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HomeMy WebLinkAboutC2009-524 - 10/29/2009 - NAAMENDMENT NO. 1 TO MASTER LEASE PURCHASE AGREEMENT BETWEEN The City of Corpus Christi, as "City" and The Frost National Bank, as Lessor THIS AMENDMENT NO. 1 TO MASTER LEASE PURCHASE AGREEMENT (this "Amendment"), is by and between The Frost National Bank, as lessor (Lessor) whose address is 100 West Houston Street, San Antonio, Texas, and the City of Corpus Christi, a political subdivision of the State of Texas as lessee (City), whose address is 1201 Leopard, Corpus Christi, Nueces County, Texas 78401. WITNESSETH: WHEREAS, the City and. Lessor entered into that certain Master Lease Purchase Agreement as of November 18, 2008 (the "Original Agreement"); and WHEREAS, the City and Lessor desire to make certain changes to the Original Agreement; NOW, THEREFORE, in consideration of the mutual covenants contained herein, City and Lessor hereto recite and agree as follows: ARTICLE 1. DEFINITIONS AND EXHIBITS Section 1.1 Definitions. The terms defined in the Original Agreement when used in this Amendment shall have the meanings assigned to such terms in the Original Agreement. Notwithstanding the foregoing, from and after execution and delivery of this Amendment, references in the Original Agreement to the "Agreement" shall be deemed to be references to the Original Agreement as amended by this Amendment. Section 1.2. Exhibits. The following Exhibits "A" through "D" to the Original Agreement are hereby replaced by the respective Exhibits "A" through "D" attached hereto. ARTICLE 2. LEASE PAYMENTS Section 2.1. The second paragraph of Section 5.3 of the Original Agreement is hereby amended to read as follows: For so long as the aggregate initial principal amount of leases of Property Groups leased under this Agreement does not exceed $9,600,000, Lessor 2009-524 10/29/09 The Frost National Bank agrees that the interest component for each Property Group be established as follows: Amortization Period ARplicable Interest Rate 12 months 223 basis points over 65% of 12 Month LIBOR 18 months 208 basis points over 65% of 12 Month LIBOR 24 months 205 basis points over 65% of 12 Month LIBOR 30 months 218 basis points over 65% of 2 Year Swap 36 months 222 basis points over 65% of 2 Year Swap 42 months 229 basis points over 65% of 2 Year Swap 48 months 236 basis points over 65% of 2 Year Swap 60 months 229 basis points over 65% of 3 Year Swap 72 months 234 basis points over 65% of 3 Year Swap 84 months 228 basis points over 65% of 4 Year Swap 120 months 237 basis points over 65% of 5 Year Swap To the extent the aggregate initial principal amount of leases of Property Groups entered into under this Agreement exceeds $9,600,000 up to $17,600,000, Lessor agrees that the interest component for each Property Group be established as follows: Amortization Period Applicable Interest Rate 12 months 65% of 6 Month + 1 Day - 1 Year Secure Connect Bullet Rate plus 1.70% 18 months 65% of 6 Month + 1 Day - 1 Year Secure Connect Bullet Rate plus 1.70% 24 months 65% of 1 Year - 1.5 Year Secure Connect Bullet Rate plus 1.81% 36 months 65% of 1.5 Year - 2 Year Secure Connect Bullet Rate plus 1.87% 42 months 65% of 1.5 Year- 2 Year Secure Connect Bullet Rate plus 1.87% 48 months 65% of 2 Year- 2.5 Year Secure Connect Bullet Rate plus 1.91% -2- 60 months 65% of 2.5 Year- 3 Year Secure Connect Bullet Rate plus 1.96% 72 months 65% of 3 Year- 4 Year Secure Connect Bullet Rate plus 2.03% 84 months 65% of 3 Year- 4 Year Secure Connect Bullet Rate plus 2.03% 120 months 65% of 5 Year- 6 Year Secure Connect Bullet Rate plus 2.13% ARTICLE 3. REPRESENTATION, COVENANTS, AND WARRANTIES Section 3.1. Representations, Covenants, and Warranties of the City. The City hereby incorporates into this Amendment the representations, covenants and warranties of the City contained in Section 2.1 of the Original Agreement, provided that the references therein to the "Agreement" shall be construed as the Original Agreement as amended by this Amendment, and hereby makes such representations, covenants and warranties on and as of the date hereof. Section 3.2. Representation, Covenants, and Warranties of Lessor. The Lessor hereby incorporates into this Amendment the representations, covenants and warranties of the Lessor contained in Section 2.2, provided that the references therein to the "Agreement" shall be construed as the Original Agreement as amended by this Amendment, and hereby makes such representations, covenants and warranties on and as of the date hereof. ARTICLE 4. ADMINISTRATIVE PROVISIONS Section 4.1. Execution in Counterparts. This Amendment may be simultaneously executed in several counterparts, each of which constitute an original and all of which constitute but one and the same instrument. Section 4.2. Applicable Law. This Amendment shall be governed by and construed in accordance with the laws of Texas. Section 4.3. Entire Agreement. The Original Agreement, as amended by this Amendment, and all addenda and exhibits, as may hereafter be executed, constitute the entire agreement between the parties and supersede all previous negotiations, commitments, and contracts. Section 4.4. Effect of Amendment. Except as specifically amended by this Amendment, all provisions of the Original Agreement shall remain in full force and effect. -3- IN WITNESS WHEREOF, Lessor has caused this Amendment to be executed in its corporate name by its duly authorized officer; and the City has caused this Amendment to be executed in its name by its City Manager, or his designee, effective for all purposes as of date of execution by City Manager, which is / 9 , 2009. CITY OF CORPUS CHRISTI g R. Escobar G~~ ~ ~~a~ LEGAL FORM APPROVED ON ~fi 7 ~4~7~ ~~~ Ct~ S~G~?~i~r~" ~~ By; o< ~yi%a Lisa Aguilar ,_(~„-~~„i,',.,~, C:,~~ f}--}-i-orn LESSOR: THE FROST NATIONAL BANK Y~ Printed Name: ,~'~'c~~~ ~}r~~t ~~j~ Title: ~i ~ ~ ~~ s ~ .G> APPROVED AS TO FORM THIS ~'t't-t DAY OF LESSOR'S ATTORNEY LOCKE LORD BISSELL & LIDDELL LLP By: Michael R. Schulma ,Partner 2009 C~'79'rQ ~- 2009 -4- Exhibit "A " PROPERTY DESCRIPTION The following Property comprises a Property Group which is subject to the terms and conditions of that certain Master Lease Purchase Agreement entered into by and between the City of Corpus Christi and The Frost National Bank (Lessor) dated the 18th day of November, 2008 as amended by Amendment No. 1 to Master Lease Purchase Agreement dated as of , 2009 (the "Agreement"). uantit Description Serial Number All Property made subject of this Agreement is owned by and under the sole and exclusive use of the City of Corpus Christi, a political subdivision of the State of Texas, and is used as part of the City's governmental services in furtherance of its public purpose. The City asserts all exemptions provided for political subdivisions of the State of Texas as authorized under the Constitution and laws of the State of Texas against the assessment, levy, or charges for ad valorem taxation, personal property taxation, or any other charges. LESSOR By: Name: Title: CITY OF CORPUS CHRISTI Cindy O'Brien Director of Financial Services LEGAL FORM APPROVED ON , 20 By: Lisa Aguilar Interim City Attorney Exhibit "B " SCHEDULE OF LEASE PAYMENTS RELATING TO PROPERTY The following schedule of Lease Payments constitutes the applicable payments for the Property Group described on Exhibit "A "attached to that certain Master Lease Purchase Agreement entered by and between the City of Corpus Christi and The Frost National Bank (Lessor) dated the 18th day of November, 2008 as amended by Amendment No. 1 to Master Lease Purchase Agreement dated as of , 2009 (the "Agreement"). Purchase Due Payment Total Principal Interest Date Number Payment Component Component All Property made subject of this Agreement is owned by and under the sole and exclusive use of the City of Corpus Christi, a political subdivision of the State of Texas, and is used as part of the City's governmental services in furtherance of its public purpose. The City asserts all exemptions provided for political subdivisions of the State of Texas as authorized under the Constitution and laws of the State of Texas against the assessment, levy, or charges for ad valorem taxation, personal property taxation, or any other charges. LESSOR: CITY OF CORPUS CHRISTI By: Name: Title: Cindy O'Brien Director of Financial Services LEGAL FORM APPROVED ON By: 20 Lisa Aguilar Interim City Attorney Exhibit "C" CERTIFICATE OF ACCEPTANCE I, the undersigned, hereby certify that I am the duly qualified and acting of the City of Corpus Christi, (the City), and, with respect to the Master Lease Purchase Agreement dated the 18th day of November, 2008 as amended by Amendment No. 1 to Master Lease Purchase Agreement dated as of , 2009 (the "Agreement"), by and between Lessor and the City that: 1. The Property listed on Exhibit "A " (the Property Group) has been delivered and installed in accordance with the City's Specifications (as that term is defined in the Agreement) and has been fully tested and finally accepted by the City. The serial vehicle identification number(s) of the Property Group is/are listed on Exhibit "A- ". 2. The Lease Payments provided for on the page of Exhibit "B "relating to such Property Group (the Lease Payments) shall commence monthly beginning ,and be due and payable on the first business day of each month thereafter. 3. The City has appropriated and/or taken other lawful actions necessary to provide monies sufficient to pay all Lease Payments required to be paid under the Lease during the current fiscal year of Lessee, and such monies will be applied in payment of all such Lease Payments due and payable during such current fiscal year. 4. During the Lease Term (as defined in the Lease) the Property Group will be used by the City to perform essential governmental functions devoted exclusively to public use. Such functions are: 5. The City has not terminated any Lease under Section 4.2 of the Agreement and no Event by Default has occurred thereunder. 6. There is no litigation, action, suit, or proceeding pending before any court, administrative agency, arbitrator, or governmental body, that challenges the organization or existence of the City; the authority of the City or its officers or its employees to enter into the Lease; the proper authorization, approval, and execution of the Lease and other documents contemplated thereby; the appropriation of monies, or any other action taken by the City to provide monies, sufficient to make lease Payments coming due under the Lease in the City's current fiscal year; or the ability of the City otherwise to perform its obligations under the Lease and the transaction contemplated thereby. CITY OF CORPUS CHRISTI Cindy O'Brien, Director of Financial Services LEGAL FORM APPROVED ON , 20 By: Lisa Aguilar Interim City Attorney Acknowledged by By: Lessor, this day of Authorized Agent Exhibit "D" OPINION OF COUNSEL Re: Master Lease Purchase Agreement dated as of the 18th day of November 2008 as amended by Amendment No. 1 to Master Lease Purchase Agreement dated as of 2009, by and between the City of Corpus Christi ("City") and the Frost National Bank, (Lessor). Dear Sir or Madam: I have acted as counsel to the City with respect to the Master Lease Purchase Agreement described above (the Agreement) and various related matters, and in this capacity have reviewed a duplicate original or certified copy of the Agreement and the Exhibits attached thereto. Based upon the examination of these and such other documents as I deem relevant, it is my opinion that: 1. The City is a municipal corporation and political subdivision of the State of Texas, duly organized, existing, and operating under the Constitution and laws of the State of Texas. 2. The City is authorized and has power under applicable law to enter into the Agreement, and to carry out its obligations thereunder and the transactions contemplated thereby. 3. The Agreement has been duly authorized, approved, executed, and delivered by and on behalf of the City, and is a valid and binding contract of the City enforceable in accordance with its terms, except to the extent limited by state and federal laws affecting remedies and by bankruptcy, reorganization, or other laws of general application relating to or affecting the enforcement of creditor's rights. 4. The authorization, approval, and execution of the Agreement and all other proceedings of the City relating to the transactions contemplated thereby have been performed in accordance with all applicable open meeting, public bidding, and all other laws, rules, and regulations of the State of Texas. 5. The execution of the Agreement and the appropriation of monies to pay the Lease Payments coming due thereunder do not result in the violation of any constitutional, statutory, or other limitation relating to the manner, form, or amount of indebtedness which may be incurred by the City. 6. There is no litigation, action, suit, or proceeding pending before any court, administrative agency, arbitrator, or governmental body, that challenges the organization or existence of the City; the authority of the City or its officers or its employees to enter into the Agreement; the proper authorization, approval and/or execution of the Agreement, Exhibits thereto and other documents contemplated thereby; the appropriation of monies to make Lease Payments under each Lease for the current fiscal year of the City; or the ability of the City otherwise to perform its obligations under the Agreement and the transactions contemplated thereby. 7. The Agreement was duly and validly adopted by official action of the governing body of the City of Corpus Christi on this the day of ,and such official action has not been amended or repealed and remains in full force and effect. Dated: By: Lisa Aguilar Interim City Attorney City of Corpus Christi DAL:0014861 /00025:1891236v 1