental abatement shall be such that the Rental Payments paid by Lessee during the period of Property restoration do not exceed the fair rental value of the usable portions of the Property. The actual amount of Rental Payments paid by Lessee shall be conclusive as to its fair value. In the event of any damage or destruction to the Property, this Lease shall continue in full force and effect. 4 SECTION 9. Securit Interest. As security for the payment of all of Lessee's obligations hereunder, Lessee hereby grants Corporation, its successors or assigns, a security interest in the Property, its accessions and attachments, and all proceeds of the Acquisition Account. Lessee agrees to execute such additional documents, including financing statements, which Corporation deems necessary or appropriate to establish and maintain Corporation's security interest. SECTION 10. Use. Lessee shall use the Property in a careful and Proper manner and shall comply with and conform to all national, state, municipal, police, and otherlaws, ordinances, and regulations in anyway relating to the possession, use, or maintenance of the Property. SECTION 11. Acceptance. Lessee shall acknowledge receipt. and inspection of the Property by executing a "Certificate of Acceptance". SECTION 12. Corporation's Inspection. Upon forty-eight (48) hours prior notice, the Corporation shall at any and all times during normal business hours have the right to enter into and upon Lessee's premises where the Property is located for the purpose of inspecting the same or observing its use. Lessee shall give Corporation immediate notice of any attachment or other judicial process affecting any item of Property. SECTION 13. Propertv Selection and Orderin . Lessee has or will select the type and quantity of the Property leased hereunder. Lessee shall ensure that all Property is properly invoiced to Corporation. Corporation shall not be liable for, nor shall the validity of this Lease be affected by, any delay in or failure of delivery of the Property. Lessee acknowledges that it is solely responsible for determining the suitability of the Property for its intended use. Corporation shall have no duty to inspect the Property. If the Property is not properly installed, does not operate as represented or warranted by the Supplier, or is unsatisfactory for any reason, Lessee shall make any claim on account thereof solely against the Supplier. Lessee hereby assumes the risks, burdens and obligations to the Supplier on account of nonacceptance of the Property and/or cancellation of this Lease and upon the occurrence of any such event, Corporation will assign to Lessee, without recourse or warranty, its rights and title to the Property and any documents related thereto. SECTION 14. Disclaimer of Warm. CORPORATION NOT BEING THE MANUFACTURER OR SUPPLIER OF THE PROPERTY NOR A DEALER IN SIMILAR PROPERTY, HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION, WARRANTY, OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESIGN, DURABILITY, FITNESS FOR USE, SUITABILITY, OR MERCHANTABILITY OF THE PROPERTY IN ANY RESPECT, AND AS BETWEEN CORPORATION AND LESSEE, ALL PROPERTY SHALL. BE ACCEPTED AND LEASED BY LESSEE "WHERE IS," "AS IS AND "WITH ALL FAULTS," AND CORPORATION SHALL NOT BE RESPONSIBLE FOR ANY PATENT OR LATENT DEFECTS THEREIN. LESSEE AGREES -To SETTLE DIRECTLY SUCH CLAIMS WITH THE SUPPLIER AND WILL NOT ASSERT ANY SUCH CORPORATION. CLAIMS AGAINST 5 SECTION 15. Alterations and Attachments. All additions and improvements that are made to the Property shall belong to and become the property of the Corporation except that separately identifiable attachments added to the Property by Lessee may remain the property of Lessee as long as (i) the attachment is paid for in full by Lessee and (ii) Lessee agrees to remove the attachment and restore the Property to substantially as good condition as when received, normal wear and tear excepted, if and when the Property may be returned to Corporation, SECTION 16. Relocation. Lessee shall provide Corporation prior written notice of its intent to relocate the Property. Lessee assumes all risks of loss to the Property attendant to its movement and relocation. The Property location shall be under Lessee's full control for its own governmental purpose. SECTION 17. Maintenance and Repairs. Lessee, at its own cost and expense, shall furnish necessary labor and materials to maintain the Property in good repair, condition, and working order. Lessee's obligations to maintain the Property does not relieve the Supplier of its responsibility to fully perform with respect to all applicable Property warranties and guarantees. SECTION 18. Risk of Loss, Dama e• Destruction. With the exception of acts resulting from misconduct or negligence by Corporation, its agents and representatives, Lessee hereby assumes and shall bear the entire risk of loss and damage to the Property from any and every cause whatsoever. No loss or damage to the Property or any part thereof shall impair any obligation of Lessee under this Lease which shall continue in full force and effect. Lessee waives the benefit of Civil Code Sections 1932(2) and 1933(4) and any and all other rights to terminate this Lease by virtue of any damage or destruction to the Property. SECTION 19. Physical Dama e Public Liability Snsurance. Lessee shall keep the Property insured against all risks of loss or damage from any cause whatsoever for not less than the purchase option value in the Schedule, and Lessee shall carry public liability and property damage insurance covering the Property. All said insurance shall be in form and amount and with reputable companies and shall name Corporation as an additional insured and loss payee. Lessee shall pay the premiums therefore and deliver certification of said policies to the Corporation. Each insurer shall agree, by endorsement upon the policy or policies issued by it or by independent instrument furnished to the Corporation, that it will give Corporation thirty (30) days' written notice before the policy or policies shall be altered or canceled. The proceeds of such insurance, at the option of Lessee, shall be applied; (a) toward the replacement, restoration, or repair of the Property, or (b) toward payment of the total remaining obligations of Lessee hereunder; provided, however, that Lessee shall be responsible for the amount by which such insurance proceeds are insufficient to satisfy the cost of option (a) Or option (b) above, as applicable. Should Lessee replace, restore, or repair the Property as set out in option (a) above, this Lease shall continue in full force and effect. Lessee may 1 self -insure up to specified limits as evidenced by a certificate of self insurance to be attached hereto in form and amount acceptable to Corporation. Any self-insurance program in which Lessee is a participant shall comply with the provisions under this Lease respecting cancellation and modification and payment of losses to the corporation as its respective interests may appear. Such self-insurance shall be maintained on a basis which is actuarially sound as established by Lessee's risk manager or an independent insurance consultant which determination shall be made annually. Any deficiency shall. be corrected within sixty (50) days of Lessee becoming aware of such deficiency. SECTION 20. Rental Interruption Insurance. Lessee shall maintain or cause to be maintained at its expense and throughout the term of this Lease, insurance covering the loss of use of the Property or portions thereof for an amount not less than Rental Payments payable by Lessee consecutively for a twelve (12) month period. This coverage shall insure against abatement of Rental Payments payable by Lessee that come due hereunder resulting from Lessee's loss of use of the Property or any substantial portion thereof and caused by any and all perils, either insured or uninsured. Such insurance may be maintained in conjunction with or separate from any other similar insurance maintained by Lessee. The insurance proceeds shall be payable to Corporation in amounts proportionate to the loss of use of the Property and shall supplement Lessee's applicable Rental Payments, if any, during the restoration period in sufficient amount to make Corporation whole during the period of abatement. SECTION 21. Taxes. Lessee shall keep the Property free and clear of all levies, liens, and encumbrances and shall promptly pay all fees, assessments, charges, and taxes (municipal, state and federal) which may now or hereafter be imposed upon the ownership, leasing, renting, sale, possession, or use of the Property, excluding, however, all taxes on or measured by Corporation's income. SECTION 22. Indemnity. To the extent the law allows, Lessee shall indemnify Corporation against and hold Corporation harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages, and liabilities, including attorneys' fees, arising out of, connected with or resulting from the selection, possession, use, operation, or return of the Property excepting that Lessee shall not be required to indemnify Corporation in the event that such liability or damages are caused by the negligent or intentional misconduct of Corporation, its agents or representatives. SECTION 23. Events of Default. The term "Event of Default", as used in this Lease, means the occurrence of any one or more of the following events: (a) Lessee fails to make any Rental Payment (or any other payment) within fifteen (15) days after the due date thereof or Lessee fails to perform or observe any other covenant, condition or agreement to be performed or observed by it hereunder and such failure to either make the payment or perform the covenant, condition or agreement is not cured within ten (10) days after written notice thereof by Corporation; (b) the discovery by Corporation that any 7 statement, representation or warrant made by Lessee in this Lease, any Lease Schedule or in any document ever delivered by Lessee pursuant hereto or in connection herewith is false, misleading or erroneous in any material respect; (c) Lessee becomes insolvent, is unable to pay its debts as they become due, makes an assignment for the benefit .of creditors, applies or consents to the appointment of a a receiver, trustee, conservator or.liquidator of Lessee or of all or a substantial part of its assets, or petition for relief is filed by Lessee under federal bankruptcy, insolvency or similar laws. SECTION 24. Remedies. Upon the occurrence of an Event of Default, Corporation may, at its option, exercise any one or more of the following remedies: (a) by written notice to Lessee, request Lessee to (and Lessee agrees that it shah.), at Lessee's expense, promptly return the Property to Corporation freight prepaid and insured to any location in the continental United States as designated by Corporation all at Lessee's expense, or Corporation, at its option, may enter upon the premises where the Property is located and take immediate possession of and remove the same without liability to Corporation or its agents for such entry or for damage to property or otherwise; (b) sell or lease the Property or sublease it for the account of the Lessee, holding Lessee liable for all Rental Payments and other payments due to the effective date of such selling, leasing or subleasing plus any accrued interest to the date of termination; and (c) exercise any other right, remedy or privilege which may be available to it under applicable law, including the right to (i) proceed by appropriate court action to enforce the terms of this Lease, (ii) recover damages for the breach of this Lease, and (iii) rescind this Lease as to any portion of or all of the Property. No right or remedy herein conferred upon or reserved to Corporation is exclusive of any other right or remedy herein, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time; provided, however, that notwithstanding any provisions to the contrary herein, Corporation shall not under any circumstances have the right to accelerate the Rental Payments that fall due in future rental periods or otherwise declare any Rental Payments not then in default to be immediately due and payable. SECTION 25. Non -Waiver. No covenant or condition to be performed by Lessee under this Lease can be waived except by the written consent. of Corporation. Forbearance or indulgence by Corporation in any regard whatsoever shall not constitute a waiver of the covenant or condition in question. Until performance by Lessee of said covenant or condition is complete, Corporation shall be entitled to invoke any remedy available to Corporation under this Lease or by law or in equity despite said forbearance or indulgence. SECTION 26. Assignment. Without the prior written consent of Corporation, Lessee shall not (a) assign, transfer, pledge, or hypothecate this Lease, the Property, or any part thereof, or any interest therein, or (b) sublet or lend the Property or any part thereof, or permit the Property or any part thereof to be used in a M material -way by anyone other than Lessee or Lessee's employees. Consent to any of the foregoing prohibited acts applies only in the given instance and is not a consent to any subsequent like act by Lessee or any other person. Corporation shall not assign its obligations under this Lease with the exception of its obligation to issue default notices and its obligations pursuant to Section 28. Corporation may assign its right, title and interest in this Lease, the Rental Payments and other amounts due hereunder and the Property in whole or in part to one or more assignees or subassignees at any time, without the consent of Lessee. Corporation may also assign all of its rights, title and interest in and to this Lease, the Rental Payments and other amounts due hereunder to an agent on behalf of owners of certificates of participation which may be issued by such agent in this Lease. Lessee shall cooperate with Corporation either now or hereafter by acknowledging any agreement relating thereto which in no way will alter or affect the terms and conditions of this Lease and the assignment of this Lease by Corporation. No such assignment shall be effective as against Lessee unless and until Corporation shall have filed with Lessee written notice thereof. Lessee shall pay all Rental Payments hereunder pursuant to the direction of Corporation or the assignee named in the most recent assignment or notice of assignment filed with Lessee. During this Lease term, Lessee shall keep a complete and accurate record of all such notices of assignment. Subject always to the foregoing, this Lease inures to. the benefit of, and is binding upon, the heirs, legatees, personal representatives, successors, and assigns of the parties hereto. SECTION 27. Ownership. The Property is and shall at all times be and remain the sole and exclusive property of Corporation, and Lessee shall have no right, title, or interest therein or thereto except as expressly .set forth in Section 29. Lessee shall take all actions necessary to insure that legal title to all Property being acquired by Lessee hereunder, whether by the Lessee or by a third party acting on behalf of Lessee, is vested in Corporation. SECTION 28. Personal Property. The Property isand shall at all times be and remain personal property notwithstanding that the Property or any part thereof may now be or hereafter become in any manner affixed or attached to or imbedded in, or permanently resting 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. SECTION 29. Purchase O tion. If Lessee is not in default of any term, condition or payment specified hereunder, Lessee may exercise options to prepay this Lease and purchase not less than all of the Property in "as -is" and "where -is" condition on the specified dates and for the specified amounts set forth in the Schedule annexed hereto. Each purchase option payment specified for a particular date is exclusive of the Rental Payment due on the same date. SECTION 30. Release of Liens. Upon Lessee either making all of the Rental Payments scheduled herein or making a purchase option payment, Corporation, its successors or assigns shall cause i) legal 0 title to, the. Property to be transferred to Lessee and ii) the release of all liens, encumbrances or security interests on the Property created pursuant to Corporation's rights under this Lease. SECTION 31. Extraordinar Costs. In the case of litigation, the prevailing party shall be entitled to recover from the opposing all costs and expenses, including attorneys, fees Party allocable cost of in-house counsel)r (which may be the , incurred by the prevailing party in exercising any of its rights or remedies hereunder or enforcing any of the terms, conditions or provisions hereof. SECTION 32. Severabilit . If any provision of this Lease shall be held invalid or unenforceable by a court of competent jurisdiction, such holdings shall not invalidate or render unenforceable any other provision of this Lease, unless elimination of such provision materially alters the rights and obligations embodied in this Lease. SECTION 33. Entire-Acrreement. This Lease, the Schedule, and any agreements that specifically refer to this Lease that are duly executed by authorized agents of the parties hereto constitute the entire agreement between Corporation and Lessee, and it shall not .be further amended, altered, or changed except by a written agreement that is properly authorized and executed by the parties hereto. SECTION 34. Notices. Service of all notices under this Lease shall be sufficient if given personally or mailed to the party involved at its respective address hereinafter set forth or at such address as such party may provide in writing from time to time. Any such notice mailed to such address shall be effective when deposited in the United States mail, duly addressed and with postage prepaid. SECTION 35. Reports/Tax Covenants. Lessee shall cooperate with Corporation to comply with any and all reporting requirements that may be mandated by agencies of the United States of America or the State of California, including the timely filing of IRS Form #8038-G or #8038- GC. Lessee covenants that it will not sublease the Property or assign this Lease in a manner that may result in the loss of federal tax exemption on the interest income portion of each Rental Payment. SECTION 36. Titles. The titles to the Sections of this Lease are solely for the convenience of the parties and are not an aid in the interpretation thereof. SECTION 37. Desi nation. Contemporaneous herewith Lessee shall execute a "Designation of Qualification" in the form attached hereto designating this Lease as a qualified tax-exempt obligation pursuant to Section 265(b) of the Internal Revenue Code of 1986 (as amended). SECTION 38. Time. Time is of the essence in this Lease and each and all of its provisions. 10 SECTION 39. Lease Interpretation. This -Lease and the rights of the parties hereunder shall be determined in accordance with the laws of the State of California. IN WITNESS WHEREOF, the .parties hereto have caused their authorized agents to execute this Lease on the dates specified below. MUNICIPAL LEASING ASSOCIATES, INC. CITY OF SANTA ANA 26565 West Agoura Road, Suite 201 20 Civic Center Plaza Calabasas, CA 91302 Santa Ana, '%927 1 114 (lessor) By Title MANAGER OF DIRECTOR, LM Title FINM & MANAGEMENT SVCS . Date _ ,/ l -�? Date '7-rw'9S-JZ4 � D ©Fo - RlCHARD E. LAY ASSISTANT CITY arrow Ey 11 LEASE SCHEDULE #96-112-AF ` This Schedule is issued pursuant to the Lease with Option to Purchase dated as of July 1, 1996 by and between the undersigned. A. Property Location: 60 Civic Center Plaza, Santa Ana, CA 92702 B. Property Description: Jail and records management system C. Name and Address of Supplier(s): Tiburon, Inc. , 475 Sansome, Suite 810 San Francisco, CA D. Property Cost Summary: Estimated Property Cost (including related expenses): $1,800,000.00 Less Capital Contribution: (474,420.00) Financing Amount: $1,325,580.00 E. Lease Term. The full term of this Schedule is sixty (60) months commencing on the Lease Issuance Date and concluding sixty (60) months thereafter. Upon closing, the Lease Issuance Date shall be inserted in the following blank ( ). F. Rental Payments. Rental Payments for this Schedule are due in twenty (20) consecutive quarterly payments in accordance with the Payment Schedule herein. Each payment includes interest at the rate of 5.43% per annum on the unpaid principal balance. The Financing Amount in Section D represents the original principal balance. G. Lease Acquisition Cost. The cost for Lessee to acquire the Property over the full specified term of this Schedule is $1,502,190.40. G. ------------------------------------- Payment Schedule: Payable quarterly in advance. #96-112-AF PMT # Due Date (1)Rent ----- - ase (2)Purchase -------------- To -----------_-- To -----------------------------------Option Principal Interest 1 2 $75,109.52 75,109.52 -"-------$75,109.52---------$O.OD $1,222,144.50 58,134.38 16,975.14 3 4 75,109.52 75,109.52 1,161,747.85 1,100,531.33 58,923.56 16 185.96 5 6 75,109.52 1,038,483.78 59,723.44 60,534.19 15,386.08 14,575.33 7 75,109.52 75,109.52 975,593.94 911 850.37 61,355.94 13 753.58 ' 8 9 75,109.52 r 847,241.49 62,188.$5 63,033.06 12,920.67 12,076.46 10 75,109.52 75,109.52 781,755.53 715,380.60 63,888.74 11,220.78 11 12 75,109.52 648,104.63 64,756.03 65,635.09 10,353.49 9,474.43 13 75,109.52 75,109.52 579,915.39 510,800.48 66,526.09 8,583.43 14 15 75,109.52 440,747.33 67,429.18 68,344.53 7,680.34 6,764.99 16 75,109.52 75,109.52 369,743.22 297,775.22 69,272.31 70,212.68 5,837.21 17 18 75,109.52 224,830.26 71,165.81 4,896.84 3�943.71 3,943.71 19 75,109.52 75,109.52 150,895.08 75,956.22 72,131.89 73,111.08 ' 63 20 75,109.52 0.00 74,103.63 1,998.44 1,005.89 ----------------------------------------------- TOTALS: $1, 5 0 2 , 19 0. 4 0$1,325,58 $176,610.40 -- ------------- -- ------ --- (1)Refer to the paragraph- in the Lease entitled "Release of Liens.}- (2)Refer to the paragraphs in the Lease entitled "Purchase Option" and "Release of Liens." Purchase options are in addition to the rental payment due on the same date. Approved and agreed to: MUNICIPAL LEASING ASSOCIATES,INC. essor) By .� Title MANAGER OF Datee CITY OF SANT ANA es, ) K::� 1AFA Title &MANAGEMENT SVCS. Date NOTICE OF ASSIGNMENT #96-112-AF MUNICIPAL LEASING ASSOCIATES, INC. (the "Assignor") hereby gives notice to CITY OF SANTA ANA (the "Lessee") of an assignment by Assignor over to CITY NATIONAL BANK, (the "Assignee") in which (i) Assignor assigns to Assignee all of its rights, title and interest in and to that certain Lease with Option to Purchase #96-112-AF dated as Of July 1, 1996 (the "Lease") as it relates specifically to Lease Schedule #96-112--AF annexed thereto; (ii) Assignor assigns to Assignee all of its rights in and to the Rental Payments, and other amounts due or coming due from Lease Schedule #96-112-AF commencing with the second scheduled Rental Payment; and (iii) Assignor assigns to Assignee all other payments or amounts resulting from the Lease as it relates specifically to Lease Schedule #96-112-AF. Lessee is instructed to pay and remit Rental Payments to CITY NATIONAL BANK, 400 North Roxbury Dr., 3rd Fl. Com. Loans, Beverly Hills, CA 90210. MUNICIPAL LEASING ASSOCIATES, INC. Assignor) By iYbFIFB�`i"Ya�'L;,�b '.a_a� �i✓l..-C.-'' Title !lhlfSClii�� Date ACKNOWLEDGMENT OF ASSIGNMENT CITY OF SANTA ANA hereby acknowledges receipt of the Notice of Assignment #96=112-AF by MUNICIPAL LEASING ASSOCIATES, INC. assigning over to CITY NATIONAL BANK all right, title and interest in and to that certain Lease with Option to Purchase 096-112--AF dated as of July 1, 1996 as it relates to Lease Schedule #96-112-AF, Rental Payments coming due under Lease Schedule #96-112-AF commencing with the second scheduled Rental Payment and all other.amounts payable under the Lease as it relates to Lease Schedule #96-112-AF. CITY OF SANTA ANA (Lessee By �XECUTI DIRECTOR Title' NA , Date CUSTODIAL AND AGENCY AGREEMENT #96-112-AF This Custodial and Agency Agreement ("Agreement") is made between Municipal Leasing Associates, Inc. ("Corporation") and City of Santa Ana ("Lessee") to facilitate the deposit and investment of moneys upon the issuance of that certain Lease with Option to Purchase #96-112-AF dated July 1, 1996 (."Lease") by and between Corporation and Lessee. WHEREAS, Corporation is providing moneys pursuant to the Lease in the principal amount of $1,325,580.00 ("Financing Amount") for the purpose of financing the costs of certain property described therein (the "Property"); and WHEREAS, Lessee has requested that Corporation serve as custodian for the Financing Amount and to temporarily hold and dispose of the Financing Amount and interest earnings thereon ("Lease Proceeds")as set forth herein. NOW, THEREFORE, the parties hereby agree as follows: Lessee hereby appoints Corporation as perform its custodian and agent to the following functions related to the Lease and the Lease Proceeds: 1) Upon Lease issuance, direct the deposit of the Financing Amount to a demand deposit account (the "Acquisition Account") to be opened in the name of Municipal Leasing Associates, Inc., Custodian/FBO City of Santa Ana and held at City National Bank, 400 North Roxbury Drive, Beverly Hills, CA 902-0 (the "Bank"). 2) Direct the disbursement of Lease Proceeds from the Acquisition Account to acceptable third party depositories upon prior written authorization issued by the Lessee's authorized agent received by either mail or FAX. 3) Provide for safekeeping of deposit certificates and other investment confirmation documents. Corporation shall accept the appointment of custodian and agent herewith without compensation and subject to the following terms and conditions: a) Moneys held in the Acquisition Account shall not exceed $100,000.00 on an ,interday basis. b) Investments outside of the Acquisition Account shall comply with the provisions of Government Code Sections 53601 and 53635. c) Lease Proceeds shall be deposited or redeposited to the Acquisition Account solely i) for disbursement to the Supplier ii) for disbursement to the Lessee iii) and, in the case of excess Lease Proceeds, for application towards the principal component of Rental Payments to be made following the Lessee's acceptance of the Property. d) With the exception of negligence of omission or commission by the Corporation, Corporation will not be held responsible for any investment losses for any reason whatsoever and is indemnified and held harmless by, the Lessee pursuant to Section 6 of the Lease entitled "Lease Proceeds". In Witness Whereof, the parties hereto have caused this Custodial and Agency Agreement to be executed by their duly authorized agents on the dates specified below. MUNICIPAL LEASING ASSOCIATES, INC Corporation) By !. r Title A MANAGER OF Date CITY OF SANTA ANA (Les E CU DIRECTOR, Title FIN C & MANAGEMENT SVCS. Date IC ASSISTANT CITY ATTOAN V ARBITRAGE AND TAX CERTIFICATE 096-112--AF The undersigned hereby certifies that he/she is a duly appointed authorized agent, of the CITYOF SANTA ANA (the "Lessee"), for the Purpose of executing and delivering, on behalf of the Lessee, the Lease with Option to Purchase dated July 1, 1996 (the "Lease"), by and between MUNICIPAL LEASING ASSOCIATES, INC. (the "Corporation") as lessor and the Lessee as lessee. This Certificate is being issued pursuant to Section 148 of the Internal Revenue Code of 1986 (the "Code"), and Treasury Regulations, Sections 1.148-1 through 1.148-11 Promulgated thereunder (the "Regulations"). The following facts, estimates and circumstances are either in existence on the date of this Arbitrage and Tax Certificate or are reasonably expected to occur hereafter. 1. Under the Lease, the Corporation is required to acquire the property described in the schedule attached to the Lease (the "Property"), and to lease and sell the Property to the Lessee; and the Lessee is required to lease and purchase the Property from Corporation by making Rental Payments with respect thereto, comprising principal and interest, on the dates and in the amounts set forth in the Lease. 2. On the date of Lease issuance, the Lessee will receive not less than $1,325,580.00 from the Corporation. Such moneys will be deposited with the Lessee and used, together with interest earnings thereon, to pay the Property costs. 3. The Lessee on behalf of the Corporation, will proceed to acquire and install the Property with due diligence and, based upon the provisions of the purchase contracts, delivery and acceptance of the Property is scheduled to occur on or before six months after the date hereof but in no case later than three years from the date hereof, and it is expected that all Lease proceeds will be spent by such date. 4. The original proceeds of the Lease plus the interest earned thereon, will not exceed by more than 5% the amount necessary for the governmental purpose for which the Lease is issued. 5. The yield of the Lease, without taking into account costs of issuance thereon, and on the basis of the initial reoffering price of the Lease to the Assignee, is not less than 5.25%. 6. No sinking fund will be maintained for the payment of the Rental Payments due under the Lease. 7. The term of the Lease is not longer than is reasonably necessary for the -governmental purpose of the Lease, and the weighted average maturity of the Lease does not exceed 120 percent of the average reasonably expected economic life of the leased Property. 8. The Property has not been, and is not expected during the term of the Lease, to be sold or otherwise disposed of by the Lessee. 9. In the event the Lessee does not expend all Lease Proceeds within six months of the date hereof Lessee will comply with the arbitrage rebate provisions under Section 148 of the Code with respect to timeliness and amounts that may be required for remittance to the United States Treasury. To the extent the Lessee is exempt from the arbitrage rebate provisions referred to above, this paragraph does not apply. 10. To the best of the knowledge and belief of the undersigned, the expectations of the Lessee, as set forth above, are reasonable, and there are no present facts, estimates and circumstances which would change the foregoing expectations. IN WITNESS WHEREOF, the party hereto has caused its authorized agent to execute this Arbitrage and Tax Certificate on the date specified below. CITY OF SANT4 ANA (lessee By 1 "/ I-EXECUTW DIRECTOR, Title FTNAM A MAMAC+'GMVM 2 DESIGNATION OF QUALIFICATION 096-112-AF This designation by the CITY OF SANTA ANA (the "Lessee") as lessee is issued pursuant to that certain Lease with Option to Purchase agreement' dated July 1, 1996 (the "Lease") for the financing of governmental use property. The Lessee hereby designates the Lease as a qualified tax-exempt obligation pursuant to Section 265(b) of the Internal Revenue Code of 1986 and the Lessee agrees that it will not designate more than $10,000,000 of qualified tax-exempt obligations during calendar year 1996 pursuant to Section 265(b)(3)(D) of the Code. Further, the Lessee represents that the Lessee reasonably expects that the aggregate principal amount of all tax-exempt obligations issued by the Lessee and its subordinate entities will not exceed $10,000,000 for all of calendar year 1996. CITY OF SANTA ANA ess By XECiJT D RECTOR, Title FINAN E MANAGEMENT SVCS. Date This designation was submitted to and approved by the Lessee's governing body at a meeting duly held on July 1, 1996. .fiy:.