2008/02/13 Council Agenda Packet

AMENDMENT A AMENDMENT TO ASSIGNMENT,ASSUMPTION,AND CONSENT AGREEMENT Dated as of March 1,2008 Assignee: City of Everett 802 East Mukilteo Blvd Everett, WA 98203 Company: National City Commercial Capital Company, LLC 995 Dalton Avenue Cincinnati, Ohio 45203 1. TERMINATION UPON NON-APPROPRIATION EVENT. 1.1 For each Lease, Lessee represents and warrants that (a) it has appropriated and budgeted Legally Available Funds to make all Rent Payments required pursuant to such Lease for the remainder of the fiscal year in which the Lease Term commences; (b) it currently intends to make Rent Payments for the full Lease Term as scheduled on the applicable Payment Schedule so long as funds are appropriated for each succeeding fiscal year by its governing body; and (c) during the 10 fiscal years prior to the date of the applicable Lease, its governing body has not failed (for whatever reason) to appropriate amounts sufficient to pay its obligations that are subject to annual appropriation. Lessee reasonably believes that moneys in an amount sufficient to make all Rent Payments can and will lawfully be appropriated and made available therefor. 1.2. If Lessee's governing body fails to appropriate sufficient funds in any fiscal year for Rent Payments and other amounts to be paid under a Lease in the next succeeding fiscal year, then a "Non-Appropriation Event" shall have occurred. If a Non-Appropriation Event occurs, then: (a)Lessee shall give Lessor written notice at least 30 days prior to the end of the then current fiscal year of such Non-Appropriation Event and provide written evidence of such failure by Lessee's governing body; (b) on the Return Date, Lessee shall return to Lessor all, but not less than all, of the Equipment covered by the affected Lease, at Lessee's sole expense, in accordance with Section 21 hereof; and (c)the affected Lease shall terminate on the Return Date without penalty or expense to Lessee,provided, that Lessee shall pay all Rent Payments and other amounts payable under the affected Lease for which funds shall have been appropriated, and provided further, that Lessee shall pay month-to-month rent at the rate set forth in the affected Lease for each month or part thereof that Lessee fails to return the Equipment under this Section 1.2. "Return Date" means the last day of the fiscal year for which appropriations were made for the Rent Payments due under a Lease.