HomeMy WebLinkAboutPR 12082:MASTER LEASE AGREEMENT Memorandum
City of Port Arthur, Texas
Finance Department
ro~
From:
Date:
Subject:
Steve Fitzgibbons, Cit~Vla~. ag~e~
Rebecca Underhill, Di~t[dg-Flna~e
February 4, 2003 I""
Proposed Resolution 12082
Proposed Resolution 12082 is presented for City Council consideration and approval. This resolution
authorizes the City Manager to execute a master lease agreement with Suntrust Leasing Corporation in
the amount of $867,000 for the purchase of equipment approved in the 2003 Equipment Replacement
Budget which is the amount that is estimated for the lease purchase of a fire pumper, chip spreader and
a bulldozer. The lease is a five year term at 2.775% with annual payments of $188,099 beginning in
February 2004. The status of the purchase of these items as follows:
Fire pumper
Chip Spreader
Bulldozer
Awarded
Awaiting award
Rejected and rebid
P. R. NO. 12082
JJA: 2/4/03
RESOLUTION NO.
A RESOLUTION AUTHORIZING THE EXECUTION AND
DELIVERY OF A MASTER LEASE AGREEMENT FOR $867,000
FOR THE PURCHASE OF EQUIPMENT PER EQUIPMENT
SCHEDULE NO. 01, AN ESCROW AGREEMENT, AND
RELATED INSTRUMENTS, AND DETERMINING OTHER
MATTERS IN CONNECTION THEREWITH.
WHEREAS, the City Council of the City of Port Arthur, Texas desires to obtain certain equipment (the
"Equipment") described in Equipment Schedule No. 1 to the Master Lease Agreement (collectively, the
"Lease") with Suntrust Leasing Corporation, the form of which has been available for review by the City
Council prior to tiffs meeting; and
WHEREAS, the Equipment is essential for the City of Port Arthur, Texas to perform it governmental
functions; and
WHEREAS, the funds made available under the Lease will be deposited with Suntrust Bank (The
Escrow Agent") pursuant to an Escrow Agreement between the City of Port Arthur and the Escrow Agent (the
"Escrow Agreement") and will be applied to the acquisition of the Equipment in accordance with said Escrow
Agreement; and
WHEREAS, the City of Port Arthur has taken, or will take, the necessary steps, including those relating
to any applicable legal bidding requirements, to arrange for the acquisition of the Equipment; and
WHEREAS, the City of Port Arthur proposes to enter into the Lease with Suntrust Leasing Corporation
and the Escrow Agreement with the Escrow Agent substantially in the forms presented to this meeting.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PORT
ARTHUR:
Section 1: It is hereby found and determined that the terms of the Lease and the Escrow Agreement
(collectively, the "Financing Documents") in the forms presented to this meeting and incorporated in this
resolution are in the best interests of the City of Port Arthur for the acquisition of the equipment.
Section 2: The Financing Documents and the acquisition and financing of the Equipment under the
terms and conditions as described in the Financing Documents are hereby approved in substantially the same
forms as attached hereto. The City Manager is authorized to execute, acknowledge and deliver the Financing
Documents with any changes, insertions and omissions therein as may be approved by the officers who execute
the Financing Documents, such approval to be conclusively evidenced by such execution and delivery of the
Financing Documents. The City Secretary is authorized to affix the official seal of the City of Port Arthur to
the Financing Documents and attest the same.
Section 3: The Finance Director of the City of Port Arthur is authorized and directed to execute and
deliver any and all papers, instruments, opinions, certificates, affidavits and other documents and to do or cause
to be done any and all other acts and things necessary or proper for carrying out this resolution and the
Financing Documents.
Section 4: Pursuant to Section 265 (b) of the Internal Revenue Code of 1986, as amended (the
"Code"), Lessee hereby specifically designates the Lease as a "qualified tax-exempt obligation" for purposes of
Section 265 (b)(3) of the Code.
READ, ADOPTED, AND APPROVED, this_~_ day of February, 2003, AD, at a Regular Meeting
of the City Council of the City of port Arthur, Texas by the following vote:
AYES: Mayor:
Councilmembers:
NOES:
ATTEST:
Mayor
Evangeline Green, City Secretary
APPROVED AS TO FORM:
Mark Sokolow, City Attorney
APPROVED FOR ADMINISTRATION:
.e Fitzgibbons, City Manager
Rebecca Underhill, Finance Director
CITY OF PORT ARTHUR
INDEX TO LEGAL DOCUMENTS
BANK-QUALIFIED ESCROW
Master Lease Agreement;
Ex. bit A - Equipment Schedule No. 01;
Acceptance Certificate;
Payment Schedule;
Exhibit B-1 - Tax Agreement and Arbitrage Certificate;
Exhibit C - Resolution of Governing Body;
Exhibit D - Incumbency Certificate;
Exhibit E - Opinion of Counsel;
Exhibit F - Escrow Agreement, with its Schedule A;
Exhibit G-I Confirmation of Outside Insurance;
Exhibit G-2 Questionnaire for Self-insurance to Lease and Addendum;
UCC Financing Statements with a~ached Schedu/e A;
Form 8038-G.
SUNTRUST LEASING CORPORATION
MASTER LEASE AGREEMENT
LEASE NUMBER 1838
Tins MASTER LEASE AGREEMENT (the "Agreement"), dated as of February 21, 2003 is made and entered into by and between
SUNTRUST LEASING CORPORATION, a Vkgirda corporation, as lessor (the "Lessor"), and CITY OF PORT ARTHUR, a
political subdivision of the State of Texas, as lessee ("Lessee").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND EXItTRITS
Section 1.1. Definitions, The following terms have the meanings specified below.
"Acceptance Certificate" means each Acceptance Certificate delivered by Lessee as part of an Equipment Schedule certifying as to the
delivery, installation and acceptance of Equipment.
"Agreement" means this Master Lease Agreement and all Equipment Schedules hereto.
"Agreement Date" means the date first written above.
"Code" means the Intemal Revenue Code of 1986, as amended, tugcther with Treasury Regulations promulgated from time to time
thereunder.
"Equipment" means all items of property described in Equipment Schedules and subject to this Agreement.
"Equipment Group" means each group of Equipment listed in a single Equipment Schedule.
"Equipment Schedule" means each sequentially numbered schedule executed by Lessor and Lessee with respect to an Equipment Group.
"Escrow Account" means the equipment acquisition account established by Lessor and Lessee with the Escrow Agent pursuant to the
Escrow Agreement.
"Escrow Agent" means SUNTRUST BANK, a Georgia banldng corporation, and any successor escrow agent under the Escrow
Agreement.
"Escrow Agreement" means the Escrow Agreement, substantially in the form of Exkibit F hereto, to be executed by Lessor, Lessee and the
Escrow Agent upon the first funding of an Equipment Schedule using the procedure described in Section 2.4.
Events o "
" fDefault means those events described in Section 12.1.
"Fiscal Year" means each 12-month fiscal period of Lessee.
"Funding Date" means, with respect to each Lease, the date Lessor makes payment to the Vendor(s) named in the related Equipment
Schedule or reimburses Lessee for the purchase price of the related Equipment Group or, ff the procedure described in Section 2.4 is
util/zed, the date Lessor deposits funds equal to such purchase price into the Escrow Account.
"Interest" means the portion of a Rental Payment designated as and comprising interest as provided in a Payment Schedule.
"Lease" means, with respect to each Equipment Group, this Agreement and the Equipment Schedule relating thereto, which together shall
constitute a separate contract between Lessor and Lessee relating to such Equipment Group.
"Lease Date" means, with respect to each Lease, the date so designated in the related Equipment Schedule.
"Lease Term" means, with respect to each Equipment Group, the period during which the related Lease is in effect as specified in Section
3.1.
"Net Proceeds" means any insurance proceeds or condemnation awards paid with respect to any Equipment remaining after payment
therefi'om of all expenses incurred m the collection thereof.
"Non-Appropriation" means the failure of Lessee, Lessee's governing body, or, if applicable, the governmental entity from which Lessee
obtains its operating and/or capital funds to appropriate money for any Fiscal Year sufficient for the continued performance by Lessee of
of Lessee s obligations under this Agreement, as evidenced by the passage of an ordinance or resolution specifically prohibiting Lessee
from performing its obligations under this Agreement with respect to any Equipment, and from using any moneys to pay any Rental
Payments due under this Agreement for a designated Fkscal Year and all subsequent Fiscal Years.
"Payment Date" means each date upon which a Rental Payment ks due and payable as provided ha a Payment Schedule.
Payme "
" nt Schedule means the schedule of Rental Payments attaebed to an Equipment Schedule.
'Principal" means the portion of any Rental Payment designated as and comprising principal as provided in a Payment Schedule.
"Prepayment Price" means the amount so designated and set forth opposite a Payment Date in a Payment Schedule indicating the amount
for which Lessee may purchase the related Equipment Group as of such Payment Date after making the Rental Payment due on such
Payment Date.
"Rental Payment" means each payment due from Lessee to Lessor un a Payment Date.
"Specifications" means the bid specifications and/or purchase order pursuant to which Lessee has ordered any Equipment from a Vendor.
"State" means the state or commonwealth in which Lessee is situated.
"Vendor" means each of the manufacturers or vendors from which Lessee has ordered or with which Lessee has contracted for the
manufacture, delivery and/or installation of the Equipment.
Section 1.2. EYhihit~.
Exhihlt A' Equipment Schedule inchiding form of Acceptance Certificate and form of Payment Schedule.
Exhihlt B-I: Form of Tax Agreement and Arbitrage Certificate (Escrow).
Exhlhlt C-I: Form of Resolution of the Governing Body of Lessee relating to each Lease (Escrow).
Exhihlt D: Form of Incumbency Certificate as to each officer or representative of Lessee executing this Agreement or any Lease.
E×hihit E' Form of Opinion of Independent Counsel to Lessee.
ExhiBit F: Form of Escrow Agreement.
Exhibit G-I' Form of Confirmatiun of Outside Insurance.
ExhiBit G-?.' Form of Questionnaire for Self-Insurance and Addendum to Equipment Schedule Relating to Self-Insurance.
ARTICLE ll. LEASE OF EQUI~IVI~NT
Section 2_t. Aeo_ni~itlon of Eqni_nme,l[. Prior to the addition ofany Equipment Group, Lessee shallprovide Lessor with a description of
the equipment proposed to be subject to a Lease hereunder, including the cost and vendor of such equipment, the expected dehvery date
s m._~_~, an~d. suc.h other ilfformatlon as the Lessor may require. If Lessor, in its sole discretion,
,- ~. s -t v .... ~y oe suojec[ to a Lease hereunder, Lessor shall furnish to Lessee a proposed Equipment Schedule
relating to the Equipment Group for execution by Lessee and then Lessor. By execution hereof, Lessor has made no commitment to lease
any equipment to Lessee.
Section 2_2. Dish r~rn~n~. Lessor shall have no obligation to make any disbursement to a Vendor or reimburse Lessee for any payment
made to a Vendor for an Equipment Group (or, if the escrow procedure described in Section 2.4 hereof is utilized, consent to a
disbursement by the Escrow Agent) until five (5) business days after Lessor has received all of the following in form and substance
satisfacto~ to Lessor: (a) a completed Equipment Schedule executed by Lessee; (b) an Acceptance Certificate in the form included with
Exhibit A hereto; (c) a resolution or evidence of other official action taken by or on behalf of the Lessee to authorize the acquisition of the
Equipment Group on the terms provided in such Equipment Schedule; (d) a Tax Agreement and Arbitrage Certificate in the form of
Exhibit B-1 (as applicable) attached hereto; (e) evidence of thsurance with respect to the Equipment Group hi compliance with Article VII
of this Agreement; (f) Vendor invoice(s) and/or bill(s) of sale relating to the Equipment Group, and if such invoices have been paid by
Lessee, evidence of payment thereof and evidence of official intent to reimburse such payment as required by the Code; (g) financing
statements naming Lessee as · · · .
debtor and/or the original certificate of~fle or manufacturer's certificate of origin and title application, if any,
for any Equipment which is part of such Equipment Group and is subject to certificate of title laws; (h) a completed and executed Form
8038-G or 8038-GC, as applicable, or evidence of filing thereof with the Secretary of Treasury; (i) an opin/on of counsel to the Lessee
substantially ha the form of Exhibit E hereto, and (j) any other documents or items reasonably required by Lessor.
Section 2.3. l.~a~e: Poa~essian and ~r~.~. Lessor hereby leases the Equipment to Lessee, and Lessee hereby leases the Equipment from
Lessor, upon the terms and conditions set foFth herein. Lessee shall have quiet use and enjoyment of and peaceably have and hold each
Equipment Group during the related Lease Term, except as expressly set forth in this Agreement.
Section 2.4. Escrow Proeed,rl.' If Lessor and Lessee agree that the cost of an Equipment Group is to be paid from an Escrow Account:
(a) Lessor and Lessee shall execute an Escrow Agreement substantially in the form of Exhibit F; (b) Lessor and Lessee shall execute an
Equipment Schedule relating to such Equipment Group; and (c) Lessor shall deposit an amount equal to the cost of the Equipment Group
into the Escrow Account. All amounts deposited by Lessor into the Escrow Account shall constitute a loan from Lessor to Lessee which
shall be repaid by the Rental Payments due under the related Lease.
ARTICLE Ill. TERM
Section :t_1. Term. Th/s Agreement shall be in effect fi'om the Agreement Date until the earliest of(a) termination under Section 3.2 or
(b) termmatinn under Section 12.2; prc, v/d~di however, no Equipment Schedules shall be executed after any Non-Appropriation or Event
of Default. Each Lease with respect to an Equipment Group shall be in effect for a Lease Term commencing upon the Lease Date and
ending as provided in Section 3.5.
Section 3.2. Terminafion by IJe~e. In thc sole event of Non-Appropriation, this Agreement and each Lease hereunder shall terminate,
in whole, but not in part, as to all Equipment effective upon the last day of the Fiscal Year for winch funds were appropriated, in the
manner and subject to the terms specified in this Article. Lessee may effect such termination by giving Lessor a written notice of
temunatiun and by paying to Lessor any Rental Payments and other amounts which are due and have not been paid at or before the end of
its then current Fiscal Year. Lessee shall endeavor to g/ye notice of such termination not less than ninety (90) days prior to the end of the
Fiscal Year for which appropriations were made, and shall notify Lessor of any anticipated termination. In the event of termination of this
Agreement as provided in this Section, Lessee shall comply with the instructions received from Lessor in accordance with Section 12.3.
Section 3.3. Effect of Termination. Upon termination of this Agreement as provided in Section 3.2, Lessee shall not be responsible for
the payment of any additional Rental Payments coming due in succeeding Fiscal Years, but if Lessee has not complied with the instructions
received fi'om Lessor in accordance with Section 12.3, the termination shall nevertheless be effecl~ve, but Lessee shall be responsible for
the payment of damages in an amount equal to the amount of the Rental Payments that would thereal~ter have come due if this Agreement
had not been terminated and which are at~ibutable to the number of days after which Lessee fails to comply with Lessor's instructions and
for any other loss suffered by Lessor as a result of Lessee's failure to take such actions as required.
Section '~-4. Nnn-~nb~titntion. If this Agreement is terminated by Lessee in accordance with Section 3.2, to the extent pemmtted by State
law, Lessee agrees not to purchase, lease, rent, borrow, seek appropriations for, acquire or otherwise receive the benefits of any personal
property to perform the same functions as, or functions taking the place of, those performed by any of the Equipment, and agrees not to
permit such functions to be performed by its own employees or by any agency or entity affiliated with or kired by Lessee, for a period of
one year following such termination; provided, however, these restrictions shall not be applicable in the event the Equipment shall be sold
by Lessor and the amount received from such sale, less all costs of such sale, is sufficient to pay the then applicable Prepayment Prices
relating thereto as set forth in the Equipment Schedules; or to the extent the application of these reslxicfions is unlawful and would affect
the vahdity of this Agreement.
Section 3.5. Termination of Lea~e Terlll. The Lease Term with respect to any Lease will terminate upon the occurrence of the first of
the following events: (a) the terrnmatiun of this Agreement by Lessee in accordance with Section 3.2; (b) the payment of the Prepayment
Price by Lessee pursuant to Article V; (c) an Event of Default by Lessee and Lessor's election to terminate such Lease pursuant to Article
XII; or (d) the payment by Lessee of all Rental Payments and all other amounts authorized or required to be paid by Lessee pursuant to
such Lease.
ARTICLE IV. RENTAL PAYMENTS
Section 4.1. Rental Paymenta. The Lessee agrees to pay the Rental Payments due as specified in the Payment Schedule in Exhibit A. A
portion of each Rental Payment is paid as interest as specified in the Payment Schedule of each lease, and the first Rental Payment will
include Interest accruing from the Funding Date. Lessor is authorized to insert the due date of the frrst Rental Payment in the Payment
Schedule in Exhibit A. All Rental Payments shall be paid to Lessor, or to such assignee(s) Lessor has assigned as stipulated in Article XI,
at such places as Lessor or such assignee(s) may from time to time designate by written notice to Lessee. Lessee shall pay the Rental
Payments with lawful money of the Un/ted States of America from moneys legally available therefor.
Sectinn 4.2. Current Ex.n~n~e. The obligations of Lessee, including its obligation to pay the Rental Payments due in any Fiscal Year of a
Lease Term, shall constitute a current expense of Lessee for such Fiscal Year and 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 moneys (other
than moneys lawfully appropriated from time to time by or for the benefit of Lessee for this Agreement and the Net Proceeds of the
Equipment) to the payment of any Rental Payment or other amount coming due hereunder.
Seetinn 4.3. Unconditional Rental Paym~nt,~;. The Lessee's obligation to make Rental Payments shall be absolute and unconditional
Also, any other payments required hereunder shall be absolute and unconditional. Lessee shall make these payments when due and shall
not withhold any of these payments pending final resolution of any disputes. The Lessee shall not assert any right of set-offor counterclaim
against its obhgation to make these payments. Lessee's obligation to make Rental Payments or other payments shall not be abated through
accident, unforeseen circumstances, failure of the Equipment to perform as desired, damage or destruction to the Equipment, loss of
possession of the Equipment or obsolescence of the Equipment. The Lessee shall be obligated to continue to make payments required of it
by this Agreement if title to, or temporary use of, the Equipment or any part thereof shall be taken under exercise of the power of eminent
domain.
ARTICLE V. OPTION TO PREPAY
Section 5.1. Option tn Prepay_ Lessee shall have the option to prepay its obligations under any Lease in whole but not in part on any
Payment Date for the then applicable Prepayment Price (which shall include a prepayment fee) as set forth in the related Payment
Schedule, provided there has been no Non-Appropriation or Event of Default.
Section 5.2. Ex~retse of O.ntlnll. 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 winch the option will be exercised and shall pay to Lessor not later than such Payment Date an amount equal
to all Rental Payments and any other amounts then due or past due under the related Lease (including the Rental Payment due on the
Payment Date on which the option shall be effective) and the applicable Prepayment Price set forth in the related Payment Schedule. In the
event that all such amounts are not received by Lessor on such Payment Date, such notice by Lessee of exercise of shall be void and the
related Lease shall continue in full force and effect.
Section 5.3. Release of l,essnr'~ lnter~t. Upon receipt of the Prepayment Price in good funds with respect to any Equipment Group, the
Lease with respect to such Equipment Group shall terminate and Lessee shall become entitled to such Equipment Group AS IS, WHERE
IS, WITHOUT WAILR,,4~rI'IES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY LESSEE, except that such Equipment
Group shall not be subject to any lien or encumbrance created by or arising through Lessor.
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENA]NTS
Section 6.1. Re.nre~entation~ and Warrantie~ of I,ea~pp. Lessee represents and wan'ants as of the Agreement Date and as of each Lease
Date as follows:
(a) Lessee is a state or political subdivision of the State within the meaning of Section 103(c) of the Code, duly organized and
existing under the Constitution and laws of the State, and is authorized under the Constitution and laws of the State to enter into this
Agreement, each Lease and the txansactions contemplated hereby and thereby, and to perform all of its obligations under tiffs Agreement
and each Lease.
(b) The execution and delivery of this Agreement and each Lease have been duly authorized by all necessary action of Lessee's
governing body and such action is in compliance with all public bidding and other State and federal laws applicable to this Agreement,
each Lease and the acquisition and financing of the Equipment by Lessee.
(c) Tiffs Agreement and each Lease have been duly executed and delivered by and constitutes the valid and binding obligation of
Lessee, enforceable against Lessee in accordance with their respective terms.
(d) The execution, delivery and perfonnancc of this Agreement and each Lease by Lessee shall not (i) violate any State or federal law
or local law or ordinance, or any order, writ, injunction, decree, or regulation of any court or other governmental agency or body applicable
to Lessee, or (ii) conflict with or result in the breach or violation of any term or provision of, or constitute a default under, any note, bond,
mortgage, indenture, agreement, deed of trust, lease or other obligation to winch Lessee is bound.
(e) There is no action, suit, proceeding, claim, inquiry or investigation, at law or in equity, before or by any court, regulatory agency,
public board or body pending or, to the best of Lessee's knowledge, threatened against or affecting Lessee, challenging Lessee,s authority
to enter into this Agreement or any Lease or any other action wherein an unfavorable ruling or f'mding would adversely affect the
en[orceahility of this Agreement or any Lease.
(f) No lease, rental agreement, lease-purchase agreement, payment agreement or contract for purchase to winch Lessee has been a
party at any time during the past ten (I0) years has been terminated by Lessee as a result of insufficient funds being appropriated in any
Fiscal Year. No event has occurred which would constitute an event of default under any debt, revenue bond or obligation winch Lessee
has issued during the past ten (10) years.
(g) Lessee or Lessee's guveming body has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to
pay all Rental Payments during the current Fiscal Year, and such moneys will be applied in payment of all Rental Payments due and
payable during such current Fiscal Year.
(h) Lessee has an immediate need for, and expects to make immediate use of, the Equipment, winch need is not temporary or
expected to diminish during the applicable Lease Term. Lessee presently intends to continue each Lease hereunder for its entire Lease
Term and to pay all Rental Payments relating thereto.
Section 6.2. Covenants of l.essoe, Lessee agrees that so long as any Rental Payments or other amounts due under this Agreement remain
unpaid:
(a) Lessee shall not install, use, operate or maintain the Equipment improperly, carelessly, in violation of any applicable law or
regulation or in a manner contrary to that contemplated by this Agreement. Lessee shall obtain and maintain all permits and licenses
necessary for the installation and operation of the Equipment. Lessee shall not, without the prior written consent of Lessor, affix or install
any accessory equipment or device on any of the Equipment if such addition would change or impair the originally intended functions,
value or use of such Equipment.
Lessee shall provide Lessor access at all reasonable times to examine and inspect the Equipment and provide Lessor with such
access to the Equipment as may be reasonably necessary to perform maintenance on the Equipment in the event of failure by Lessee to
perform its obligations hereunder.
(c) Lessee shall not, directly or indirectly, create, incur, assume or suffer to ex/st any mortgage, pledge, lien, charge, encumbrance or
other claim with respect to the Equipment, other than the respective rights of Lessor and Lessee as herein provided. Lessee shall promptly,
· at its own expense, take such actions as may be necessary duly to discharge or remove any such 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 claim.
(d) The person or entity in charge of preparing Lessee's budget will include in the budget request for each Fiscal Year the Rental
Pm;nY~e;~too2e~co~e~uvee~.ur~..g~,:su. ch,F,i_scal Ye,,ar~and ,w~l use all reasonable and lawful means available to secure the appropriation of
z .......... ,~ x~,u ~muclent to pay an Kental rayments coming due therein. Lessor acknowledges that appropriation for Rental
Payments is a governmental function which Lessee cannot contractually commit itself in advance to perform. Lessee acknowledges that
~ff~Aengrt~epn~,~ed~Scna~°t ~?w~fi~t~eo:,u:~,.a, c;.°~ ~n~___~t~_e~t} ~Ho_w~ever,.Lesse.e, reasonably beheves that moneys in an amount sufficient to make
u Jo performance o~ ~ts essential functions during the ai~licable * - "' '- ,~,,mu~u umtzauon oI the eqmpment m
(e) Lessee shall assure that its obligation to pa[ Rental Payments is not directly or indirectly secured by any interest in property, other
than the Eqmpment, and that the Rental Payrnent~ vail not be directly or indirectly secured by or derived fi.om any payments of any type or
any fund other than Lessee's general purpose fund
(f) Upon Lessor's re,,ues* Les ...........
ensuing Fiscal Year ~t ,, *~ snan promae kessor with current financial statements, budgets, and proof of appropriation for the
and such other financial informalaon relating to the abthty of Lessee to continue this Agreement and each Lease as may
be reasonably requested by Lessor·
(g) Lessee shall promptly and duly execute and deliver to Lessor such further documents, instruments and assurances and take such
further action as Lessor may fi'om time to time reasonably request in order to carry out the intent and purpose of this Agreement and to
establish and protect the rights and remedies created or intended to be created in favor of Lessor hereunder.
(a) Incorporation of Tax Agreement and ~rbitrage Cert~)qcate. As of each Lease Date and with respect to each Lense, Lessee makes
each of the representations, wan'antics and covenants contained in the Tax Aareement and Arbit~o~. ' - ·
to such Lease. By this reference each such T~-, a .............. ~ ._ . ~-o~ Certificate dehvered vath res ect
...... ~t~*at~cat ann ~rom:age k.emncate ~s mcorpurated in and made a part of this Agre~Pmeent.
~o) Event of Taxability. If Lessor either (i) receives notice, in any form, from the Internal Revenue Service or (ii) reasonably
determines, based on an opimon of independent tax counsel selected by Lessor, that Lessor may not exclude any Interest paid under any
Lease fi.om its Federal gross income (each an "Event of Taxabihty"), the Lessee shall pay to Lessor upon demand (x) an mount which,
with respect to Rental Payments previously paid and taking into account all penalties, fines, interest and additions to tax (including all
federal, state and local taxes imposed on the Interest due through the date · ·
of such event), vail restore to Lessor its after-tax yield (assuming
tax at the highest marginal tax rate and talcing into account the time of receipt of Rental Payments and reinvestment at the after-tax yield
rate) on the transaction evidenced by such Lease through the date of such event and (y) as additional Rental Payments to Lessor on each
succeeding Payment Date such amount as vail maintain such alter-tax yield to Lessor.
ARTICLE VII. INSLrRANCE AND RISK OF LOSS
Section '/.1. l.lahility and Property In~nrant~ Lessee shall, at its own expense, procure and maintain continuously in effect during
each Lease Term: (a) public liability insurance for death or injuries to persons, or damage to property arising out of or in any way
connected to the Equipment sufficient to protect Lessor and/ur assigns from liability in all
- events, with a coverage of not less than
$1,000,0q0 pyr occ~trfence unles, s s. pecifi.ed differently in the related Equipment Schedule, and (b) thsurance against such hazards as Lessor
may reqmre, including, but not limited to, all-risk casualty and property insurance, in an amount equal to the greater of the full replacement
cost of the Equipment or the applicable Prepayment Price of each Equipment Group.
Section 7.2. Wnrkera' {qom.nen~atjon In~ran{,. If required by State law, Lessee shall carry workers' 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 Lease Term.
Sec/inn 7.3. Insurance Ra~_ Jremenl,.:
(a) Insurance Policies. All insurance policies required by this Article shall be taken out and maintained with insurance compames
acceptable to Lessor · · · . ·
and shall contain a provision that thirty (30) days prior to any change in the coverage the insurer must provide written
no,ce to the insured parties. No insurance shall be subject to any co-insurance clause. Each insurance policy shall name Lessor and/ur its
asmgns as an additional insured party and loss payee regardless of any breach of warranty or other act or omission of Lessee and shall
include a lender's loss payable endorsement for the benefit of Leasur and/or is assigns. Prior to the delivery of Equipment, Lessee shall
deposit with Lessor evidence satisfactory to Lessor of such insurance and, prior to the expiration thereof, shall provide Lessor evidence of
all renewals or replacements thereof.
(b) Self Insurance With Lessor's '
· . . · prior consent, Lessee may self-insure the E ui men
asldeandmaartamedforthatnn,,ose h;~,~..~.~._,: ........ q P tbymeausofanade nateinsurance
(c) Evidence of Insurance. Lessee shall deliver to Lessor upon acceptance of any Equipment evidence of insurance which complies
with this Article VII with respect to such Equipment to the satisfaction of Lessor, including, without limitation, the confn'mation of
insurance in the form of Exhibit G-1 attached hereto together with Certificates of Insurance, when available, or the Questionnaire for Self-
Insurance and Addendum to Equipment Schedule Relating to Self-Insurance in the form of ExJaibit G-2 ai~ached hereto,
Section 7.4. Risk of I,o~s. To the extent permitted by apphcable laws of the State, as between Lessor and Lessee, Lessee assumes all risks
and liabilities from any cause whatsoever, whether or not covered by insurance, for loss or damage to any Equipment and for injury to or
death of any person or damage to any property. Whether or not covered by insurance, Lessee hereby assumes responsibility for and agrees
to indemnify Lessor from all liabilities, obligations, losses, damages, penalties, claims, actions, costs and expenses, including reasonable
attorneys' fees, maPosed on, incurred by or asserted against Lessor that relate to or arise out of this Agreement, including but not lira/ted to,
(a) the selection, manufacture, purchase, acceptance or rejection of Equipment or the ownership of the Equipment, (b) the delivery, lease,
possession, maintenance, use, condition, return or operation of the Equipment, (c) the condition of the Equipment sold or otherwise
disposed of after possession by Lessee, (d) the conduct of Lessee, its officers, employees and agents, (e) a breach of Lessee of any of its
covenants or obligations hereunder, (f) any claim, loss, cost or expense involving alleged damage to the environment rela~ng to the
Equipment, including, but not limited to investigation, removal, cleanup and remedial costs, and (g) any strict liability under the laws or
judicial decisions of any state or the United States. This provision shall survive the termination of this Agreement.
Section 7.~. De_qtructton of Equipment. Lessee shall provide a complete written report to Lessor immediately upon any loss, theft,
damage or destruction of any Equipment and of any accident involving any Equipment. Lessor may inspect the Equipment at any time and
from time to time during regular business hours. If all or any part of the Equipment is stolen, lost, destroyed or damaged beyond repair
("Damaged Equipment"), Lessee shall w/thin thirty (30) days after such event either: (a) replace the same at Leasee's sole expense with
equipment having substantially similar Specifications and of equal or greater value to the Damaged Equipment immediately prior to the
time of the loss occurrence, such replacement equipment to be subject to Lessor's approval, whereupon such replacement equipment shall
be substituted in the appl/cable Lease and the other related documents by appropriate endorsement or amendment; or (b) pay the applicable
Prepayment Price of the Damaged Equipment determined as set forth in the related Equipment Schedule. Lessee shall notify Lessor of
which course of actinn it will take within fifteen (15) days after the loss occurrence. If, within forty-five (45) days of the loss occurrence,
(a) Lessee fails to notify Lessor; (b) Lessee and Lessor fail to execute an amendment to the applicable Equipment Schedule to delete the
Damaged Equipment and add the replacement equipment or (c) Lessee has failed to pay the applicable Prepayment Price, then Lessor may,
at its sole discretion, declare the applicable Prepayment Price of the Damaged Equipment, to be immediately due and payable. The Net
Proceeds of insurance with respect to the Damaged Equipment shall be made available by Lessor to be applied to discharge Lessee'
obligation under this Section.
ARTICLE VIII. OTHER OBLIGATIONS OF LESSEE
Sectton 8.1. Maintenance of En_ntpment, Lessee shall notify Lessor in writing prior to moving the Equipment to another address and
shall otherwise keep the Equipment at the addiess specified in the related Equipment Schedule. Lessee shall, at its own expense, maintain
the Equipment in proper working order and shall make all necessary repairs and replacements to keep the Equipment in such condition
including compliance with State and federal laws. Any and all replacement parts must be free of encumbrances and liens. All such
replacement parts and accessories shall be deemed to be incorporated immediately into and to constitute an integral portion of the
Equipment and as such, shall be subject to the terms of this Agreement.
Section 8.~_ Ta~e~. Lessee shall pay all taxes and other charges which are assessed or levied against the Equipment, the Rental Payments
or any part thereof, or which become due during the Lease Term, whether assessed against Lessee or Lessor, except as expressly limited by
this Section. Lessee shall pay all utilities 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 that may be secured by a lien on the
Equipment. Lessee shall not be required to pay any federal, state or local income, succession, transfer, franchise, profit, excess profit,
capital stock, gross receipts, corporate, or other similar tax payable by Lessor, its successors or assigns, un/ess such tax is made as a
substitute for any tax, assessment or charge which is the obhgation of Leasee under this Section.
Sectllm 8.3. Advane~. If Lessee shall fail to perform any of its obhgatious under this Article, Lessor may take such action 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 18% per annum or the maximum rate permitted by law, whichever is less, from the date of the advance to the date of repayment.
ARTICLE IX. TITLE
Seetlnn 9.1. Title, During the Lease Term, ownership and legal title of all Equipment and all replacements, substitutions, repairs and
modification shall be in Lessee and Lessee shall take all action necessary to vest such ownership and title in Lessee. Lessor does not own
the Equipment and by this Agreement and each Lease is merely financing the acquisition of such equipment for Lessee. Lessor has not
been in the chain of title of the Equipment, does not operate, control or have possession of the Equipment and has no control over the
Lessee or the Lessee's operation, use, storage or maintenance of the Equipment.
Seetirln 9.2. ~qeeurity Ink,rest. Lessee hereby grants to Lessor a continuing, f~rst priority security interest in and to the Equipment, all
repairs, replacements, substitutions and modifications thereto and all proceeds thereof and m the Escrow Account (ff any) in order to
secure Lessee's payment of ail Rental Payments and the performance of ali other obligations. Lessee hereby authorizes Lessor to prepare
and file such financing statements and other such documents to establish and maintain Lessor's valid first lien and perfected security
thterest. Lessee will join with Lessor in executing such documents and will perform such acts as Lessor may request to establish and
maintain Lessor's valid first lien and perfected security interest. If requested by Lessor, Lessee shall obtain a landlord and/or mortgagee's
consent and waiver with respect to the Equipment. If requested by Lessor, Lessee shall conspicuously mark the Equipment, and maintain
such markings during the Lease Term, to clearly disclose Lessor's security interest in the Equipment. Upon termination of a Lease
through exercise of Lessee's option to prepay pursuant to A~dcle V or through payment by Lessee of all Rental Payments and other
mounts due with respect to an Equipment Group, Lessor's security interest in such Equipment Group shall terminate, and Lessor shall
execute and dehver to Lessee such documents as Lessee may reasonably request to ewdence the termination of Lessor's security interest in
such Equipment Group.
Section 9.3. ]~odifieatinn of Eqni_nm~,nt. Lessee will not, without the prior written consent of Lessor, affix or install any accessory
equipment or device on any of the Equipment if such addition will change or impair the originally intended value, function or use of the
Equipment.
Section 9.4. Personal Pr~}.nm~,. The Equipment is and shall at all times be and remain personal property and not fixtares.
ARTICLE X. WARRANTIES
Section 10.1. ~eleetlon of Eqni,nm~,rlt' Each Vendor and all of the Equipment have been selected by Lessee. Lessor shall have no
responsibility in connection with the selection of the Equipment, the ordering of the Equipment, its suitability for the use intended by
Lessee, the acceptance by any Vendor or its sales representative of any order submitted, or any delay or failure by such Vendor or its sales
representative to manufacture, deliver or install any Equipment for use by Lessee.
Seetlon 10.2. Vendor,s Warranti~ Lessor hereby assigns to Lessee for and during the related Lease Term, all &its interest, ffany, in
all Vendor's warranties, guarantees and patent indernmty protection, express or implied issued on or applicable to an Equipment Group,
and Lessee may obtain the customary ' · · · · .
has . . servmes furnished m cennect~on w~th such warrant]es and guarantees at Lessee's expense. Lessor
no obhgat~on to enforce any Vendor's warranties or obligations on behalf of itself or Lessee.
Section lfl.~. Di~elalm*.r of WarrantieS. LESSEE ACKNOWLEDGES THAT THE EQUIPMENT IS OF A SIZE, DESIGN,
CAPACITY, AND MANUFACTURE SELECTED BY LESSEE. LESSEE ACKNOWLEDGES THAT IT SELECTED THE
E£ FQUIPIviENT WITHOUT ASSISTANCE OF LESSOR, ITS AGENTS OR EMPLOYEES. LESSOR IS NOT A MANUFACTURER
THE EQUIPMENT OR A DEALER IN SIMILAR EQUIPMENT, AND DOES NOT INSPECT THE EQUIPMENT BEFORE
DELIVERY TO LESSEE. LESSOR MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO
THE VALUE, DESIGN, CONDITION,
PARTICULAR PURPOSE QUALITY, DURABILITY, SUITABILITY, MERCHANT-ABILITY OR FITNESS FOR ANY
OR FITNESS FOR THE USE CONTEIvipLATED BY LESSEE OF THE EQUIPMENT, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE EQUIPMENT. IN NO EVENT SHALL LESSOR BE LIABLE
FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS
AGREEMENT OR THE EQUIPMENT OR LESSEE'S USE OF THE EQUIPMENT.
ARTICLE XI. ASSIGNMENT AND SUBLEASING
Sectlnn 11 .t. A~i~nrner~t by Le~nl.. Lessor, without Lessee's consent, may assign and reassign all of Lessor's right, title and/or interest
in and to this Agreement or any Lease, including, but not limited to, the Rental Payments and other amounts payable by Lessee and
Lessor's interest in the Equipment, in whole or in part to one or more assignees or subassiguee(s) by Lessor at any time. No such
assignment shall be effeclive as against Lessee urdess and until written notice of the assignment is provided to Lessee. When presented
with a notice of assignment, Lessee will acknowledge in writing receipt of such notice for the benefit of Lessor and any assignee. Lessee
shall keep a complete and accurate record of all such assignments.
Sectlnn 11.2_ A~i~nrnent and' ~qnhlea~ino hy l,e~m,~ Neither this Agreement nor any Lease or any Equipment may be assigned,
subleased, suld, ~'ansferred, pledged or mortgaged by Lessee.
ARTICLE XII. EVENTS OF DEFAULT AND REMEDIlgS
Section 1 ~.~. F, ven~ of Defan]t lOeflne,I. The occurrence of any of the following events shall constitute an Event of Default under this
Agreement and each Lease:
(a) Lessee's faL!ure to pay, within ten (10) days following the due date thereof, any Rental Payment or other mount required to be
paid to Lessor (other than by reason of Non~Appropriation).
(b) Lessee's failure to maintain insurance as required by Article VII.
(c) With the exception of the above clauses (a) & (b), Lessee's failure to peri'om or abide by any condition, agreement or covenant
for a period of tlfirty (30) days a~er written notice by Lessor to Lessee specifying such failure and requesting that it be remedied, unless
Lessor shall agree in writing to an extension of time prior to its expiration.
(d) Lessor's determmation that any representation or warranty made by Lessee in th/s Agreement was un~'ue in any material respect
upon execution of this Agreement or any Equipment Schedule.
(e) The occurrence of an Event of Taxability.
(f) The fi/ing of a petition in bankruptcy by or against Lessee, or failure by Lessee promptly to lift any execution, garnishment or
attachment of such consequence as would maPair the ability of Lessee to carry on its governmental functions 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
jurisdiction of any adjustment ofindebtedmess of Lessee, or the dissolution or liquidation of Lessee.
Section 12.2. R~em~dies on lr)efa~flL Upon the occurrence of any Event of Default, Lessor shall have the right, at its option and without
any further demand or notice to one or more or all of the following remedies:
(a) Lessor, with or without terminating this Agreement or any Lease, may declare ail Rental Payments immediately due and payable
by Lessee, whereupon such Rental Payments shall be immediately due and payable.
Co) Lessor, with or without terminating this Agreement or any Lease, may repossess any or all of the Equipment by giving Lessee
written notice to deliver such Equipment 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 such Equipment is kept and take possession of such
Equipment and charge Lessee for costs incurred, including reasonable attorneys' fees. Lessee hereby expressly waives any damages
occasioned by such repossession. If the Equipment or any portion has been destroyed, Lessee shall pay the applicable Prepayment Price of
the destroyed Equipment as set forth in the related Payment Schedule. Regardless of the fact that Lessor has taken possession of the
Equipment, Lessee shall continue to be responsible for the Rental Payments due during the Fiscal Year.
(c) If Lessor ten-ninates this Agreement and/or any L~ase and, in its discretion, takes possession and disposes of any or all of the
Equipment, Lessor shall apply the proceeds of any such disposition to pay the following items in the following order: (i) all costs
(including, but not limited to, attorneys' fees) incurred in sec"-:-- ' ~ -
,~mg possession orthe Equipment; (ii) all expenses incurred in completing the
disposition; (iii) any sales or Ixansfer taxes; (iv) the apphcable Prepayment Prices of the Equipment Groups; and (v) the balance of any
Rental Payments owed by Lessee during the Fiscal Year then in effect. Any disposition proceeds remaining after the requirements of
Clauses (i), (ii), (iii), (iv) and (v) have been met shall be paid to Lessee.
(d) Lessor may take any other remedy avatlable, at law or in equity, with respect to such Event of Default, including those requiring
Lessee to perform any of its obligations or to pay any moneys due and payable to Lessor and Lessee shall pay the reasonable attorneys'
fees and expenses incurred by Lessor in enforcing any remedy hereunder.
(c) ....
Each of the foregoing remedies ~s cumulative and may be enforced separately or concurrently.
Section 12.3. Return of E?fi.nment: Release of T,e~ee's Tn~ere.& Upon termination of any Lease prior to the payment of all related
Rental Payments or the applicable Prepayment Price (whether as result of Non-Appropriation or Event of Default), Lessee shall, within ten
(10) days after such termination, at its own expense: (a) perform any testing and repairs required to place the related Equipment in the
condition required by Article VII/; Co) if deinstailation, disMsembly or crating is required, cause such Equipment to be de/n.~talled,
disassembled and crated by an authorized manufacturer's representative or such other service person as is satisfactory to Lessor; and (c)
return such Equipment to a location specified by Lessor, freight and insurance prepaid by Lessee. If Lessee refuses to return such
Equipment in the manner designated, Lessor may repossess the Equipment without demand or notice and without court order or legal
process and charge Lessee the costs of such repossession. Upon termination of this Agreement in accordance with Article I/I or Article
XII hereof, at the election of Lessor and upon Lessor's written notice to Lessee, full and Unencumbered legal title and ownership of the
Equipment shall pass to Lessor. 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 and ownership to Lessor and termination of Lessee's interest in the Equipment.
~ll~.,t~&Ii~h~. Lessor shall have the right to require late payment charge for each Rental or any other amount due hereunder
which is n°t paid within 10 days of the date when due eoual to the ! ...... ~o/~,-_~_,., ......
-~ ...... ,~.,/o mc,~a ~atepayment or the legal maxxmura. This 8ecfionis
only applicable to the extent it does not affect the validity of this Agreement.
ARTICLE XIII. MISCELLANEOUS PROVISIONS
Sectinn 13.1. Nntieee_ All written notices to be given under this Agreement shall be given by mail to the party entitled thereto at its
address specified beneath each party's signature, or at such address as the party may pro'ride to the other parties hereto in writing from time
to time. Any such notice shall be deemed to have been received 72 hours after deposit in the United States mail in registered or
cert/fied
form, with postage fully prepaid, or, if given by other means, when delivered at the address specified in this Section 13.1.
Section 1'4.2. Binding Effoe(. This Agreement and each Lease hereunder shall be binding upon and shall inure to the benefit of Lessor
and Lessee and their respective successors and assigns. Specifically, as used herein the term "Lessor" means any person or entity to whom
Lessor has assigned its right to receive Rental Payments under any Lease.
°S~;~n~2;~ J ~:~;~ho~l, s~c~nh othl~;Vge~l aa~l YnoP:~s~a~ef ot~r';eAn~re~eu~;~;ceaan~ eL~;~aa~ pbreohv~ ~o~ ;}iedo ~ r unenforceable by any court
Section 1
13.4. l~ntire Agreement; Am~ndmo~lf,t' This Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, Understandings, agreements, solicitation documents and
representations, express or implied. This Agreement may be amended or modified only by written documents duly authorized, executed
and dehvered by Lessor and Lessee.
Seetton l~.~;. Caption,t. The captions or headings in this Agreement are for convenience only and in no way define, limit Or describe the
scope or intent of any provisions, AFdcles, Sections or Clauses hereof.
Section 13.6. Further An~nranc~,~ and Correetlve ln~tr,mer~/.,. Lessor and Lessee agree that they will, from time to time, execute,
acknowledge and deliver, or cause to be executed, acknowledged and dehvered, such supplements hereto and such further instruments as
may reasonably be required for correcting any inadequate or inconrect description of the Equipment hereby leased or intended so to be, or
for otherwise carrying out the expressed intention of this Agreement. Lessee hereby author/res Lessor to file any financing statement or
supplements thereto as may be reasonably required for correcting any inadequate description of the Equipment hereby leased or intended
so to be, or for otherwise carrying out the expressed intention of th/s Agreement
Section 1:1.7. Governing !,aw. This Agreement shall be governed by and consm:ed in accordance with the laws of the State.
Section 1:t.8. II~ury, It is the intention of the parties hereto to comply with any applicable ustuy laws; accordingly, it is agreed that,
notwithstanding any provisions to the contrary herein or in any Equipment Schedule, ha no event shall this Agreement or any Lease
hereunder require the payment or permit the collection of Interest or any amount in the nature of Interest or fees in excess of the maximum
amount permitted by applicable law. Any such excess Interest or fees shall fa:st be applied to reduce Principal, and when no Principal
remains, refunded to Lessee. In determining whether the Interest paid or payable exceeds the highest lawful rate, the total amount of
Interest shall be spread through the applicable Lease Term so that the Interest is uuiform through such ternL
Section 13.9_ I e~ee'~ Perfnrm~nce. A failure or delay of Lessor to eaforce any of the provisions of this Agreement or any Lease shall in
no way be construed to be a waiver of such provisio~
Seefinn 13.10. Waiver of .l, ry Trial_ Lessor and Lessee hereby waive any right to trial by jury in any action or proceeding with respect
to, in connection with or arising out of this Agreement.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
EXECUTION PAGE OF MASTER LEASE AGREEMENT
LEASE NUMBER 1838
I~ YVITNESS WHEREOF, Lessor has caused this Agreement to be executed in its corporate name by its duly authorized officer, and
Lessee has caused this Agreement to be executed in its name by its duly authorized officer.
CITY OF PORT ARTHUR,
Lessee
SUNTRUST LEASING CORPORATION,
Lessor
By:_ By:.
Name: Steve Fitzgibbons Name: Michael J. Powers
Title: City Manager Title: Secretary
Date:. Date:.
Address: P.O. BOX 1089
Port Arthur, TX 77641
Address: 29 W. Susquehanna Avenue, Suite 400
Towson, MD 21204
Telephone: 409/983-8150
Facsimile:
E-mail address:
Telephone: 410/307-6644
Facsimile: 410/307-6702
EXHIBIT A
EQUIPMENT SCHEDULE NO. 01
TO LEASE NO. 1838
The following Equipment comprises an Equipment Group which is the subject of the Master Lease Agreement dated as February
21, 2003 (the "Agreement") between the undersigned Lessor and Lessee. The Agreement is incorporated herein in its entirety, and Lessee
hereby reaffirms each of its representations, warranties and covenants contained in the Agreement. Lessee warrants that no Non-
Appropriation and no Event of Default, or event which, with the passage Of time or the giving of notice or both, would constitute an Event
of Default, has occurred under the Agreement. An Acceptance Certificate and Payment Schedule are at~ached to this Equipment Schedule
and by reference are made a part hereof. The terms capitalized in this Equipment Schedule but not defined herein shall have the meanings
assigned to them in the Agreement.
The cost of the Equipment Group to be funded by Lessee under this Lease is EIGglT glIYNDRED ~qIXTY ,qEVEN
TICIOH~AND DOI,I,AR~ AND Off/100 (~67,0flO.0O)(the "Acquisition Cost"). The Equipment Group consists of the folloWing
Equipment wlfich has been or shall be purchased firom the Vendor(s) named below for the pfines set forth below:
FIRE TRUCK
BULLDOZER
CHIP SPREADER
The Equipment Group is or will be located at the following address(es). Prior to relocation of the Equipment Group or any
portion thereof during the Lease Term, Lessee will provide written notice to Lessor:
CITY OF PORT AR fH UR,
Lessee
P.O. BOX 1089
Port Arthur, TX 77641
SUNTRUST LEASING CORPORATION,
Lessor
By:_
Name: Steve Fitzgibbons
Title: City Manager
Date:
Address: P.O. BOX 1089
Port Arthur, TX 77641
Telephone: 409/983-8150
Facs/mile:
By:
Name: Michael J. Powers
Title: Secretary
Date:_
Address: 29 W. Susquehanna Avenue, Suite 400
Towson, MD 21204
Telephone: 410/307-6644
Facsimile: 410/307-6702
Lease No.: 1838
Equipment Schedule: 01
ACCEPTANCE CERTIlVlCATE
I, the undersigned, hereby certify that I am the duly qualified and acting officer of the Lessee identified below and, with respect to
the above referenced Equipment Schedule and Lease, that:
1. The Equipment described below has been delivered and installed in accordance with Lessee's specifications, is in good
working order and is fully operational and has been fully accepted by Lessee on or before the date indicated below:
2. Attached are (a) evidence of insurance with respect to the Equipment m compliance with Article VII of the Agreement; (b)
Vendor invoice(s) and/ur biff(s) of sale relating to the Equipment, and ff such invoices have been paid by Lessee, evidence of payment
thereof(evidence of official intent to reimburse such payment as reqinred by the Code having been delivered separately by Lessee); and (c)
financing statements executed by Lessee as debtor and/or the original certificate of title .or manufacturer's certificate of origin and htle
application, if any, for any Equipment which is subject to certificate of title laws.
3. Rental Payments shall be due and payable by Lessee on the dates and in the amounts indicated on the Payment Schedule
attached to th9 Equipment Schedule. Lessee has appropriated and/or taken other lawful actions necessary to provide moneys sufficient to
pay all Rental Payments required to be paid under the Lease ditring the current Fiscal Year of Lessee. Such moneys will be applied in
payment of all such Rental Payments due and payable during such current Fiscal Year. Lessee anticipates that sufficient funds shall be
available to make all Rental Payments due in subsequent Fiscal Years.
4. Lessee hereby authorizes and dixects Lessor to fund the Acquisition Cost of.the Equipment by paying, or directing the payment
by the Escrow Agent (if applicable) of, the invoice prices to the Vendor(s), in each case as set forth above, or by reimbursing Lessee in the
event such invoice prices have been previously paid by Lessee.
__ 5. Final Acceptance Certificate. This Acceptance Certificate constitutes final acceptance of all of the Equipment identified in
the Equipment Schedule described above. Lessee certifies that upon payment in accordance with paragraph 4 above, or direction to the
Escrow Agent (if apphcable) to make payment, Lessor shall have fully and satisfactorily performed all of its covenants and obligations
under the Lease. [CHECK BOX 1F APPLICABLE.]
CITY OF PORT ARTHUR,
Lessee
By:.
Name: Steve Fitzgibbons
Title: City Manager
Date:
Lease Number: 1838
Equipment Schedule: 01
PAYME. NT
The Funding Date with respect to the above referenced Equipment Group shall be February 21, ~00~ The Annual Interest Rate
applicable to the Equipment Group shall be 2 775% Lessee will make Rental Payments each consisting of Principal and Interest as set
forth below for a term of 5 yearn. The frrst Rental Payment is due on February 21 200's and subsequent payments are due annually on like
date thereafter.
Payment Payment Payment Interest Principal Prepayment
~To, Date Amo::n( Com_n~nent Corn?ment Price*
1 02/21/04 188,098.89 24,059.25 164,039.64 738,108.38
2 02/21/05 188,098.89 19,507.15 168,591.74 561,087.05
3 02/21/06 188,098.89 14,828.73 173,270.16 379,153.38
4 02/21/07 188,098.89 10,020.48 178,078.41 192,171.05
5 02/21/08 188,098.89 5,078.84 183,020.05
Grand Totals 940,494.45 73,494.45 867,000.00
CITY OF PORT ARTHUR.
Lessee
By:.
Name: Steve Fitzgibbons
Title: City Manager
Date:.
* After payment of Rental Payment due on such date.
[Escrow]
TA~ A~REEMENT AND ARRFFRA~K I"~RTIFIf~ATK
EXHIBIT B-1
Lease Number: 1838
Equipment Schedule: 01
This TAX AGREEMENT AND ARBITRAGE CERTrFICATE (this "Certificate") is issued by CITY OF PORT ARTHUR
("Lessee") in favor of SUNTRUST LEASING CORPORATION ("Lessor") in connection with that certain Master Lease Agreement
dated as of February 21, 2003 (the "Agreement"), by and between Lessor and Lessee. The terms capitalized herein but not defined herein
shall have the meanings assigned to them in the Agreement.
Seetinn 1_ Tn C, mneral.
1. I. This Certificate is executed for the purpose of establishing the reasonable expectations of Lessee as to future events regarding the
financing of certain equipment (the "Equipment") to be acquired by Lessor and leased to Lessee pursuant to and in accordance with the
Equipment Schedule referenced above (the "Equipment Schedule") executed under the Agreement (together with aH related documents
executed pursuant thereto and contemporaneously herewith, the "Financing Documents"). As described in the Financing Documents,
Lessor shah apply EIGHT HUNDRED SIXTY SEVEN THOUSAND DOLLARS AND 00/100 ($867,000.00)(the "Principal
Amount") toward the acquisition of the Equipment and Lessee shall make Rental Payments under the terms and conditions as set forth in
the Financing Documents.
1.2. The individual executing this Certificate on behalf of Lessee is an officer of Lessee delegated with fue responsibihty of reviewing and
executing the Financing Documents, pursuant to the resolution or other official action of Lessee adopted with respect to the Financing
Documents, a copy of which has been dehvered to Lessor.
1.3. The Financing Documents are being entered into for the purpose of providing fimds for financing the cost of acquiring, equipping and
installing the Equipment which is essential to the governmental functions of Lessee, which Equipment is described in the Equipment
Schedule. The Principal Amount will be deposited in escrow by Lessor on the date of issuance of the Financing Documents and held by
SUNTRUST BANK, as escrow agent (the "Escrow Agent") pending acquisition of the Equipment under the tm of that certain Escrow
Agreement dated as of February 21, 2003, (the "Escrow Agreement"), by and between Lessor and Escrow Agent.
1.4. Lessee will timely file for each payment schedule issued under the Lease a Form 8038-G (or, if the invoice price of the Equipment
under such schedule is less than $100,000, a Form 8038-GC) relating to such Lease with the Internal Revenue Service in accordance with
Section 149(e) of the Internal Revenue Code of 1986, as amended (the "Code").
1.5. Lessee has not issued, and reasonably anticipates that it and its subordinate entities, if any, will not issue, tax-exempt obhgafions
(including the Lease) in the amount of inure than $10,000,000 during the current calendar year. Lessee hereby designates the Lease as a
"qualified tax-exempt obligation" within the meaning of Section 265(b)(3) of the Code and agrees that it and its subordinate entities, if any,
will not designate more than $10,000,000 of their obligations as "qualified tax-exempt obhgatinns" during the current calendar year.
Section 2. Nnn-Arhltra~e I~ertification~_
2.1. The Rental Payments due under the Financing Documents will be made with monies reta/ned in Lessee's general operating fund (or an
account or subaccount therein). No sinking, debt service, reserve or similar fund or account will be created or maintained for the payment
of the Rental Payments due under the Financing Documents or pledged as security therefor.
2.2. There have been and w/Il be issued no obligations by or on behalf of Lessee that would be deemed to be (i) issued or sold within
fifteen (15) days before or after the date of issuance of the Financing Documents, (ti) issued or sold pursuant to a corrnnon plan of
fhiancing with the Financing Documents and (iii) paid out of substantially the same source of funds as, or deemed to have substantially the
same claim to be paid out of substantially the same source of funds as, the Financing Documents.
2.3. Other than the Principal Amount held under the Escrow Agreement, Lessee does not and will not have on hand any funds that are or
will be restricted, segregated, legally required or otherwise intended to be used, directly or indirectly, as a substitute, replacement or
separate source of financing for the Equipment.
2.4. No portion of the Principal Amount is being used by Lessee to acquire investments which produce a yield materially higher than the
yield realized by Lessor fi:om Rental Payments received under the Financing Documents.
2.5. The Principal Amount does not exceed the amount necessary for the governmental purpose for which the Financing Documents were
entered into. Such funds are expected to be needed and fully expended for payment of the costs of acquiring, equipping and installing the
Equipment.
2.6. Lessee does not expect to convey, sublease or otherwise dispose of the Equipment, in whole or ha part, at a date which is earlier than
the final Payment Date under the Financing Documents.
Section 3. Di~hursement of Funfl~: Reirnbnr~ement to Le~.~.~,
3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipmant to the
vendors or manufacturers thereof, provided that, if applicable, a portion of the principal amount may be paid to Lessee as reimbursement
for acquisition cost payments already made by it so long as the conditions set forth in Section 3.2 below are satisfied.
3.2. Lessee shall not request that it be reimbursed for Equipment acquisition cost payments akeady made by it unless each of the following
conditions have been satisfied:
(a) Lessee adopted a resolution or otherwise declared its official intent in accordance with Treasury Regulation § 1.150-2 (the
"Declaration of Official Intent"), wherein Lessee expressed its intent to be reimbursed fi.om the proceeds of a borrowing for all or a portion
of the cost of the Equipment, winch expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the
Declaration of Official Intent;
Co) The reimbursement being requested will be made by a written allocation before the later of eighteen (18) months after the
expenditure was paid or eighteen (18) months alter the items of Equipment to winch such payment relates were placed in service;
(c) The entire payment with respect to winch reimbursement is being sought is a capital expenditure, being a cost of a type properly
chargeable to a capital account under general federal income tax principles; and
(d) Lessee will use any reimbursement payment for general operating expenses and not in a manner which could be construed as an
artifice or device under Treasury Regulation § 1.148-10 to avoid, in whole or in part, arbitrage yield restrictions or arbitrage rebate
requirements.
Section 4. TIKe and Investment of l~unds:' Tern_nnrary Perit~[.
4.1. Lessee has incurred or will incur, within six (6) months fi.om the date of issuance of the Financing Documents, binding obligations to
pay an amount equal to at least five percent (5%) of the Principal Amount toward the costs of the Equipment. An obligation is not binding
if it is subject to contingencies within Lessee's conttol. The ordering and acceptance of the items of Equipment will proceed with due
diligence to the date of £mal acceptance of the Equipment.
4.2. An amount equal to at least eighty-five percent (85%) of the Principal Amount will be expended to pay the cost of the Equipment by
the end of the three-year period commencing on the date of tlfis Ccafificate. No portion of the Principal Amount will be used to acquire
investments that do not carry
four (4) years or more. out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of
4.3. (a) Lessee covenants and agrees that it will rebate an amount equal to excess earnings on the Principal Amount deposited under the
Escrow Agreement to the Internal Revenue Service if required by, and in accordance with, Section 148(0 of the Code, and make the
annual determinations and maintain the records required by and otherwise comply with the regulations applicable thereto. Lessee
reasonably expects to cause the Equipment to be acquired by August 21, 2004.
(b) Lessee will provide evidence to Lessor that the rebate amount has been calculated and paid to the Internal Revenue Service in
accordance with Section 148(f) of the Code nnleqs (i) the entire Principal Amount is expended on the Equipment by the date that is the six-
month anaiversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the
following schedule: At least fifteen percent (15%) of the Principal Amount and interest eanungs thereon will be applied to the cost of the
Equipment within six months from the date of issuance of the Financing Documents; at least sixty percent (60%) of the Principal Amount
and interest earnings thereon will be applied to the cost of the Equipment within 12 months from the date of issuance of the Financing
Documents; and one hundred percent (100%) of the Principal Amount and interest earnings thereon w/il be applied to the cost of the
Equipment prior to eighteen (18) months from the date of issuance of the Financing Documents.
(c) Lessee hereby covenants that (i) Lessee is a governmental unit with general tax powers; (ii) the Lease is not a "private activity bond"
under Section 141 of the Code; (ii/) at least ninety-five percent (95%) of the Principal Amount is used for the goveramental activities of
Lessee; and (iv) the aggregate principal amount of all tax-exempt obhgations (including the Lease) issued by Lessee and its subordinate
entities, if any, during the current calendar year is not reasonably expected to exceed $5,000,000. Accordingly, the rebate requirements of
Section 148(0 of the Code are treated as being met, in lieu of the spending exceptions set forth in paragraph (b) above.
Sectlnn ~. E~crow Account.
The Financing Documents provide that the monies deposited in escrow shall be invested until payments to the vendor(s) or manufacturer(s)
of the Equipment are due. Lessee will ensure that such investment will not result in Lessee's obligations under the Financing Documents
being treated as an "arbitrage bond" within the meaning of Section 148(a) of the Internal Revenue Code of 1986, as amended (the "Code"),
respectively. Any monies winch are earned from the investment of these fimds shall be labeled as interest earned. All such monies will be
disbursed on or promptly alter the date that Lessee accepts the Equipment.
Section 6_ No Private II,e: No Cnn~llmer I,n~llo
6. l. Lessee will not exceed the private nsc restrictions set forth in Section 141 of the Code. Specifically, Lessee will not permit more than
0~ of the Principal Amount to be used for a Private Business Use (as de£med herein) if, in addition, the payment of more than ten percent
(10%) of the Principal Amount plus interest earned thereon is, directly or indirectly, secured by (i) any interest in property used or to be
used for a Private Business Use or (ii) any interest in payments in respect of such proper~ or derived fi.om any payment in respect of
property or borrowed money used or to be used for a Private Business Use.
In addition, if both (A) more than five percent (5%) of the Principal Amount is used as described above with respect to Private
Business Use and (B) more than five percent (5%) of the Principal Amount plus interest earned thereon is secured by Private Business Use
property or payments as described above, then the excess over such five percent (5%) (the "Excess Private Use Portion") will be used for a
Private Business Use related to the governmental use of the Equipment. Any such Excess Private Use Portion of the Principal Amount will
not exceed the portion of the Principal Amount used for the governmental use of the particular project to which such Excess Private Use
Portion is related. For purposes of this paragraph 6 1 ' ' ' ,,
. , 'Private Business Use means use of bond proceeds or bond financed-property
directly or indirectly in a trade or business carried on by a natural person or in any activity carried on by a person other than a natural
person, excluding, however, use by a state or local governmental unit and excluding use as a member of the general public.
6.2. No part of the Principal Amount or interest earned thereon will be used, directly or indirectly, to make or finance any loans to non-
governmental entities or to any governmental agencies other than Lessee.
Section 7. No Fedaral C~uarani'op
7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in pan, by
the United States or an agency or instrumentahty thereof.
7.2. No portion of the Principal Amount or interest earned thereon shall be (i) used in making loans the payment of principal or interest of
which are to be guaranteed, in whole or in part, by the United States or any agency or instrumentality thereof, or (ii) invested, directly or
nidirectly, in federally insured deposits or accounts if such investment would cause the financing under the Financing Documents to be
federally guaranteed vathin the meaning of Section 149(b) of the Code.
Sectlnn 8. Mi~cellaneoz~:.
8.1. Lessee shall keep a complete and accurate record of al/ owners or assignees of the Financing Documents in form and substance
satisfactory to comply with the registration requirements of Section 149(a) of the Code unless Lessor or its assignee agrees to act as
Lessec's agent for such purpose.
8.2. Lessee shall maintain complete and accurate records establishing the expenditure of the Principal Amount and interest earnings
thereon for a period of five (5) years after payment in full under the Financing Documents.
8.3. To the best of the undersigned's knowledge, information and behef, the above expectafiom are reasonable and there are no other
facts, estimates or circumstances that would materially change the expectations expressed herein.
IN WITNESS WHEREOF, this Tax Agreement and Arbitrage Certificate has been executed on behalf of Lessee as of February
21, 2003.
CITY OF PORT ARTHUR,
Lessee
By:_
Name: Steve Fitzgibbons
Title: City Manager
Date:
[Escrow]
EXHIBIT C-1
Lease Number: 1838
Equipment Schedule: 01
RESOI JITION OF GOVE~RNING BoDy
m;efing of the governing body of Lessee held in accordance with all applicable legal requirements, including open
day of , the following resolution was in~'oduced and adopted:
RESOLUTION AUTHORIZrNG THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT
SCHEDULE NO. 01, AN ESCROW AGREEMENT, AND RELATED INSTRUMENTS, AND DETERMINING OTHER
MATTERS IN CONNECTION THEREWITH.
WHEREAS, the governing body of CITY OF PORT ARTHUR ("Lessee") desires to obtain certain equipment (thc "Equipment")
described in Equipment Schedule No. 01 to the Master Lease Agreement (collectively, the "Lease") with SUNTRUST LEASING
CORPORATION, thc form of which has been available for review by the governing body of Lessee prior to this meeting; and
WHEREAS, the Equipment is essential for the Lessee to perform its governmental functions; and
WHEREAS, the funds made available under the Lease will be deposited with SUNTRUST BANK (the "Escrow Agent") pursuant to an
Escrow Agreement between Lessee and the Escrow Agent (the "Escrow Agreement") and will be applied to the acquisition of the
Equipment in accordance with said Escrow Agreement; and
WHEREAS, Lessee has taken the necessary steps, including those relating to any applicable legal bidding requirements, to arrange for the
acquisition of the Equipment; and
WHEREAS, Lessee proposes to enter into the Lease with SUNTRUST LEASING CORPORATION and the Escrow Agreement with
the Escrow Agent substantially in the forms presented to this meeting.
NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF LESSEE AS FOLLOWS:
Section 1 It is hereby found and determined that the terms of the Lease and the Escrow Agreement (collectively, the "Financing
ocuments ) m the forms presented to this meeting and incorporated in this resolution are in the best interests of Lessee for the acquisition
of the Equipment.
~qeetion 7 The Financing D°cuments and the acquisition and financing of the Equipment under the terms and conditions as described in
the Financuig Documents are hereby approved. The CiW Manager of Lessee and any other officer of Lessee who shall have power
to execute con~-acts on behalf of Lessee be, and each of them hereby is, authorized to execute, acknowledge and deliver the Financing
Documents with any changes, insertions and omissions therein as may be approved by the officers who execute the Financing Documents,
such approval to be conclusively evidenced by such execution and delivery of the Financing Documents. The ~itv Secretary of the
Lessee and any other officer of Lessee who shall have power to do so be, and each of them hereby is, authorized t~ affix the official seal of
Lessee to the Financing Documents and attest the same.
Section 3. The proper officers of Lessee be, and each of them hereby is, authorized and directed to execute and deliver any and all papers,
iastmments, opinions, certificates, affidavits and other documents and to do or canse to be done any and all other acts and things necessary
or proper for carrying out t/tis resolution and the Financing Documents.
Seetlnn 4. Pursnant to Section 265Co) of the Internal Revenue Code of 1986, as amended (the "Code"), Lessee hereby specifically
designates the Lease as a "qualified tax-exempt obhgation" for purposes of Section 265(1o)(3) of the Code.
The undersigned fmther certifies that the above resolution has not been repealed or amended and remains in full force and effect
and further certifies that the Lease and Escrow Agreement executed on behalf of Lessee are the same as presented at such meeting of the
governing body of Lessee, excepting only such changes, insertions and omissions as shall have been approved by the officers who executed
the same.
'Date:
CITY OF PORT ARTHUR,
Lessee
By:
Name: ,qteve Fi~gthhnnn
Title: City. 1Mana~l-
Attested By:
Name:
Title:
EXHIBIT D
Lease No.: 1838
Equipment Schedule: 01
INCIIMRENC¥ CERTIFICATE
I do hereby certify that I am the duly elected or appointed and acting City Secretary of the CITY OF PORT ARTHUR, a
political subdivision duly organized and existing under the laws of the State of Texas, that I have custody of the records of such entity, and
that, as of the date hereof, the individuals named below are the duly elected or appointed officers of such entity holding the offices set forth
opposite their respective names.
I further certify that (i) the signatures set opposite thek respective names and tides are their tree and authentic signatures and (ii)
such officers have the authority on behalf of such entity to enter into that certain Master Lease Agreement dated as of February 21, 2003
between such entity and SUNTRUST LEASING CORPORATION.
NAMI~ TITI ,]~ ~qIGNATI ~R
IN WITNESS WHEREOF, I have duly executed this certificate as of this day of
By:
Name: Evangeline Green
Title: City Secretary
[LETTER_HEAD OF LESSEE'S COUNSEL]
[DATE OF LEASE]
SunTrust Leasing Corporation
29 W. Susquehanna Avenue, Suite 400
Towson, Maryland 21204
Re: Master Lease Agreement dated as of February 21, 2003 (the "Agreement") by and between SUNTRUST LEASING
CORPORATION ("Lessor") and CITY OF PORT ARTItUR ("Lessee")
Ladies and Gentlemen:
We have acted as counsel to Lessee with respect to the Agreement described above and vahons related matters, and in this
capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. 01 executed pursuant thereto (together
with the Agreement, the "Lease"). The terms capital/zed in this opinion but not defined herein shall have the meanings assigned to them in
the Lease. Based upon the examination of these and such other documents as we have deemed relevant, it is our opinion that:
1. Lessee is a political subdivision of the State of Texas (the "State") within the meaning of Section 103(c) of the Internal
Revenue Code of 1986, as amended, andis duly organized, existing and operating under the Constitution and laws of the State.
2. Lessee is authorized and has the power under applicable law to enter into the Lease, and to carry out its obligations
thereunder and the transactions contemplated thereby.
3. The Lease has been duly authorized, executed and delivered by and on behalf of Lessee, and is a legal, valid and binding
obligation of Lessee enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency and
other similar laws affecting the enforcement of creditors' rights generally and by general equitable principles.
4. The authorization and execution of the Lease and all other proceedings of Lessee relating to the transactions
contemplated thereby have been performed in accordance with all applicable open meeting, public records, public bidding and all other
laws, mles and regulations of the State.
5. The execution of the Lease and the appropriation of moneys to pay the Rental Payments coming due thereunder do not
and w/ll not result in the violation of any constitutional, stamtery or other limitation relating to the manner, form or amount of indebtedness
which may be incurred by Lessee.
6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or
governmental body that challenges the orgamzation or existence of Lessee, the authority of Lessee or its officers or its employees to enter
into the Lease, the proper authorization and/or execution of the Lease or the documents contemplated thereby, the appropriation of moneys
to make Rental Payments under the Lease for the current Fiscal Year of Lessee, or the ability of Lessee otherwise to perform its obligations
under the Lease and the transactions contemplated thereby. To the best of our knowledge, no such litigation, action, suit or proceeding is
threatened.
effect.
7. The Equipment is personal property, and when used by Lessee will not be or become fixtures under the laws of the State.
8. Resolution No. __ of the governing body of Lessee was duly and validly adopted by such governing body on
, , and such resolution has not been amended, modified, supplemented or repealed and remains in full force and
This opinion may be relied upon by the addressee hereof and its successors and assignees of interests in the Lease, but only with
regard to matters specifically set forth herein.
Very truly yours,
(type name and title under signature)
SUNTRUST LEASING CORPORATION
EXHIBIT F
Lease No.: Shown on Scheduic
Equipment Schedule: Shown on Schedule
ESCROW AGREEMENT
Tiffs ESCROW AGREEMENT, made and entered into as of the Date shown on Schedule I, by and among SUNTRUST LEASING
CORPORATION, a Virginia corporation ("Lessor"), the Lessee named on Schedule I, which is a political subdivision or pubiic body
politic and corporate of the State or Commonwealth shown on Schedule I ("Lessee"), and SUNTRUST BANK, a Georgia banking
corporation, as Escrow Agent ("Escrow Agent").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND RECITALS
~qectlon 1.1. Definitioq$, The terms de£med in this Section 1.1 shall, for all purposes of this Escrow Agreement, have the meanings
specified below or on Schedule I.
"Acquisition Costs" means, with respect to the Equipment, the contract price paid or to be paid to the person entitled to such payment
upon acquisition or dehvery of any portion of the Equipment hi accordance with the purchase order or contract therefor. Acquisition Costs
may include the administrative, engineering, legal, financial and other costs incurred by Lessee in connection with the acquisition, delivery
and £mancmg of the Equipment, if approved by Lessor.
"Equipment" means the personal property described in the Acceptance Certificate executed pursuant to the Lease, together with any and
all modifications, additions and alterations thereto, to be acquired 15om the moneys held in the Equipment Acquisition Fund.
"Equipment Acquisition Fund" means the account by that name established and held by Escrow Agent pursuant to Article II of this
Escrow Agreement.
"Escrow Agent Fee" has the mean/rig set fo~th in Section 6.1 and the amount of such Escrow Agent Fee is shown on Schedule I.
"Escrow Agreement" means this Escrow Agreement and any duly authorized and executed amendment or supplement hereto.
"Initial Deposit Amount'' means the amount shown as the Initial Deposit Amount on Schedule I.
ease means the Master Lease, together vath the Eqmpment Schedule ~denafied on Schedule I, by and between Lessee and Lessor, and
any duly authorized and executed amendment or supplement thereto.
"Master Lease" means the Master Lease Agreement, dated as of the date shown on Schedule I, by and between Lessee and Lessor,
including any Equipment Schedules entered into thereunder and any duly authorized and executed amendment or supplement thereto.
"Payment Request Form" means the document substantially in the form attached hereto as Exh/bit A to be executed by Lessee and
Lessor and submitted to Escrow Agent to authorize payment of Acquisition Costs.
"Qualified Investments" means the STI Classic US Treasury Money Market Fund. By signhig this Escrow Agreement, Lessee
acknowledges that such Qualified Investment is a permitted investment under any state, county or muuicipal law applicable to the
investment of Lessee's funds.
ARTICLE II. APPOINTMENT OF ESCROW AGENT; AUTHORITY
Seetinn 2.1. Appointment of Escrow Agent. Lessor and Lessee hereby appoint and employ Escrow Agent to receive, hold, invest and
disburse the moneys to be paid to Escrow Agent pursuant to this Escrow Agreement and to perform certain other functions, all as
hereinafter provided. By executing and delivering this Escrow Agreement, Escrow Agent accepts the duties end obligations of Escrow
Agent hereunder.
Escrow Agent undertakes to perform only such duties as are expressly set folth herein, and no additional duties or obligations shall be
implied hereunder. In performing its duties under this Escrow Agreement, or upon the claimed failure to perform any of its duties
hereunder, Escrow Agent shall not be liable to enyone for eny damages, losses or expenses which may be incurred as a result of
Escrow Agent so acting or fating to so act; provided, however, Escrow Agent shall not be relieved from liability for damages arising
out of its proven gross negligence or willful misconduct under this Escrow Agreement. Escrow Agent shall in no event incur any
liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to
any party hereto, given with respect to any question relating to the duties and responsibilities of Escrow Agent hereunder or (ii) eny
action taken or omitted to be taken in relience upon any instrument delivered to Escrow Agent and believed by it to be genuine and to
have been signed or presented by the proper party or parties. Escrow Agent shall not be bound in any way by eny agreement or
contract between Lessor end Lessee, including the Master Lease, whether or not Escrow Agent has knowledge of any such agreement
or contract.
Section 2.2. ~,nthority. Each of the parries has authority to enter into this Escrow Agreement, end has taken all actions necessary to
authorize the execution of this Escrow Agreement by the representatives whose signatures are affixed hereto.
ARTICLE HI. EQUIPMENT ACQUISITION FUND
,qeetion 3.1. Ea. nipment Acqninition Fired. Escrow Agent shall establish a special escrow account designated as the "Equipment
Acquisition Fund" (the "Equipment Acquisition Fund"), shall keep such Equipment Acquisition Fund separate end apart from all other
funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement.
Section 3.2. Deposit. Upon execution of the Lease end delivery to Lessor by Lessee of all documents required to be delivered thereunder,
Lessor shall deposit or came to be deposited with Escrow Agent en amount equal to the Initial Deposit Amount. Escrow Agent shah credit
such amount to the Equipment Acquisition Fund. The Initial Deposit Amount is to be sent by Lessor to Escrow Agent by wire trensfer to:
SunTrust Bank, Atlanta, Georgia, ABA# 0610000104, Accountg 9443001321, Account Name: Corporate Trust Division,
Beneficiary as shown on Schedule I, Attention: Escrow Administration (804) 782-5400.
Section 't.'4. Disbursements, Escrow Agent shah me the moneys in the Equipment Acquisition Fund from time to time to pay the
Acquisition Cost of each item of Equipment, within a reasonable time of receipt with respect thereto of a Payment Request Form executed
by Lessor and Lessee. Upon receipt of a Payment Request Form executed by Lessor end Lessee, en amount equal to the Acquisition Cost
as shown therein shall be paid directly by Escrow Agent to thc person or entity entitled to payment as specified thercin. Although the
Payment Request Form may have schedules, invoices end other supporting document attached to it, Lessor will send to Escrow Agent only
the page or pages showing the signatures of Lessor end Lessee, the Acquisition Cost end related payment information, without such
schedules, invoices or other supporting documentation. Escrow Agent may act end rely upon the signed Payment Request Form without
thc need to review or verify any such schedules, invoices or other supporting documentation.
Sectinn 3_4. Tran~for~ Il'pon Cnm?letlon. Unless ali of the funds deposited by Lessor in the Equipment Acquisition Fund have been
previously disbursed pursuant to Section 3.3 or paid to Lessor pursuent to Section 3.5, on the Ending Date shown on Schedule I, Escrow
Agent shall pay upon written direction all remaining moneys in the Equipment Acquisition Fund to Lessor or its assignee for apphcafion as
a prepayment of the unpaid Principal under the related Lease. Any amounts paid pursuant to this Section 3.4 shall be subject to a
prepayment fee equal to two percent (2%) of such amount. Lessor shall apply amounts received under this Section 3.4 first to unpaid fees,
late charges end collection costs, if eny, which have accrued or been incurred under the Master Lease, then to overdue Principal and
Interest on the Lease end then, in the sole discretion of Lessor, either (i) to Principal payments thereatter due under the Lease in the inverse
order of their maturities or (fi) proportionately to each Principal payment thereafter due under the Lease. In the event that Lessor elects to
apply any such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make Rental Payments as
scheduled in the applicable Payment Schedule. In the event that Lessor elects to apply such amounts in accordence with clause (ii) of this
Section 3.4, Lessor shall prov/de Lessee with a revised Payment Schedule which shall reflect the revised Principal balance and reduced
Rental Payments due under the Lease. Capitalized terms used in this Section 3.4, but not defined herein, shall have thc meanings given to
such terms in the Lease. Escrow Agent shall have no responsibility to see to the appropriate applicatiun ofeny moneys returned under this
Section 3.4.
Section ~.5. l,iq datioll. Upon receipt of written notice from Lessor or Lessee that the Lease has been terminated pursuent to Sect/om
3.2 or 12.2 thereof, Escrow Agent shall liquidate all investments held in the Equipment Acquisition Fund and transfer the proceeds thereof
and all other moneys held in the Equipment Acquisition Fund to Lessor.
ARTICLE IV. TRUST; INVESTMENT
~q~etion 4.1. Irrevocable Trnat. The moneys and investments held by Escrow Agent under this Escrow Agreement ase irrevocably held
in trust for the benefit of Lessor and Lessee, and such moneys, together with any income or interest earned, shall be expended only as
provided in this Escrow Agreement, and shall not be subject to levy or attachment or hen by or for the benefit of any creditor of either
Lessor or Lessee (other than Lessor's security interest granted hereunder).
Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Equipment
Acquisition Fund or any part of the Equipment Acquisition Fund or to file any £mancing statement under the Uniform Commercial
Code of any jurisdiction with respect to the Equipment Acquisition Fund or any part thereof.
Section 4.2_ Investment. Moneys held by Escrow Agent hereunder shall be invested and reinvested by Escrow Agent only in Qualified
Investments. Such investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of Lessor and
Lessee. Escrow Agent may purchase or sell to itself or any affiliate, as principal or agent, investments authorized by this Article IV. Such
investments and re-investments shall be made giving full consideration for the time at which funds are requked to be available. Any
income received on such investments shall be credited to the Equipment Acquisition Fund and any loss on such investments shall be
charged to the Equipment Acquisition Fund. Escrow Agant shall not be responsible or liable for any loss suffered in connection with any
investment of moneys made by it in accordance with this Article W.
Section 4.3. Di~posltlon of Inve~trnentq_ Escrow Agent shall, without further direction from Lessor ur Lessee, sell such investments as
and when required to make any payment from the Equipment Acquisition Fund.
Section 4.4. AeemmtinE- Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under tiffs
Escrow Agreement which shall be available for inspection by Lessor or Lessee, or the agent of either of them, at any time during regular
business hours upon prior written request. Escrow Agent shall furnish to Lessor and Lessee no less than quarterly an accounting of all
investments and interest and income therelSom.
Section 4.5. Termination. This Escrow Agreement shall terminate upon disbursement by Escrow Agent of all moneys held by it
hereunder. Notwithstanding the foregoing, this Escrow Agreement shall not be considered to be terminated until all fees, costs and
expenses of Escrow Agent have been paid in full. Upon termination, Escrow Agent shall be discharged from all duties and responsibilities
under this Escrow Agreement.
ARTICLE V. ESCROW AGENT'S AUTHORITY; INDEMNII~ICATION
Seeti~m 5.1. Validity. Escrow Agent may act upon any writing or instrument or signature which it believes to be genuine, may assume the
v~l/dity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to
g~ve any writing, notice, advice or ins~'uctions in connection with the provisions hereof has been duly authorized to do so, and Escrow
Agent shall be under no duty to make any investigation or inquixy as to any of the foregoing. Escrow Agent shall not be liable in any
manner for the sufficiency or correctness as to form, manner and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or fight of any person executing the same.
Escrow Agent shall be entitled to rely upon any statement, certificate, document or instrument presented to it by or on behalf of Lessee
by any of the Lessee's Authorized Representatives shown on Schedule I and shall be entitled to rely upon any such statement,
certificate, document or instrument presented to it by any other person who identifies himself or herself as an authorized representative
of Lessee.
Section -~_2. Use of Connnel and AEentn. Escrow Agent may execute any of the trusts or powers hereof and perform the duties required
of it hereunder by or through attorneys, agents, or receivers. Escrow Agent shall be entilled to advice of counsel concermng all matters of
trust and its duties hereunder and shall be paid or re/mbursed the reasonable fees and expenses of such counsel, as provided in Section 6.1.
Escrow Agent shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable
~qeetion _~.3. Interprt~tafion. As an additional consideration for and as an inducement for Escrow Agent to act hereunder, it is
understood and agreed that, in the event of any disagreement between the parties to this Escrow Agreement or among them or any
other persons resulting in adverse claims and demands being made in connection with or for any money or other property involved in
or affected by this Escrow Agreement, Escrow Agent shall be entitled, at the option of Escrow Agent, to refuse to comply with the
demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, Escrow Agent shall make
no delivery or other disposition of the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund. Anything herein to
the cuntrary notwithstanding, Escrow Agent shall not be or become liable to such parties or any of them for the failure of Escrow
Agent to comply with the conflicting or adverse demands of such parties or any of such parties.
Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the Equipment Acquisition Fund or
any part thereof or to otherwise act hereunder, as stated above, unless and until:
1. the fights of such parties have been £mally settled by binding arbitration or duly adjudicated in a court having
jurisdiction of the parties and the Equipment Acquisition Fund; or
2. the parties have reached an agreement resolving their differences and have notified Escrow Agent in writing of such
agreement and have provided Escrow Agent with indemnity satisfactory to Escrow Agent against any liability, claims or damages
resulting from compliance by Escrow Agent with such agreement.
In the event of a disagreement between such parties as described above, Escrow Agent shall have the right, in addition to the rights
described above and at the option of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money
and property comprising the Equipment Acquisition Fund and may take such other legal action as may be appropriate or necessary, in
the opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties
and responsibilities under this Escrow Agreement; provided, however, that the filing of any such legal proceedings shall not deprive
Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties and
respunsibihties hereunder.
The parties hereto jointly and severally agree that, whether under this Section 5.3 or any other provisions of this Escrow Agreement, in
the event any controversy arises under or in counection with this Escrow Agreement or the Equipment Acquisition Fund or in the event
that Escrow Agent is made a party to or intervenes in any litigation pertaining to this Escrow Agreement or the Equipment Acquisition
Fund, to pay to Escrow Agent reasonable additional compensation for its extraordinary services and to reimburse Escrow Agent for all
costs and expenses associated with such controversy or litigation, including reasonable attorney's fees.
~qeetinn -~.4. l.imlt~l l,iahility of E~eeow Agent. Escrow Agent shall not be table in connection with the performance or observation of
its duties or obligations hereunder except for in the case of its proven gross negligence or willful misconduct. Escrow Agent shall have no
obhgatiun or liability to any of the other parties under this Escrow Agreement for the failure or refusal of any other party to perform any
covenant or agreement made by such party hereunder or under the Master Lease, but shall be responsible solely for the performance of the
duties and obligations expressly imposed upon it as Escrow Agent hereunder.
Seetifln ~71_ Indemnification. Escrow Agent shall have no obligation to take any legal action in connection with this Escrow
Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding which would or might
involve it in any cost, expense, loss or liability unless security and indenmity, as provided in this Section 5.5, shall be furnished.
To the extent permitted by apphcable law, Lessee agrees to indemnify Escrow Agent and it officers, directors, employees and agents and
save Escrow Agent and its officers, directors, employees and agents harmless from and against any and all Claims (as hereinafrer
defined) and Losses (as hereinafter defined) which may be incurred by Escrow Agent or any of such officers, directors, employees or
agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents as a result of or in
connection with Escrow Agent's capacity as such under this Escrow Agreement by any person or entity. For the purposes hereof, the
term "Claims" shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought
against (whether by way of direct action, counterclaim, cross action or impleader) Escrow Agent or any such officer, director,
employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or
proceeding is alleged or determLned, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(a) the acts or omissions of Lessor or Lessee, (b) the appointment of Escrow Agent as escrow agent under this Escrow Agreement, or
(c) the performance by Escrow Agent of its powers and duties under this Escrow Agreement; and the term "Losses" shall mean losses,
costs, damages, expenses, judgments and liabilities of whatever nature (including but not limited to attorneys', accountants' and other
professionals' fees, litigation and court costs and expenses and amounts paid in settlement), directly or indirectly resulting from,
arising out of or relating to one or more Claims. Upon the written request of Escrow Agent or any such officer, director, employee or
agent (each referred to hereinafter as an "Indemnified Party"), and to the extent permitted by law, Lessee agrees to assume the
investigation and defense of any Claim, including the employment of counsel acceptable to the applicable Indemnified Party and the
payment of all expenses related thereto and, notwithstanding any such assumption, the Indemnified Party shall have the right, and
Lessee agrees to pay the cost and expense thereof, to employ separate counsel with respect to any such Claim and participate in the
investigation and defense thereof in the event that such Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnified Party which are different from or additional to those available to either Lessor or
Lessee. Lessee hereby agrees that the indemnifications and protections afforded Escrow Agent in this Section 5.5 shall survive the
termination of this Escrow Agreement.
ARTICLE VI. COMPENSATION
Section 6.1. Escrow Agent Fee. Escrow Agent shall be paid by Lessee the Escrow Agent Fee shown on Schedule I for thc ordinary
services to be rendered hereunder (thc "Escrow Agent Fee"), and will be paid and/or reimbursed by Lessee upon request for all costs,
expenses, disbursements and advances, such as reasonable attorney's fees and court costs, incurred or made by Escrow Agent in
connection with carrying out its duties hereunder, including the costs, expenses, disbursements and advances described in Sections 5.2, 5.3
and 6.2. The Escrow Agent Fee and such other costs, expenses, disbursements and advances shall be payable from the interest earnings
from the Equipment Acquisition Fund. In the event a shoxtfall occurs, said shortfall shall be the responsibility of Lessee and not the
responsibility of Escrow Agent, Lessor, or their agents or assigns. Such shortfall shall be paid by Lessee to Escrow Agent within 30 days
following receipt by Lessee oft written statement setting forth such shortfall.
Section 6_2. Inveqtment l*ee~. Escrow Agent shah be entitled to charge reasonable fees and commissions in connection with the
investment by it of amounts held in the Equipment Acquisition Fund (the "Investment Fees"). Lessor and Lessee hereby authorize Escrow
Agent to periodically deduct the Investment Fees from investment earnings on the Equipment Acquisition Fund.
Section 6.3. Security for Fees and F,x_nenses_ As security for all fees and expenses of Escrow Agent hereunder and any and all losses,
claims, damages, liabihties and expenses incurred by Escrow Agent in connection with its acceptance of appointment hereunder or
with the performance of its obligations under this Escrow Agreement and to secure the obligation of Lessee to indemnify Escrow
Agent as set forth in Section 5.5, Escrow Agent is hereby granted a security interest in and a hen upon the Equipment Acquisition
Fund, which security interest and lien shall be prior to ail other security interests, liens or claims against the Equipment Acquisition
Fund or any part thereof.
ARTICLE VII. CHANGE OF ESCROW AGENT
Section 7.1. Removal of Escrow AEent. Lessor and Lessee, by written agreement, may by written request, at any time and for any
reason, remove Escrow Agent and any successor thereto, and shall thereupon appoint a successor or successors thereto, but any such
successor shall have capital (exclusive of borrowed capital) and surplus of at least Fifty Milhun Dollars ($50,000,000), and be subject to
supervision or examination by federal or state authority. If such bank or trust company pubhshes a report of condition at least annually,
pursuant to statute or the requirements of any federal or state supervising or examining authority, then for the purposes of this Section 7.1,
the combined capital and surplus of such bank or trust company may be conclusively established in its most recent report of condition so
published.
Section 7.2. Re~ignatian of E~crnw Agent, Escrow Agent may resign at any time from it obligations under this Escrow Agreement by
providing written notice to the parties hereto. Such resignation shall be effective on the date set forth in such written notice which shall
be no earlier than 30 days after such written notice has been given, unless an earlier resignation date and the appointment oft successor
Escrow Agent shall have been approved by Lessor and Lessee. In the event no successor escrow agent has been appointed on or prior to
the date such resignation is to become effective, Escrow Agent shall be entitled to tender into the custody of a court of competent
jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Escrow
Agreement. Escrow Agent shall have no responsibility for the appointment of a successor escrow agent hereunder.
Section 7.3. Merger or Con~olidatinn. Any entity into which Escrow Agent may be merged or converted, or with which it may be
consolidated, or any entity resulting from any merger, conversion or consolidation to which it shall be a party, or any company to which
Escrow Agent may sell or ~-ansfer all or substantially all of its corporate trust business (provided that such company shah be ehgible under
Section 7.1) shall be the successor to Escrow Agent without any execution or filing or further act.
ARTICLE VIII. ADMINISTRATIVE PROVISIONS.
Section 8.1. Notice. All written notices to be given under this Escrow Agreement shall be given by mail, by facsimile or by overnight
courier to the party entitled thereto at its contact information specified on Schedule I, or at such contact information as the party may
provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours afrer
deposit in the United States mail in registered or certified form, with postage fully prepaid, or if given by other means, when delivered at
the address or facsirrdle number specified in Schedule I. Any notice given by any party shall be given to both other parties.
Sectinn 8.2. A~ignmml~', Except as expressly herein provided to the contrary, the rights and duties of each of the parties under this
Escrow Agreement shall not be assignable to any person or entity without the written cousent of all of the other parties. Notwithstanding
the above, Lessor may freely assign all or any part of its interest in this Escrow Agreement and the Equipment Acquisition Fund in
connection with an assignment by Lessor of its rights under the Lease.
Section 8.3. RindlnE Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 8.4. Severah|li~y. In the event any provision of this Escrow Agreement 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 8.g_ Entire Ao_reem~n*; ~,m~ndrn~nt~. This Escrow Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, understandhigs, agreements, sol/citatiun documents and
representations, express or implied. By execution of this Escrow Agreement, Escrow Agent shall not be deemed or considered to be a
party to any other document, including the Master Lease.
This Escrow Agreement may be amended, supplemented or modified only by written documents duly authorized, executed and delivered
by each of the part/es hereto.
Section 8.6. C:aptlon~. The captions or headings in ~ Escrow Agreement are for convenience only and in no way defme, limit or
describe the scope or intent of any provisions, Articles, Sections or clauses hereof.
Section 8.7. Further An~nraneen and Corrective Tnnfrurn~nt.~. 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 be necessary er proper to can3, out the intention or to facilitate the performance of the parties under ~his Escrow Agreement, and for
better assuring and confuming the rights and benefits provided herein.
Section 8.8. Governing Law. This Escrow Agreement shall be coustmed and governed in accordance with the laws of the
Commonwealth of Virginia.
Section 8.9. EYecntion in Count~,rpart~. This Escrow Agreement may be simultaneously executed in several countesparts, each of
which shall be an original and all of which shall constitute but one and the same Escrow Agreement.
Section 8.10. Waiver of Jury Trial. Lessor, Lessee and Escrow Agent hereby waive any right to trial byjmy in any action or proceeding
with respect to, in connection with or arising out of this Escrow Agreement.
Seetlon 8.t 1. No Tax Ra_norfing, Escrow Agent will not be responsible for tax reporting of any income on the Equipment Acquisition
Fund.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed tiffs Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK
Escrow Agent
SUNTRUST LEASING CORPORATION,
L~ssor
By BZ
Name: Emily J. Hare
Title: Trust Officer
Name: Michael J. Powers
Title: Secretary
(~IT3f OF PORT ARTHI~R
Lessee
[SEA~]
By
Name: Stex, e FitzEiF, hnnn
Title: City. Managgr
Schedule I
Exlxibit A
Information to Complete Escrow Agreement
Payment Request Form
1054496v2
215474.005
Lease Number:
Equipment Schedule:
Date of Escrow Agreement:
Name of Lessee:
Lessee's State / Commonwealth:
Escrow Agent Fee:
Initial Deposit Amount:
Date of Master Lease Agreement:
Beneficiary Name for Fund:
Ending Date:
Lessee's Address:
SCHEDULE I
INFORMATION TO COMPLETE ESCROW AGREEMENT
1838
February 21. 200g
CITY OF PORT ARTI-IIrR
$500.00
$867:000.00
Fehmary 21:
CITY OF PORT ARTHUR
P (~ ~IOX log0
Attention:
Lessee's Telephonez
Lessee's Facsimile:
Lessee's Taxpayer Identification Number:
Lessee's Authorized Representatives
Escrow Agent's Address:
Escrow Agent's Telephone:
Escrow Agent's Facsimile:
Lessor'sAddress:
Lessor'sTelephone:
Lessor's Facs/mile:
Lessor's Taxpayer IdenfificationNumber:
1054496v2
215474.005
Steve Fit~gihhon~
409/9Rg~8150
Steve Fitzg/hhone/C ty Manager [name/title]
Evangeline Green/City. Seert~t~ry [name/ritle]
SunTrust Bank, Corporate Trust Division
FIDQ 53 lO
919 East Main Street, 10t~ Floor
Richmond, Virginia 23219
Attenrion: Emily J. Hare
(804) 782-5400
(804) 782-7855
SunTrust Leasing Corporation
29 W. Susquehanna Avenue, Suite 400
Towson, Maryland 21204
Attention: Michael J. Powers
(410) 307-6644
(410) 307-6702
[signature]
[signature]
SUNTRUST LEASING CORPORATION
ESCROW AGREEMENT
EXHIBIT F
Lease No.: Shown on Schedule I
Equipment Schedule: Shown on Schedule I
This ESCROW AGREEMENT, made and entered into as of the Date shown on Schedule I, by and among SUNTRUST LEASING
CORPORATION, a Virgin/a corporation ("Lessor"), the Lessee named on Schedule I, wh/ch is a political subdiv/sion or public body
politic and corporate of the State or Commonwealth shown on Schedule I ("Lessee"), and SUNTRUST BANK, a Georgia banking
corporation, as Escrow Agent ("Escrow Agent").
In consideration of the mutual covenants herein contained, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS AND RECITALS
Section 1.1. Definitions. The terms defined in this Section 1.1 shall, for all purposes of this Escrow Agreement, have the meanings
specified below or on Schedule I.
"Acquisition Costs" means, w/th respect to the Equipment, the contract price paid or to be paid to the person entitled to such payment
upon acquisition or delivery of any portion of the Equipment in accordance with the purchase order or contract therefor. Acquisition Costs
may include the adminis~ative, engineering, legal, £mancial and other costs incurred by Lessee in connection with the acquisition, delivery
and financing of the Equipment, if approved by Lessor.
Equipment" means the personal property described m the Acceptance Certificate executed pursuant to the Lease, together with any and
all modifications, additions and alterations thereto, to be acquired fi.om the moneys held in the Equipment Acquisition Fund.
"Equipment Acquisition Fund'* means the account by that name established and held by Escrow Agent pursuant to Article II of th/s
Escrow Agreement.
"Escrow Agent Fee" has the meaning set foxth th Section 6.1 and the amount of such Escrow Agent Fee is shown on Schedule I.
"Escrow Agreement" means this Escrow Agreement and any duly authorized end executed amendment or supplement hereto.
"Imtial Deposit Amount" means the amount shown as the Imtaal Depos:t Amount on Schedule I.
"Lease" means the Master Lease, together with the Equipment Schedule identified on Schedule I, by and between Lessee and Lessor, and
any duly authorized and executed amendment or supplement thereto.
"Master Lease" means the Master Lease Agreement, dated as of the date shown on Schedule I, by and between Lessee and Lessor,
including any Equipment Schedules entered into thereunder and any duly authorized and executed amendment or supplement thereto.
"Payment Request Form" means the document substantially in the form attached hereto as Exl~bit A to be executed by Lessee and
Lessor and submitted to Escrow Agent to authorize payment of Acquisitiun Costs.
"Qualified Investments" means the STI Classic US Treasury Money Market Fund. By signing th/s Escrow Agreement, Lessee
acknowledges that such Qualified Investment is a permitted inves~aaent under any state, county or rnUmcipal law applicable to the
investment of Lessee's funds.
ARTICLE II. APPOINTMENT OF ESCROW AGENT; AUTHORITY
Section 2.1. Appointment of E~crow Ago'ut. Lessor and Lessee hereby appoint and employ Escrow Agent to receive, hold, invest and
disburse the moneys to be paid to Escrow Agent pursuant to this Escrow Agreement and to perform certath other functions, all as
hereinafter provided. By executing and delivering this Escrow Agreement, Escrow Agent accepts the duties and obligations of Escrow
Agent hereunder.
Escrow Agent undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be
implied hereunder, ha performing its duties under this Escrow Agreement, or upon the claimed failure to perform any of its duties
hereunder, Escrow Agent shall not be liable to anyone for any damages, losses or expenses which may be incurred as a result of
Escrow Agent so acting or failing to so act; provided, however, Escrow Agent shall not be relieved fi.om liability for damages arising
out of its proven gross negligence or willful misconduct under this Escrow Agreement. Escrow Agent shall in no event incur any
liability with respect to (i) any action taken or omitted to be taken in good faith upon advice of legal counsel, which may be counsel to
any party hereto, given with respect to any question relating to the duties and responsibilities of Escrow Agent hereunder or (ii) any
action taken or on'fitted to be taken in reliance upon any inslaxtraent delivered to Escrow Agent and believed by it to be genuine and to
have been signed or presented by the proper party or parties. Escrow Agent shah not be bound in any way by any agreement or
contract between Lessor and Lessee, including the Master Lease, whether or not Escrow Agent has knowledge of any such agreement
or contract.
Section 2.2_ Authority. Each of the parties has authority to enter into this Escrow Agreement, and has taken all actions necessary to
authorize the execution of this Escrow Agreement by the representatives whose signatures are affixed hereto.
ARTICLE Ili. EQUIPMENT ACQUISITION FUND
Section 3.~_ E~?ipm~nt ~,ca_ni~i~ion Fund. Escrow Agent shall establish a special escrow account designated as the "Equipment
Acquisition Fund" (the "Equipment Acquisition Fund"), shah keep such Equipment Acquisition Fund separate and apart from all other
funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement.
Sec~on 3.2. Deposit. Upon execution of the Lease and delivery to Lessor by Lessee of all documents required to be delivered thereunder,
Lessor shall deposit or cause to be deposited with Escrow Agent an amount equal to the Initial Deposit Amount. Escrow Agent shall credit
such amount to the Equipment Acquisition Fund. The In/tial Deposit Amount is to be sent by Lessor to Escrow Agent by wire transfer to:
SunTrust Bank, Atlanta, Georgia, ABAft 0610000104, Accountg 9443001321, Account Name: Corporate Trust Division,
Beneficiary as shown on Schedule I, Attention: Escrow Administration {804) 782-5400.
Section 3.3. I}inhur~ena~.nte Escrow Agent shall use the moneys in the Equipment Acquisition Fund fi:om time to time to pay the
Acquisition Cost of each item of Equipment, within a reasonable time of receipt with respect thereto of a Payment Request Form executed
by Lessor and Lessee. Upon receipt nfo Payment Request Form executed by Lessor and Lessee, an amount equal to the Acquisition Cost
as shown therein shall be paid directly by Escrow Agent to the person or entity entitled to payment as specified therein. Although the
Payment Request Form may have schedules, invoices and other supporting document attached to it, Lessor will send to Escrow Agent only
the page or pages showing the signatures of Lessor and Lessee, the Acquisition Cost and related payment information, without such
schedules, invoices or other supporting documentation. Escrow Agent may act and rely upon the signed Payment Request Form without
the need to review or verify any such schedules, invoices or other supporting documentation.
Section 3.& Tran~fern Il.non Comnletlo,,. Unless all of the funds deposited by Lessor in the Equipment Acquisition Fund have been
previously disbursed pursuant to Sec~un 3.3 or paid to Lessor pursuant to Section 3.5, on the Ending Date shown on Schedule I, Escrow
Agent shall pay upon written direction all remainthg motleys in the Equipment Acquisition Fund to Lessor or its assignee for application as
a prepayment of the unpaid Principal under the related Lease. Any amounts paid pursuant to this Section 3.4 shall be subject to a
prepayment fee equal to two percent (2%) of such amount. Lessor shall apply amounts received under this Section 3.4 first to unpaid fees,
late charges and collection costs, if any, which have accrued or been incurred under the Master Lease, then to overdue Principal and
Interest on the Lease and then, in the sole discretion of Lessor, either (i) to Principal payments thereafter due under the Lease in the inverse
order of their maturities or (ii) proportionately to each Principal payment thereal~er due under the Lease. In the event that Lessor elects to
apply any such amounts in accordance with clause (i) of the preceding sentence, Lessee shall continue to make Rental Payments as
scheduled in the applicable Payment Schedule. In the event that Lessor elects to apply such amounts in accordance with clause (ii) of this
Section 3.4, Lessor shall provide Lessee with a revised Payment Schedule which shall reflect the revised Principal balance and reduced
Rental Payments due under the Lease. Capitalized terms used in this Section 3.4, but not defined herein, shall have the meanings given to
such terms in the Lease. Escrow Agent shall have no responsibility to see to the appropriate application of any moneys returned under this
Section 3.4.
Section 3.~;. I,to_~idation_ Upon receipt of written notice fi:om Lessor or Lessee that the Lease has been terminated pursuant to Sections
3.2 or 12.2 thereof, Escrow Agent shall liquidate all thvestments held in the Equipment Acquisition Fund and transfer the proceeds thereof
and all other moneys held in the Equipment Acquisition Fund to Lessor.
ARTICLE IV. TRUST; INVESTMENT
Section 4.1. Irrevneahl~ Trust. The moneys and investments held by Escrow Agent under this Escrow Agreement are irrevocably held
in trust for the benefit of Lessor and Lessee, and such moneys, together with any income or interest earned, shall be expended only as
provided in this Escrow Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of either
Lessor or Lessee (other than Lessor's security interest granted hereunder).
Escrow Agent shall have no responsibility at any time to ascertain whether or not any security interest exists in the Equipment
Acquisition Fund or any part of the Equipment Acquisition Fund or to file any financing statement under the Uniform Commercial
Code of any jurisdiction with respect to the Equipment Acquisition Fund or any part thereof.
Section 4.2. Inwn~nent. Moneys held by Escrow Agent hereunder shall be invested and reinvested by Escrow Agent only in Qualified
Investments. Such investments shall be registered in the name of Escrow Agent and held by Escrow Agent for the benefit of Lessor and
Lessee. Escrow Agent may pmchase or sell to itself or any affiliate, as principal or agent, investments authorized by this A.rlicle IV. Such
investments and re-investments shall be made giving full consideration for the time at which funds are required to be available. Any
income received on such investments shall be credited to the Equipment Acquisition Fund and any loss on such investments shall be
charged to the Equipment Acquisition Fund. Escrow Agent shall not be responsible or liable for any loss suffered in connection with any
investment of moneys made by it in accordance with this Article IV.
Sectinn 4.'~_ rllapo~itinn of Inventmvnt~ Escrow Agent shall, without further direction from Lessor or Lessee, sell such investments as
and when required to make any payment from the Equipment Acquisition Fund.
Section 4.4. Accounting_ Escrow Agent shall keep complete and accurate records of all moneys received and disbursed under this
Escrow Agreement which shall be available for inspection by Lessor or Lessee, or the agent of either of them, at any time during regular
business hours upon prior written request. Escrow Agent shall furnish to Lessor and Lessee no Iess than quarterly an accounting of all
investments and interest and income therefrom.
Section 4._q. T~rminatinn, This Escrow Agreement shall terminate upon disbursement by Escrow Agent of all moneys held by it
hereunder. Notwithstanding the foregoing, this Escrow Agreement shall not be considered to be terminated until all fees, costs and
expenses of Escrow Agent have been paid in full. Upon termination, Escrow Agent shall be discharged from all duties and responsibilities
under this Escrow Agreement.
ARTICLE V. ESCROW AGENT'S AUTHORITY; INDEMNIFICATION
Secfinn $.l_ Validity. · · · ·
Escrow Agent may act upon any writing or instrument or s~gnature which it believes to be genuine, may assume the
v~hdity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to
g~ve any writing, notice, advice or instructions in connection with the provisions hereof has been duly authorized to do so, and Escrow
Agent shall be under no duty to make any investigation or inquiry as to any of the foregoing. Escrow Agent shall not be liable in any
manner for the sufficiency or correc~tess as to form, manner and execution, or validity of any instrument deposited with it, nor as to the
identity, authority or right of any person executing the same.
Escrow Agent shall be entitled to rely upon any statement, certificate, document or inslxument presented to it by or on behalf of Lessee
by any of the Lessee's Authorized Representatives shown on Schedule I and shall be entitled to rely upon any such statement,
certificate, document or instrument presented to it by any other person who identifies himself or herself as an authorized representative
of Lessee.
Section 5.2. line of (?onnsel and Agente. Escrow Agent may execute any of the t~rusts or powers hereof and perform the duties required
of it hereunder by or through attorneys, agents, or receivers. Escrow Agent shall be entitled to adv/ce of counsel concerning all matters of
trust and its duties hereunder and shall be paid or reimbursed the reasonable fees and expenses of such counsel, as provided in Section 6.1.
Escrow Agent shall not be answerable for the default or misconduct of any such attorney, agent, or receiver selected by it with reasonable
Section ~.3. lnforpr~tation_ As an additional consideration for and as an inducement for Escrow Agent to act hereunder, it is
understood and agreed that, in the event of any disagreement between the parties to this Escrow Agreement or among them or any
other persons resulting in adverse claims and demands being mede in connection with or for any money or other property involved in
or affected by this Escrow Agreement, Escrow Agent shall be entitled, at the option of Escrow Agent, to refuse to comply with the
demands of such parties, or any of such parties, so long as such disagreement shall continue. In such event, Escrow Agent shall make
no delivery or other disposition of the Equipment Acquisition Fund or any part of the Equipment Acquisition Fund. Anything herein to
the contrary notwithstanding, Escrow Agent shall not be or become liable to such parties or any of them for the fa/hire of Escrow
Agent to comply with the conflicting or adverse demands of such parties or any of such parties.
Escrow Agent shall be entitled to continue to refrain and refuse to deliver or otherwise dispose of the Equipment Acquisition Fund or
any part thereof or to otherwise act hereunder, as stated above, tm/ess and until:
1. the rights of such parties have been finally settled by binding arbitration or duly adjudicated in a court having
juristhction of the parties and the Equipment Acquisition Fund; or
2. the parties have reached an agreement resolving their differences and have notified Escrow Agent in writing of such
agreement and have provided Escrow Agent with indemnity satisfactory to Escrow Agent against any liability, claims or dameges
resulting from compliance by Escrow Agent with such agreement.
In the event of a disagreement between such parties as described above, Escrow Agent shall have the right, in addition to the rights
described above and at the option of Escrow Agent, to tender into the registry or custody of any court having jurisdiction, all money
and property comprising the Equipment Acquisition Fund and may take such other legal action as may be appropriate or necessary, in
the opinion of Escrow Agent. Upon such tender, the parties hereto agree that Escrow Agent shall be discharged from all further duties
and responsibilities under this Escrow Agreement; provided, however, that the filing of any such legal proceedings shall not deprive
Escrow Agent of its compensation hereunder earned prior to such filing and discharge of Escrow Agent of its duties and
responsibilities hereunder.
The parties hereto jointly and severally agree that, whether under this Section 5.3 or any other provisions of this Escrow Agreement, in
the event any conlxoversy arises under or in connection with this Escrow Agreement or the Equipment Acquisition Fund or in the event
that Escrow Agent is made a party to or intervenes in any litigation pertaining to this Escrow Agreement or the Equipment Acquisition
Fund, to pay to Escrow Agent reasonable additional compensation for its extraordinary services and to reimburse Escrow Agent for all
costs and expenses associated with such controversy or litigation, including reasonable attorney's fees.
Seetlnn ~.4. Limited l.iahilitv nfE~ernw A~ent.
- _ Escrow Agent shall not be liable in connection with the performance or observation of
its duties or obligations hereunder except for in the case of its proven gross negligence or willful misconduct. Escrow Agent shall have no
obligation or liability to any of the other parties under this Escrow Agreement for the failure or refusal of any other party to perform any
covenant or agreement made by such party hereunder or under the Master Lease, but shall be responsible solely for the performance of the
duties and obligations expressly imposed upon it as Escrow Agent hereunder.
Section 5.~. lnd~mnffieat/on. Escrow Agent shall have no obligation to take any legal action in connection with this Escrow
Agreement or towards its enforcement, or to appear in, prosecute or defend any action or legal proceeding wh/ch would or might
involve it in any cost, expense, ' ' ·
loss or liability unless security and indemnity, as provided in this Section 5.5, shall be furnished.
To the extent permitted by apphcable law, Lessee agrees to indenmify Escrow Agent and it officers, directors, employees and agents and
save Escrow Agent and its officers, directors, employees and agents harmless from and against any and all Claims (as hereinafter
defined) and Losses (as hereinafter defined) which may be incurred by Escrow Agent or any of such officers, directors, employees or
agents as a result of Claims asserted against Escrow Agent or any of such officers, directors, employees or agents as a result of or in
connection with Escrow Agent's capacity as such under this Escrow Agreement by any person or entity. For the purposes hereof, the
term "Claims" shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought
against (whether by way of direct action, counterclaim, cross action or impleader) Escrow Agent or any such officer, director,
employee or agent, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other Iegal action or
proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part:
(a) the acts or omissions of Lessor or Lessee, (b) the appointment of Escrow Agent as escrow agent under this Escrow Agreement, or
(c) the performance by Escrow Agent of its powers and duties under this Escrow Agreement; and the term "Losses" ~,n~ --
costs, damages, expenses, judgments and liabil/ties of whatever nature incl ' ' ' ,
professionals' fees litigation and conrt er, e~- J , ( ud~ng, but not lnmted to attorneys , accountants' and other
......... ~ anu expenses ann amounts paid m settlement), directly or indirectly resulting from,
arising out of or relating to one or more Claims. Upon the written request of Escrow Agent or any such officer, director, employee or
agent (each referred to hereinafter as an "Indenmified Party"), and to the extent permitted by law, Lessee agrees to assume the
investigation and defense of any Claim, including the employment of counsel acceptable to the apphcable Indemnified Party and the
payment of all expenses related thereto and, notwithstanding any such assumption, the Indemnified Party shall have the right, and
Lessee agrees to pay the cost and expense thereof, to employ separate counsel with respect to any such Claim and participate in the
investigation and defense thereof in the event that such Indemnified Party shall have been advised by counsel that there may be one or
more legal defenses available to such Indemnified Party winch are different from or additional to those available to either Lessor or
Lessee. Lessee hereby agrees that the indemnifications and protections afforded Escrow Agent in this Section 5.5 shall survive the
termination of this Escrow Agreement.
ARTICLE VI. COMPENSATION
Section 6.1. Escrow Agent F.".". Escrow Agent shall be paid by Lessee the Escrow Agent Fee shown on Schedule I for the ordinary
services to be rendered hereunder (the "Escrow Agent Fee"), and will be paid and/or reimbursed by Lessee upon request for all costs,
expenses, disbursements and advances, such as reasonable attorney's fees and court costs, incurred or made by Escrow Agent in
connection with canying out its duties hereunder, including the costs, expenses, disbursements and advances described in Sections 5.2, 5.3
and 6.2. The Escrow Agent Fee and such other costs, expenses, disbursements and advances shall be payable from the interest earnings
from the Equipment Acquisition Fund. In the event a shortfall occttrs, said shortfall shall be the responsibility of Lessee and not the
responsibility of Escrow Agent, Lessor, or their agents or assigns. Such shortfall shall be paid by Lessee to Escrow Agent within 30 days
following receipt by Lessee of a written statement setting forth such shortfall.
Section 6.2_ lnva~tmant F.--.~:. Escrow Agent shall be entitled to charge reasonable fees and commissions in connection with the
investment by it of mounts held in the Equipment Acquisition Fund (the "Investment Fees"). Lessor and Lessee hereby authorize Escrow
Agent to periodically deduct the Investment Fees from investment earnings on the Equipment Acquisition Fund.
Section 6.3. Sacnri~ for Faa~ and Expen~t _ As security for all fees and expenses of Escrow Agent hereunder and any and all losses,
claims, damages, liabilities and expenses incurred by Escrow Agent in connection with its acceptance of appointment hereunder or
with the performance of its obligations under this Escrow Agreement and to secure the obligation of Lessee to indemnify Escrow
Agent as set forth in Section 5.5, Escrow Agent is hereby granted a security interest in and a lien upon the Equipment Acquisition
Fund, which secmity interest and lien shall be prior to all other security interests, liens or claims against the Equipment Acquisition
Fund or any part thereo£
ARTICLE VII. CHANGE OF ESCROW AGENT
Section 7.1_ Ramoval of E~crnw Agan~', Lessor and Lessee, by written agreement, may by written request, at any time and for any
reason, remove Escrow Agent and any successor thereto, and shall thereupon appoint a successor or successors thereto, but any such
successor shall have capital (exclusive &borrowed capital) and surplus of at least Fifty Million Dollars ($50,000,000), and be subject to
supervision or exammatiun by federal or state authority. If such bank or trust company pubhshes a report of condition at least annually,
pursuant to statute or the requirements of any federal or state superosmg or examining authority, then for the purposes oft_his Section 7.1,
the combined capital and surplus of such bank or trust company may be conclusively established in its most recent report of condition so
pubhshed.
Section 7.2. Re~ignatlon nf ~crow Age,,I. Escrow Agent may resign at any time fi.om it obligations under this Escrow Agreement by
providing written notice to the parties hereto. Such resignation shall be effective on the date set forth in such written notice which shall
be no earlier than 30 days after such written notice has been given, unless an carter resignation date and the appointment of a successor
Escrow Agent shall have been approved by Lessor and Lessee. In the event no successor escrow agent has been appointed on or prior to
the date such resignation is to become effective, Escrow Agent shall be entitled to tender into the custody of a court of competent
jurisdiction all assets then held by it hereunder and shall thereupon be relieved of all further duties and obligations under this Escrow
Agreement. Escrow Agent shall have no responsibility for the appointment ora successor escrow agent hereunder.
Sec/inn 7_'t. Merger nr t'qon~lirlatio,,. Any entity into which Escrow Agent may be merged or converted, or with which it may be
consohdated, or any entity resulting from any merger, conversion or consolidation to which it shall be a patty, or any company to which
Escrow Agent may sell or transfer all or substantially all of its corporate lrust business (provided that such company shall be ehgible under
Section 7.1) shall be the successor to Escrow Agent without any execution or filing or further act.
ARTICLE VIII. ADMINISTRATIVE PROVISIONS.
Section 8.1. Notice. All written notices to be given under tiffs Escrow Agreement shall be given by mail, by facsimile or by ovenfight
courier to the party entitled thereto at its contact information specified on Schedule I, or at such contact information as the party may
provide to the other parties hereto in writing from time to time. Any such notice shall be deemed to have been received 72 hours after
deposit in the United States marl in registered or certified form, with postage fully prepaid, or if given by other means, when delivered at
the address or facsimile number specified in Schedule I. Any notice given by any party shall be given to both other parties.
Section 8_2. A~ignment. Except as expressly herein provided to the cunlxary, the rights and duties of each of the parties under this
Escrow Agreement shall not be assignable to any person or entity without the written consent of all of the other parties. Notw/thstanding
the above, Lessor may freely assign all or any part of its interest in this Escrow Agreement and the Equipment Acquisition Fund in
connection with an assignment by Lessor of its rights nnder the Lease.
Section R.~l. lrlinding Effect. This Escrow Agreement shall be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
Section 8.4. ~q~verabiliW. In the event any provision of this Escrow Agreement 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 8.~. Entire .&_~ream~nt: Amendment This Escrow Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and supersedes all prior and contemporaneous writings, understandings, agreements, solicitation documents and
representations, express or implied. By execution of this Escrow Agreement, Escrow Agent shall not be deemed or considered to be a
party to any other document, including the Master Lease.
This Escrow Agreement may be amended, supplemented or modified only by written documents duly authorized, executed and delivered
by each of the parties hereto.
~~,~ll[fl~. The captions or headings in this Escrow Agreement are for convenience only and in no way define, lirdt or
describe the scope or intent of any provisions, Articles, Sections or clauses hereof.
Section 8.7. Further A~nrances and Corrective In~tr re,hill. 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 be necessary or proper to carry out the intention or to facilitate the performance of the parties under this Escrow Agreement, and for
better assuring and confmnmg the fights and benefits provided herein.
Section 8.8, Governing l.ay,,. This Escrow Agreement shall be construed and govemed in accordance with the laws of the
Commonwealth of Virginia.
Section 8_0. E~oen*ion in Cnnnt~r.na,l~' This Escrow Agreement 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 Escrow Agreement.
Section 8_10. Waiver of Jury TOol. Lessor, Lessee and Escrow Agent hereby waive any right to trial by jury in any action or proceeding
with respect to, in connection with or arising out of this Escrow Agreement.
Section 8_11. No ToY R~nortino Escrow Agent will not be responsible for tax reporting of any income
Fnnd. ' ~' on the Equipment Acquisition
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed th/s Escrow A~eement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK
Escrow Agent
SUNTRUST LEASING CORPORATION,
Lessor
By
Name: Emily I. Hare By.
Title: Trust Officer Name: Michael J. Powers
T/fie: Secretary
Lessee
[SEALJ
By_.
Name: Rteve Fi~gihhollq
Title: _City. Manager
Schedule I
Exhibit A
Information to Complete Escrow Agreement
Payment Request Form
I054496v2
215474.005
Lease Number:
Equipment Schedule:
Date of Escrow Agreement:
Name of Lessee:
Lessee's State / Commonwealth:
Escrow Agent Fee:
Initial Deposit Amount:
Date of Master Lease Agreement:
Beneficiary Name for Fund:
Ending Date:
Lessee's Address:
SCHEDULE I
INFORMATION TO COMPLETE ESCROW AGREEMENT
.lg3R
CITY OF PORT ARTT~ ~I
$500.00
~R67.000 00
Fehn,a~y 2 l: 2003
CITY OF PORT ARTHUR
Au~t 21; 2004
P.O ~O'x' m89
Part Arthnr, TX 77641
A~:ention:
Lessee's Telephone:
Lessee's Facsimile:
Lessee's Taxpayer Identification Number:
Lassee's Authorized Representatives
Escrow Agent's Address:
Escrow Agent's Telephone:
Escrow Agent's Facsimile:
Lessor's Address:
Lessor's Telephone:
Lessor's Facsimile:
Lessor's Taxpayer Identification Number:
1054496v2
215474.005
Steve l*it~'gihbnns
g0O/qg3-g 150
Sieve FitTc, ihhnn~/Citv Mana~.~r [name/title]
Evangelina Ctreen/Ci ,ty ReeretaD/[name/title]
SunTrust Bank, Corporate Trust Division
HDQ 5310
919 East Main Street, 10t~ Floor
Richmond, Virginia 23219
Attention: Emily J. Hare
(804) 782-5400
(804) 782-7855
SunTrust Leasing Corporation
29 W. Susquehanna Avenue, Suite 400
Towson, Mary/and 21204
Attention: Michael J. Powers
(410) 307-6644
(410) 307~6702
[signature]
_ [signature]
4
Lease Numb ~.~ ,~.:,'
Equipment Schedule: OOt
PAYMENT REQUEST FORM NO.
SUNTRUST BANK, as Escrow Agent ander an Escrow Agreement dated as of Fehma~z2.1~ ¢00~ (the "Escrow Agreement") by
and among the Escrow Agent, SUNTRUST LEASING CORPORATION, as Lessor, and ~, as Lessee, is
hereby requested to pay, from the Equipment Acqu/sitian Fund, to the person or entity designated below as pa,yee, that amount set forth
opposite each such name m payment of the Acqmslt~On Costs of the Eqmpment designated opposate such payee s name and described on
the attached page(s). The terms capital/zed in this Payment Request Form but not defined herein shall have the meamngs assigned to them
in the Escrow Agreement.
The Lessee hereby certifies that:
1. Attached hereto is a duplicate original or certified copy of the following documents relating to the order, delivery and
acceptance of the Equipment described ha this Payment Request Form: (a) a manufacturer's or dealer's invoice; and (b) unless this
Payment Request Form relates to partial payment of a Vendor, as defined ha the Lease,
Lessor, Le ' · ·
ssee s Acceptance Certificate relating to the Equipment. m connect/on w/th a purchase order approved by
2. The representations and warranties contained ha the Lease are lrae and correct as of the date hereof.
3. No Non-Appropriation or Event of Default, as each such term is defined ha the Lease, or event which w/th the giving of
notice or passage of time or both would cons~tute an Event of Default, has occurred.
Dated:~ ~, 20__.
Lessee
L.cU~s¢TUST LEASING CORPORATION,
Name: Sieve vitzg/blmm
Title:
Date:
I054496v2
215474.005
Name: Cathy Estella Oechaler
Title: Assistant Vice President
Date:
EXIIlBIT G-1
Lease No.: 1838
Equipment Schedule: 01
TO: ~
Insert Insurance Agent Name & Address
Phone Number and Fax Number
Gentlemen:
CITY OF PORT ARTHUR has entered/nto a Master Lease Agxeement dated as of February 21, 2003 with SUNTRusT
LEASING CORPORATION.
to issue: In accordance vnth the A~eement, Lessee cemfies that ~t has instructed the insurance agent named above
PROPERTY:
a. All Risk Physical Damage Insurance on the leased Equipment evidenced by a Certificate of Insurance and Long Form Loss
Payable Clause naming SunTrust Leasing Corporation and/or its assigns as Loss Payee.
The Coverage Required is $867,000.00.
b. Public Liability Insurance evidenced by a Certificate of Insurance naming SunTrust Leasing Corporation and/or its
assigns as Additional Insured.
Thc foliow/ng minimum coverage is required:
Liability: $ 500,000.00 per person
Liabihty - Bodily Injury: $1,000,000.00 aggregate
Liability - Property Damage: $1,000,000.00 property damage liability
BULLDOZER, CHIP SPREADER, FIRE TRUCK
LOCATION:
Upon issuance of the coverage outlined above, please mail a certificate of insurance to SunTrust Leasing Corporation, 25
Park Place, 25th Floor, Atlanta, Georgia 30303.
Your courtesy in issuing and forwarding the requested certificate at your earliest conven/ence will be appreciated.
Very Italy yours,
CITY OF PORT ARTHUR
By: _
Name: Steve Fitzgibbons
Title: CityManager
Date:
EXHIBIT G-2
Lease Number: 1838
Equipment Schedule: 01
QUESTIONNAIRE FOR SELF-INSURANCE TO
MASTER LEASE AGREEMENT
In connection with the Master Lease Agreement (the "A '
greement '), dated as of February 21, 2003, made and entered into by and between
SUNTRUST LEASING CORPORATION, as Lessor (the "Lessor"), and the lessee identified below, as Lessee (the "Lessee"), Lessee
warrants and represents to Lessor the following information. The terms capitalized herein but not defined herein shall have the mean/rigs
assigned to them in the Agreement.
1. Property Insurance.
a. Lessee is self-insured for damage or destruction to the Equipment.
YES NO (circle one)
If yes, the dollar mount limit for property damage to the Equipment under the Lessee's self-insurance program is $
b The Lessee maintains an umbrella insurance policy for claims m excess of Lessee's self-insurance l/m/ts for proper~ damage
to the Equipment as indicated above.
YES NO (circle one)
If yes, the umbrella policy provides coverage for all risk property damage.
YES NO (circle one)
If yes, the dollar limit for property damage to the Equipment under such umbrella policy is $
a. Lessee is self-insured for I/ability for injury ur death of any person or damage o~r loss of property arising out of or relating to
the condition or operation of the Equipment.
YES NO (circle one)
If yes, the dollar limit for such liabil/ty claims under the Lessee's self-insurance program is $
b. The Lessee maintains an umbrella insurance policy for cla/ms in excess of Lessee's sell: insuranc-
including injury or death of persons or damage to property as indicated above. - ,. ~mt~ ~or l~aomty
YES NO (circle one)
If yes, the umbrella pohcy provides coverage for liabilities for injury and death to persons as well as damage or loss of
property arising out of or relating to the condition or operation of the Equipment.
YES NO (circle one)
3A ,g~ifl~vuran~.~f yes, the dollar amount of the umbrella policy's limits for such liability coverage is $ Fund
a. Lessee maintains a self-/nsurance fund.
YES NO (circle one)
If yes, please complete the following:
Monies ui the self-insurance fund are subject to annual appropriation.
YES NO (circle one)
total amount maintained m the self-insurance fund to cover Lessee's self-insurance liabilities is $
b. Amounts paid from the Lessee's self-/nsurance fund are subject to limitations for each claim.
YES NO (circle one)
If yes, the dollar amount of limit per claim is $
a. If Lessee does not maintain a sell-insurance fund, please complete the following:
Lessee obtains funds to pay claims for which it has sell-insured from the following sources:
b. The limitations on the amounts payable for clanns from the above sources are as follows:
4. ~thori~.
a. The following entity or officer has authority to authorize payment for clafin:
b. Ia the event the entity or officer named in the prior response denies payment ora claim, does the claimant have recourse to
another administrative officer, agency or the courts?
YES NO (circle one)
I/yes, to whom does the claimant have recourse?
Attached hereto are copies of certificates of insurance with respect to pohcies maintained by Lessee
I~ WITNESS WI:IEREOF, Lessee has caused th/s Questionnaire to be executed as a supplement to the representations of Lessee ha the
Agreement by its duly authorized officer.
CITY OF PORT ARTHUR,
Lessee
Attachment
By:
Name: Steve Fitzgibbons
Tide: CityManager
Date:
Telephone: 409/983-8~50
Facsimile:
SUNTRUST LEASING CORPORATION
ADDENDUM TO EQUIPMENT SCHEDULE NO. 01
TO MASTER LEASE AGREEMENT (LEASE NO. 1838)
RELATING TO SELF-INSURANCE
THIS ADDENDUM is made as of February 21, 2003, between SUNTRUST LEASING CORPORATION (the "Lessor") and CITY
OF PORT ARTHUR (the "Lessee").
Recitals
A. Lessor and Lessee have entered into a Master Lease Agreement dated as of February 21, 2003 (the "Agreement").
B. Lessee desires to lease equipment described ha Equipment Schedule No. 01 to the Agreement (the "Equipment") and Lessee has
requested that Lessor lease such Equipment to Lessee.
C. With respect to Equipment Schedule No. 01, Lessee has requested that Lessor permit it to provide self-insurance for liability claims and
property damage.
D. Lessor is wi]ling to grant Lessee's request subject to the following terms and conditions.
NOW, THEREFORE, ha consideration of the premises and mutual covenants and agreements contained herein and ha the Agreement, it is
hereby agreed as follows:
1. The terms capitalized ha tiffs Addendum but not de£med herein sha~ have the meanings assigned to them ha the Agreement.
2. Lessee hereby represents and warrants that all representations and warranties contained ha the Agreement are true and correct
as of the date hereof and that neither a Non-Appropriatinn nor any Event of Default or event which, with the passage of time or giving of
notice or both, would constitute an Event of Defauit has occtuxed under the Agreement.
3. All other terms and conditions of the Agreement not specifically amended by tl~s Addendum shall remain in full force and
affect and are hereby ratified and confaTaed by Lessee.
4. Lessee represents and warrants that all representations and warranties contained ha the Questionnaire for Self- Insurance to
Master Lease Agreement (the "Questionnaire") are ~ae and correct as of the date hereof.
5. Lessor acknowledges receipt of the Questionnaire and, in reliance upon the information provided therein, agrees that Lessee
may satisfy the requirements of Sections 7.1 through 7.3 of the Agreement with respect to Equipment Schedule No. 01 through serf-
insurance.
6. By written notice to Lessee, Lessor may revoke its agreement relative to Equipment Schedule No. 01 to accept self-insurance
in lieu of the insurance required by Section 7.1 through 7.3 of the Agreement at any ~me during the related Lease Term when Lessor
deems itself insecure with respect to such self-insurance. Within thirty (30) days of receipt of nntice from Lessor, Lessee agrees to obtain
insurance in compliance with Section 7.1, 7.2 and 7.3 of the Agreement and provide evidence thereof to Lessor.
IN WITNESS WHEREOF, the parties by their duly authorized officers have executed this Addendum as of the date and year f~rst above
written.
CITY OF PORT ARTHUR,
Lessee
SUNTRUST LEASING CORPORATION,
Lessor
By:
Name: Steve Fitzgibbons
Title: City Manager
Date:
By:
Name: Michael J. Powers
Title: Secretary
Date:
UCC FINANCING STATEMENT
FOLLOW INSTRUCTIONS (front and backt CAREFULLY
A. NAME & PHONE OF CONTACT AT FILER [optional]
B. SEND ACKNOWLEDGMENT TO: (Name and Address)
/
i THE ABOVE SPACE IS FOR FILING OFFICE
1 ' ~ USE ONLY
. DEBTOR S EXACT FULL LEGAL NAME - inse~ only~ c~abtor name la or lb) - do no abbreviate or combine names
.T~ID~: SSNOREIN PORTARTH~ TX J77641 ,ny USA
3. SECURED PARTY'S NAME cr NAME of'FOTALAS$1GNEE of A ONE
OR
-- 29 W. SUSQUEHANNA AVENUE, SUITE 400
LEASE NO. 1838-001
FIRST NAME MIDDLE NAME / SUFFIX
CITY STAT POSTAL CODE COUNTRY
TOWSON MD 21204 USA
BULLDOZER, FIRE PUMPER TRUCK, CHIP SPREADER
SEE ATTACHED SCHEDULE A TO FINANCING STATEMENT
FILING OFFICE COPY -- NATIONAL UCC FINANC NG STATEMENT (FORM UCC1) (REV 07/29/98
SCHEDULE A TO FINANCING STATEMENT OF
CITY OF PORT ARTHUR, AS DEBTOR, AND
SUNTRUST LEASING CORPORATION, AS SECURED PARTY
C~n~tlm~tinn nF CnllsterM De~criptlnn
The £mancing statement to which this Schedule A is attached covers the types of property described on the face of such
financing statement and all of the Debtor's fight, title and interest in and to (collectively, the "Collateral"):
CHIP SPREADER, FIRE TRUCK, BULLDOZER
(a) the equipment described in Equipment Schedule No. 01 dated as of February 21, 2003 (the "Equipment Schedule") to the
Master Lease Agreement dated as of Febmary 21, 2003 (the "Agreement," and together with the Equipment Schedule, the "Lease")
between Debtor, as lessee, and Secured Party, as lessor, as such Lease may be amended, modified or supplemented from time to time
together with all of Debtor*s right, title and interest in and to the Equipment Acquisition Fund established in Debtor's name at
SUNTRUST BANK (the "Escrow Agent") pursuant to the Escrow Agreement dated as of February 21, 2003 (the "Escrow
Agreement") among Debtor, Secured Party and the Escrow Agent;
(b) to the extent not included in the foregoing, all books, ledgers and records and all computer programs, tapes, discs, punch
cards, data processing software, transaction files, master files and related property and rights (including computer and peripheral
equipment) necessary or helpful in enforcing, identifying or establishing any item of Collateral; and
(c) to the extent not included in the foregoing, all repairs, replacements, substitutions and modifications and all proceeds and
products of any or all of the foregoing, whether existing on the date hereof or arising hereafter.
Information Return for Tax-Exempt Governmental Obligations
i~ Under Internal Revenue Code section 149(e)
· See separate Instructions.
Caution: If the issue price is under $100,000, use Form 8038-GC.
OMB NO. 1545o0720
Form 8038-G r
(Rev. November 2000)
Depar~men[ ol the Treasury
Internal Revenue Servioa
I '.,~l'Jl ! Reporting Authority
I ~ssuer's name
rf Amended Return, check here · II
11
12
13
14
16
16
17
18
CITY OF PORT ARTHUR, TX
3 Number and street (or P.O. box if mail is not delivered to street address) Room/suite 4 Report number
444 FOURTH STREET 3 G 03-01
5 City, town, or post office, state, and Z[P code 6 Date of issue
PORT ARTHUR, TX 77641-1089 2121103
7 Name of issue 8 CUSIP number
MASTER LEASE AGREEMENT, LEASE NO. 1838, SCHEDULE NO. 1 N/A
9 NameREBECCAand titleUNDERHiLL,Of officer or legaIFiNANCErepresentativeDiRECToRwhom the [RS may call for more information 10 (Teleph°n~rrberof°fficeorlegateFeser~ttive409 ) 983-8150
Type of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule
[] Education ...........................
[] Health and hospital ........................
[] Transportation ..........................
[] Public safety ........................... 867,000.00
[] Environment (including sewage bonds) ..................
[] Housing ............................
[] Utilities ............................
[] Other. Describe ·
19 If obligations are TANs or RANs, check box · [] if obligations are BANs, check box · []
20 if obli~lations are in the form of a lease or installment sale, check box ...... · []
It*~1~1111 Description of Obligations. Complete for the entire issue for which this form is being filed.
i · (c) Stated redemption (d) Weighted
(a) F~nal matur ty date (b) Issue pace price at maturity average maturity
21! 02/21108 I $ 867'000'001 $ 867,000.00 5 ),ears
J'.,~l~l~J Uses of Proceeds of Bond Issue (including underwriters' discount)
(e) Yield
22 Proceeds used for accrued interest ....................
23 Issue price of entire issue (enter amount from line 21, column (b)) ..........
24 Prcceeds used fo: bond issuance costs (including underwriters' discount)
25 Proceeds used for credit enhancement ...........
26 Proceeds allocated to reasenably required reserve or replacement fund ,
27 Proceeds used to currently refund prior issues ........
28 Proceeds used to advance refund prior issues ........
29 Total (add lines 24 through 28) ......................
30 Nonrefundin.q proceeds of the issue (subtract line 29 from line 23 and enter amount hem). . .
J'.,~1~tl Description of Refunded Bonds (Complete this part only for refunding bonds.)
31 Enter the remaining weighted average maturity of the bonds to be currently refunded . . . ·
32 Enter the rema!ning weighted average maturity of the bonds to be advance refunded . . . ·
33 Enter the last date on which the refunded bonds will be called ........... ·
34 Enter the date(s) the refunded bonds were issued ·
I '.~'riitl ! Miscellaneous
2.775 %
0
867,000.00
0
867,000.00
N/A years
N/A ~,ears
NIA
35 Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) . . . 31-~I
36a Enter the arroJ~ c/gross FrCceeds invested cr to be inve~ed in a guaraqteed irt~stma~ cc~tlac~ (see inst~::tic~s)
b Enter the final maturity date of the guaranteed investment contract ·
37 Pooled financings: a Proceeds of this issue that are to be used to make loans to ~her governmental units 137al
b If this issue is a loan made from the proceeds of another tax-exempt issue, check box · [] and enter the name of the
issuer · and the date of the issue ·
38 If the issuer has designated the issue under section 265(b)(3)(B)(i)(lll) (small issuer exception), check box · []
39 if the issuer has elected to pay a penalty in lieu of arbitrage rebate, check box ............ · []
40 If the issuer has identified a hedge, check box ....................... · []
~ ~ j Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
and belief, they are true, correct, and complete.
~ STEVE FITZGIBBONS, CITY MANAGE~
,,,~ Signature of issuer's authorized representative Date · Type or print name and title
For Paperwork Reduction Act Notice, see page 2 of the Instructions.
Cat. No. 63773S
Form 8038-G (Rev. 11-2000)
UCC FINANCING STATEMENTADDENDUM
FOLLOW INSTRUCTIONS ffront and backI CAREFULLY
9. NAME OF FIRST DEBTOR (ta or I b) ON RELATED FINANCING STATEMENT
OR / 9a- ORGANIZATION'S NAME
9b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME,SUFFIX
10. MISCELLANEOUS:
11 ~AL DEBTOR'S EXACT FULL LEGAL NAME - tns.~ .n~ .................... THE ABOVE SPACE iS FOR FILING OFFICE USE ONLY
collateral, or Js filed as a [] fix[ure ti
14. Description of real estete:
15. Neme and Bddress ofa ~ECORD OWNER of above_c~escdbed real est~te
(~f Deblor does ~0~ have a record interest);
FILING OFFICE COpy-- NATIONAL UCC F~NANCING STATEMENT ADDENDUM (FORM UCClAd) (REV. 07/29/98}