HomeMy WebLinkAboutResolution - 2004-R0088 - Contract For Municipal Lease Purchase - Suntrust Leasing Corporation - 02_19_2004Resolution No. 2004-R0088
February 19, 2004
Item No. 47
RESOLUTION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK:
THAT the Mayor of the City of Lubbock BE and is hereby authorized and
directed to execute for and on behalf of the City of Lubbock, a Contract for municipal
lease -purchase financing, by and between the City of Lubbock and Suntrust Leasing
Corporation of Towson, Md., and related documents. Said Contract is attached hereto
and incorporated in this resolution as if fully set forth herein and shall be included in the
minutes of the City Council.
Passed by the City Council this 19th day of
ATTEST:
Reb cca Garza, City Secretary
APPROVED AS TO CONTENT:
Vu'M
Victor Kilman, rchasing Manager
APPROVED AS TO FORM:
J Knigh ssista t City Attorney
gs/ccdocs/res-Contract-Suntrust Leasing Corpses
February 6, 2004
Resolution No. 2004-R0088
February 19, 2004
Item No. 47
CITY OF LUBBOCK
INDEX TO LEGAL DOCUMENTS
NON BANK -QUALIFIED ESCROW
Master Lease Agreement; ON FILE
Exhibit A - Equipment Schedule No. 05;
Acceptance Certificate;
Payment Schedule;
Exhibit 13-1 - 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-1 Confirmation of Outside Insurance;
Exhibit G-2 Questionnaire for Self -Insurance to Lease and Addendum;
UCC Financing Statements with attached Schedule A;
Form 8038-G.
EXHIBIT A
EQUIPMENT SCHEDULE NO.05
TO LEASE NO. 1536
The following Equipment comprises an Equipment Group which is the subject of the Master Lease Agreement dated as
09/26/2002 (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 attached 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 $1,641,145.02 (the "Acquisition Cost"). The
Equipment Group consists of the following Equipment which has been or shall be purchased from the Vendor(s) named below for the
prices set forth below:
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 LUBBOCK,
Lessee
By:�
Nafhl
Title:
Date:
Marc Mc gal
Mayor
February 10; 2004
Address: 1625 13th Street
Lubbock, TX 79401
Telephone: 806-775-2167
Facsimile:
Attest:
e cca Garza, City Secretary
2/11 /2004:NBQ-ESC. DOOrm I0/99/ck
1625 13TH STREET,
LUBBOCK, TX 79401
SUNTRUST LE SING CORPORATION,
Lessor
By:
Name: Micha owers
Title: Secretary Ak�
Date:
Address: 29 W. Susquehanna Avenue, Suite 400
Towson, MD 21204
Telephone: 410/307-6644
Facsimile: 410/307-6702
This is counterpart No-2 of 6 serially numbered, manually executed counterparts of
this document. To the extent that this Lease Agreement constitutes chattel paper
under the Uniform Commercial Code, a security interest in this Lease Agreement
may be created through the transfer and possession of Counterpart No. I only,
without the need to transfer possession of any other original or counterpart or copy
of this Lease Agreement or any original or counterpart or copy of any exhibits,
addenda, schedules, certificates, riders or other documents and instruments executed
and delivered in connection with this Lease Agreement.
Lease No.: 1536
Equipment Schedule: 05
ACCEPTANCE CERTIFICATE
1, the undersigned, hereby certify that 1 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 in compliance with Article VII of the Agreement; (b)
Vendor invoice(s) and/or bill(s) of sale relating to the Equipment, and if such invoices have been paid by Lessee, evidence of payment
thereof (evidence of official intent to reimburse such payment as required 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 title
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 the 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 during 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 directs 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 applicable) to make payment, Lessor shall have fully and satisfactorily performed all of its covenants and obligations
under the Lease. [CHECK BOX IF APPLICABLE.]
CITY OF LUBBOCK,
Lessee
J&,- ltcn 711L� -I-
By: _
Name:
Title:
Date:
2i I 1/2004:NBQ-ESC.000/rev.10/99/cic
Lease Number: 1536
Equipment Schedule: 05
PAYMENT SCHEDULE
The Funding Date with respect to the above referenced Equipment Group shall be FEBRUARY 16, 2004. The Annual Interest
Rate applicable to the Equipment Group shall be 2.00%. Lessee will make Rental Payments each consisting of Principal and Interest as set
forth below for a term of 5 years. The first Rental Payment is due on FEBRUARY 16, 2004 and subsequent payments are due annually on
like date thereafter.
Payment Payment Payment Principal Interest Prepayment
Numba U11jg Ott Com on nant Component nent price*
1 02/16/04
543,857.62
2 02/16/05
543,857.62
3 02/16/06
543,857.62
4 02/16/07
22,202.31
5 02/16/08
22,202.31
Totals 1,675,977.48
* After payment of Rental Payment due on such date.
543,857.62
521,860.86
532,322.34
21,338.22
21, 765.98
1,641,145.02
2/11/2004:NBQ- ESC-DOGrcv. 10/99/cic 4
0.00
21,996.76
11,535.28
864.09
436.33
34,832.46
CITY OF LUBBOCK,
Lessee i
M
1,152,151.77
604,197.87
45,259.41
22,854.28
0.00
NaW Marc ou 1
Title: M __ .
Date: February X9 , 2004
Attest:
Reb cca Garza, City Secretary
[Escrow]
EXHIBIT B-1
Lease Number. 1536
Equipment Schedule: 05
This TAX AGREEMENT AND ARBITRAGE CERTIFICATE (this "Certificate") is issued by CITY OF LUBBOCK ("Lessee") in
favor of SUNTRUST LEASING CORPORATION ("Lessor") in connection with that certain Master Lease Agreement dated as of
09/26/2002 (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.
Section 1. in Ggnerat.
1.1. 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 all related documents
executed pursuant thereto and contemporaneously herewith, the "Financing Documents"). As described in the Financing Documents,
Lessor shall apply $1,641,145.02 (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 the responsibility 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 delivered to Lessor.
1.3. The Financing Documents are being entered into for the purpose of providing funds 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 terms of that certain Escrow
Agreement dated as of FEBRUARY 16, 2004, (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 S100,000, 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").
Section 2. Non-Arhitrage Certifications.
2.1. The Rental Payments due under the Financing Documents will be made with monies retained 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 will 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, (ii) issued or sold pursuant to a common plan of financing 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 from 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 in part, at a date which is earlier than
the final Payment Date under the Financing Documents.
Section 3. Disbursement of Funds; Reimhtirsement to i.essee.
3.1. It is contemplated that the entire Principal Amount deposited in escrow will be used to pay the acquisition cost of Equipment 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 already 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 from the proceeds of a borrowing for all or a portion
of the cost of the Equipment, which expenditure was paid to the Vendor not earlier than sixty (60) days before Lessee adopted the
2/ 1 I /2004: NBQ-ESC.D XJrev.I M9/ek
Declaration of Official Intent;
(b) 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 after the items of Equipment to which such payment relates were placed in service;
(c) The entire payment with respect to which 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. Ike and investment of Funds; Temporary Period,
4.1. Lessee has incurred or will incur, within six (6) months from the date of issuance of the Financing Documents, binding obligations to
pay an amount equal to at least five percent (50/6) of the Principal Amount toward the costs of the Equipment. An obligation is not binding
if it is subject to contingencies within Lessee's control. The ordering and acceptance of the items of Equipment will proceed with due
diligence to the date of final 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 this Certificate. No portion of the Principal Amount will be used to acquire
investments that do not carry out the governmental purpose of the Financing Documents and that have a substantially guaranteed yield of
four (4) years or more.
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(f) 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 8/17/05.
(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 unless (i) the entire Principal Amount is expended on the Equipment by the date that is the six-
month anniversary of the Financing Documents or (ii) the Principal Amount is expended on the Equipment in accordance with the
following schedule: At least fifteen percent (151/o) of the Principal Amount and interest earnings 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 (601/6) 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 will 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; (iii) at least ninety-five percent (95%) of the Principal Amount is used for the governmental activities of
Lessee.
Section 5. Fgcrnw 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 which are earned from the investment of these funds shall be labeled as interest earned. All such monies will be
disbursed on or promptly after the date that Lessee accepts the Equipment.
Section 6_ No Private Use; No Consumer Loan.
6.1. Lessee will not exceed the private use restrictions set forth in Section 141 of the Code. Specifically, Lessee will not permit more than
10% of the Principal Amount to be used for a Private Business Use (as defined 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 property or derived from 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 (50/6) (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.
2/11 /2004:NBQ-ESC.DOGrev.10/99/cic
Section 7- No Federal Gu rantee.
7.1. Payment of the principal or interest due under the Financing Documents is not directly or indirectly guaranteed, in whole or in part, by
the United States or an agency or instrumentality 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
indirectly, in federally insured deposits or accounts if such investment would cause the financing under the Financing Documents to be
"federally guaranteed" within the meaning of Section 149(b) of the Code.
Section R. Miscellaneans.
8.1. Lessee shall keep a complete and accurate record of all 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 Lessee'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 belief, the above expectations 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 16, 2004.
CITY OF LUBBOCK,
Lessee
By:
Name: Marc McDougal
Title: Mayor
Date: February 19.
004
Attest:
R ecca Garza, City Secretary
2/1 V2004:NBQ-PSC.DOChev. 10/99lcic
[Escrow]
EXHIBIT C-1
Lease Number: 1536
Equipment Schedule: 05
At a duly called meeting of the governing body of Lessee held in accordance with all applicable legal requirements, including open meeting
laws, on the 19thday of February 2T4 the following resolution was introduced and adopted:
RESOLUTION AUTHORIZING THE EXECUTION AND DELIVERY OF A MASTER LEASE AGREEMENT, EQUIPMENT
SCHEDULE NO. 05, AN ESCROW AGREEMENT, AND RELATED INSTRUMENTS, AND DETERMINING OTHER
MATTERS IN CONNECTION THEREWITH.
WHEREAS, the governing body of CITY OF LUBBOCK ("Lessee") desires to obtain certain equipment (the "Equipment") described in
Equipment Schedule No. 05 to the Master Lease Agreement (collectively, the "Lease") with SUNTRUST LEASING CORPORATION,
the 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
Documents") in the forms presented to this meeting and incorporated in this resolution are in the best interests of Lessee for the acquisition
of the Equipment.
Section2. 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. The Mayor of Lessee and any other officer of Lessee who shall have power to execute
contracts 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 City Sermtary of the Lessee and any other
officer of Lessee who shall have power to do so be, and each of them hereby is, authorized to affix the official seal of Lessee to the
Financing Documents and attest the same.
Section3. The proper officers of Lessee be, and each of them hereby 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.
2/1 1/2004:N BQ-ESC.DOC/rcv.10/99/ck
The undersigned further 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: Feb. 19 , 200g 4.
L.ITcr ^c T rro"e%j,v
Les:
0
Nan
Title: Mayor
Attested By:
'Q
Name: Rebecca Garza
Title: City Secretary
2/11R004:NBQ-ESC.D )C/rev.10199/cIc
EXHIBIT D
Lease No.: 1536
Equipment Schedule: 05
I do hereby certify that I am the duly elected or appointed and acting City S c . a T of CITY OF LUBBOCK 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 their respective names and titles are their true 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 09/26/2002 between
such entity and SUNTRUST LEASING CORPORATION.
IN WITNESS WHEREOF, I have duly executed this certificate as of this 19th day of February , 200i4.
By: Qj" "d
Name: Rebecca Garza
Title: City Secretary
2/11/2004:NBQ-ESC.DOC/m.10/99k1c 10
EXHIBIT E
Office of
Purchasing
P.O. Box 2000
Lubbock, Texas 79457
(806) 775-2167 • Fax (806) 775-2164
SUNTRUST LEASING CORPORATION
29 W. Susquehanna Avenue, Suite 400
Towson, MD 21204
Re: Schedule No. 05 to Master Lease Agreement dated as of 09/26/2002 (the "Agreement") by and between
SUNTRUST LEASING CORPORATION ("Lessor") and CITY OF LUBBOCK ("Lessee")
Ladies and Gentlemen:
We have acted as counsel to Lessee with respect to the Agreement described above and various related matters, and in this
capacity have reviewed a duplicate original or certified copy thereof and Equipment Schedule No. 05 executed pursuant thereto
(together with the Agreement, the "Lease"). The terms capitalized 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, and is 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, rules 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 will not result in the violation of any constitutional, statutory or other limitation relating to the manner, form or amount of
indebtedness which may be incurred by Lessee.
6. There is no litigation, action, suit or proceeding pending or before any court, administrative agency, arbitrator or
governmental body that challenges the organization or existence of Lessee, the authority of 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.
7. The Equipment is personal property, and when used by Lessee will not be or become fixtures under the laws of the
State.
2004-
8. Resolution No. R0088 of the governing body of Lessee was duly and validly adopted by such governing body on
February I 2004, and such resolution has not been amended, modified, supplemented or repealed and remains in full force and
effect.
This opinion may be relied upon by the addressee hereof and assignees of interests in the Lease, but only with regard to matters
specifically set forth herein.
Very truly yours,
0
John Knigh
Assistant City Attorney
EXHIBIT F
Lease No.: Shown on Schedule I
Equipment Schedule: Shown on Schedule I
SUNTRUST LEASING CORPORATION
ESCROW AGREEMENT
This 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 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, with 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 administrative, engineering, legal, financial 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 in the Acceptance Certificate executed pursuant to the Lease, together with any and
all modifications, additions and alterations thereto, to be acquired from 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 meaning set forth 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.
"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 Exhibit A to be executed by Lessee and Lessor
and submitted to Escrow Agent to authorize payment of Acquisition Costs.
"Qualified Investments" means the STl Classic US Treasury Money Market Fund. By signing this Escrow Agreement, Lessee
acknowledges that such Qualified Investment is a permitted investment under any state, county or municipal law applicable to the
investment of Lessee's funds.
ARTICLE IL APPOINTMENT OF ESCROW AGENT; AUTHORITY
Section 2.1. Appointment of F.gerow 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
2/1 1/2004:NBQ-ESC.DQC/m.10/99/ck 12
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. 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 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 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) any
action taken or omitted to be taken in reliance 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 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_ Anthority. 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 III. EQUIPMENT ACQUISITION FUND
Spetion 3.1_ Fguinmeent_Acquisitinn Fund. 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 and apart from all other
funds and moneys held by it and shall administer such Equipment Acquisition Fund as provided in this Escrow Agreement.
S tines n 3-2. ftus t. 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 Initial Deposit Amount is to be sent by Lessor to Escrow Agent by wire transfer to:
SunTrust Bank, Atlanta, Georgia, ABA# 0610000104, Account# 9443001321, Account Name: Corporate Trust Division,
Beneficiary as shown on Schedule I, Attention: Escrow Administration (804) 782-5400.
Section 33_ Dishursements. Escrow Agent shall use 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 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 infomnation, 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 3.4. Transfers Upon Cninpletinn. Unless all of the funds deposited by Lessor in the Equipment Acquisition Fund have been
previously disbursed pursuant to Section 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 remaining moneys 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 (21/o) 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 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 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 3.5. i.iq_uWntion. Upon receipt of written notice from Lessor or Lessee that the Lease has been terminated pursuant to Sections 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.
2/112004:NBQ-FSC.D0Cirev. 10/99/cic 13
ARTICLE IV. TRUST; INVESTMENT
Section 4_1. Irrevneahle Trus _ 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 Lessots 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_ 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 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.
Section 43. Disposition of Investments. 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. Aren �nL tiny. 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 less than quarterly an accounting of all investments
and interest and income therefrom.
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; INDEMNIFICATION
Section 5.1- ValLtev,. Escrow Agent may act upon any writing or instrument or signature which it believes to be genuine, may assume the
validity and accuracy of any statement or assertion contained in such a writing or instrument, and may assume that any person purporting to
give 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 correctness 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 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 5.2. Use of Counsel and Agents. 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 entitled to advice 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
care.
Section 53_ Interpretation. 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
2/I 12004:NBQ-ESGDOGrcv. 10/99/c1c 14
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 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 rights of such parties have been finally 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
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 controversy 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.
Section 5.4. Umited Hahility of Escrow Ag lL, 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 5.5_ indemnificntion. 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 indemnity, as provided in this Section 5.5, shall be furnished.
To the extent permitted by applicable 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 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 legal 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" shall mean losses,
costs, damages, expenses, judgments and Iiabilities 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
Z/ 11/Z004:NSQ-FSC.DOC/rev.1 0/99/cic 15
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 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 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 shortfall 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 of a written statement setting forth such shortfall.
Section 6.2. Investment Fees. Escrow Agent shall 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 en _nses. 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 security interest and lien shall be prior to all other security interests, liens or claims against the Equipment
Acquisition Fund or any part thereof.
ARTICLE VII. CHANGE OF ESCROW AGENT
Section 7.1. Remnval of Fscrnw Agent. 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 Million Dollars ($50,000,000), and be subject to supervision or
examination by federal or state authority. If such bank or trust company publishes 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 7.7. Rericnnntion of Fscrow 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 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 of a successor escrow agent hereunder.
Section 73. Merger nr rnnsolidntion. 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 transfer all or substantially all of its corporate trust business (provided that such company shall be eligible 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 1, 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 mail 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 patty shall be given to both other parties.
21112004:NBQ-ESC.DOC/rev.10/99/ele 16
$eetion 8.2. Agignment 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 consent 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 R-i. Binding 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. Severnhility. 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 R.S. Entire Agreement; Amendments. 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.
Section 9.6. Captions. The captions or headings in this Escrow Agreement are for convenience only and in no way define, limit or
describe the scope or intent of any provisions, Articles, Sections or clauses hereof.
Section 8_7. Farther Assurances and Corrective instrumentc. 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 cant' out the intention or to facilitate the performance of the parties under this Escrow Agreement, and for
better assuring and confirming the rights and benefits provided herein.
Section R.R. Governing Law, This Escrow Agreement shall be construed and governed in accordance with the laws of the
Commonwealth of Virginia.
Section 8.9. Execution in Counterparts, 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 R.10. Waiver of Jury Trial. 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 Tax Re np rti�. Escrow Agent will not be responsible for tax reporting of any income on the Equipment
Acquisition Fund.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
2/11/2004:NBQ-FSC.D0C/rm 10/99/cic 17
EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK
Escrow Agent
By —
Name:
Title:
[SEAL]
Emily J. Hare
Trust Officer
Schedule I Information to Complete Escrow Agreement
Exhibit A Payment Request Form
SUNTRUST LEASING CORPORATION,
Lessor
By
Name: Michae . owers
Title: Secretary
CITY OF LUBBOCK,
A.Y to C %.-j
Reb cca Garza, —City Secretary
This is counterpart No. 2 of 6 serially numbered, manually executed counterparts of
this document. To the extent that this Lease Agreement constitutes chattel paper
under the Uniform Commercial Code, a security interest in this Lease Agreement
may be created through the transfer and possession of Counterpart No. Ionly,
without the need to transfer possession of any other original or counterpart or copy
of this Lease Agreement or any original or counterpart or copy of any exhibits,
addenda, schedules, certificates, riders or other documents and instruments execute(
and delivered in connection with this Lease Agreement.
2/1 I/2004:NBQ-ESC.DOC/rev.I0/99/cic 18
EXECUTION PAGE OF ESCROW AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the Date of Escrow Agreement shown on Schedule I.
SUNTRUST BANK
Escrow Agent
By �"ylx- -() 4 �`Lt
Name: Emily J. Hare
Title: Trust Officer
[SEAL]
Schedule I Information to Complete Escrow Agreement
Exhibit A Payment Request Form
2/17/2004:NBQ-ESC.DOGrm I0/991cis
SUNTRUST LEASING CORPORATION,
Lessor
By
Name: Michael J wers
Title: Secretary
CITY OF LUBBOCK,
Lessee
By
Name: Marc McDougal
Title: Mayor
Attest:
Rebecca Garza, City Secretary
This is counterpart No. 2 of 6 serially numbered, manually executed counterparts of
this document. To the extent that this Lease Agreement constitutes chattel paper
under the Uniform Commercial Code, a security interest in this Lease Agreement
may be created through the transfer and possession of Counterpart No. I only,
without the need to transfer possession of any other original or counterpart or copy
of this Lease Agreement or any original or counterpart or copy of any exhibits,
addenda, schedules, certificates, riders or other documents and instruments executed
and delivered in connection with this Lease Agreement.
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:
SCHEDULEI
INFORMATION TO COMPLETE ESCROW AGREEMENT
1536
005
FEBRUARY 16, 2004
CITY OF LUBBOCK,
Texas
$500.00
$1,641,145.02
09/26/2002
Beneficiary Name for Fund:
CITY OF LUBBOCK,
Ending Date:
02/26/2005
Lessee's Address:
1625 13th Street
Lubbock, TX 79401
Attention:
Ron Shuffield
Lessee's Telephone:
806-775-2167
Lessee's Facsimile:
Lessee's Taxpayer Identification Number:
7 5— 6 0 0 0 5 9 0
Lessee's Authorized Representatives
Marc McDougal, Mayor
Rebecca Garza, City Secretary
r
Beverly Hodges, Interim CFO 4
Andy Burcham, f ash ht Manager,
Escrow Agent's Address:
SunTrust Bank, Corporate Trust Division
HDQ 5310
919 East Main Street, 10'h Floor
Richmond, Virginia 23219
Attention: Emily J. Hare
Escrow Agent's Telephone:
(804) 782-5400
Escrow Agent's Facsimile:
(804) 782-7855
Lessor's Address:
SunTrust Leasing Corporation
29 W. Susquehanna Avenue, Suite 400
Towson, Maryland 21204
Attention: Michael J. Powers
Lessor's Telephone:
(410) 307-6644
Lessor's Facsimile:
(410) 307-6702
Lessor's Taxpayer Identification Number:
21112004:NBQ-ESC.D0Clrm 10/99lcic 19
[signature]
&ig*aLure]
[signature]
Lease Number: 1536
Equipment Schedule: 005
PAYMENT REQUEST FORM NO.
SUNTRUST BANK, as Escrow Agent under an Escrow Agreement dated as of FEBRUARY 16, 2004 (the "Escrow
Agreement") by and among the Escrow Agent, SUNTRUST LEASING CORPORATION, as Lessor, and CITY OF LUBBOCK,as
Lessee, is hereby requested to pay, from the Equipment Acquisition Fund, to the person or entity designated below as payee, that amount
set forth opposite each such name, in payment of the Acquisition Costs of the Equipment designated opposite such payee's name and
described on the attached page(s). The terms capitalized in this Payment Request Form but not defined herein shall have the meanings
assigned to them in the Escrow Agreement.
Paye_,_e
V
I v
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 in 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 in the Lease, in connection with a purchase order approved by
Lessor, Lessee's Acceptance Certificate relating to the Equipment.
The representations and warranties contained in the Lease are true and correct as of the date hereof.
3. No Non -Appropriation or Event of Default, as each such term is defined in the Lease, or event which with the giving of
notice or passage of time or both would constitute an Event of Default, has occurred.
Dated: , 20_.
CITY OF LUBBOCK,
SUNTRUST LEASING CORPORATION,
Lessee
Lessor
By
By
Name:
Name: Cathy Estella Oechsler
Title:
Title: Assistant Vice President
Date:
Date:
2/11 ,2004:NBQ-FSC.DOC1rev. 10/99/c1c 20
EXHIBIT G-1
Lease No.: 1536
Equipment Schedule: 05
DATE:
TO: —
Insurance Agent Name & Address
Phone Number and Fax Number
Gentlemen:
CITY OF LUBBOCK has entered into a Master Lease Agreement dated as of 09/26/2002 with SUNTRUST LEASING
CORPORATION. In accordance with the Agreement, Lessee certifies that it has instructed the insurance agent named above to issue:
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 $1,641,145.02.
b. Public Liability Insurance evidenced by a Certificate of Insurance naming SUNTRUST LEASING CORPORATION
and/or its assigns as Additional Insured.
The following minimum coverage is required:
Liability: $ 500,000.00 per person
Liability - Bodily Injury: $1,000,000.00 aggregate
Liability - Property Damage: $1,000,000.00 property damage liability
PROPERTY: VARTOI IS FQI JTPMFNT PFR RTD #255-03/RS
LOCATION: 1625 13th Street, Lubock, TX 79401
Upon issuance of the coverage outlined above, please mail a certificate of insurance to SUNTRUST LEASING
CORPORATION, 29 W. Susquehanna Avenue, Suite 400, Towson, Maryland 21204.
Your courtesy in issuing and forwarding the requested certificate at your earliest convenience will be appreciated.
Attest:
Retecca Garza, City Secetar
2/ 1) /2004:NBQ-ESC. DOC/rm I0/99/cic 21
EXHIBIT G-2
Lease Number. 1536
Equipment Schedule: . 02
QUESTIONNAIRE FOR SELF-INSURANCE TO
MASTER LEASE AGREEMENT
In connection with the Master Lease Agreement (the "Agreement"), dated as of O 2612002, made and entered into by and between
SUN RUST 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 herem shall have the meanings
assigned to them in the Agreement
1. Propffv Insunwee.
a. Lessee is self -insured for damIge or destruction to the Equipment
NO (circle one)
If yes, the dollar amount lam for property damage to the Equipment under the Lessee's self-insurance program is S 1,
b. The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for property damage
to the Equipment as indiabove.
YES/ NO (circle one)
If yes, the umbrella policy provides covera5zXRr all risk property damage.
YES QN9, (circle one)
If yes, the dollar limit for property damage to the Equipment under such umbrella policy is $
a. Lessee is self -insured for liability for injury or death of any person or damage or loss of property arising out of or relating to
the condition or operati o theIEquipment
YES NO (circle one)
If yes, the dollar limit for suc liability claims under the Lessee's self-insurance program is $ �1 G C r:
b. The Lessee maintains an umbrella insurance policy for claims in excess of Lessee's self-insurance limits for liability
including injury or l
ons or damage to property as indicated above.
YES NO (circle one)
If yes, the umbrella policy vides coverage for liabilities for injury and death to persons as well as damage or loss of
property arising out of or.ting to the condition or operation of the Equipment.
i�- NO (circle one) .
If yes, the dollar amount of the umbrella policy's limits for such liability coverage is S C, C G
I CPj j.+avrmrry Furd
a. Lessee maintains a self-i ance fund.
(YES,' NO (circle one)
If yes, please complete the following: .
Monies in the self-insurance find are subject to tion. .
YES (circle one)
The total amount maintained in the self-insurance fiord to cover Lessee's self-insurance liabilities is $ 1 32 z
b. Amounts paid from the 's self-insurance fiord are subject to limitations for each claim
NO (circle one)
If yes, the dollar amount t per claim is $ 10 GC e)
VM00 :►rsa.Fscnor.,, IW9kk 22
a. If Lessee does not maintain a self-insurance fund, please complete the following:
Lessee obtains funds to pay claims for which it has self -insured from the following sources:
b. The limitations on the amounts payable for claims from the above sources are as follows:
a. The following entity or officer has authority to authorize payment for claim:
b. In the event the entity or officer named in the prior response denies payment of a claim, does the claimant have recourse to
another administrative officer, agency or the courts?
YES NO (circle one)
If yes, to whom does the claimant have recourse?
Attached hereto are copies of certificates of insurance with respect to policies maintained by Lessee.
IN WITNESS WHEREOF, Lessee has caused this Questionnaire to be executed as a supplement to the representations of Lessee in the
Agreement by its duly authorized officer.
est:
—Retkcca Garza, City Secreta
Telephone: 806-775-2167
Facsimile:
Attachment
2/11/2004:NBQ-ESC.D0C/rm I0/99/cic 23
CERTIFICATE OF SELF-INSURANCE
The undersigned officer of the City of Lubbock, Texas, a Texas home rule
municipality, hereby certifies that the City of Lubbock has a $250,000.00 self -
insured retention for Automobile and General Liability in accordance with the laws
of the State of Texas. The City of Lubbock has a policy that covers Property/Bodily
Injury over $250,000.00 per occurrence with St. Paul Fire and Marine under policy
#GPP06301107 which expires on 10/01/03. Further, the City of Lubbock is self -
insured for workers' compensation in accordance with the laws of the State of Texas
and that the current balance of the self-insurance fund is $4,529,015.00. The
existing cash asset balance is $11,171,322.00 as of the date stated below.
i
By:
Leisa Hutcheson
Risk Management Coordinator
Date: September 30, 2004
2 0bz-a - �-N0 M
SUNTRUST LEASING CORPORATION
ADDENDUM TO EQUIPMENT SCHEDULE NO. 05
TO MASTER LEASE AGREEMENT (LEASE NO.1536)
RELATING TO SELF-INSURANCE
THIS ADDENDUM is made as of FEBRUARY 16, 2004, between SUNTRUST LEASING CORPORATION (the "Lessor") and
CM OF LUBBOCK (the "Lessee").
Recitals
A. Lessor and Lessee have entered into a Master Lease Agreement dated as of 09/26/2002 (the "Agreement").
B. Lessee desires to lease equipment described in Equipment Schedule No. 05 to the Agreement (the "Equipment") and Lessee has
requested that Lessor lease such Equipment to Lessee.
C. With respect to Equipment Schedule No. 05, Lessee has requested that Lessor permit it to provide self-insurance for liability claims and
property damage.
D. Lessor is willing to grant Lessee's request subject to the following terms and conditions.
NOW, THEREFORE, in consideration of the premises and mutual covenants and agreements contained herein and in the Agreement, it is
hereby agreed as follows:
1. The terms capitalized in this Addendum but not defined herein shall have the meanings assigned to them in the Agreement.
2. Lessee hereby represents and wan -ants that all representations and warranties contained in the Agreement are true and correct as
of the date hereof and that neither a Non -Appropriation nor any Event of Default or event which, with the passage of time or giving of
notice or both, would constitute an Event of Default has occurred under the Agreement.
3. All other terms and conditions of the Agreement not specifically amended by this Addendum shall remain in full force and
affect and are hereby ratified and confirmed by Lessee.
4. Lessee represents and warrants that all representations and warranties contained in the Questionnaire for Self- Insurance to
Master Lease Agreement (the "Questionnaire") are true 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. 05 through self-
insurance.
6. By written notice to Lessee, Lessor may revoke its agreement relative to Equipment Schedule No. 05 to accept self-insurance in
lieu of the insurance required by Section 7.1 through 7.3 of the Agreement at any time during the related Lease Term when Lessor deems
itself insecure with respect to such self-insurance. Within thirty (30) days of receipt of notice 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 first above
written.
CITY OF LUBBOCK
Lessee
By
Name: Marc cDo gal
Title: Mayor
Date: February 1 ,-2004
Attest:
-0-
Relecca Garza, City Secretary
2/1112004:NBQ-ESC.D0C/rm 10/9910c 24
SUNTRUST LEASING CORPORATION,
Lessor
By:
Name: Michael J. ers
Title: Secretary �f�o
Date:
This is counterpart No. 2 of 6 serially numbered, manually executed counterpar
this document. To the extent that this Lease Agreement constitutes chattel pap(
under the Uniform Commercial Code, a security interest in this Lease Agreeme
may be created through the transfer and possession of Counterpart No. I only,
without the need to transfer possession of any other original or counterpart or c(
of this Lease Agreement or any original or counterpart or copy of any exhibits,
addenda, schedules, certificates, riders or other documents and instruments exec
and delivered in connection with this Lease Agreement
1.)-uQLA - 4LU--;156
[PAGE TO BE REPLACED BY UCC FINANCING STATEMENT]
TO BE FILED ONLINE
2/11/2004:NBQ-FSC.DOC/rev. 10/99/cic 25
,C/_w 1-1— V--cUUZ:50
Form 8038-G
(Rev. November 2000)
Department or the Treasury
tntemal Revenue Service
Information Return for Tax -Exempt Governmental Obligations
► 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. 1545-0720
Reporting Authority _ if Amended Return, check here ► U
1
Issuer's name
2 Issuer's employer identification number
City of Lubbock, TX
3
Number and street (or P.O. box if mail is not delivered to street address)
Room/suite
4 Report number
162513th Street
3 01
5
City, town, or post office, state, and ZIP code
6 Date of issue
Lubbock, TX 79401
February 16, 2004
7
Name of issue
8 CUSIP number
Master Lease Agreement No. 01536 Schedule No. 05
n!a
9
Name and title of officer or legal representative whom the IRS may call for more information
10 Telephone number of officer or legal representative
Victor Kilman
( 806 ) 775-2164
Tvpe of Issue (check applicable box(es) and enter the issue price) See instructions and attach schedule
11 ❑ Education . . . . . . . . . . . . . . . . . . . . . . . . . . . .
12 ❑ Health and hospital . . . . . . . . . . . . . . . . . . . . . .
13 ❑ Transportation
14 ❑ Public safety. . . . . .
15 ❑ Environment (including sewage bonds) . . . . . . . . . . . . . . . . .
16 ❑ Housing . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17 ❑ Utilities . . . . . . . . . . . . . . . . .
18 Other. Describe 0-Various Equipment for City use
19 If obligations are TANS or RANs, check box ► ❑ If obligations are BANS, check box ► ❑
20 If obligations are in the form of a lease or installment sale, check box ►
11
12
13
14
15
16
17
18
1,641,145.02
•
Description of Obligations. Complete for the entire issue for which this form is beinq filed.
(a) Final maturity date
(b) Issue price
(c) Stated redemption
price at maturity
(d) Weighted
average maturity
(e) Yield
21
2116108
$ 1,641,145.02
$ 1,641,145.02
5 ears
2.00 %
•
Uses of Proceeds of Bond Issue(including underwriters' discount)
22 Proceeds used for accrued interest . . . . . . . . . . . . . . . . . . . .
23 Issue price of entire issue (enter amount from line 21, column (b)) . . , , , , . ,
24 Proceeds used for bond issuance costs (including underwriters' discount) , 24
25 Proceeds used for credit enhancement . . . . . . . . . . . . 25
26 Proceeds allocated to reasonably required reserve or replacement fund . , 26
27 Proceeds used to currently refund prior issues . . . . . . . . . 27
28 Proceeds used to advance refund prior issues . . . . . . . . . 28
29 Total (add lines 24 through 28) . . . . . . . . . . . . . . . . . . . . . . .
30 Nonrefunding proceeds of the issue (subtract line 29 from line 23 and enter amount here) .
22
23
1,641,145.02
29
30
1,641,145.02
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 . . . ►
years
32
Enter the remaining weighted average maturity of the bonds to be advance refunded . . . ►
years
33
Enter the last date on which the refunded bonds will be called . . . . . . . . . . . ►
34
Enter the date(s) the refunded bonds were issued No-
r7r,11M
Miscellaneous
35
Enter the amount of the state volume cap allocated to the issue under section 141(b)(5) 35
36a
Enter the amount of gross proceeds invested or to be invested in a guaranteed investment contract (see instructions) 36a
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 other governmental units 37a
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)(III) (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 . . . . . . . . . . . . . . . . . . . . . .
. 00. ❑
Under Ities of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge
and bdief, ey are true. joprrect, and complete.
Sign
Here
t "� L , k Interim C.F.O.
'
Signature of iss 's a th ized r presentative Date Type or print name and title
For Pape' rk Reduction otfce, ee page 2 of the Instructions. Cat. No. 637735 Form 8038-G
(Rev. 11-2000)